Saturday, February 27, 2010

Once is Enough

I never realized how dependent the liquor industry was upon those who drink and drive until I read last Friday’s Baltimore Sun article on ignition interlock devices.

Executives from the alcohol lobby and distributors rose to the defense of drunk drivers at a Maryland Senate hearing. One didn’t want to punish those who were “one sip of wine over the limit” the same as those who were “hard core alcoholics,” as though the difference matters. Too drunk to drive is too drunk to drive.

Another feared the crippling of “our judicial process” if judges were required to order the installation of the devices for those who drive drunk. Who knew the liquor industry cared so much about judicial discretion?

One would think that alcohol distributors would support measures to reduce drunk driving and put their industry in a positive light. Or at least stay out of the discussion. Especially when the Senate bill they testified about has nothing to do with judges. And it doesn’t “punish” anybody.

Ignition interlock devices are designed to keep drivers from driving drunk by preventing them from starting their car if they have a certain level of alcohol in their system. The proposed legislation would require the Motor Vehicle Administration--not judges--to mandate the devices for those who have been caught driving while drunk or impaired.

(For those who want more information, a pamphlet published by the National Highway Traffic Safety Administration describes the devices and their benefits, including a Maryland study that showed they reduced recidivism by nearly 65%.)

The devices are not a panacea. Contrary to the lofty title of the Senate bill—the “Drunk Driving Elimination Act”--it won’t stop those who have never been caught before. And determined drivers will be able to get around the device. But an ignition interlock program should deter those who carelessly drive drunk but are not determined to do so. As for the incorrigible drunk drivers, like the one who allegedly killed Hopkins student Miriam Frankl last fall, they will still need a judge to put them away.

But their evasion of ignition interlock devices should mark them as driving time bombs sooner rather than later.

Speaking of judges, House Judiciary Chairman (and defense attorney) Joe Vallario is also “troubled by the provision that that would tell judges to require the device as a condition of probation before judgment,” in the words of the Sun. Either the Sun or Vallario has gotten it wrong.

Neither the Senate nor the House versions of the bill require judges to mandate the devices. There is one House bill, with just one sponsor, that would force judges to order interlock devices. But it exempts first-time offenders, the very ones that get probation before judgment.

So it can’t be the intrusion into judicial discretion that bothers Vallario, though the judges could use a kick in their judicial discretion when it comes to drunk driving. My guess is that he doesn’t want MVA to require offenders who get probation before judgment to use the devices.

Probation before judgment—or PBJ, as it is known in the criminal justice system—wipes a conviction off a person’s record as long as he or she satisfactorily completes probation. When it comes to driving offenses, it also keeps any points off the driving record, leaving a driver’s insurance rates and driving privileges intact. It’s a pretty hefty benefit, and nearly automatic for first-time drunk drivers.

But these drivers are the very ones who should have to use an ignition interlock device. The purpose of the device is prevention, not punishment. The goal is to prevent a second offense, not by punishing, but by making sure a person can’t start their car with too much alcohol in their system. Why should we wait for a second offense before requiring the device? Why should we wait until it is too late for some victim?

There are 29 bills catalogued under “Drunk and Drugged Driving” pending before the House and Senate combined. On the ignition interlock device issue alone, 29 senators (or 60%) and another 28 delegates (or 20%) have sponsored the bill. Both “liberal” and “conservative” legislators support it.

Between the number of bills and the number of sponsors, it’s obvious how important the problem of drunk driving is to legislators and the public. So Joe Vallario needs to stop treating the House Judiciary Committee as his own personal veto tool and let the legislation come to a vote.

As a defense attorney he ought to welcome non-judicial, non-punitive alternatives to prison like ignition interlock devices. And as a delegate acting in the public interest he should enable votes on measures that could prevent innocent deaths, not enable drunk driving.

People who drive drunk today do it in the fact of enormous public education and awareness. Once is enough to require ignition interlock devices.

Related prior articles:
Too Late, Again
The American Right to Drive…No Matter What

Thursday, February 25, 2010

The Greatest Part-time Job in the World, Part I

Wanted: Qualified person to work 20-30 hours a week, depending on assignment.

Salary: $127,252 per year.

—Nearly 7 weeks in vacation and personal days.

—12 holidays.

—Unlimited sick time.

—A pension worth 2/3 of the current salary after 16 years of service at age 60, and a pro-rated pension for fewer than 16 years.

—And every time the current salary is raised, the pension goes up by the same 2/3 ratio.

Too good to be true? Welcome to the world of a Maryland District Court judge.

District Court judges handle the least serious criminal and civil cases, the majority of cases in the state. They are the judges that most people encounter if they must appear in court as a witness or defendant.

But the District Court fails to do its share of criminal justice work. That was immediately apparent when I first practiced criminal law in Baltimore 23 years ago. And last spring I spent a day at each of the three Baltimore District courthouses to see whether anything had changed.


At the Wabash Avenue court Judge Miriam Hutchins easily had the heaviest docket with 52 cases. She took the bench at 9:30 and was done by 10:35, not to return again until the 2 p.m. afternoon docket. Nearly every morning docket at the Wabash courthouse finished within 90 minutes, and the afternoon dockets lasted no more than an hour.

It was much the same at the Eastside court the next day, where most of the morning courts concluded by 10:40 and the afternoon courts by 3 p.m. One judge with five cases on her docket spent only 20 minutes on the bench and left for the day at 9:30.

And then there was the Hargrove courthouse on Patapsco Avenue. Judge Askew Gatewood, the “duty” judge for the day—the one who is supposed to be available for things like search warrant applications from police officers—didn’t even drive into the parking lot in his Mercedes convertible until 9:15 for his 9 a.m. docket. After the morning session he left for a two-hour lunch while police officers waited to see him. Arriving 20 minutes late for his 2 p.m. docket, Gatewood was still finished by 3:30.

(Gatewood is the judge convicted in 2008 for dumping waste into the Patapsco River and who runs a real estate business “on the side.” See A Judge Above the Law and A Wink and a Nod.)

Judge Charlie Chiapparelli—he of the restaurant Chiapparelli’s in Little Italy—switched dockets with a retired visiting judge so that he didn’t have an afternoon docket, a little trick I saw more than once. He then raced through his docket of traffic tickets by ensuring that no one got any points against their driving record, no matter what their driving history. Chiapparelli finished in the courtroom at 11:22 and drove off for the day at 12:15.

But I didn’t feel too sorry for the visiting judge who got stuck with Chiapparelli’s docket because he had to be there “all day” anyway to get paid. He was done in the morning by 10:15 (as were most of the courtrooms), and after a pleasantly long lunch returned for one hour of work in the afternoon.

Not once in my three days of courtroom visitation did I see a trial. And the things that went on would take a book to describe. (See The American Right to Drive…No Matter What as just one example.) The culture remained almost exactly as I experienced it two decades before. I saw public defenders leaving for personal errands at 10:30, and a senior prosecutor postponed a case with a defendant in jail because she had made a doctor’s appointment for the late morning.

The District Court compiles “bench times,” the amount of time judges spend on the bench each day. Baltimore judges, handling the heaviest caseload in the state, averaged a little over three hours on the bench per day in the last fiscal year. Only three of its more than two dozen courtrooms averaged four hours or more per day. But judges who really need extra work on their golf game should go to western Maryland, where judges average two hours, 44 minutes in court for an entire day.

And it’s not as though District Court judges are buried under paperwork the rest of the time. They don’t handle complicated pleadings and motions, or issue written decisions. They sign orders (prepared by court clerks), read probation reports (written by agents), and not much more. The bulk of their work is performed on the bench in the courtroom—what you see is what you get.

One might expect an attitude of humility and appreciation for this life of relative judicial ease, but instead the judges exhibit a tremendous sense of entitlement. The Annapolis administrative court once tried to create a split afternoon docket in Baltimore County (for example, one at 2 p.m. and one at 3 p.m.). This would reduce waiting time for defendants and witnesses. A judge protested, “But that’s the only time most of us have to see our children play sports!” This must explain why Baltimore County judges average less than 3 hours on the bench each day, second lowest in the state.

The courtroom at Baltimore’s Central Booking Facility is a particular boon to family life because there’s so little afternoon work to do. Judges announce before regular working people, without the least tinge of embarrassment, that they plan upon early release to take kids to the zoo, stop by Nordstrom's, or go for a workout.  One bought tickets in advance for a 3 p.m. show. 

And now judges are assigned to Central Booking for a month at a time so they can plan all kinds of personal activities on the taxpayer dollar.

That is, when they are even scheduled for court.

In 2009, the 26 trial judges of Baltimore’s district court averaged over eight weeks scheduled out of court. That number doesn’t include sick days or snow days taken after the schedule came out, or any of their 12 holidays. While some judges probably took some administrative leave for training, fully half the judges were scheduled off for 40 days or more, and four were gone for 55 or more days.

One judge took off 49 consecutive court days. Absences like these are usually for medical reasons, but unlike regular employees judges aren’t required to use up other leave (or buy disability insurance) for such lengthy absences. This judge was gone another 47 days during the year for a total of 96 paid days out of court.

And now the Judicial Compensation Commission wants to raise District Court judicial salaries to $167,110 and their pensions to $111,295.

But it isn’t the bloated benefits that come with the part-time job that bothers me so much. It’s the fact that the District Court is of so little use to the criminal justice system.

And the responsibility for that lies not with the judges but with Maryland lawmakers.

I’ll explain in Part II.

Tuesday, February 23, 2010

Raises for Judges

originally published February 1, 2010

Maryland judges are hoping that Maryland legislators forget about them next month. If they do, the judges will get nearly $40,000 in raises apiece.

Every four years the Judicial Compensation Commission is charged with recommending judicial salaries. Whatever it recommends, Maryland law requires the governor to include that amount in his budget, and the General Assembly must do likewise at the start of the legislative session. Unless the Assembly takes action to delete or modify any raises within 50 days, they go through.

That’s what happened in 2005 when judges got raises of $15,000 to $30,000 even though the Assembly had intended to reduce those raises to smaller amounts. Legislators just forgot to act. Oops.

Last year, after the Judicial Compensation Commission recommended a whopping $39,858 raise for every judge, legislators managed to postpone consideration until 2010 because the economy was so bad. So now it’s back on the table, with the economy still bad.

How did the Judicial Compensation Commission, which is made up of appointees by the governor, assembly leaders, and Maryland State Bar, conclude that these raises were justified?

Easy. The judges told them so.

Judges Robert Bell, Clayton Greene, and Ben Clyburn, appearing before the Commission, claimed that too many judges were retiring before the mandatory retirement age of 70, and that raising their salaries would stop this. Who are they kidding?

The pension system, not the salaries, encourages judges to retire before age 70. They can collect two-thirds of their salary after 16 years as judges beginning at age 60. Then they sit on the bench up to 90 days a year and make up the rest of their former salary. They trade in full-time work for 90 days at the same income level. And since their pensions are always tied to the salaries of active judges, they have no incentive to keep working past retirement eligibility. If active judges get a raise, they get a raise.

The judges also claim that large raises will promote “diversity” among judges. More women? No. More minorities? No. “Diversity” means more appointments from the ranks of highly paid lawyers who otherwise have no interest in public service. How about that for a twist on “diversity“?

Then they argue that they are losing judges to the federal bench. There are 265 Maryland state trial judges, and only 25 federal judges currently on the U.S. District Court for Maryland. Four of these federal judges came from the state bench and were appointed over a 17-year period. This is a run on the Maryland judiciary?

With this kind of reasoning, I now understand why I have so often scratched my head at decisions handed down by the Maryland appeals courts.

Fundamentally, what the judges really believe is that they should be paid just like federal judges. Not other state judges, where they currently rank 13th amongst the states (and 6th for Chief Judge Bell.) Federal judges.

They offer no analysis for this. No justification. It’s just a claim.

I think a case can be made for increasing the salaries of many of the judges by some appropriate amount. It’s too bad that the Judicial Compensation Commission didn’t make that case. They just swallowed what the judiciary told them and recommended obscene increases at a time when state employees are being furloughed.

Salaries ought to be tied in some way to what judges actually do, what the stakes are for the parties who appear before them, and to the impact their decisions have on the public. And if the Judicial Compensation Commission was the least familiar with what happens in the Maryland District Court, they wouldn’t recommend any raises at all for its 112 judges. In fact, they would tell the General Assembly that unless it gives the District Court meaningful work to do in criminal court, it’s a colossal waste of money.

I’ll explain why in the next two articles.


Attorney General Douglas Gansler recently wrote a piece in the Baltimore Sun arguing that no judges should be elected. Presumably this would de-politicize the selection of judges.

Immediately Governor Martin O’Malley undercut this argument with his appointment of Thomas V. Miller III, son of Senate President Thomas “Mike” Miller, as judge. Young Miller applied to be a judge in Anne Arundel County and was left off the list of recommended candidates sent to the governor by the county judicial nominating commission. O’Malley tore up the list and demanded another, which just happened to include Miller. (See The Politics of Picking Judges.)

After several members of the nominating commission resigned in protest, O’Malley laid low for a year. But last week he quietly appointed Miller to the Anne Arundel County bench.

We don’t need elections to infuse judicial selections with politics. We’ll always have governors looking to seek or grant political favors.

And what will Senate President Miller do now that the salaries of his son and O'Malley's wife are in his hands?

The Guilford Robberies

originally published January 21, 2010

Leave it to Margaret T. Burns to once again victimize the victim of a crime.

John Couplin robbed Christine Dolde at knifepoint in 2008, and Dolde, who had given a detailed description, identified his photo. Burns called Dolde’s identification “minimal” evidence.

This is the same Burns who ignited a firestorm in 2008 when she described Zach Sowers, the victim of a fatal beating, as a “sleeping baby” when taken to the hospital, and attributed his injuries to falling between two cars. Her comments caused his widow, Anna Sowers, great mental anguish.

Likewise, Dolde told me that reading Burns’ comments in the paper “really hurt. No one ever told me the case was weak.” In fact, she said she was told how good a witness she would be.

Burns lacks humanity and respect for the truth. State’s Attorney Patricia Jessamy, her boss, lacks imagination and accountability.

Let’s take John Couplin.

Couplin has been accused of recent armed robberies in the Guilford neighborhood, including a chilling kidnapping that evokes memories of Dontay Carter, a notorious murderer of two decades ago. Couplin hasn’t killed yet, but he’s following the same trajectory.

At the time of the new crimes Couplin was on probation for the 2008 armed robbery of Dolde, the case that Burns claims had “minimal” evidence. What many may not know is that in 2006 Couplin was charged with trying to rob another woman at knifepoint as she walked toward the school where she worked, the same school he had attended before he was kicked out.

When the woman convinced him she had no money he fled, but was caught shortly thereafter based upon her detailed description. Police found the knife on him, and Couplin admitted his crime.

Even Burns (who is not an attorney) could win that case. Couplin, who was 16 at the time, was charged as an adult. His attorney asked the judge to transfer his case to juvenile court, but court records show no ruling on the request.

The records do show that Couplin was being held at the Mountain Meadow Youth Center in Grantsville, Maryland, a substance abuse facility for youths.

After several postponements, the prosecutor dismissed the case. I asked Burns’ office for the reason. No response.

So I called the victim in the case to find out what she knew. She said that she was asked not to press charges because they were going to give Couplin some kind of treatment. She agreed to this though she was skeptical about the results. She heard at work that Couplin had robbed another woman two weeks before he tried to rob her. She also heard that he and other family members had been in lots of trouble. Treatment didn’t sound promising.

Then I checked on the court recording. Prosecutors dropped the case because they recharged it in the juvenile system.

Now according the Sun, Couplin had 17 juvenile arrests and two “convictions” for armed robbery. I have to presume those convictions were for the two 2006 incidents. We don’t know for sure because juvenile records are supposed to be secret.

But we are left to wonder why prosecutors, who had a great case on an armed robber with a horrible juvenile record, decided that a juvenile substance abuse program was in order. Prosecutors throw away strong cases at their peril, or should I say the public’s peril. I understand the motivation to reform a juvenile, and am not prepared to say their decision was unjustified without knowing all the facts. But there may have been alternatives in the adult system that would have accomplished the same purpose and better protected public safety.

So here comes Couplin wielding a knife again in 2008. Prosecutors had to know how dangerous he was now, but they were afraid they would lose their case without evidence to corroborate Dolde’s identification. So they took the conviction on a plea bargain and settled for probation.

I get this. While the position Jessamy has taken in the past is awful--that she won’t try cases based on a single witness--the fact is that it would have been a tough case to prove to a jury beyond a reasonable doubt. That would not have excused failing to try the case if Couplin would not take a deal, but it does explain a plea bargain. It may be upsetting to citizens, especially in hindsight, but prosecutors have to decide what would be in the best interest of public safety. If they felt that Couplin would beat the charge, it made sense to take a bird in the hand.

But only if the plea deal provided some protection for the community. And here’s where Jessamy utterly failed because she just continues to do business the same old way. Once Couplin, this repeat armed robber, went on his merry way, the prosecutor’s office didn’t care about him any more. He was just another person for the probation office to handle.

Couplin was arrested for theft in Baltimore County and allowed by a county judge to post bail of $7500. What did city prosecutors do? Nothing. They weren’t tracking him.

Couplin’s probation agent notified the probation judge, John Howard, of this arrest. Howard issued a warrant for Couplin, but instead of holding him without bail Howard set a $500 cash bail, which Couplin posted. Where was Jessamy’s probation unit, the one that is supposed to focus upon violent offenders? Just waiting for his hearing. Which, by the way, is at the end of this month.

Free again, Couplin was arrested for trespassing and released without having to post any bail. City prosecutors then dropped the trespassing case. And still did nothing about Couplin being on the street.

And then came the Guilford robberies, a clear indication that Couplin, if he’s the right man, had escalated his assaults from knives to guns and tossing his victims into car trunks. Jessamy thinks she did everything right. She did, according to the old formula. Take a plea, wait for a probation hearing. So much for focusing her resources on violent offenders.

And judges continue to do business the same old way. Judge Howard’s explanation to the Sun for the original plea deal was reasonable. The deal was driven by the prosecutor. But Howard’s handling of the probation was not.

In The Empty Threat of Probation I pointed out that probation judges frequently ignore the crimes for which defendants are on probation and only pay attention to the new charges. Couplin is Exhibit A. That he was a dangerous, repeat armed robber was so obvious he should have been yanked off the street at the first deviation from the rules. Otherwise, what point was there to getting a conviction through a plea deal? But Howard gave Couplin a low bail on his violation of probation warrant because his new crime was merely theft.

As for the prosecutor, I understand his desire to get what he perceived as a sure conviction. It demonstrates what was lost, however, when he tossed the 2006 case into the juvenile system.

But reporters failed to ask the key follow-up question of Burns, Howard and Jessamy: if getting the conviction was so important that it justified probation, why didn’t they do something meaningful when Couplin was arrested again while on that probation?

Because they were doing business the same old, same old way.

Juvenile record confidentiality

The reason that juvenile records are secret is to allow young people the chance to turn their lives around. I get that and I support that.

But once a juvenile is convicted as an adult the reasoning falters. Why should Couplin, a convicted armed robber, someone who didn’t learn from his juvenile mistakes, have a confidential juvenile record? Why should we be prevented from understanding how he was handled in the juvenile system?

The law on juvenile record confidentiality needs to be changed to open the records upon an adult conviction. They also should be open in every circumstance to those in the criminal justice system who have to make public safety decisions.

This is not to say that those records should be available on employee background requests. I will offer my opinion on that issue at some time in the future.


The Couplin case isn’t without some encouraging signs. First, Couplin was kept off the street for nearly a year while his 2008 armed robbery case was pending thanks to Judge James L. Mann, Jr., who held him without bail. Somebody recognized the danger.

And the Division of Probation and Parole seems to be making progress in changing their culture, even if it took a few weeks to notify Judge Howard of Couplin’s new arrest for theft. In the past agents routinely requested “no action at this time” for new, non-violent arrests. This time they recommended a warrant. Too bad it didn’t lead to Judge Howard taking him off the street.

Endless Refrains

originally published January 7, 2010

The headline on a mid-December Sun news story read: Endless refrain of ‘bad guy with a gun.’ The story chronicled the all-too-familiar story of a convicted murderer who despite many new arrests was free to shoot two more people before police officers fatally shot him. Frustrated and angry, Police Commissioner Fred Bealefeld railed about the failure of the criminal justice system to keep these criminals off the street.

In direct response to the article, a Hopkins professor wrote a piece which, to be consistent, the Sun should have headlined, Endless refrain of ‘better prevention.’ (Arrests aren’t enough December 27.)

Each time someone calls for a more effective criminal justice system, someone else calls for better jobs, education, and so forth. That’s okay, it’s just a different issue.

At least the professor acknowledged the need to “get good convictions and get long sentences for ‘bad guys with guns.’” But we don’t need any more Endless Generalizations about problems and solutions. We need specifics. So let me provide one example that specifically illustrates some fundamental problems with the criminal justice system and why bad guys with guns are on the street.

One day last October a young man named Jonathan Miller was, according to witnesses, acting as a lookout while an accomplice was attempting to jimmy a car’s ignition. When a witness approached the accomplice fled, but Miller pulled a gun and pointed it at the witness before retreating into his own house on the same block. When police arrived they found damage to the car’s lock and ignition, and arrested Miller when he answered their knock on his door.

(Here I have to pause the narrative and compliment the police, because their next step was to get a search warrant to search Miller’s house. Too often have I seen the police make an arrest at this point and decide their job was done, failing to pursue further evidence.)

When police served the search warrant they did not find the gun but did find dozens of small vials containing suspected cocaine residue inside his bedroom ceiling. So now we have a description of Miller pointing a gun together with evidence that Miller is in the drug-dealing game, a combination that, along with his youth (age 18), screams out violent threat.

Miller’s bail was initially set at $50,000. But Judge Jack Lesser learned at Miller’s bail review that Miller was pending an assault case in Baltimore County and was on three juvenile probations. Remarkably, Lesser held Miller without bail, an atypical judicial response to this set of facts.

The police did not analyze the drug residue by the November trial date, which caused the prosecutor to request a postponement. Miller was equally unready to proceed because his lawyer was out of the country and the lawyer’s associate had just met Miller in court that day. But curiously, the need for delay was treated as the State’s alone. The unprepared defense attorney said that if the judge was “inclined” to grant the State’s postponement request would he please set a bail of $50,000. Translation: Miller can make this bail, and he ought to be set free rather than allow the State to hold him in jail when it isn’t ready for trial.

The prosecutor could have asked for a short postponement and demanded that the police analyze the drugs. She could have argued that Miller was such a danger that he still needed to stay in jail while the State obtained the lab results. She could have decided to try the case without the drugs, in which case Miller would have certainly requested a postponement or a jury trial and delayed the case himself.

But she sat mute. Judge Nathan Braverman proceeded to review the bail and asked about Miller’s juvenile record. The conversation went approximately like this:

Prosecutor: I don’t have his juvenile record, but the defendant said he is on juvenile probation

Defense attorney: I don’t have it, either. (Turning to client.) What are you on probation for?

Miller: Marijuana.

Defense attorney: Marijuana, your Honor. No violent crimes or anything like that.

So the only “evidence” about Miller’s juvenile record came from Miller. And no one mentioned that Miller was pending an assault in Baltimore County, a fact that was sitting in the court file for the judge to see.

Judge Braverman set an even lower bail (by half) than Miller wanted and he went free that day. Oh, I almost forgot: Braverman set a curfew of 8 p.m., telling Miller that if he didn’t obey the curfew he would go back to jail with no bail. Braverman didn’t say a word about who was supposed to check on Miller. It was the honor system.

So off Miller went. And less than a month later, a few days before Christmas, he was arrested for the stabbing murder of Joshua Hargrove at a party at the Great Blacks in Wax Museum. A party that took place, of course, after Miller’s curfew.

Perhaps Hargrove might have been murdered without Miller’s presence at the party, since according to police Miller was one of several that attacked Hargrove. We’ll never know. But we do know that the criminal justice system had its chance to keep Miller from the scene and fumbled the ball.

The Hopkins professor who wrote “Arrests aren’t enough” called for an end to “finger-pointing.” When it comes to politicians blaming each other, I quite agree. But when it comes to public officials who repeatedly undermine public safety, we need more finger-pointing, not less. What did Judge Lesser understand that Judge Braverman didn’t? That young men in the drug business who point guns and have repeated arrests and probations spell D-A-N-G-E-R.

State’s Attorney Pat Jessamy deserves finger-pointing, too. Her attorneys clearly don’t have the records that they need, and they lack the training to recognize and properly handle threats like Miller. This is something Jessamy could have fixed years ago and still hasn’t. Yet soon she will be running around Annapolis telling the 2010 General Assembly all the things she could do with more criminal laws.

And let’s not leave the police department off the hook. I thought they had that old problem with late laboratory reports solved. Apparently not.

But the missing lab report didn’t justify the release of Jonathan Miller to the street. Commissioner Bealefeld is right to be outraged at the way that bad guys with guns are handled. Don’t talk to him about prevention programs. Miller was in school, working part-time, and living with a mother who owned her own home. Yet his criminal behavior fell to Bealefeld and his police officers to handle, and then to the courts. And once there, the system failed. Again.

And we know why. Miller’s case is not unusual. We have judges and prosecutors who don’t recognize what individuals need special attention. Knowing the cause, the problem can be addressed.

Will it? Or will we have more endless refrains?

The Sad Truth Behind the Statistics

originally published December 9, 2009

Baltimore State’s Attorney Pat Jessamy has gotten very, very good at torturing her law enforcement partner, the police department. She can take an insult and make it sound like a compliment. And she continues to wield statistics like a hammer.

The most recent example can be found in a story reported by the Baltimore Sun. "Police, prosecutors working better together, Jessamy says." (Nov. 27) Jessamy says that police and prosecutors are collaborating better together because her statistics show that fewer criminal cases have been dropped for “legal insufficiency.”

Her statistics show no such thing. And just by making the claim she reveals how much she intends to control public perception of police performance, hardly the thing any true collaborator would do.

In truth, the working relationship between ordinary police officers and prosecutors hasn’t changed much over the years. Only the relationship at the top has changed, the one between Jessamy and whoever happens to be the police commissioner. It changed because Jessamy attacked the police department as a way to fight her feud with Mayor Martin O’Malley nearly 10 years ago, and it proved so politically fruitful for her that she just can’t stop. Jessamy’s word for the police-prosecutor relationship is “schizophrenic.” That is what she and she alone has made it.

A great example of her “schizophrenia” can be seen in the very article in which she claims to give us positive news. First she claims progress has been because fewer cases have been dropped. Translation: the police are doing a better job. Then she gives them the back of her hand, stating that “we still have a long way to go” because of a handful of police no-shows in court. In other words, any problems that exist all lie with the police. And she, and only she, can report on when they are doing well and when they are not.

If Jessamy’s statistics really could be used to assess police performance, that would be one thing. But they can’t. Jessamy’s favorite term to describe why she drops cases is “legal insufficiency,” and this she always puts on the police. But legal insufficiency can mean anything, including witnesses who recant, lab tests that come back negative, police officers who are deployed to Iraq and can’t testify. These have nothing to do with police performance. And I have seen as many lazy prosecutors who refuse to try a case they ought to try as I have lazy police.

So “legal insufficiency” is in the eye of the beholder and the beholder is Jessamy. But what is she even beholding? Not once during my years of gathering statistics for Jessamy did she meet with any supervisors to discuss the significance of the statistics. What did they say about individual prosecutors? About the office and how it handled certain types of cases? Did all prosecutors even turn in their statistics? (No.)

Jessamy conducts no internal analysis and holds no one in her own office accountable. She creates statistics only to interpret them for others, knowing that no one reads or understands them.

But I do. And when I see a claim that the collaboration between police and prosecutors is improving because only 42 cases were dropped through August compared with 113 in all of 2008 I did a double take. What Jessamy’s statistics really say is that 75 cases have been dropped through June for what she calls legal insufficiency. That projects to 150 for the year—nearly a third more than in 2008.

So beware of Jessamy’s compliments of the police. Based on the same faulty premise as her criticisms, they serve only as a form of control, a bone thrown with one hand while the other wields a whip.

There will be no true police-prosecutor collaboration as long as Jessamy remains in office. And that’s the real truth behind her statistics.

Real Facts, Real Costs

originally published November 24, 2009

Tuesday’s Baltimore Sun opinion section featured one of its periodic pieces that flows from Doug Colbert, a defense attorney and law professor at the University of Maryland. Written by students in his Access to Justice clinic, the “High Cost of Pretrial Jailing” article sounded Colbert’s persistent theme: people are locked up waiting for trial when the money spent on their incarceration could better be spent on alternatives.

Colbert is particularly interested in having all persons represented by lawyers during the entire bail process, believing this would make a huge difference. While he (like his students in their article) point out the cost of incarceration, I have yet to see his estimate for the cost of providing immediate free lawyers to all arrested offenders 24 hours a day throughout the state. It would be, needless to say, enormous. And whenever citizens are presented with the “cost” to incarcerate someone, they should remember that it usually includes include a fixed overhead that would be present whether or not a particular individual is locked up.

So I find incredible the claim by Colbert’s students that letting 300 persons out of pretrial detention per month would save taxpayers $10 million a year. Not only does such an estimate include fixed costs that would not be saved, it omits the costs associated with increased supervision and representation. And it utterly ignores the costs of people who commit more crimes while waiting for trial and those who fail to come to court and have to be arrested again.

If I thought that universal legal representation at bail proceedings would actually make a difference, I might be more persuaded that it was a good thing to do, assuming we knew the real costs. I happen to believe that our current bail system discriminates against the poor and could be improved.

But there isn’t enough time at the bail stage to do the “investigation” necessary to confirm much information about arrestees. The bail process moves quickly to minimize the time that most people are detained. For those who remain in jail after bail review, a government agency already exists to help them: the Public Defender’s Office, whose attorneys in the district offices are under-whelmed with work. If they spent a little of their excess time on bail issues after bail review, perhaps they could make a difference.


Citizens—and journalists--presented with the Colbert’s bail reform proposals should read him very carefully. As I pointed out in Lots of Money, Little Justice Colbert, as an advocate, is not above omitting the other side of the story.

And listen carefully to his students, who use Colbert's style of attaching a sympathetic description to each offender and minimizing key facts: "The defendant, a veteran of Iraq, never failed to appear for court and had only one previous conviction for using marijuana, which resulted in his current probation. But he was still incarcerated...simply because he could not afford his $1,000 bail."

Naturally, we aren’t told any of the facts of the new charge for marijuana possession, which judges find important. But a key fact,carefully minimized by the students, is that the offender is already under supervision on the street for the same charge. Judges might reasonably feel that further supervision on the street is not appropriate.

Then there’s the 63-year-old “husband” jailed for nine days because he“missed court and could not make the $100 bail.” (I guess being a husband was the only positive thing they could come up with in his case.) But this guy—whose criminal record is tellingly omitted by the students—was only locked up because he failed to appear in court, wasting court and police time.

Colbert never includes these costs in his calculations. In fact, his fundamental premise that 300 defendants per month could safely be released to the streets lacks evidence. The last time Colbert got the criminal justice system to investigate his claims only a handful of defendants were uncovered, a fact that was reported to the Criminal Justice Coordinating Council.

I appreciate Colbert’s advocacy and zeal. I am more sympathetic to reforming the bail system than he thinks. But when it comes to throwing public money at “good ideas” to solve problems I have become very conservative, having spent two decades observing waste in the criminal justice system. Let’s get all the real facts and all the real costs, and then we can make the best decisions.

Too Late, Again

originally published November 4, 2009

The death of Johns Hopkins student Miriam Frankl by a hit and run driver commenced a trilogy to which we have all grown accustomed.

Part I, tragic killing. Part II, revelation that the suspect has a long record with the criminal justice system. Part III, outrage and call for action.

The Baltimore Sun chronicled the background of suspect Thomas Meighan, Jr. in a November 1st front page article that was all so familiar: Meighan’s long history of drunk-driving; the typical letters of an inmate to a judge pleading for treatment (and release from prison) so he could continue to fight “this fatal disease of alcoholism and drug abuse;” and the ample chances and opportunity for help that went for naught.

And now Part III, the call for tougher laws. I checked to see what the current state of the law is compared to when I first set foot in traffic court as a Baltimore city prosecutor over 22 years ago.

Back then you could refuse a breathalyzer test with impunity. Now you can have your license suspended a few months for refusing.

Back then you could get up to two years if you were convicted of drunk driving more than once. Now you can get three years for three or more convictions.

There’s a mandatory penalty for repeat offenders of 10 days in jail for three convictions in five years. And new provisions for mandatory treatment and an Ignition Interlock System.

Get the picture? That’s the glacier-like progress on “toughness” we have made in 22 years. I marvel at MADD for never giving up.

The truth is that as a society we are willing to wait until it is too late. When a veteran prosecutor in Carroll County calls for a 10-year maximum penalty for five convictions, you know how deeply we resist jailing drunk drivers. Five convictions! Can you imagine how many times a driver has to drive drunk until he is actually caught and convicted five separate times? Yet the suggestion would be progress.

The only time a drunk-driving suspect must take a breathalyzer or blood test is when he kills someone or causes life-threatening injuries. In other words, not until it’s too late. Until then, drunk drivers can refuse tests that might expose them to any sanctions other than a meaningless suspension of their license. Driving while suspended gets less sanction from the courts than drunk driving.

I don’t know how legislators can look at the smiling photo of yet another innocent victim and fail to radically change their world view. But it isn’t just them. They could increase penalties to 50 years and that alone wouldn’t make a difference. Not one judge sentenced Meighan to the maximum penalty for any of his previous offenses. In fact, he got the same sentence for his 7th and 8th arrests—18 months prison combined with probation afterward--even with a conviction for escape from prison in between.

Now Meighan is being held without bail on traffic charges even though he has yet to be charged with killing Ms. Frankl. The judges can do it when they want to, which is when it’s too late.

What’s the reluctance? Is it a perception that drunk drivers aren’t “criminals”? That people make “mistakes?” Sure they do. Prison isn’t for everyone or every crime.

But once again, our system is unable to distinguish those who make mistakes from the Meighans of the world. His case wasn’t hard. His repeat behavior cried out for action. But as I observed in The American Right to Drive…No Matter What, our system will accept any excuse to keep drivers out of jail and free to roam the roads.

Alcoholism may be a disease. And I am not in favor of locking people up for self-destructive behavior. But when their unchanged behavior imperils the lives of others, public safety must take precedence.

We have to stop waiting until it is too late.

Secretly Releasing Prisoners, Part II

originally published October 20. 2009

One of the challenges for any criminal justice system is striking the proper balance between protecting public safety and allowing those who harm other people a chance to rehabilitate themselves.

One agency charged with finding this balance is the Maryland Parole Commission, which decides who to release early from prison. It does most of its work with little public accountability, other than the occasional case that blows up when a parolee commits a sensational crime. And parole commissioners don’t need to know a thing about criminal justice; their positions are usually nice little political favors for them or those who recommend them to the governor.

Without public accountability, the Parole Commission is free to manipulate the prison population using parole hearings and diminution credits, such as I wrote about in Leaving Prison Early, Part II: The Parole Commission’s Dirty Little Secret. And rather than behaving as an independent entity, it is more than happy to let prison officials lead it by the nose.

Parole Commissioners are currently helping prison officials push inmates out of prison early in a special, unannounced project. See Secretly Releasing Prisoners. Before I wrote the piece, I had asked for details about these prisoners and the criteria for the program. I wasn’t ready to prejudge. I wanted to evaluate what they were doing.

They denied that they have such a program. More on that below. But through my research on violent offenders I have gained some insight into what is going on.

Parole commissioners are taking prisoners who they originally approved for delayed release and instead are granting immediate release. “Delayed release” usually means that prisoners are approved for parole upon fulfilling a condition of some kind, such as completing a drug treatment program. That would seem to strike a good balance, motivating prisoners to prepare for productive future lives in return for early release, right?

Not under this secret project. One prisoner, for example, was originally approved for release on the condition that he complete a domestic violence program. Considering that he was imprisoned for domestic assault and had a prior conviction for trying to maim someone, one would think this requirement was not only prudent but a basic minimum.

Poof! No more domestic violence requirement. He was released without it, thanks to Parole Commissioner Obie Patterson. I wonder how advocates for the victims of domestic violence feel about that…except they aren’t being told.

The same is true for prisoners who were in vocational training to get them ready for jobs on the outside. Out the door they quietly go, too, before completing their programs.

Then there are the criminals who already went back to prison for misbehavior while on parole. Parole commissioners are setting them free again by “amending” their previous decisions.

Perhaps the most mind-bending case is that of an offender who was arrested for violating parole the same day that that he was sentenced for a new crime. The parole commissioner, Thomas V. Miller III, approved parole for the new crime while the hearing for violating the first parole was still pending. A few days later, Miller dismissed the parole violation charge and closed the case, despite the new crime. (Miller, who wants to be a judge, appears to be well-qualified. He behaved just like many judges who sentence criminals who are already on probation to more probation for new crimes.)

Some more prisoners on the fast track out of prison:

--an inmate who had been revoked twice in the past for violating parole. One of those revocations came only three months before Commissioner Michael Blount “amended” that revocation and granted immediate release.

--a 40-year-old gang member convicted of murder and armed robbery. He had earned enough credits to shave 10 years off his 30 year sentence, but apparently that wasn’t soon enough for prison and parole officials. (Commissioners David Blumberg and Jasper Clay.)

--a gang member imprisoned for gun and drug charges who would normally be released in 2017. (Commissioners David Blumberg and Joseph Bolesta.)

Whether these three examples are representative of this special project I can’t say, but they are among those included. Until the O’Malley administration is forthcoming about what it is up to—the criteria, the number of inmates, their criminal backgrounds, their behavior in prison—we don’t know how many there are and what the justification may be.

And if they are keeping mum because they are afraid that their reasons won’t stand up to scrutiny, they shouldn’t be doing it at all.

The Maryland Public Information Act

Like the federal Freedom of Information Act, Maryland’s Public Information Act is supposed to make public agencies more transparent. In practice, however, state agencies do whatever they can to suppress information.

They will ignore a public information request if they think they can get away with it. They will use the most narrow, crabbed interpretation of the law that they can. They will artificially inflate the fees they are allowed to charge. Or, in the case of the Department of Public Safety, they will simply deny that they are doing what they are doing.

I asked the Department of Public Safety and Correctional Services for details about “a special project to release certain inmates early.” Here is their official response: “Currently, there is no special project to release inmates early within the Department.”

This in the face of an e-mail sent by a prison official in July that I quoted in my first article: “The Parole Commission is undertaking a 60-90 day project to review a large number of predominantly non-violent offenders for release. “ It goes on to describe the efforts that prison officials would be making to help.

It’s right there: a 60-90 day project (which I called “special” and which parole records also call “special”), the purpose of which is to review offenders “for release.” The only word missing from the e-mail is “early” but that is what the Parole Commission does, release inmates early.

So I will have to appeal to find out what kind of silly, legalistic, obfuscating logic they are using to deny my request. That’s government in action. That’s the O’Malley Administration in action, the one that says it’s transparent. Silly me, I wanted to believe it.