I write as the leader of Maryland’s judiciary to provide the public with information that I hope builds a greater understanding of the role of the judiciary in the criminal justice system. Members of the judiciary take a solemn oath to uphold the Constitution and our laws by applying them to individual cases. In criminal cases, judges neither prosecute nor defend, nor do they investigate or enforce. To be fair and impartial in every case, judges are not to be predisposed to a particular outcome; they must be neutral and weigh the evidence introduced by both the prosecution and the defense. In addition, to be fair and impartial, judges cannot make promises about how they might sentence in a specific case or a type of case that may come before them. If the decision is to be fair and impartial, judges must make decisions that sometimes are unpopular. Sentencing in criminal cases demands difficult decisions by judges.
Much about sentencing is misunderstood, as the recent controversy regarding the issue of suspended sentences demonstrates. The use of this term implies that a defendant who is given a “suspended sentence” is excused from serving jail time. In fact, over 90 percent of the cases in the data set that has been referenced widely in the press involve “split sentences.” A split sentence occurs when a defendant is sentenced to a period of incarceration and part of that period of incarceration is suspended. A split sentence results, for example, when an individual is sentenced to 10 years’ imprisonment, with five years suspended, and three years of probation effective upon release. Although part of the sentence is “suspended,” the defendant serves jail time.
A split sentence is a tool used to craft a sentence appropriate to the individual defendant based on a number of considerations. The judge takes into account the charge for which the individual is being sentenced, the defendant’s prior record and the likelihood of rehabilitation. The state’s attorney, counsel for the defendant and any victims participate and are heard at sentencing.
Probation entails a period of supervision after release. Managing the transition from jail back to the community upon release is crucial to the safety of the community and to the likelihood of future success for the offender. The suspended portion of the sentence is used to incentivize the defendant’s compliance with the terms of probation. If the defendant violates probation, a judge may impose part or all of the suspended sentence. Without suspended time, it is not possible to place a defendant on probation, which means that the defendant cannot be supervised in the community upon release.
The narrow interpretation given to the data set that has been the subject of recent publicity fails to recognize the important and rational objectives of using suspended sentences and probation. Those objectives include both public safety and the recognition that incarceration is not a permanent solution to altering criminal conduct. Split sentences hold individuals accountable when transitioning back to the community.
There is no question that the violence in Baltimore City is tragic. The use of split sentences by judges, however, is not the cause.
Mary Ellen Barbera is chief judge of the Maryland Court of Appeals.