Reform crime laws

Let's hear from the state's attorney candidates on peremptory challenges, drug offenses

August 29, 2010|By George W. Liebmann

In a little more than two weeks, Baltimore City voters will participate in a seriously contested election for state's attorney.

There are various suggestions for rendering the criminal justice system more efficient. "Smoking out" the candidates would be useful to city voters next month, as well as the General Assembly when it takes up the following issues:

1. Maryland provides both parties in criminal trials unusually large numbers of peremptory challenges of jurors. In death-penalty and life-imprisonment cases, the defense has 20 challenges, the prosecution 10. In cases involving 20 years or more, the defense gets 10 challenges, the prosecution five; in other cases, each side has four challenges.

Since the Supreme Court has ruled that peremptory challenges must be justified if used to dispose of jurors on the basis or race, gender or nationality, their exercise generates litigation and serves little purpose other than to ensure that both sides purge the most competent jurors. Maryland, moreover, is one of only 10 states that give the defense more challenges than the prosecution. While the occasional prospective juror may be so hostile that use of an unjustified challenge may be appropriate, this purpose would be as well served by giving each side two or three challenges. City jurors would then be called half as often; there would no longer be great herds of them roaming through the courthouse; and trials would get under way more quickly. This simple reform has foundered on buck-passing between the legislature and Court of Appeals Rules Committee and lack of energetic support from the state's attorney's office.

2. The maximum authorized penalty for a first drug-possession offense is one year for marijuana and four years for other drugs. Prosecutors do not have the option of charging a more minor offense. Any offense carrying a possible penalty of more than 90 days carries with it the right to jury trial. In a typical recent year, there were more than 12,000 demands for a jury trial in Baltimore City, but only a few hundred jury trials. Drug possession cases are typically plea-bargained to unsupervised probation or dropped; the defendants hold all the cards. In this realm, less is more; creation of a minor drug offense with only a fine or maximum jail sentence of 60 days would allow many of these cases to be disposed of in the District Court, where defendants could be required to participate in treatment programs or perform community service.

3. Similarly, only a few categories of cases — disorderly conduct and some minor assaults and alcohol violations — can be commenced by citation. All drug possession cases trigger arrests. In a recent year, according to the Abell Foundation, there were 10,000 marijuana possession arrests statewide; 3,000 persons served jail time averaging seven days while awaiting trial. The influx of arrestees crowds the Central Booking Facility, generates many lawsuits and impairs processing of more serious crimes.

In 1996, a certain Councilman Martin O'Malley suggested that citation authority be broadened to additional offenses as it has been in New York, where 65 percent of misdemeanor offenses are disposed of within 29 hours of arrest. Those who fail to appear in court are subject to arrest warrants conferring the right to search as well as arrest. Unfortunately, this wise suggestion appears to have been merely an electioneering gambit; Mayor and Governor O'Malley have since not been heard from on this question. But the suggestion is a good one and ought to be revived.

4. Finally, the state's attorney candidates should give their full-throated support to Mayor Stephanie Rawlings-Blake's effort, resisted by the police union, to return to 25 years the minimum period of police service before normal retirement. The service period was reduced to 20 years in 1989 in order to stimulate early retirements so as to racially balance the police force. That purpose has long since been served; the effect of unduly early retirement now is not only to increase pension costs but to deny the police force service from experienced officers.

These issues challenge the candidates to give us substance, not merely empty rhetoric.

George W. Liebmann, a Baltimore lawyer, is volunteer executive director of the Calvert Institute. A transcript of a symposium discussing these questions is available online at http://www.calvertinstitute.org/main/pub_detail.php?pub_id=71

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