About a year ago, I started the Juvenile Justice Project at the University of Baltimore School of Law. The clinic represents clients who are serving life sentences for crimes that occurred when they were children. Most of our clients had been in prison for over 20 years when the Supreme Court issued a series of decisions acknowledging what common sense and neuroscience make clear: Children are different. Because adolescent brains are not fully developed, young people do not appreciate risks, resist peer pressure or understand the consequences of their actions in the same way adults do. On the positive side, that developing brain makes juveniles more likely than adults to mature and change over time —to become, in penological terms, "rehabilitated."
In the most recent of these cases, Montgomery v. Louisiana, the Supreme Court held that clients like ours — serving life sentences for crimes committed when they were juveniles — are entitled to a "meaningful opportunity for release." That is, all but the rare "irreparably corrupt" juvenile offender should be given a chance to be released. For most, that opportunity for release will come in the form of a parole hearing. Given that there is no right to counsel in hearings to obtain parole, we saw an unmet legal need. And because the work would provide students good opportunities to develop their lawyering skills, we thought this would be an excellent clinical experience for students. We've met our educational goals with this project, but guaranteeing that meaningful opportunity for release for our clients has proven much more challenging.
Our typical client is someone who was convicted or pled guilty to a serious crime that happened when he or she was 14, 15 or 16. Older co-defendants often played a more central role in the crime. We regularly have serious doubt about whether our clients committed the crimes for which they were convicted after carefully reviewing the records in these cases. The crimes are heinous, the loss of life is real, but most of these cases were tried in the 1980s before the neurological studies had been done. Indeed, juveniles were viewed as especially dangerous and unredeemable. Cases were built around a single eyewitness or "confessions" now viewed as unreliable and before DNA evidence was available. Moreover, those who pled guilty often did so based on advice from their lawyers that they would be required to serve 15 to 20 years and would then be released as long as they had a good record in prison and didn't pose a threat to safety. Our clients come to us with those excellent records, having taken advantage of the limited programs available in Maryland's prisons, created new programs, helped young people learn from their mistakes both within and outside the prison walls. But the promise of parole remains illusory in Maryland for several reasons.
First, despite the critical importance of parole in deciding legal questions concerning liberty, lawyers are almost completely absent from the parole process in Maryland. This is because inmates cannot afford them and because the rules and policies governing the "process" exclude them. Lawyers cannot attend hearings, there is no record of the proceedings, no real written decisions and no right to appeal.
But perhaps the most insurmountable barrier to the "meaningful opportunity for release" promised by the Supreme Court is the requirement that the governor "sign off" on parole for anyone serving a life sentence, including those whose crimes were committed as children. While there are some signs Gov. Larry Hogan might be willing to parole those serving life sentences, we believe only two of the thousands of people serving life with parole sentences in Maryland's prisons have been paroled since 1995. And, even if a handful more are paroled during this governor's term, Governor Hogan and any future governor has unlimited discretion to accept or deny the Maryland Parole Commission's recommendation.
Requiring the governor's signature also politicizes the parole process, which is perhaps why Maryland is one of only three states (California and Oklahoma) that still requires the gubernatorial signature to grant parole for parole eligible persons serving a life sentence. With more than 2,000 people currently serving life sentences with the possibility of parole within the Maryland prison system, state taxpayers have likely spent millions of dollars incarcerating people who could be safely released back into society within the parameters of parole.
Efforts to reform the parole process in Maryland are underway in both the court and the legislature. We urge decision makers to take a close look at this system and address the many barriers to sensible and just policy.
Jane C. Murphy is the Laurence M. Katz Professor of Law at the University of Baltimore School of Law. Email: firstname.lastname@example.org; Twitter: @familylawprof.