Life Should Not Mean Life Without Parole (Part III)

by Professor Byron L. Warnken on March 29, 2011

For many years, Maryland has had a sentence of “life with the possibility of parole” for the crimes of murder, rape, and sex offense.  In 1987, the Maryland General Assembly established a sentence of “life without the possibility of parole” for first degree murder.  Thus, for the crime of first degree murder, for the last 24 years, the sentencing options have been “life with parole” and “life without parole.”  Eight years after the creation of “life without parole” option, Governor Glendenning stated that he would not parole a lifer, after a released life committed murder.  Thus, since 1995, in Maryland, every inmate serving a life sentence has a de facto life without parole sentence, because no Governor has paroled a lifer in 16 years.

The manner in which the last three Governors have treated the sentence of life with parole has caused concern in the Maryland General Assembly.  The premise is that if, over a 16-year period, not one lifer has earned the right to be paroled, then the Governor might not be following the intent and spirit of Maryland law, when that law differentiates between “life with parole” and “life without parole.”  This concern has led to proposed legislation, which is currently pending in the Maryland General Assembly.

The proposed legislation would significantly alter the role of the Governor in the process of granting or denying parole to inmates serving life sentences.  The law would restrict the Governor’s power and discretion regarding, by providing, for the first time, consequences if the Governor ignores or avoids the recommendation of the Maryland Parole Commission.  The general effect of the proposal would be an increased likelihood that an inmate serving a life sentence (not a sentence of “life without parole”) may be granted parole based on a careful evaluation of the case by the Maryland Parole Commission.  It would still be very difficult for a lifer to ever be paroled.  However, under the proposal, the most exceptional of “lifer” inmates would have an opportunity to earn parole, whereas, currently, there is no possibility of parole, even when the law says that there is a possibility of parole.

Under the proposal, if, after all the levels of scrutiny, the Maryland Parole Commission recommends parole, the inmate will be paroled unless the Governor files a written denial of parole within 90 days of the Commission’s recommendation.  The bill would force the Governor to address the case, rather than to ignore it, because ignoring the case will constitute the granting of parole, if recommended by the Commission.  Under existing law, in the last four years, the Governor has failed to act in 50 cases in which the Commission recommended parole.  The Governor’s non-action has constituted the denial of parole.  If this bill passes, the Governor’s non-action would constitute the granting of parole.  Under the proposal, if the Governor wished to deny parole, he would be forced to affirmatively act in writing.  Thus, the proposal would not restrict the Governor’s power, but it would require him to exercise his power.

The proposed law would not lighten any sentence, and it would not provide inmates with any new right.  When a judge imposes a sentence of life, it means that one of two things has happened.  One possibility is that the prosecutor determined that the case did not warrant a sentence of “life without parole” and did not seek life without parole.  The other possibility is that the prosecutor sought life without parole, but the judge, based on the information and evidence presented during the sentencing hearing, determined that life with the possibility of parole was a more appropriate sentence than life without the possibility of parole.

In that situation, the prosecutor and/or the judge have created a scenario in which, one day, many years later, the Maryland Parole Commission will be forced to evaluate the case to determine whether parole is appropriate, and, if it is appropriate, the Governor will be forced to make the ultimate decision on the granting or denying of parole.

For 16 years, three Governors of Maryland have pre-judged these cases, announcing, “I do not want to hear about the facts of any case, and I do not want to hear about the institutional progress of any inmate over a 25-year period, because my answer is always the same – no!”  Three Governors have shirked their duty.  Their duty is not to grant parole.  Their duty is to carefully evaluate each case that is recommended for parole, and make a conscious decision to grant parole or deny parole.  Governors have been avoiding their duty.  This proposal, if enacted, would force the Governor to address his statutory obligation to exercise his executive power.

Congratulations to the Maryland General Assembly.  Hopefully, it will be enacted, and, hopefully, the Governor will sign it into law and not veto it.  Then, for the first time in 16 years, a sentence of “life with parole” and a sentence of “life without parole” will have two different meanings.  There is no way, under principles of statutory interpretation, that these two statute can have the same meaning, yet, because of the conduct of three Governors, sadly, they have had the same meaning.

It is true that we are talking about individuals who have committed the worst of the worst crimes – murder, rape, and sex offense.  Nonetheless, we are a nation of laws.  These inmates are protected by the United States Constitution, the Maryland Declaration of Rights, and Maryland statutes.  Any argument that we should “throw away the key” for these inmates has already been addressed.  The Maryland General Assembly addressed the “throw away the key” argument when it created a sentencing option of “life with parole” and a sentencing option of “life without parole.”  Moreover, this issue only needs to be addressed in the small percentage of “lifer” cases for which the Maryland Parole Commission decides that parole is appropriate.  It is those cases that require gubernatorial action.  Maryland’s laws should be followed by all Marylanders.  That includes the Governor.

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