As part of its mission to ease incarcerated individuals' re-entry into society, the REC seeks to weigh in on legislation that affects its client base. In addition to matters directly related to the parole process, the REC is interested in any issue that affects incarcerated individuals and those on parole or probation, such as voting rights, employment rights, and services that help our client base to have a truly fresh start as members of our community.
The clinic advocated for the passage of the following legislation.
Expanding Juvenile Court Jurisdiction Over Children Accused of Felonies (SB165/HB 294)
These bills would expand the jurisdiction of the juvenile court to establish original jurisdiction over (1) children age 14 and older who are alleged to have done an act which, if committed by an adult, would be a crime punishable by life imprisonment; (2) children age 16 and older who are alleged to have committed specified crimes; and (3) children who have previously been convicted as an adult of a felony and are subsequently alleged to have committed an act that would be a felony if committed by an adult.
Increasing Protections For Children in Custodial Interrogations (SB53/HB 269)
These bills, subject to a limited exception, prohibit a law enforcement officer from conducting a custodial interrogation of a child until the child has consulted with an attorney, and the law enforcement officer has made an effort reasonably calculated to give actual notice to the parent, guardian, or custodian of the child that the child will be interrogated. The legislation also requires recording of custodial interrogation of a child and establishes a rebuttable presumption that a statement made by a child during a custodial interrogation is inadmissible in proceedings if a law enforcement officer willfully failed to comply with this bill’s requirements.
Raising the Minimum Age for Juvenile Court Jurisdiction (HB 459)
This legislation, and Senate version, SB SB691, is based on recommendations from the MD Juvenile Justice Reform Council. It would set, with exceptions, the minimum age for juvenile court jurisdiction at age 13, and provides exceptions that would set the age at 10 for certain offenses. The UN Committee on Rights of the Children recommends that the minimum age for juvenile court jurisdiction should be 14. The UN recommendation is “based on documented evidence in the field of child development and neuroscience.” Still, the legislation is an improvement over current law. The JRA means Maryland joins six other states plus D.C. with second act legislation.
Spring 2021 Legislative Advocacy
In the spring semester of 2021, REC students submitted testimony to the Maryland House in favor of the three bills. (similar testimony was also submitted to the Maryland Senate for the companion bills).
Remove Governor from Lifer Parole (HB 3)
This bill became law on January 6, 2022, after an override of the Governor’s veto. The law removes Maryland governors from the final say on the parole of people serving life sentences, a role that allowed politics to influence such decisions particularly since Governor Glendening famously elevated life sentences to life without parole through his policy stated back in 1995 that “life means life” - a policy carried forward by his successors with few exceptions.
The Juvenile Restoration Act (JRA) contains two parts: the first, now codified at MD CP § 6-235, states that when sentencing a minor convicted as an adult, a court may 1) impose a sentence less than the minimum sentence required by law, and 2) may not impose a sentence of life imprisonment without the possibility of parole of release. The second part of the JRA, codified at MD CP § 8-110, allows for the reduction of sentences for individuals who were 1) convicted as an adult for an offense committed as a minor, 2) sentenced for the offense before October 1, 2021, and 3) have been imprisoned for at least 20 years for the offense. This bill allows for a new hearing, where courts consider mitigating factors such as the individual’s age at the time of the offense, whether the individual has demonstrated maturity, rehabilitation and fitness to reenter society, and the diminished culpability of a juvenile as compared to an adult. The JRA was passed on April 10, 2021, over a gubernatorial veto, and became law on October 1, 2021.
Reentry Clinic students began working on JRA motions for their clients at the start of the fall 2021 semester. All of the REC's clients were eligible for reduction of their sentences under the JRA.
Felony Murder (HB 385):This legislation would do away with felony murder charges for child offenders. It would also allow child offenders convicted of felony murder to seek resentencing to reduce their life or life without parole sentence to a sentence under the murder two statute. This bill stalled in the Judiciary Committee in January 2021, and there was no movement on the bill before the end of the 2021 legislative session. A version of the bill has not been introduced in the 2022 legislative session.
Opinion: No Place for Redemption in Maryland’s Criminal System
The following piece is the first in a 2-part series written by REC Director Margaret Martin Barry and originally published by Maryland Matters.
"The United States treats children, particularly youth of color, who come into conflict with the law in intensely cruel and inhuman ways, disregarding their human rights and differences from adults. This is evidenced most starkly by the fact that the United States is the only country that sentences children to die in prison by imposing life-without-parole sentences on individuals under age 18. Imposition of the sentence varies significantly based on geography, quality of legal representation, the child’s economic status, and race." – Campaign for the Fair Sentencing of Youth
Every year some 250,000 children in this country are tried, sentenced and incarcerated in adult prisons. For this population, suicide is 36 times higher; sexual assault is five times higher; and it is 200 times more likely that they will be physically assaulted by imprisoned adults and correction officers. Unfortunately, Maryland’s record on juvenile justice is far from exemplary.
According to Human Rights for Kids’ 2020 State Report Card, Maryland ranks last in its administration of juvenile justice, tied with Alabama, Mississippi, Georgia, Tennessee and Wyoming.
One important reason for Maryland’s abysmal rating is that Maryland continues to impose sentences of life without parole on its juvenile offenders. Thirteen former juveniles will die in Maryland prisons because they were sentenced to juvenile life without parole. Approximately 300 additional juveniles will die in Maryland’s prisons because our parole system is broken.
James’ case is illustrative.
James (a pseudonym used to protect privacy) was sentenced to life with parole for a murder that he did not commit; he was with friends when one friend shot another friend who was waving a gun around, intoxicated. Ordered by the shooter, James grabbed the gun and ran.
He was sentenced to life imprisonment with the possibility of parole. He was 16; 27 years later — with an excellent record of rehabilitation, personal development and reentry planning — the Maryland Parole Commission denied parole and set his case for rehearing in several years.
There was no indication of how James had failed to meet the regulatory criteria, no sense of what he might do to gain his parole in the future and no specific considerations for juvenile offenders that James needed to work on before his next parole hearing. On his record, he had met all they could conceivably require of him.
For those juveniles sentenced to life without parole, they do not even have the, albeit remote, possibility of release that James has.
Why does Maryland retain these inhumane sentences? Because they give prosecutors leverage.
In Maryland, juvenile offenders can be threatened with life without parole unless they plead guilty in exchange for a sentence of life with parole. They are told that, if they take the plea, they will be eligible for parole in 15 years, possibly less if they do well in prison. What they are not told is that the likelihood of getting parole in Maryland is slim to none, and certainly not a realistic hope prior to serving decades in prison.
This is so because, as James’ case shows, the Maryland Parole Commission appears to work outside its own criteria for granting parole, and instead applies a calculus that resists objective analysis. Even in the instances where parole is recommended, the governor, with a few seemingly random exceptions, will deny the recommendation. Since 1995, Maryland’s governors have granted parole to only three citizens sentenced as juveniles to life sentences.
The bipartisan Juvenile Restoration Act, or JRA, would do three things to address the problem of locking up child offenders for the rest of their lives.
First, the JRA would allow courts to sentence minors convicted as adults to less than the minimum terms set for the crime, thereby empowering courts to lessen lengthy sentences that are hard to justify when applied to children.
Secondly, it would abolish life-without-parole sentences for juveniles. The U.S. Supreme Court has held that juvenile life without parole is unconstitutional in all but the rarest of cases, which has led to a dramatic national trend away from imposing such extreme sentences against children. Maryland has essentially found itself on the wrong side of this standard since the U.S. Supreme Court decided Miller v. Alabama, 567 U.S. 460 (2012) and made it retroactive in Montgomery v. Louisiana, 136 S. Ct. 718, 735 (2016).
The movement toward age-appropriate sentencing policies that are centered on rehabilitation and reintegration into society are based on recent brain science confirming what we intuitively know: juvenile brains are still developing, rendering children more impulsive and less culpable, and making rehabilitation a more likely outcome.
It is because James’ case is more the rule than the exception that the third part of the JRA is necessary. It would create a judicial framework for resentencing juveniles who have served 20 or more years in prison, provided they can demonstrate rehabilitation.
Specifically, the court would look at whether the person is a danger to the public, and whether the interests of justice will be better served by a reduced sentence.
The bill guides the court in its determination providing 11, largely subjective, factors. It grants courts discretion in resentencing but offers the juvenile offender a more reliable process than the current parole process. An opportunity for sentence review provides the reasonable opportunity for parole that the Supreme Court has said is constitutionally required.
At a time when we are coming to terms with structural racism through reforms to our policing, the ways in which we lock children up in prison and keep them there indefinitely must also be reformed.
Black youth are given life sentences without parole at a rate that is 10 times that of white children. The Juvenile Restoration Act provides a mechanism for seeing the children we incarcerate as capable of redemption, and this is something we all need to support.
As citizens of this state, we bear full responsibility when we lock children away, not only for the administration of punishment but also for the application of a just and fair opportunity for release.
It is past time for Maryland to join the 24 states and the District of Columbia that have already abolished juvenile-life-without-parole sentences.
As Nelson Mandela instructed, “There can be no keener revelation of a society’s soul than the way in which it treats its children.” Judged by this standard, Maryland’s soul needs to be renewed, a process that begins with the Juvenile Restoration Act.
“There can be no keener revelation of a society’s soul than the way in which it treats its children.”
Opinion: Governor Should Be Removed From the Parole Process
The following piece is the second in a 2-part series written by REC Director Margaret Martin Barry and originally published by Maryland Matters.
Maryland has the dubious distinction of leading the country in incarceration of Black people. In 2018, the Justice Policy Institute reported that more than 70% of the state prison population is Black, though only 31% of the state’s population is Black. Looking at long-term incarceration, nearly 80% of those who have served 10 years or more in prison are Black and among the people with the longest prison terms, 82% are Black.
We didn’t get here by accident. The statistics illustrate a buy-in to the idea that certain people do not deserve our compassion, have no capacity for redemption and deserve to be locked away, forever.
That harsh view has many costs. It represents a decision that the $46,000 annual cost per incarcerated person in the state is better than allowing people who have served significant time to demonstrate that they are rehabilitated and ready to become productive members of society. This decision challenges our humanity as well as our wallet.
Maryland’s governor is one of only three in the country with the final say in whether to ever actually release a person sentenced to life with the possibility of parole. In Maryland, a “lifer” seeking release on parole goes before the Maryland Parole Commission for review. In fact, a person may go before the commission many times getting little sense of what else could be done to convince that body. If the commission does recommend parole, the governor must approve the recommendation.
By the time a parole recommendation reaches the governor, it represents considerable examination by the entity established to do the assessment. The only thing the governor can add is a political calculation that has little to do with what the person has done to meet the criteria for parole.
In 1995, former governor Parris Glendening famously announced that a life sentence “means life,” adding that he would not be granting parole to anyone serving a life sentence, even to those whose sentences called for the possibility of parole.
In one move, Glendening usurped the place of both the sentencing judge and the Parole Commission, and he denied hope to hundreds of Marylanders incarcerated with life sentences. Former governors Bob Ehrlich and Martin O’Malley likewise did not grant even one recommendation of parole. Gov. Larry Hogan was the first governor to grant parole since Glendening’s fateful pronouncement.
Justin (a pseudonym used to protect privacy) was 15 when he walked into a stranger’s apartment and killed her. The apartment was the same one he had lived in with his mother at one point in his turbulent childhood. He does not recall how he got there or much about the incident. He does recall vividly the period before it.
His mother had beaten him repeatedly and locked him in the house for over a week. This was not unfamiliar. Throughout his life, she had been beaten him with belts, a boat oar and other items within her reach. She had squeezed him between her legs as she punched his head. He had struggled to breathe as she sat on his head. He had been sent to five different foster homes, where the story was no better. In foster care, he was denied food and beaten bloody. On the day of the murder, after over a week of isolation and beatings, his mother had decided to let him out to go to the store for her. He found himself at their old apartment instead.
Justin is not unlike disoriented or otherwise troubled young people who do terrible things. The terrible things they do warrant punishment. What they do not warrant and what we do all too often is to throw them into adult prisons content that they remain there forever.
A year ago, Gov. Hogan granted parole to three juvenile lifers; it was the first time in 24 years that a juvenile lifer was granted parole. Several more have made it through the parole process since, but the number pales in the face of almost 300 juvenile lifers sitting in prison.
This remains so in Maryland despite the Supreme Court rulings that recognize that the juvenile brain is not fully formed and thus juvenile offenders are less culpable than adults and more likely to reform.
These rulings brought considerable pressure on Gov. Hogan to provide what the court described as a “reasonable opportunity for release” in order to avoid inflicting cruel and unusual punishment on those who committed crimes as children. While lip service has been paid by parole regulation and an executive order, the trickle of releases demonstrates that Maryland has failed the constitutional mandate.
Justin received a life sentence. He has been in prison 36 years. He has demonstrated in every way imaginable that he is someone who is ready to play a productive role in society. He has not had an infraction – a violation of prison rules – of any kind for 29 years. This is extraordinary in its own right.
In prison, he gained his high school diploma and numerous certificates from educational and skills programs available to him, and was acknowledged for his work successes. He has a home to go to, if he can ever get out — not the abusive one he left, but the home of the woman he married having met her many years ago in connection with his work at the prison. She is his lifeline and she describes him as her center. Through the years, he has become close to her family. They all dared to hope; but the governor denied the Parole Commission’s parole recommendation.
We need to affirm the meaning of a life-with-parole sentence: if rehabilitation is demonstrated, when eligible, parole should be granted. Layering politics on top of the Parole Commission’s recommendations undermines the rule of law and is out of step with all but two other jurisdictions in our country allow.
Last year, legislation to remove the governor from the parole process passed the House with a veto-proof majority. In the upcoming session, it is important that this legislation passes both the House and the Senate in the same manner.
Without it, politics will keep people who have served very long sentences and demonstrated rehabilitation with little hope of ever leaving prison.
Maryland General Assembly Testimony Spring 2020
In the spring semester of 2020, REC students submitted testimony to the Maryland General Assembly in favor of two bills.
HB 1219 (cross-filed with SB 0817) would have amended the period for parole consideration on a life sentence for persons convicted after October 1, 2020, to 20 years or the equivalent when considering diminutions and after 15 years if before October 1, 2020. It would have also removed the governor from the parole process for life sentences.
HB 1437 (cross filed with SB 1038) said that when sentencing a minor convicted as an adult, courts may impose a sentence for less than the minimum term required by law and may not impose a sentence of life without parole. The bill provided for motions to reduce duration of sentence for minors convicted as adults after such individuals have been imprisoned for at least 20 years.
On July 7, 2020, the DC Council voted to make the District of Columbia the first jurisdiction to restore voting rights to incarcerated residents with felony convictions. This significant democratic milestone comes after a testimony in support of the Bill by Visiting Professor Margaret Martin Barry, director of the Re-Entry Clinic at American University Washington College of Law, with assistance from Dean's Fellow Xena Hinson '22, who also had the opportunity to testify.
Last October, Barry and Hinson advocated for Bill 23-0324 – The Restore the Vote Act – before the DC Council. The testimony noted that in DC, 46.4% of the general population is black, while approximately 97% of all inmates are black.
The felony disenfranchisement of black individuals after the Civil War was used to suppress the African-American vote, Barry said.
“[The] laws barring those incarcerated on felony convictions from voting are widely considered vestiges of the same policies simply reworded to appear less explicitly racist. Today, black voters remain inordinately impacted by felony disenfranchisement laws. Of the 6.1 million citizens without the right to vote because of felony disenfranchisement laws, approximately 2.4 million are black,” Barry and Hinson wrote.
Because of this, Barry concluded, “The Bill serves the community by providing a vehicle for a significant portion of the population to exercise their rights as citizens and reminds the community and its elected officials that the humanity of those we convict as felons does not end with that determination.”
In his official statement following the Bill’s passing, DC Councilmember At-Large and AUWCL alum Robert C. White, Jr. ’07 underscored the connection between stripping voting rights from incarcerated individuals and other Jim Crow-era voter suppression efforts.
“We realized that voting is the most basic right of a democracy and that our city and our country are better if all our residents can participate in our governance and hold elected officials accountable on important issues like mass incarceration and prison abuse," White said.