With the end of mandatory minimum sentences for repeat drug dealers in Maryland on Sunday, hundreds of prisoners may now ask judges to shorten their terms.
Nearly 500 people incarcerated around the state may seek sentence reductions under the Justice Reinvestment Act, a sweeping package of criminal justice reforms approved by the Democrat-controlled General Assembly last year and signed by Republican Gov. Larry Hogan.
Now public defenders are preparing to file motions on behalf of inmates as early as Monday. Prosecutors are reviewing cases, and identifying those in which they might want to object to early release.
The busiest jurisdiction for motions is likely to be Baltimore County, responsible for more than a third of the prisoners at issue.
“We believe drug dealers are very dangerous and we always pursue a mandatory minimum,” Baltimore County State’s Attorney Scott Shellenberger said. “I believe that with many, many drug dealers, violence comes with it.”
But the repeal of mandatory minimum sentences reflects growing bipartisan concern that they pressure defendants into taking plea deals, take discretion away from judges, and have a disproportionate impact on minorities.
Eighty-one percent of those sentenced in Maryland to a mandatory minimum between 2013 and 2014 were black, according to a report of the Justice Reinvestment Coordinating Council, a state panel that studied options for criminal justice reform.
“The concept that the system can jail its way out of a drug scourge has been shown to be a massive failure,” Maryland Public Defender Paul DeWolfe said.
DeWolfe, whose office is expected to handle the vast majority of the motions, added that many people pleaded guilty to crimes “for fear that [they would] end up with a mandatory sentence” if they went to trial.
Before Sunday, repeat offenders of drug dealing crimes were subject to mandatory sentences with no chance of parole: 10 years for second-time offenders, 25 years for third-time offenders and 40 years for fourth-time offenders.
The new law repeals those minimums, and allow those already serving them to seek shorter sentences.
Most of those now eligible for reconsideration — roughly 80 percent — are serving 10-year sentences, according to the public defender’s office.
Nationally, mandatory-minimum sentencing became popular in the 1980s, fueled by a rise in violent crime and the crack epidemic.
“It was a time of fear,” said Kevin Ring, president of Washington-based Families Against Mandatory Minimums. “And so it was a kitchen-sink approach: ‘We’ll do anything we can to try to address the problem.’”
Baltimore had its own debate about mandatory minimums this year, when Mayor Catherine Pugh proposed automatic one-year jail sentences for people who carry guns illegally.
The City Council voted in September to approve a version that would apply the mandatory sentence only on a second offense or if the defendant was carrying a gun in connection with a crime against a person or property. State law already requires the one-year term on a second handgun-possession offense.
Lawmakers in Washington and around the country are rethinking mandatory sentences for drug crimes. More than a third of the states have changed penalties for drug crimes in the past five years, according to the National Conference of State Legislatures.
Alison Lawrence, the criminal justice program director at the National Conference of State Legislatures, says support for change has been bipartisan. She pointed to several reasons. Some lawmakers want to rein in the size of prison population. Some want to hand discretion back to judges. Some are concerned that mandatory minimum sentencing has not differentiated between the big fish in the drug trade and the small fish.
Also, Lawrence said, “there are many legislators across the country that believe in redemption.”
The Trump administration has urged a return to tough prison terms for drug offenders. Attorney General Jeff Sessions this year rescinded Obama administration policies that directed federal prosecutor to back away from mandatory minimums.
“We’re seeing an increase in violent crime in our cities — in Baltimore, Chicago, Memphis, Milwaukee, St. Louis and many others,” Sessions said in announcing the change. “The murder rate has surged 10 percent nationwide — the largest increase since 1968. And we know that drugs and crime go hand-in-hand. Drug trafficking is an inherently violent business. If you want to collect a drug debt, you can’t file a lawsuit in court. You collect it by the barrel of a gun.”
Sessions said federal prosecutors “deserve to be un-handcuffed and not micro-managed from Washington.”
“Charging and sentencing recommendations are bedrock responsibilities for any federal prosecutor,” he said. “I trust our prosecutors in the field to make good judgments.”
Ring, of Families Against Mandatory Minimums, said Sessions is working against progress. He said no studies have shown that mandatory minimums reduce crime.
“The trend is away from these one-size-fits-all sentences,” he said. “But that trend has been interrupted by the selection of someone as attorney general who is one of their most ardent supporters.”
Of the 490 sentences eligible for reconsideration in Maryland, 174 are in Baltimore County, according to the Maryland public defender’s office. That’s more than 35 percent of the potential caseload, from a county with less than 14 percent of the state’s population.
Baltimore has 42 potential cases. A spokeswoman for State’s Attorney Marilyn J. Mosby said prosecutors are working with the public defenders office to “proactively review cases that may qualify for incarceration adjustments.”
Prosecutors also have received training on the Justice Reinvestment Act, spokeswoman Melba Saunders said.
“We support any efforts that provide nonviolent drug offenders a second chance at a productive and fruitful life, as this law now does,” she said.
Other jurisdictions in the Baltimore region have fewer potential cases: There are 16 cases in Anne Arundel County, six in Carroll and eight each in Harford and Howard counties.
Because Baltimore County has so many cases, Chief Administrative Judge Kathleen Cox has met with DeWolfe and Shellenberger in an effort to streamline the process so hearings can be scheduled as soon as possible.
At those hearings, prosecutors and defense attorneys will be able to present arguments before a judge decides whether to modify a sentence.
Shellenberger agreed to have his office review cases ahead of time. He said prosecutors will object to requests to shorten sentences if defendants were found with a gun or had violent or gun-related crimes in their background. Of the first 90 cases reviewed, he said, the office plans to object to sentence modifications in nearly 60 percent.
Prisoners will have until Sept. 30, 2018, to file motions seeking reconsideration of their sentences.
Drug dealers who are considered “kingpins” under Maryland law will still face mandatory minimums. Mandatory minimums remain in place for violent crimes, including an automatic 5-year sentence for the use of a gun in a felony.
The Justice Reinvestment Act was approved by the General Assembly with bipartisan support. Other provisions that take effect Sunday include changes to how parole violations are handled and good-time credits are counted. More people will be able to expunge certain charges from their records.
The act reduces penalties for misdemeanor theft and eliminates differences in the way crack and powder cocaine are considered. And it places more emphasis on substance-abuse treatment.
It increases penalties for some crimes. Second-degree murder will now carry a maximum sentence of 40 years, up from 30.
A driving concept behind the repeal of mandatory minimums — and the Justice Reinvestment Act overall — was to “individualize the system,” state Sen. Michael Hough said.
The Frederick County Republican, a member of the Senate Judicial Proceedings Committee who worked on the Justice Reinvestment Act, said he supports mandatory minimums for certain violent offenses. But with lower-level drug offenses, he said, “there’s at least a pretty broad agreement that a lot of time, we’re levying punishments that don’t fit the crime.”
Walter Lomax, who heads the Maryland Restorative Justice Initiative, said he is hopeful that the new law will let judges take a second look at the details of a defendant’s case.
With mandatory minimums, he said, “judges didn’t have the discretion.”
“And in a lot of instances there may have been greatly mitigating circumstances as to why that individual was involved in a particular crime.”
Inmates eligible for reconsideration of drug sentences
Anne Arundel 16
Baltimore City 42
Baltimore County 174
Prince George’s 3
Queen Anne’s 3
Source: Maryland Office of the Public Defender