There is a push against a Maryland law letting violent convicts leave prison early for drug treatment.
In February 2017, armed robber Sheirod Saunders had served less than three years of an eight-year prison sentence when a judge ordered him released to a drug and alcohol rehabilitation center in Baltimore.
Saunders promptly escaped from the unsecured facility, authorities say. He scooped up bags holding the belongings of other patients, they say, ran out the front door, jumped into a light green car and headed off. They’ve been searching for him ever since.
Across the state, dozens of inmates convicted of violent crimes — carjackings, shootings and attempted murder — are using a Maryland law intended to help addicted offenders get drug treatment to win early release, sometimes years before they are eligible for parole. Now some officials are objecting.
“We have very serious, high-risk offenders receiving sentencing modifications and absconding from treatment,” says Lisa Smith, director of policy and legislative affairs for the Baltimore State’s Attorney’s Office. “That is a very serious public safety concern for us.”
More than a decade ago, the Democrat-controlled Maryland General Assembly and Republican Gov. Robert L. Ehrlich Jr. approved bipartisan legislation to strengthen a program that allowed inmates with addictions to leave prison early to enter residential treatment. While the legislative push centered on helping nonviolent offenders, parts of the legislation made no distinction between nonviolent and violent crimes.
But as the opportunities for treatment have grown, prosecutors are now ringing an alarm bell: They’re objecting to judges’ shortening the sentences of violent offenders.
In the last fiscal year, 152 people convicted of violent crimes were released from prison early through what the legal community calls the 8-505 or 8-507 program, after the laws that authorize evaluations and drug treatment instead of incarceration.
The offenders are supposed to remain in treatment, often for several months, and then typically are released under state supervision. But the treatment centers are not secure facilities, and the convicts routinely abscond. In the past five months, 47 of 164 individuals placed into treatment facilities went missing, state records show. State health officials couldn’t say if any have been located.
City prosecutors cite a list of violent convicts, including an armed carjacker who left his victim bloodied and a young man who beat a homeless man in a “vicious assault,” who were allowed to leave prison for treatment.
In Maryland, violent offenders typically are required to serve half their sentences before they are considered for parole. An analysis of cases involving violent crimes shows those defendants were released to treatment beds after serving only a third of their sentences.
A man convicted of first-degree burglary in Baltimore was released to treatment after serving one year of a six-year sentence.
Another man convicted of armed robbery in Baltimore was released to treatment after serving less than two years of a 23-year sentence.
Inmates convicted of breaking and entering in Howard County, armed robbery in Talbot County, and a shooting in Frederick County all served less than 20 percent of their sentences before being released to treatment.
“I’m not sure the public is aware of this,” says Smith, of the Baltimore State’s Attorney’s Office. “The former legislature didn’t necessarily contemplate it being used this way.”
Gov. Larry Hogan, a Republican, introduced legislation this year that would make violent offenders wait until they are eligible for parole before they may be released for treatment.
According to Maryland’s Department of Legislative Services, the 152 inmates convicted of violent crimes who received court-ordered releases through the program last year got out of prison an average of nearly four years earlier than they would have otherwise.
“A largely unknown and secretive legal loophole that allows violent criminals out of jail before they are even eligible for parole is extremely dangerous and needs to be ended immediately,” says Doug Mayer, Hogan’s spokesman. “This is a worthwhile program, but it is being abused in ways the original supporters and most Marylanders could have never imagined.”
Hogan has increased funding for the program and cut down on wait times to get into treatment beds. In the past two years, the program’s size has grown from 500 beds to more than 700. The average wait to get a treatment bed has dropped from nearly six months to less than 21 days.
As the program has expanded, prosecutors say, word has gotten around in the jails and prisons that it’s a way to get out from behind bars quickly.
“A lot of the offenders view this as a get-out-of-jail-free card,” said Calvert County State’s Attorney Laura L. Martin, president of the Maryland State’s Attorneys’ Association.
She says she’s seen an increase in motions for release from violent offenders.
“We listen in on calls from inmates. A lot of the comments from the inmates are, ‘I’m just going to say I have a drug problem and I’m going to get out early,’ ” Martin says. “The reason we like the governor’s bill is because it keeps violent offenders where they should be and it frees up space for nonviolent offenders.”
An inmate sentenced to 40 years in prison for attempted second-degree murder was recorded on a phone call while in holding in Anne Arundel County, speaking of his plans to use the program to get out quickly.
“Everybody in the world qualifies for 8-505,” he said on the recording, a copy of which was obtained by The Baltimore Sun. “Never want to use your 8-505 unless you’re really getting some time. …. I’ll tell them I use drugs … 6 months in drug program and come home.”
State Sen. Robert A. (Bobby) Zirkin, the Baltimore County Democrat who chairs the Senate Judicial Proceedings Committee, included language from Hogan’s bill that would limit the people who get access to treatment beds in legislation he’s pushing to combat violent crime.
Zirkin noted that every treatment bed that goes to an offender convicted of a violent crime is one fewer bed for a nonviolent offender.
Baltimore State’s Attorney Marilyn J. Mosby agrees.
“Unfortunately, my prosecutors have routinely seen violent repeat offenders released to treatment facilities,” she wrote in a letter to Zirkin. “We have seen … defendants released to a treatment facility even though they have committed violent heinous crimes such as Attempted 1st Degree Murder, Carjacking, 1st Degree Assault and Armed Robbery.”
“I support offenders who want to break the cycle of addiction. However, violent repeat offenders must be held accountable for their behavior; these criminals have no place in our communities.”
The Maryland Public Defender’s Office opposes blanket restrictions on eligibility for treatment beds.
Christine DuFour, a felony trial attorney for the office, said eligibility should be determined case by case. She said the legislation would limit judges’ authority.
“We’re obviously very in tune with the needs of our clients,” DuFour said. “So many of our clients have addiction issues. We want the judges to have the discretion to get an evaluation of whether someone is amenable to treatment. We’re for permitting the court to maintain the ability to consider whether or not to order that person to treatment.”
Caryn York, director of the Baltimore-based Job Opportunities Task Force, said it doesn’t make sense to draw a line between offenders convicted of violent and nonviolent crimes.
“If you were not sentenced to life in prison, you are getting out and coming home,” she said. “You want to make sure the violent offenders have access to these resources so they won’t return to violence.”
She sees problems in the way Zirkin is pushing his legislation. The senator took a piece of legislation that had already had a hearing, she noted, added provisions from other bills, and then advanced the product to the full Senate without a new hearing.
“It’s very frustrating and borderline disingenuous,” York said.
Zirkin said it’s a process he uses frequently. The end result, he said, is a balanced bill that is not only tougher on violent criminals, but funds ways to prevent violence such as the Safe Streets program that employs ex-offenders to intervene in conflicts. He said his bill doesn’t include any new mandatory minimum sentences, but does raise the maximum sentences for some crimes.
“We often put bills together,” he said. “After a year of work, this was us crafting things together. What would be a travesty is if we walked out of the legislative session after 343 murders in the city of Baltimore [in 2017] with a little bill that doesn’t do anything. This problem is challenging and requires a comprehensive solution.”
State Del. Erek L. Barron said he thinks Zirkin’s bill will have difficulty passing the House.
“It sounds like a knee-jerk reaction to something that’s going on in Baltimore,” the Prince George’s County Democrat said. “We should be very cautious about not giving treatment to people who need it. A health care issue should be based on health care needs, not anything else. Otherwise, we end up making situations worse.”
Defense attorneys also say the sentence modifications are sometimes used as a bargaining chip in plea negotiations and encourage good behavior from inmates.
“I have had cases, even violent offenses, where the prosecutor has agreed that a person would be sentenced to ten years of active incarceration but could be considered for drug treatment after two years,” said Caitlin O'Donnell, an assistant public defender in Anne Arundel County. “The offense may be a crime of violence, such as robbery, but the circumstances of the individual case indicate that drug treatment is in the interest of all.”
For Hogan, it’s the latest battle with the state’s judges, some of whom he says are too soft on violent crime.
“This situation validates the serious concerns expressed by Governor Hogan and many others that the judiciary is actively failing to keep violent criminals off our streets,” Mayer said. “As you may recall, members of the judiciary refused to meet with the governor to discuss sentencing practices and violent crime initiatives several months ago, and repeated instances of violent offenders serving little to none of their sentences promoted the governor to introduce truth in sentencing legislation this session.”
Maryland Court of Appeals Chief Judge Mary Ellen Barbera, the head of the Maryland Judiciary, did not respond to a request for comment.
Judiciary spokesman Thomas Wenz said judges often use 8-507 sentence modifications as a way to ease offenders back into society.
“The evaluations of need for these placements are conducted by licensed clinical professionals and are considered by the court in determining the needs of the individual,” he wrote in an email. “The use of these placements typically occur as a mechanism to manage the transition of an individual back to the community ... The use of these placements is a recognition that an individualized treatment plan tailored to needs of the individual may help prevent recidivism in the future.”
The General Assembly has alternately allowed and barred judges from releasing inmates from prison to drug treatment facilities for decades.
In 1966, lawmakers allowed judges to sentence convicts with addictions to “any appropriate institution, hospital or any other facility in the state for treatment of narcotic addicts.” The legislature of the 1960s “believed it was necessary to address the root causes of criminal behavior,” according to an appellate court summary of the legislative intent.
The practice was allowed under several different iterations of the law until 1986, a time of high concern over crime, when the legislature repealed it. Lawmakers had grown worried about the “safety of society in general” as “dangerous inmates could take advantages … and obtain early release into the community for drug abuse treatment,” records show.
A conference of Circuit Court judges backed the move, saying the “early release” was “outside the statutory and regulatory parole procedures.”
“Drug treatment should occur within correctional institutions,” the conference wrote, “or under the supervision of the Parole Commission after an inmate's release, and should not be a method of gaining early release.”
The General Assembly reinstated the program in 1989, and Ehrlich and the legislature strengthened it in 2004.
Their legislation was approved unanimously in the Senate and by a vote of 132-2 in the House.
The law allowed a judge to order the Department of Health and Mental Hygiene to evaluate an offender's addiction and recommend a level of treatment. The judge can then enter an 8-507 order to send the convict to residential treatment. Patients who complete treatment successfully may be released, usually with some supervision.
State Sen. James Brochin, who voted for the bill in 2004, said none of the discussion around the bill focused on helping violent offenders.
“This was not the intent of the General Assembly,” the Baltimore County Democrat said. “We have made every effort to make violent offenders serve their sentence. That’s been the bipartisan policy of the Senate.”
But Del. Herbert McMillan says he saw this coming. The Anne Arundel County Republican was one of the two no votes on the Ehrlich legislation.
“It basically said you can be in jail for a crime and the judge can release you to rehab,” he said. “I thought then and now that was a bridge too far. If you commit crime, you need to do your sentence.”
Ehrlich said the provision was part of a larger criminal justice reform package that was aimed at reducing mass incarceration. He said the legislation as a whole has had a positive effect and was ahead of its time.
But the former governor said judges should not use the law to help violent offenders along with nonviolent ones before they are eligible for parole.
“It’s not the legislative intent and it’s not my intent,” he said. “The target population here is not violent criminals. My purpose was nonviolent possession offenders.”
Court files show that at least some of the inmates who have been diverted to the treatment beds report long histories of substance abuse.
A 44-year-old woman who was convicted of attempted second-degree murder was sent to the drug treatment facility Gaudenzia in Baltimore last year. She said she started drinking alcohol when she was 8 years old. By 13 she was smoking marijuana daily. She tried cocaine at 17 and was smoking crack daily at 34. She said her drug addiction led to criminal activity. She stabbed a woman multiple times during a fight.
A 54-year-old man convicted of dealing narcotics wrote a polite letter to the judge in his case seeking one of the treatment beds. He said he began drinking alcohol at nine, did cocaine and heroin while still a teen. In prison, he earned several certificates of achievement, including certification as a forklift operator.
“I believe I would benefit from the program of rehabilitation due to my life-long history of drug and alcohol use, which began when I was the age of 16,” he wrote. “I would like to have the opportunity to help myself through rehabilitation to deliver me from this type of activity in the future following my release. I have never been afforded any type of drug or alcohol rehabilitation in the past and graciously ask for your help and consideration.”
Smith, of the Baltimore prosecutors’ office, says the evaluations rely too heavily on the inmates’ self-reporting of their history of drug abuse, and are therefore questionable.
“We believe the treatment resources should be reserved for the defendants who need the treatment,” she said. “The current system relies on self-reporting. We really think there needs to be evidence-based reporting.”
DuFour said some crimes that might look terrible are committed by addicts to feed an addiction. If the addiction can be fixed, she said, so can the criminal impulses.
“In my world, someone can be convicted of a robbery, but there are different kinds of robberies,” she said. “We encourage judges to have the discretion, because each fact pattern is different. It’s not all black and white.”
DuFour, who says she frequently files 8-505 and 8-507 motions, said she’s seen good outcomes for clients, but also tragedies. Sometimes clients will get out of treatment only to fatally overdose later.
“There definitely are success stories, but, sadly, there are also funerals.”
She added the motions are no slam dunks for the defense bar.
“They’re valuable opportunities for the court to be educated by the professionals,” she said. “Not everybody is automatically deemed amenable to treatment. Sometimes the judges feel they need to serve more time. They’re not get-out-of-jail-free cards. The judges take great consideration. I’ve had them granted. I’ve had them denied.”