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

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.
Benefits:

—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.

Nope.

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.

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.

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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?