Freedom earned, withheld [Commentary]

In the lead story on the front page of The Baltimore Sun Wednesday, police union officials said they were troubled to learn of the release from prison of Marshall "Eddie" Conway, a former Black Panther who was convicted of killing a city police officer 44 years ago. Many people believe that he was wrongly convicted in the first place.

What's more troubling is that it took so long.

Nearly two years ago, in May 2012, the Maryland Court of Appeals held in the case of Unger v. State that certain criminal convictions prior to 1980 were invalid because jurors were given an unconstitutional instruction that denied the defendants a fair trial. The offending instruction allowed the jury to ignore fundamental rights, including the presumption of innocence and the need for a unanimous verdict based on facts proved beyond a reasonable doubt.

From time to time we have heard from news reports that some inmates have been released from Maryland prisons on the basis of the Unger ruling. The fact of the matter is that hundreds of Maryland prisoners are entitled to be released. The public needs to know two facts about this group:

First, all of the prisoners entitled to release have already been in prison for more than 30 years. It is not as if they will escape any punishment.

Second, virtually all of the prisoners eligible for release are over 50 years old, so they are not likely to be particularly violent or dangerous anymore. It also means that if we continue to hold them, we tax-payers will have to pay extra for prisons that provide geriatric care.

Our criminal law system has become lawless in dealing with these cases. It is bad enough that it took our courts over 30 years to conclude that these roughly 200 prisoners are being held without a valid conviction. Now, the Maryland Office of the Public Defender and some of the various state's attorneys offices are processing these matters so slowly that many prisoners will have had their unlawful imprisonment extended for an additional two years or longer.

The law is clear, if a conviction was unfairly obtained, it is invalid. If it is invalid, the state has no authority to imprison the defendant without recharging him and allowing him a bail hearing. A simple motion to vacate the convictions and the sentences should be summarily granted, and the prisoners should be released unless denied bail after the prosecutor has decided to retry the case — a decision that should be made with the utmost expediency.

What is taking two years? It seems that the lawyers — both the prosecutors and the defense attorneys — are negotiating these cases one by one, and the public defenders have not even filed a motion for relief in many cases. What are they looking at? A prisoner qualified for release has told me that the public defender has asked for an interview to review whether he has a stable family and a release plan. They also want to know the state of his mental health and his record within the prison. These all may be relevant facts for parole consideration, but he does not need to be paroled; he simply needs to have his claim of unlawful imprisonment determined, and it can easily be determined by reading his trial transcript from 1976 to find that the unlawful instruction was given to his jury. If we are concerned about post-release problems raised by these releases, we should fund appropriate services.

In Baltimore City few prisoners have been released solely on Unger grounds. Most have been required to plead guilty to the old charge and to take a modified sentence. This allows immediate release, but it eradicates their claim of unlawful imprisonment and places them on post-release supervision, which could not be imposed if the prisoner were released because he did not get a fair trial. I understand that the prosecutor will appeal and delay the release if the prisoner declines the plea and demands a new trial.

As a member of the bar, I am ashamed of the lawyers who are engaged in these practices. It diminishes our claim of being the world leader in human rights.

Frank Dunbaugh was a lawyer within the Civil Rights Division of the U.S. Department of Justice from 1958 to 1978. Since leaving the DOJ, he has advocated for justice throughout Maryland and for the past decade has been an active supporter of a think tank made up of six senior prisoners who are working on a Peace Initiative to reduce violence both in the prison and in the streets at the Jessup Correctional Institution. His email is

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