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An injustice corrected

Today, judges instruct juries in criminal cases that they must presume the defendant is innocent and must hold the state to its burden of proving guilt beyond a reasonable doubt. These are the fundamental rules of our criminal justice system.

Before 1980, however, judges in Maryland told jurors that the jurors, not the judges, were the judges of the law, and that anything the judge said about the law was advisory only. The two fundamental rules, as well as all others, were not binding on the jury. Instead, every jury was invited to be its own constitutional convention.

In 2012, in Unger v. State, the Maryland Court of Appeals finally recognized that this jury instruction produced trials that were structurally flawed and fundamentally unfair. It reaffirmed the unconstitutionality of the jury-decides-the-law jury instruction and held, as the law required it to do, that the ruling applied retroactively to anyone who was convicted before 1980. As a result, approximately 200 people locked up in prison are entitled to new trials.

The question today in Maryland is not, "Isn't it outrageous to give new trials to, or to free, 'murderers' convicted three, four or five decades ago?" Instead, it is "How, consistent with our most basic constitutional values, could we have convicted and incarcerated these men for three, four or five decades based on trials in which judges told juries to make up their own legal rules?"

Who are these approximately 200 prisoners? Overwhelmingly, they are African-American males, convicted by juries from which African-Americans and women had been systematically excluded.

They are old or soon to be old men. In the 14 hearings held so far in Baltimore City, several came to court in wheelchairs or supported by canes. Many have acute health problems. They are hands-down the most expensive prisoners in the Maryland prison system.

Many were convicted when they were young — some as young as 15, 16 or 17 — and have grown up in prison. Most have become peaceful adults and high achievers, earning GED degrees, bachelor degrees, and some graduate degrees, before Congress in 1994, as part of its "Contract With America," abolished Pell grants for prisoners. The vast majority have worked, taken vocational courses, and participated in a broad variety of programs.

All were sentenced to life with parole, with the expectation, based on the policies and practices of the day, that if they did what they were supposed to do, and demonstrated that they would not endanger society, they would be paroled in 20 years or so. In 1993, many were on work release, a step away from parole. That all changed when a life-sentenced prisoner on work release killed his girlfriend and then himself. All of the lifers were immediately returned to prisons, which is where they remain today, ineligible for work release and effectively ineligible for parole.

Most were convicted of felony murder, which does not require intent, premeditation, recklessness — or even that you were the killer — for conviction.

Most have supportive families, and all will have carefully developed release plans before they will be set free.

All, I believe, are entitled to new trials under Unger. In Baltimore City, a number have won new trials.

Which brings me to these questions: Is retrying men who have demonstrated in prison that they are fully rehabilitated, for homicides that occurred in the 1960s or 1970s, a wise expenditure of today's limited prosecutorial resources? Is it the right thing to do? Should these cases have the same priority as today's murder cases? Will contemporary juries convict these men again?

Gregg Bernstein, the Baltimore City state's attorney, has adopted a more logical approach. Prisoners give up their Unger claims, agree to accept their murder convictions, agree to a period of probation, agree that if they violate probation they can go back to prison, and agree to produce a post-release plan that assures they will have the structure they need to live lawfully in the community. In return, they will be sentenced to "time-served."

None of this diminishes the awful losses of the victims' families. They have given powerfully moving testimony about their losses and the continuing effects today of the homicides on the children and grandchildren of the victims.

Their testimony cannot, however, retrospectively cure the fundamental legal error in the original trials or answer the question: why aren't three, four, or more decades of incarceration enough punishment?

When people soberly and fairly consider the interests at stake, I trust that they will see that the approach we are taking is the best approach, or at least understand why we are taking it.

It not only is consistent with public safety, it corrects decades-old, and historically shameful violations of the rule of law.

Michael Millemann is a professor of law at the University of Maryland-Carey School of Law. He and his colleagues and law students represent a number of prisoners who have legal claims under Unger v. State. His email is mmillem@law.umaryland.edu.

Copyright © 2014, The Baltimore Sun
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