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Yes, we really do keep senior citizens behind bars

Court ruling leads to release of inmates who had been denied parole

Dan Rodricks

6:22 PM EDT, July 10, 2013

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One of the ironic consequences of the Maryland Court of Appeals' ruling in the matter of criminals sentenced to life in prison is that it undermines, with fine judicial reasoning, what two Democratic governors tried to keep in place with crass political considerations — that is, the denial of parole to longtime convicts who had earned release from prison.

Some of the inmates who are being released because of the court's ruling are in their 60s and 70s, and Marylanders might be surprised to learn that we really keep guys behind bars at those advanced ages. But many of those inmates might have been out of prison by now had it not been for Parris N. Glendening and Martin O'Malley.

More about the politics of parole in a minute.

First, about the law:

In its ruling last year, the state's high court held unconstitutional an old jury instruction that said the presumption of a defendant's innocence — and the state's burden to prove guilt beyond a reasonable doubt — was merely "advice" that jurors were free to reject.

Of course, it's not advice. The presumption of innocence is a constitutional mandate.

Maryland apparently didn't figure this out until 1980, when the Court of Appeals prohibited the "advice" instruction.

But it took another 32 years for the court to fully resolve this matter. It ruled in 2012 that the old instruction was unconstitutional, and we should have known better a lot sooner. The kicker is, the court made its ruling retroactive. That means it applies to any Maryland lifer who had been convicted before 1980.

And that triggered a series of agreements that will lead to the release of dozens of men and women who were convicted under that old, flawed instruction.

Many of those men and women are up in years and have been up for parole, some multiple times, during decades behind the walls. Some have been recommended for release by the Maryland Parole Commission, only to be denied by the governor at the time.

Here's where we get into the politics.

Maryland is one of just three states that allow their governors to veto parole commission recommendations, and over the past 20 years, two governors, Democrats both, have taken a hard line, adding political considerations to what should be an objective and deliberative extension of the criminal justice system.

Glendening admitted as much to me in an interview two years ago. He agreed that keeping lifers in Maryland prisons, denying parole even to the old guys who had been OK'd by the commission, had more to do with politics than with keeping the public safe.

As governor in the 1990s and early 2000s, Glendening effectively stopped all parole possibilities for criminals serving life sentences, including hundreds who had been eligible after decades in prison.

In an interview in 2011, nearly 10 years after leaving office, Glendening told me that his famous "Life means life" edict of 1995 left no possibility for any lifer to be released unless terminally ill.

"The problem is," he said, "I made it absolute." He said his edict made the parole process "much more political than it should be" and that he would "not have a problem" with a change in state law to remove the governor from that process entirely.

While in Annapolis, Glendening approved only one lifer for parole, and that fellow died shortly afterward of lung cancer.

His Republican successor, Gov. Robert L. Ehrlich Jr., was far more discerning and, ultimately, generous with parole; he released six lifers in four years.

But then O'Malley came into office. Ever eager to maintain his tough-on-crime persona, he steadfastly refused to approve those who had been recommended for release. One of them was 56-year-old Tarif Abdullah, imprisoned at age 21 for his connection to the fatal shooting of a drug dealer in Montgomery County. Abdullah died from liver cancer in prison in 2011, three years after he had been recommended for release by the parole commission — and denied by O'Malley.

O'Malley has denied parole in dozens of cases, granting it for only two inmates who were serving life terms.

Now a ruling by the Maryland Court of Appeals will effectively undo O'Malley's de facto ban on parole for lifers, some of the oldest prisoners in our system.

This isn't about feeling sorry for old guys, people who killed or raped way back in the day.

The court ruling is about upholding a constitutional mandate, however belatedly.

My focus on parole is about acknowledging that we have a system in place for assessing inmates who go into our prisons with the eligibility to one day be released. Having such a system means we believe in the possibility that people can change, or at least no longer pose a threat. If we don't like that system, then we should blow it up.

In the meantime, we should take politics — that means the governor — out of the process and let each inmate be judged on a case-by-case basis by the parole commission.

drodricks@baltsun.com

le commission.

drodricks@baltsun.com