A GOP Governor Has a Chance To Fix A Blue State’s Draconian Approach to Paroling Juvenile Offenders

Originally published in The Intercept on December 10, 2018.
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IN 1993, A 40-year-old man in Maryland who was serving a life sentence for a 1975 murder left prison on the state’s prerelease program. Correctional officers had described Rodney Stokes as a model prisoner who had demonstrated no inclination to reoffend. Stokes had been in the work-release program since 1988 and had worked for the Baltimore Department of Public Works as a laborer since 1989. But one day after leaving, he killed his former girlfriend and then himself.

The murder-suicide came on the heels of three other incidents in Maryland involving the prerelease of prisoners. The Willie Horton ad that derailed Democratic presidential candidate Michael Dukakis’s 1988 presidential campaign was also still fresh in the public’s mind. Horton was a convicted felon serving a life sentence in Massachusetts; while on a weekend furlough, he committed assault, armed robbery, and rape. He was captured and sentenced in Maryland, where he remains to this day.

In reaction to the Stokes incident, Maryland’s Democratic governor at the time, Parris Glendening, removed all lifers from the prerelease program and announced, in 1995, that he would approve no recommendations to parole lifers going forward. “A life sentence means life,” he declared. Maryland, along with California and Oklahoma, is one of just three states in which the governor’s signature is required in order to parole prisoners with life sentences; in the 25 years leading up to Glendening’s decision, three Maryland governors had paroled 181 prisoners with life sentences. The state courts upheld Glendening’s pronouncement in 1999, and it remains effectively in place today — even with respect to juvenile offenders, who in recent years have seen their life sentences revisited around the country.

There are an estimated 2,100 people in prison nationwide who were sentenced to life for crimes they committed when they were 17 or younger. But recently, some states have eliminated life without parole sentences for juveniles altogether. Others have devised alternative sentencing schemes to give juvenile offenders a “meaningful opportunity” for release. The changes were prompted by a bevy of scientific evidence about adolescent brain development and powerful U.S. Supreme Court decisions that have been issued in the past eight years.

Maryland, however, appears to be stuck in the tough-on-crime fervor of the 1990s. Not one juvenile lifer in Maryland has been paroled outright — released on a formal recommendation to the governor based on the prisoner’s good behavior and signs of rehabilitation — since 1995. There are currently more than 200 parole-eligible juveniles toiling away in the state’s prisons. That’s in large part, criminal justice reformers say, because of the governor’s role in the process, which they describe as highly politicized — and which leads to people being locked up forever.

Republican Gov. Larry Hogan was re-elected to a second term last month. He now has an opening to parole more individuals with life sentences, and then ultimately remove himself from the parole approval process altogether.

“Republicans are presumed to be about law and order, and it can be easier for law-and-order politicians to move on criminal justice reform or grant clemency,” said Jane Murphy, a University of Baltimore law professor. “There’s a lot of pressure on him, but it’s also politically easier for him to [grant parole]. We’re sort of hopeful now, because this is his second term and he’s term-limited. … If this is the end of the road for Hogan, he might be more courageous.”

HOGAN’S APPROACH TO juvenile lifers is rooted in the Maryland Court of Appeals’s 1999 decision upholding Glendening’s decree. The court found that the rights of lifers were not violated by the governor’s blanket refusal to approve any recommendation from the Maryland Parole Commission.

From then on, Maryland’s governors would reject recommendations — typically without explanation — to parole lifers who had demonstrated good behavior. Sometimes recommendations to parole lifers would be left in limbo, sitting on the governor’s desk for years.

In 2011, advocates confronted the Maryland legislature with evidence that parole and commutation requests were pending indefinitely, and the General Assembly responded by modifying the statute, requiring the governor to act on a parole recommendation within six months. The governor at the time, Democrat Martin O’Malley, responded by swiftly rejecting all pending recommendations.

Criminal justice reformers have continued to press the legislature to take the governor out of the process, and to leave parole decisions up to the Parole Commission. Those efforts, however, have been routinely stymied by legislators that are fearful of being blamed for another Rodney Stokes or Willie Horton. “It’s hard for someone to say, ‘I’m going to undo this policy,’” said Sonia Kumar, a juvenile justice-focused attorney with the American Civil Liberties Union of Maryland. “They’ll say, “Well, one bad headline and my political career is in the toilet.’”

In 2017, the Maryland House of Delegates approved a bill that would have removed the governor from the decision-making process, leaving it up to the Parole Commission to make a final determination. “It is the Parole Commission that sits in front of these individuals who are serving life sentences, and can aptly gauge the person’s rehabilitation, remorse, and disposition, while conducting a thorough review of the relevant records and documents,” reads testimony in support of the bill from the University of Baltimore law school’s Juvenile Justice Project and the University of Maryland law school’s Gender Violence Clinic.

But Hogan fought the bill in the Senate and wrote on Facebook that he “strongly disagree[s] with giving this important responsibility to a nameless board with no accountability to voters and people of this state.” He described it as a partisan attempt to “radically change our state government” and deny Marylanders the “needed and appropriate oversight” they deserve. The bill ended up floundering in the Senate, due to some proposed amendments that advocates deemed unacceptable.

“I think the pushback came because [Hogan] views it as just a challenge to his authority,” said Walter Lomax, the executive director of the Maryland Restorative Justice Initiative. Lomax was released from prison in 2006, after serving 40 years for a murder he did not commit. “We try not to be adversarial when pushing for this legislation,” Lomax added. “We’ve just tried to present the hard facts as to why this policy should be changed.”

THESE POLITICAL BATTLES are especially urgent, criminal justice reform advocates say, because the process for parole and commutation is shrouded in secrecy.

Murphy, who directs the Juvenile Justice Project at the University of Baltimore law school, put it this way: “Our sources of information are occasional leaks from the Parole Commission, or if the ACLU can glean facts through a lawsuit discovery. We don’t know how many people have been commuted, and the only reason we have any information at all is because we push and [file requests under the Freedom of Information Act] and call and write letters and ask for favors, but the vast majority of people in the parole system are unrepresented and there’s no accountability at all.”

There’s “a recognition that secrecy does not tend to breed fair outcomes,” said Kumar of the ACLU. Unlike many other states, Maryland does not recognize a right to counsel in parole hearings, and there are no records of what happens during the proceedings. When the ACLU of Maryland filed a public records request in order to learn how many people had been recommended for clemency, the Parole Commission refused to even disclose that number, saying the information was protected by executive privilege.

The consequence of all this, advocates say, is a loss of hope for people who have spent decades in prison working to rehabilitate themselves, while being told that good behavior could one day lead to parole.

When Hogan ran for governor in 2014, he gave the impression that he would govern differently on this issue, promising to parole lifers who were recommended for release more quickly. And his record on approving parole requests has been slightly better than that of his Democratic predecessor, O’Malley, but that bar is so low that advocates see the situation as still fundamentally broken.

“In office, he’s dealt with it like [Republican Gov. Robert] Ehrlich dealt with it,” said Lomax, “where he’d commute a few sentences and then let people be paroled out that way.”

As of February, according to a letter sent to the state Senate by Hogan’s chief counsel and reviewed by The Intercept, the governor approved two out of nine parole requests during his first three years and granted seven commutations. By contrast, O’Malley, in his eight years in office, granted three commutations and authorized just two medical paroles, a form of release granted to prisoners who are terminally ill and need to move into hospice.

Amelia Chasse, a Hogan spokesperson, told The Intercept that the governor received one recommendation to parole a juvenile lifer, which he denied, but he commuted the sentence of another juvenile lifer, and has granted medical parole to three juvenile lifers. Chasse did not answer questions about whether the bases for the governor’s decisions are available for public review or available to the prisoners themselves.

THE NATIONWIDE PUSH to eliminate life sentences without parole for juvenile offenders came to a head in 2010, when the U.S. Supreme Court, in Graham v. Florida, struck down such sentences for non-homicide offenses. “The juvenile should not be deprived of the opportunity to achieve maturity of judgment and self-recognition of human worth and potential,” Justice Anthony Kennedy wrote in the majority opinion.

Two years later, in Miller v. Alabama, the Supreme Court held that life sentences without parole for juvenile offenders, even in cases of homicide, violated the Eighth Amendment, which prohibits cruel and unusual punishment. “Mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features — among them, immaturity, impetuosity, and failure to appreciate risks and consequences,” wrote Justice Elena Kagan in the majority opinion. In Miller, the court held that juvenile offenders, unless they were “irreparably corrupt,” were entitled to a “meaningful opportunity” for release from prison. Four years later, in Montgomery v. Louisiana, the Supreme Court held that Miller should be applied to juvenile offenders retroactively — giving juveniles who’d previously been sentenced to life without parole for killing someone a chance to reopen their cases.

In Maryland, attorneys and advocates argue that while juvenile offenders are technically eligible for parole, in reality they’re systematically denied it, given the politicized nature of the governor’s approval process.

“Graham was decided in 2010, and we have people who are still not getting anything close to a meaningful opportunity for release eight years later,” said Kumar of the ACLU of Maryland.

In February, Hogan issued an executive order that stipulated he would consider “the same factors and information assessed by the Maryland Parole Commission” when deciding whether to parole juvenile lifers, as well as “other lawful factors deemed relevant by the Governor.” Hogan said this was codifying what he already did but stressed that the order would not apply retroactively. In other words, he was not opening a chance to review past decisions.

Advocates blasted Hogan’s executive order as a political stunt. “He issued something he can change at any time, and there’s nothing enforceable about the order,” said Kumar. “As a practical matter, the order doesn’t alter the system in any way that shifts it from one of clemency to parole, which is the fundamental failing.”

The state’s highest court, however, disagrees. This past summer, in a 4-3 ruling, Maryland’s Court of Appeals held that state law provides a meaningful opportunity for release for juvenile defenders. The court cited Hogan’s executive order, finding that it “attempts to bridge the gap between unfettered discretion that the legislature has given to the governor with respect to parole of inmates serving life sentences and the requirements of the Eighth Amendment as to juvenile offenders.”

In a dissent, Chief Judge Mary Ellen Barbera said the majority opinion does not apply the U.S. Supreme Court’s rulings to Maryland’s situation in a “realistic manner.” She was unconvinced that Hogan’s executive order “cures the constitutional infirmity of Maryland’s current parole system,” she wrote.

While the August decision was a blow for criminal justice reformers, Kumar described it as a “mixed bag,” since it also brought about some positive new pressure. It was the first time the state’s highest court spoke to any of the questions that had grown out of the U.S. Supreme Court’s cases on youth serving life sentences.

In contrast, other states have taken real steps to respond to the decisions of the Supreme Court, including Pennsylvania, which has more juvenile lifers than any other state in the country. In 2017, in the case of Commonwealth v. Batts, the Pennsylvania Supreme Court set forth a series of protections to effectuate the constitutional decrees of Montgomery and Miller. As a result of these protections, explained Riya Saha Shah, an attorney at the Pennsylvania-based Juvenile Law Center, fewer people have received life without parole at resentencing hearings, and Pennsylvania has also been paroling out people who have served long prison sentences on good behavior. “Overall, the parole process offers a more meaningful opportunity for release than a state like Maryland, which effectively denies it,” she said.

THE PRESSURE ON Hogan to take criminal justice reform more seriously is coming from a number of directions. A group of about 50 attorneys came together in 2017 to fight for protections for juvenile offenders. The Maryland Juvenile Lifer Parole Representation Project offers pro bono legal services to juvenile offenders languishing in jail. “Our goal is not only to provide individual representation, but to unleash these large firm lawyers on this system,” explained Murphy.

The state is also currently defending itself against a 2016 federal lawsuit, brought by the ACLU, that challenges the constitutionality of Maryland’s parole scheme for juveniles. The case remains pending.

There is also an economic argument for enacting reform. During the gubernatorial campaign, Hogan’s Democratic opponent, Ben Jealous, spent significant time talking about the amount of money wasted on mass incarceration that could be better spent elsewhere. In a 2015 report, the ACLU of Maryland found that the detention of more than 2,000 with life sentences costs the state more than $70 million per year. By contrast, a recent report from the Justice Policy Institute estimated that it would cost about $6,000 per year to support the successful re-entry of prisoners into society. (The report focused on about 200 former Maryland prisoners who were freed on probation under a landmark 2012 decision and who provided with substantial philanthropic support upon release. Less than 3 percent of them have reoffended, the Justice Policy Institute found, compared to a recidivism rate of 40 percent for the general prison population. Chasse, Hogan’s spokesperson, did not return request for comment on the findings.)

While Maryland has taken some recent steps to tackle its prison system — notably, the Justice Reinvestment Act of 2016, which took effect last fall — the bulk of the new reforms have focused on low-level, nonviolent offenders.

“We’re not really going to take on mass incarceration,” said Kumar, “until we help people who made horrible mistakes with tragic outcomes and have turned their lives around.”

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