A `back door' into prison

Parole violations can lead to jail time even after acquittal

Confronting Crime

The Battle For Baltimore's Future

December 02, 2007|By Julie Bykowicz | Julie Bykowicz,Sun reporter

No need to explain the relief on Elijah Snow's face in September when a jury acquitted him of carrying a deadly weapon - a kitchen knife - through downtown Baltimore. A guilty verdict would have landed the twice-convicted armed carjacker back in prison. Now he appeared to be home free.

That may explain his confused expression when he stood in another city courtroom in November, listening as another judge sent him off to prison on the basis of the very same evidence that had failed to convince the jury two months earlier.

"I was found not guilty," Snow complained to Circuit Judge John Miller. "I don't know what's going on."

It may have seemed to Snow a case of double jeopardy - trying him twice for the same crime. But it wasn't.

FOR THE RECORD - A headline on Page 1A of yesterday's editions of The Sun erroneously referrred to defendants being sentenced for parole violations. The article instead involved violations of probation.

The evidence that wasn't sufficient to convict him on the deadly-weapon charge was enough, in Miller's mind, to conclude that he had violated probation on his earlier prison sentence for carjacking. So even though he beat the weapons charge, the effect was the same: He was going to do time.

Increasingly - even in cases when Baltimore prosecutors have lost at trial or dropped charges - they are sending ex-convicts back to prison by using evidence of the new crimes in probation-violation hearings. This week, four more cases are scheduled for such hearings in city courtrooms.

Prosecutors say the practice is a way to get particularly violent offenders off the streets. Defense lawyers counter that authorities are really finagling a way to put someone behind bars when a jury has refused to do so.

"It's patently unfair, and it screams injustice," said Margaret Mead, a Baltimore-area defense attorney for 17 years. "They're basically sneaking people into jail through the back door."

The practice is controversial in part because it is far easier for a prosecutor to win a conviction on probation violation than a conviction on new criminal charges. The standard of proof is lower, and violation cases are decided by judges rather than more unpredictable city juries that are often skeptical of police evidence.

Despite protests by defense attorneys, the practice has stood up to challenge. In 1992, the Maryland Court of Appeals ruled in a Baltimore drug case that a conviction on a new crime is not necessary in order to find an ex-convict in violation of probation. High courts in other states - including Illinois and Pennsylvania - have also recently upheld the practice.

About 14,000 people are on probation in Baltimore. Although some conditions vary from person to person, probationers must observe a few steadfast rules, including the all-purpose Rule 4: "Obey all laws."

Enough people are accused of violating their probation to fill 570 days of court time a year. Baltimore residents on probation racked up 2,121 Rule 4 violations between July 1, 2006, and June 30, 2007.

About two years ago, with homicides and nonfatal shootings on the rise, prosecutors from Baltimore State's Attorney Patricia C. Jessamy office began to look at Violation of Probation (VOP) hearings as a way to get dangerous people off the streets even when prosecutions on new charges failed. Thus was born the "collateral unit," a team of three prosecutors dedicated to probation violations.

Most of their time is spent pursuing technical probation infractions, such as not getting a job or moving without telling one's agent. Sometimes after a person is convicted of a new crime, the VOP prosecutors seek probation violations to extend the time in prison. But they also go after those who, like Snow, elude new prosecutions.

Sterling Clifford, a spokesman for the mayor's office and the Police Department, said police are very much in favor of the new focus, particularly when it comes to violent repeat offenders.

"We're not looking to harass anyone on probation, but if you can get them on a violation, you do," he said. He likened it to the way federal authorities finally put Al Capone away. Not for the murders everyone suspected him of ordering, but for tax evasion.

"It's not exactly a new concept," said Clifford, "seeking alternative routes to hold someone accountable."

From the point of view of law enforcement, there's often a bonus: Through violation hearings, it's possible for defendants to receive far longer sentences than they would have received had they been convicted on new charges.

That's because judges often give "suspended sentences" - for example, 30 years, with all but 15 suspended - that saddle probationers with significant prison time if they are found in violation.

When handing down a sentence, a judge also determines how long an offender will be on probation - up to five years - once released from prison. If the offender breaks the rules during that period of probation, a judge can order him or her to serve the rest of the suspended prison sentence.

That was the case for Bernard Pratt, who was brought to trial on drug charges in 2005.

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