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Letting incarcerated cancer patient out of prison would show mercy and still uphold justice | COMMENTARY

Inmates pray during a worship service at a Maryland prison.
Inmates pray during a worship service at a Maryland prison. (Kim Hairston / Baltimore Sun)

There are things to think about that are unquestionably more beautiful and uplifting than the plight of a 64-year-old prison inmate with advanced liver cancer. I could use this space to describe the trill of a thrush I heard Sunday evening in the woodlands along the Gunpowder River. I could tell you about the kaleidoscope of butterflies that suddenly rose from the trail during our hike, or the spooky mist that appeared on the river at sunset.

But, as much as I would prefer to contemplate things of beauty in a world so often ugly and upside down, I come to Robert Smith because, even at the far end of society’s spectrum, among the scorned and forgotten, there’s the possibility of mercy.

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And we should champion mercy when, as Shakespeare put it, “mercy seasons justice.”

Just before the weekend, a letter arrived from Smith’s distressed attorney telling of his pitiable condition. So, instead of a late spring sojourn in water and woods — something I might gladly share some other day — we will imagine a cinder block cell in Hagerstown and hear the case of a man who should be allowed to come home to die.

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Marilyn Mosby, the Baltimore State’s Attorney, just submitted a request that a judge of the Baltimore Circuit Court grant that relief for Smith. But, even without such an official act by the city’s chief prosecutor, there’s a story here that Marylanders should know. It’s what we do in the news trade — tell you about things you can’t see for yourself, matters of public interest that occur on the less luminous side of the criminal justice system.

Until the other day, when I started reading court documents, I knew nothing about the crime that sent Smith to prison for life 37 years ago. He was convicted in 1984 of a drug-related homicide that occurred in Baltimore two years earlier.

I have done a lot of reflecting lately on my time here, writing stories about the city. I think back four decades, after Harborplace opened, when the city was in its self-declared renaissance. In the years since, the number of murders related to the commerce in heroin is beyond sad and almost beyond comprehension, even though we lived through it.

Thousands of people have died from the gunfire that accompanied the drug trade, and hundreds have gone to prison for murder. It happened in the 1980s, the 1990s, and all through the first two decades of the 21st century. It’s still happening. Baltimore has been through an epoch of violence as constant as a river, and Robert Smith was one of hundreds of young men swept into the current and gone from sight.

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He has always insisted he was innocent and the record shows that he made many failed attempts in the court to challenge his conviction. His most recent attorney, the former Maryland public defender Nancy Forster, thinks he’s innocent. “But that is neither here nor there,” she says.

And that’s because of the pressing matter of Smith’s health. He was diagnosed with cancer three years ago, according to Annette Cohn, his wife. Smith requested medical parole in 2019 but was denied consideration by the Maryland Parole Commission; the commission said it would revisit the case if Smith’s condition worsened.

By September 2020, it had.

In fact, a doctor with the University of Maryland Medical Center concluded that the cancer had advanced to stage 4, “terminal and incurable.” The goal of treatment, the doctor stated, would be “palliative in nature to minimize symptoms and extend his life.”

Nearly 10 months later, however, Smith remains incarcerated at the Maryland Correctional Training Center in Hagerstown.

Just last week, a Baltimore Circuit Court judge, unconvinced that Smith faced imminent COVID-19 infection in prison or that he had a sufficient plan for care at home, denied his request for release.

That’s why Forster contacted me. The judge’s ruling was particularly distressing, she said, because Mosby’s office had agreed that Smith presented no danger to the community and had served significant time in prison.

But that’s not the end of the story.

The effort to get Smith out of prison continued this week, with Mosby joining Forster in a joint motion that asks another Circuit Court judge to consider reducing Smith’s sentence from life plus 10 years to time served plus five years of unsupervised probation. The motion was filed by Becky Feldman, a former deputy state public defender now serving as chief of Mosby’s sentencing review unit.

The same reasons are cited: Smith is terminally ill, has been in prison since he was 25, has not had a prison rules infraction in 18 years, no longer poses a threat to others. (You’d think that “terminal and incurable” cancer alone would be enough to convince a judge to modify Smith’s sentence.) If the motion fails, Smith’s advocates will likely try again for medical parole.

The state says it made exhaustive efforts to locate kin of Smith’s victim, but without success. Given the passage of time and the circumstances, would they oppose Smith’s release? It’s impossible to know.

But I think this is clear: Robert Smith was held responsible for the crime. Since his arrest in 1982, he has served close to 40 years. His time is short. Justice in this case will not be diminished by the small act of mercy that would send him home.

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