About once a year, The Sun publishes an article that follows a certain formula: After a crime is committed or something tragic happens, a reporter learns that a judge previously declined to incarcerate the person involved. Sometimes it happens when a judge releases someone pending trial; other times it happens when a judge acquits a person or opts for probation instead of prison. What follows is an article implying that the judge made a bad decision and is therefore responsible for what went wrong. The article quotes officials from the mayor's office or the police department, who are happy to pile on.
The latest example came last week, when The Sun published an article criticizing a district court judge for releasing a person at a bail review who was subsequently shot and killed by police. It was followed by an editorial Monday saying the judge made a "bad call" and calling her "the prime example for why bail reform is necessary in Maryland."
I do not have a problem with criticizing judges when they do not follow the law. As a lawyer with the Maryland Public Defender's appellate division, it is what I spend most of my days doing. But blaming a judge under the circumstances highlighted in The Sun is neither fair nor reasonable, particularly because judges do not yet have the benefit of the "risk assessment tool" that the editorial board advocates.
As much as they might want one, judges do not have a crystal ball. Bail reviews and sentencings require a judge to make an educated guess about a person's future conduct, whether there is an unacceptable risk that he or she will endanger somebody. That is one of the most difficult decisions a judge is required to make, and no one will get it right every time.
In making such decisions, judges are required by the federal Constitution to abide by two important principles. The first, in the words of the Supreme Court, is that "[i]n our society, liberty is the norm, and detention prior to trial or without trial is the carefully limited exception." The second is that pretrial detention based on dangerousness is permitted only if there is clear and convincing evidence that it is necessary.
The most difficult cases are the ones where the evidence is somewhat contradictory. According to the recent Sun article, the judge at the bail review heard of drug dealing at a house, but there was scant evidence that the 18-year-old defendant was participating in it as opposed to merely being in the wrong place at the wrong time. Yes, the young man had other pending charges, but he was also in school. So the judge attempted to craft a release plan that would allow him to continue to attend school while placing him under supervision and a strict curfew. That it ended badly — when police shot the young man for allegedly brandishing a gun — is tragic. But that does not make the judge's decision wrong based on the information available to her and in light of the constitutional presumption against pretrial detention.
It is also worthwhile to consider the motives of the people who rush to criticize decisions as too lenient. With the benefit of 20/20 hindsight, such judicial decisions are an easy target. For city leadership struggling to reduce the homicide rate, judges — who often cannot speak publicly about cases or defend their decisions —are convenient scapegoats.
But the greatest danger of such unfair attacks on the judiciary is that they usually only go in one direction. No one writes about people who are released without incident and are able to maintain employment or keep going to school as a result. Judges who take seriously our society's commitment to individual liberty, and who seek alternatives to incarceration, get lambasted in the media when something goes wrong. Judges who are unduly harsh, however, and who err on the side of imprisonment — with all the damage that wreaks on individuals and families — rarely are rebuked.
In short, if you want to avoid criticism, incarcerating people is usually the easy way out. Leniency, mercy, compassion — these take courage.
Brian Saccenti is chief attorney of the appellate division within the Maryland Office of the Public Defender; his email is BSaccenti@opd.state.md.us.