In Baltimore's crime blame game, judges are the top target

With exceptional violence raging across Baltimore, many top officials have started pointing fingers of blame toward city judges.

Baltimore Police Commissioner Kevin Davis likened the situation this week to a game of baseball: Detectives and prosecutors are generally doing their jobs and getting criminal cases “to third base” and from there, Davis said, law enforcement is counting on the judiciary to bring cases home by imposing impose tough sentences.

“When we find ourselves at third base in our criminal justice system, we have to count on our judiciary to hold people accountable for their actions,” he said.

Police brass have spent the summer highlighting that point, citing fairly arcane data showing defendants convicted of gun crimes in Baltimore often have more than half of their sentence suspended. The critique has been adopted by Baltimore Mayor Catherine Pugh and Maryland Gov. Larry Hogan, who also fault judges for refusing to meet with them to explain themselves.

It’s the latest debate over the proper role of the judiciary in fighting crime, one that has played out many times across the country when concerns about crime have swelled and the public and politicians look for someone to hold responsible.

“This is the classic dance,” said Douglas Berman, an Ohio State University law professor who writes a blog on sentencing.

The judiciary is an independent branch of government designed in Maryland to be largely insulated from politics. But Berman said judges shouldn’t refuse to explain their decisions or take part in public conversations about crime.

“My perception has been the more the judiciary is involved in discussions about sentencing, the more consensus builds,” Berman said.

Opposing Pugh and Hogan are Chief Judge Mary Ellen Barbera and Attorney General Brian Frosh, who argue that the judiciary needs to remain above the political fray.

“They are supposed to be the impartial folks who make these determinations,” said Frosh, a Democrat. “We have a problem in our country, led by the White House, of disrespect for the judiciary and disrespect for the rule of law. I think that’s the last thing we want to do in the state of Maryland.”

The debate took on a higher profile this week when Hogan called for judges to have their say at a closed meeting in his Baltimore office. They declined to attend.

“They are a major part of the criminal justice system. We wanted to hear their input,” Hogan said. “Why do they think that these same folks are arrested 11 times or 13 times, and why are they still on the streets shooting people? I think because they’re not being sentenced to jail. That’s why they’re on the streets.”

Violent crime is up across the board in Baltimore this year and so far 2017 has been among the deadliest years on record. More than 230 people were killed through August, a figure not seen since the 1990s when the city was far larger.

“The only way we are going to solve the Baltimore City crime crisis is if all levels of government work together and communicate about what is working and what clearly isn't working,” Hogan spokesman Doug Mayer said in an email. “The governor will never stop asking tough questions and demanding accountability from Maryland’s public servants — our citizens deserve nothing less.”

Berman, the law professor, said he understood why the Baltimore judges wouldn’t attend a meeting where they could expect to be pressured to be tougher. But he said it would be appropriate for them to share their opinions on stiffer sentences or mandatory minimums based on specific cases they have heard in their courtrooms.

“Judges are in a position to speak to politicians and explain in a very direct way, ‘Here’s the challenges we face,’ ” he said. “Everybody involved in our legal system has a distinct perspective on what is inevitably a very challenging decision-making process.”

But he acknowledged that might be a controversial view that could leave judges exposed to claims that they were forming opinions on cases out of court. Others would offer the position, Berman said, that “not only should justice be blind, it should also be mute.”

While Circuit Court judges in Maryland face election, they do so only rarely and are almost never beaten by challengers at the polls.

In some states voters have more power over the judiciary, and in those where judges face competitive elections, researchers have found they’re more inclined to hand down harsher sentences as elections draw near.

The police data that triggered the debate in the first place is laden with caveats and technical language. It’s this: Judges suspended at least half the sentence of 60 percent of defendants convicted in gun cases since the beginning of 2016.

While in some of those cases defendants did indeed serve little or no prison time, others still faced a decade or more of behind bars, police data shows.

But as the debate has raged, that nuance has sometimes been lost. For example, in a radio appearance Thursday, Hogan, a Republican, said "the ones who are convicted, 60 percent of them are on the streets on probation.”

The judiciary has engaged in the debate in a limited way. Barbera wrote an op-ed in The Baltimore Sun on Thursday and released a letter explaining why judges wouldn’t attend Hogan’s meeting. She declined to be interviewed Friday.

In the op-ed, Barbera tried to explain the sentencing situation more fully, saying sentences that include jail time up front and suspended time later allowed judges to keep convicts under supervision after being released through probation.

She said judges shouldn’t be blamed for Baltimore’s crime problems.

“The narrow interpretation given to the data set that has been the subject of recent publicity fails to recognize the important and rational objectives of using suspended sentences and probation,” she wrote. “Those objectives include both public safety and the recognition that incarceration is not a permanent solution to altering criminal conduct.”

Though judges rule on a sentence, a Baltimore lawyer pointed out that prosecutors play a significant role in the ultimate decision. Jeremy Eldridge, a former Baltimore prosecutor who is now in private practice, said prosecutors decide whether to invoke mandatory minimum sentences or enter into plea deals.

“Our general rule of thumb is to recommend jail time for misdemeanor gun possession cases in District Court,” said Melba Saunders, a spokeswoman for the Baltimore state’s attorney’s office. “When it comes to felony cases in Circuit Court, we generally advocate for sentences that fall within and beyond the sentencing guidelines. While the judicial process allows us to argue our sentencing recommendations in open court, the bench has the ultimate authority to impose adequate sentencing.”

Eldridge said judges are being criticized unfairly.

“It’s absurd to blame the judges” for suspended sentences, he said. “It’s completely understandable why the judiciary, which is supposed to be unbiased, is somewhat offended.

“The governor is just looking for an explanation. But it’s not the judges who are responsible for invoking mandatory minimums and entering into plea negotiations.”

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