The Problem No One Will Fix

originally published October 16, 2008

If anything illustrates the unwillingness of government to reform the criminal justice system, it’s last Friday’s headline in the Baltimore Sun.

Requests for jury trials swamping city courts.

Many defendants prefer day in Circuit Court for better deal

That about summed up the article, though reporter Melissa Harris did a good job of explaining the issue. For those who missed it, here is how the system works.

Most misdemeanor cases start in the District Court, where there are no jury trials. If a defendant wants to go to trial, a judge will hear the case and make the decision. However, if the maximum penalty in the case is over 90 days in jail, Maryland law allows a defendant to ask for a jury trial, which is held at the Circuit Court.

Jury trials take far more time to handle than trials before judges. When the number of cases grossly exceeds the number of courtrooms available, something else happens to them. Witnesses and victims who can’t keep taking off from work quit coming to court. Judges and prosecutors reduce the caseload by offering more lenient plea bargains. Prosecutors simply drop some minor cases in favor of more serious cases waiting for trial. All of these results, which have nothing to do with guilt or innocence, favor the defendants. None favor public safety.

In fact, most misdemeanor jury trials are requested not because the defendant really wants a trial but simply as a way to avoid jail or to “beat the charges.” It’s the manipulation of a system already designed to give defendants multiple chances at getting off, and is one big reason why Baltimore’s defendants revolve over and over again through the criminal justice system. The problem has been around for decades, despite three commissions that studied the issue.

There are several ways to help solve it, but one that could be the most helpful won’t get through the Maryland General Assembly, or so many think. In fact, the most recent judicial commission that was tasked to study the problem was so fearful of the General Assembly’s attitude that it made only a modest, piecemeal recommendation: create a new theft crime and a new assault crime with penalties limited to 90 days.

The theft statue, for stolen items worth less than $100, passed, but not the assault statute. Judging from last week’s article, the theft law hasn’t had much effect. No one dared to propose a low level drug possession crime, which is already practically decriminalized in Baltimore’s courts and would make the single biggest difference.

The General Assembly needs to give local prosecutors the tools they need to manage their caseloads and their defendants, not decide for them how to do it. The elected State’s Attorneys are the ones tasked with protecting public safety, and already exercise great discretion in charging and sentence recommendations.

Legislators can help them by creating two classes of misdemeanors, A and B. Class A would carry the penalties already on the books. Class B would be the same misdemeanors with penalties limited to 90 days. It would be up to the local state’s attorneys—who are accountable to their electorate—to decide how to proceed in individual cases. Baltimore’s state’s attorney Patricia C. Jessamy, assuming she had the vision and a plan, could keep non-violent offenders in District Court (where they belong.) She could focus the resources of both her office and Baltimore’s Circuit Court on the most dangerous criminals. Other state’s attorneys who don’t face her challenges could continue to do business as usual.

The General Assembly would also have to end the silly state of affairs where persons who do not have a right to a jury trial will get the right if they are convicted in District Court and appeal. How dumb is that?

One would think that lowering a penalty to 90 days would be embraced by defense lawyers. But when an Abell Foundation report made such a recommendation in 2002, the Office of the Public Defender opposed it. (Last year they did support the proposed new assault statute according to Lori Albin, director of their legislative committee.)

Some defense attorneys have claimed that lowering penalties would “take away a person’s right to a jury trial,” a deceit they use to make citizens fearful of trampling on the Constitution. Maryland’s right to a jury trial is based on the maximum penalty, not on the type of crime. No one’s right is taken away if the penalty is 90 days or less, because no right exists.

What they really object to is any attempt to end their manipulation of a flawed system. It isn’t a fair trial they want, it’s to get their clients off. Defense lawyers dominate the House Judiciary Committee, and the Senate Judicial Proceedings Committee is vice-chaired by Lisa A. Gladden, an assistant public defender in Baltimore. Isn’t it nice having the foxes make the laws for the chickens?

Maybe some strong advocacy from Baltimore’s state’s attorney, mayor, city delegates, and Criminal Justice Coordinating Council would make a difference, something we have yet to see. Maybe the state legislators, if only to avoid the conflict of interest so many of them have, will take off their defense attorney hats and agree to study the issue with the public’s interest in mind.

Then again, maybe not. And the revolving door continues to spin.