Almost a quarter of a century ago in his “State of the Judiciary Address” to the 1990 Session of the General Assembly of Maryland, the former and now deceased Chief Judge of the Court of Appeals, Robert C. Murphy remarked:
“I suggest the wisdom of a legislative resolution directing the empaneling of a select committee on the administration of justice in Maryland courts, to consist of our most astute and visionary leaders in the fields of business, education, community affairs, government, law and politics to conduct an in depth assessment of whether, absent substantial change in our present mode of judicial branch operations, we are capable of satisfying the demand for effective and timely adjudicatory services in the coming decades. And, if not what steps must be taken in our State of over four and a half million people to retool our judicial system to enable it to fulfill its historic role of fairly, expeditiously and, as inexpensively as possible, administering justice in our tripartite system of government.”
That “suggestion” in 1990 was not without precedent. At that time Commissions had studied the structure and functions of the judicial branch of Maryland’s government on five separate occasions in the fifty years preceeding Chief Judge Murphy’s suggestion. A sixth Commission responding to Chief Judge Murphy’s request was created by the General Assembly shortly thereafter and reported in the mid- 1990’s.
This writer was involved in the deliberations that led to the most recent “Futures” Commission. I therefore had occasion to reference Reports and Recommendations of the five previous Commissions completed in the second half of the last century. All of these Reports and Recommendations primarily addressed the structure of Maryland’s Judicial Branch of government and the future operation of the civil justice system.
None of these prior Commissions directly addressed the operation of the criminal justice system as a whole. More importantly none examined the institutions of the executive and judicial branches of government to determine if they were effectively checking and balancing each other and thereby producing a fair, impartial and efficient criminal justice system for the times that we lived in.
Recent events which have drawn headlines in this newspaper and others have made the case for a systematic examination of the entire criminal justice system even more compelling than in yesteryears. The “crisis in corrections” particularly as manifested by the takeover of the state-run and financed Baltimore City Jail by a gang known as the “Black Guerilla Family” is not unrelated to the management of the entire criminal justice system. The funds to pay for the technological resources and staff to fight corruption in the correctional system are appropriated at all three levels of government in their respective legislative branches. The judiciary and the executive branches of the state and federal governments direct the incarceration and to a certain extent the release into our communities of offenders as well as the level of supervision which protects our communities and the resources provided for the rehabilitation of these people so we can reduce the need for their supervision and our protection sooner rather than later.
The executive branch of Maryland’s government at the state and local level runs our police departments, our sheriff’s offices, our prisons and our jails. This fundamental reality should no longer be overlooked. The penalty for doing so is not just a corrupt and dysfunctional single jail in Baltimore City which is being corrected. It is potentially a dysfunctional criminal justice system weighed down by its own inefficiencies resulting from institutions not designed or staffed to carry out their functions in the twenty first century.
Much has changed since Chief Judge Murphy left the scene and Chief Judge Robert Bell took over in 1996. Chief Judge Bell himself will “retire” within a few days. Now is therefore the time to look forward! Institutions and their functions have changed and/or evolved since the 1980’s and 1990’s.
The Death Penalty has been abolished. We now have “Sentencing Guidelines” which were developed to promote greater uniformity of sentencing so as to be fairer to all parties by tracking the mean or average sentence. Is the average or mean sentence always the best sentence? If not why do we put a premium on that more than any other consideration? Shouldn’t we be examining more fundamentally who we are incarcerating and why as well as where we are housing them, for how long, and for what purpose?
What data do courts and/or law enforcement need to collect and interpret to assist law enforcement in the their investigative and enforcement duties as well as judges in their sentencing decisions? How much of our citizen’s privacy should government invade to collect biological, financial, and other personal information to more efficiently secure our persons and property? Should a data driven cost-benefit analysis be available to a judge before sentencing so he or she can choose from alternative sentences and should that cost-benefit analysis include a psychological or sociological profile? If it should, what should it be based on? In addition should the cost of incarceration versus community supervision and rehabilitation be assessed as well as the probability of success? If so, based on what?
Do “Drug Courts,” “Mental Health Courts,” and other Specialized Courts” and Case Management Programs work to the extent that they should be expanded or should they be held accountable for results that they cannot control because as a result of fiscal limitations they are unable to operate on a scale sufficient to affect more than a comparatively small sample of cases?
Finally should criminal charges in the State of Maryland continue to be initiated through District Court Commissioners and Grand Juries with a few coming in a limited number of cases via Criminal Information. A diverse Maryland State Bar Association Special Committee looked at this over 10 years ago and made recommendations for changes based on documented inefficiencies. Those recommendations have never been implemented or been systematically examined critically by policy makers.
All the more reason for a top to bottom critical examination of the institutions of our criminal justice system and how they should function and interact in the next 25 years in the words of Chief Judge Murphy, “by a select committee of our most astute and visionary leaders in the fields of business, education, community affairs, government law and politics.” In this way we can shape today’s decisions to effectively secure tomorrow’s efficient, economical and fair criminal justice system.