The most valuable lesson that I learned as a result of being lucky enough to have been appointed and elected to serve on three different Maryland courts and as a result being able to change my first name to “Judge” for over 35 years was ironically not to judge people and situations too quickly. I also learned that there is a lot of grey in this world which should inform the level of certainty in the judgments we do make particularly when they affect the liberty and therefore the quality of life of our fellow citizens. That is true whether those judgments are in a courtroom, a legislative committee room or chamber, an executive office or even on the street. Most of us human beings are more complicated than either our admirers or detractors would like to believe or that we recognize. For that reason I have realized as a result of my experience that a great deal of humility albeit not agonizing should be a part of any judgments we do make both professionally and personally particularly when those judgments are enforced by the power of the government.
These realizations have now dawned on enough opinion-makers and officials in all three branches of local, state and federal government as well as academia to give rebirth to a wave of what the media is describing as “criminal justice reform”.
“Criminal Justice Reform” is the subject matter and the agenda of the “Maryland Justice Reinvestment Coordinating Council” composed of diverse representatives of all three branches of Maryland government as well as academia. It has already sought guidance and expertise from a wide range of professional disciplines and recognized authorities on issues arising as a result of previous policies implemented far too quickly with at best inadequate or incomplete data to support them for essentially political and ideological reasons.
These ill advised policies adopted in the 1980’s, 1990’s and even the first decade of the 21st century resulted from politicians, policy-makers and even some judges instinctively ignoring social scientists and their opinions in favor of politically popular positions designed to appeal to their constituents’ prejudices and predilections. Those prejudices and predilections resulted from earlier ideological and inadequately researched theories by social theorists and their political and cultural partisans on both the left and the right. These pseudo-scholars provided politically appealing but deceptively simple answers to complicated questions including the influence of heredity and environment on the development of personalities. These profound questions deserved far more rigorous research as well as lengthier deliberation than what they got.
Examples of these almost hysterical theories which drove criminal justice system policy for three decades included the writings of John Dilulio, a conservative American academic predicting in the 1990’s that “a new breed of super-predators, kids that have no respect for human life and no sense of the future would terrorize Americans indefinitely.” This “analysis” in part drove the legislation establishing “mandatory sentences”. Fortunately he turned out to be wrong and later retracted his demonstrably incorrect and unsubstantiated prediction in order to preserve the small quantum of credibility left to him even in academia.
Dilulio was certainly not alone on the right. Other “experts” as well as “Talking Heads” predicted crime would keep rising as a result of the decline of the traditional nuclear family and growing ethnic diversity even in the face of the dawning reality as the 21st century began that in fact crime was and remains today clearly on the wane in Maryland, in the United States and around the world. This is undeniably occurring notwithstanding pockets of resistance to that statistically documented trend in parts of certain urban and suburban centers including our own Baltimore City.
The “right” was clearly not alone in the finding that the social theories which they painstakingly formulated and espoused to explain the “rising crime rate” in the 1980’s and 1990’s were inapposite to comprehend the reality of reduced crime generally as well as the greater safety of even many urban centers as the 21st century began and progressed. The “wisdom” of many social theorists of the left that crime could never be curbed unless inequality was reduced and recently that the “Great Recession” would interrupt the downward trend of the crime rate now look just as wrong and even as silly as the right wingers’ theories that being brought up by one parent and playing a lot of computer games would unleash an unstoppable crime wave.
We retain in Maryland however at least the remnants of public policies developed to combat crime believed to have been caused by the factors explained above. The “War on Drugs” with its mandatory sentences and severe sentences for non-violent drug offenses, Pre-Trial Detention based on economic status and discredited punitive rationales, the contested election of Circuit Court judges based on who the candidate who can be toughest on crime is and Sentencing Guidelines issued to encourage solely uniformity i.e. fairness based on the average or mean sentence of judges throughout the state. These sentencing guidelines continue to be followed almost blithely by many judges despite the fact that we know that the average or mean sentence isn’t always the best sentence and in fact often is not. Furthermore they can be very inefficient, unfair and costly.
We also know that our Bail Bond System is likewise very unfair, inefficient, and costly both with respect to public safety and economically. This is an issue where unlike a lot of other issues the longer we think about it and observe the current system, the simpler and more apparent the proper method of addressing the issue becomes thereby defying the conventional wisdom. Every effort to legislatively address this issue in the General Assembly has failed apparently because of the strength and campaign contributions of the Bail Bond Industry. Each year after that happens we simply return to the status quo.
The answer to this seeming inability to change an obviously unfair and inefficient system is simple. Convince Maryland’s District and Circuit Court Judges of the really obvious facts that requiring that violent offenders to pay for and post a high cash, surety or property bond won’t make them any less violent or dangerous when they pay for it and return to the street. Nor will requiring a person with no history of violence of other indicia suggesting the risk of flight pay for and post a bond make them less likely to flee the jurisdiction before their trial or court date.
Empirically we know that what will reduce the risk of further crime and/or flight is Pre-Trial Release Supervision. So if we’re going to conditionally release anyone, we should assess their risk of recidivating and flight and then provide for their level of supervision based on that assessment rather than feed the current unfair and inefficient Bail Bond System. If in fact they are dangerous i.e. violent then they should not be released at all! In this way we will proactively and effectively prohibit their further criminal behavior.
Maryland’s District and Circuit Judges have the power to do that now. Legislation is not necessary to accomplish this. The education and orientation of Maryland’s District and Circuit Court Judges as well as the encouragement of their Chief and Administrative Judges to utilize the technology and human resources in the form of Pre-Trial Release Agencies and personnel in lieu of Bail Bonds is all that is necessary. Judges have that discretion. They should exercise it.
This is clearly a time and an opportunity with historically unique bipartisan support and cooperation to substantially reform in ways much needed and long overdue the entire criminal justice system in Maryland. The Maryland Justice Reinvestment Coordinating Council is the vehicle to lead that effort. Let’s hope that it does!