LIFE should not mean LIFE WITHOUT PAROLE – Part II

by Professor Byron L. Warnken on June 14, 2010

Two weeks ago, I explained that, for first degree murder, Maryland has a sentencing option of “life with the possibility of parole” and “life without the possibility of parole.”  I explained that, for 15 years, three different Governors have, in effect, treated both life with parole and life without parole as if they were life without parole.  In reality, politics trumps policy.

Let’s understand what we are talking about.  A 16-year-old kid robs someone on the street.  The robbery “goes bad.”  The assailant shoves the victim, who falls on the concrete, receives a concussion, is taken to the emergency room, and dies three days later.  The 16-year-old is charged with first degree felony murder for killing during the commission of a robbery.  The jury finds the defendant guilty.  Let’s assume that the State did not seek life without parole or, if sought, the judge rejected it.  The defendant must be sentenced to life, which must be life with the possibility of parole. Let’s assume that 40 years later, everyone agrees that this 56-year-old has been an ideal inmate in any respects and is totally rehabilitated.  Under the system in Maryland since 1995, this individual will never be paroled.  No one will take seriously the fact that his sentence is life “with the possibility of parole.”

In 1995, Governor Glendenning announced that he would not parole any more “lifers” and instructed the Maryland Parole Commission not to send him lifers for parole consideration because he would not parole a lifer.  The net effect is that, for the last 15 years, in Maryland, life with the possibility of parole and life without the possibility of parole both mean the same thing – life without the possibility of parole.

In 1999, in Lomax v. State, the Court of Appeals of Maryland upheld the Governor’s action, in part, and it is now time to revisit that issue.  The Court held that, by statute, the Maryland Parole Commission must evaluate every lifer who is eligible for parole and make a parole recommendation to the Governor, using the nine statutory parole factors, as well as the regulatory parole factors.  The Maryland Parole Commission must perform its duties, regardless of any policies of the Governor.

In Lomax, the Court held that the Maryland Parole Commission did exactly what the statute required.  The Court also held that, when that recommendation reached the Governor’s desk, within his discretion, he could accept it or reject it, and, when he rejected it, he was within his authority.  The Court did find objectionable the fact that the Governor “directed the Parole Commission not to even recommend” parole for lifers, because the Maryland Parole Commission must evaluate every lifer who is eligible for parole and to make a recommendation.

In Lomax, the Court rejected a federal and state constitutional claim that the Governor’s action violated the ex post facto prohibition because ex post facto only applies to retroactively applied laws and not to changes in gubernatorial guidelines for state agencies, setting forth how the Governor plans to exercise its discretion.  In addition, there is no support for an argument that this conduct violates the Eighth Amendment prohibition against cruel and unusual punishment

Nonetheless, the conduct of the Maryland Parole Commission and the Governor violate the law, and this issue should be re-evaluated.  Three Governors – two of whom are currently running for Governor — have selected the politically expedient course in lieu of adhering to the legislative policy.  The first problem is the Maryland Parole Commission.  My law firm represents inmates.  We hear from inmates that the Maryland Parole Commission may say, “you’ve done great and should be paroled, but we cannot recommend you because Maryland is not paroling lifers.”  Even if those stories are inaccurate, let’s examine this.  The Maryland Parole Commission has more than 9,000 parole hearings annually, and the commissioners are greatly overworked.

Naturally, parole commissioners invest their time where it is most productive.  It is an absolute waste of time to thoroughly “work up” 30 or 40 years of an inmate’s life when every commissioner knows that they are just going through the motions.  Based on the last 15 years, the Maryland Parole Commission is probably not doing what the legislature intended or what the Court referenced in Lomax.  It would be unrealistic to think that, after 15 years of not paroling lifers, the Maryland Parole Commission is taking seriously its job of evaluating and recommending lifers.  Thus, there appears to be a statutory violation on the part of the Maryland Parole Commission.

Even if the Maryland Parole Commission were doing its job, the second problem is the Governor.  Courts recognize that there is a due process interest in parole hearings and parole.  Although there is no constitutional guarantee of parole, there is a constitutional guarantee that a person who is eligible for parole will be afforded all statutorily guaranteed aspects of the parole evaluation, parole recommendation, and parole consideration.  That is not happening in Maryland, and that is unconstitutional.  All lifers are being denied their due process interest in being seriously considered for parole – either by the Maryland Parole Commission, the Governor, or both.  Moreover, when any governmental official is granted discretion, there is an outer limit called “abuse of discretion.”  If the official exercising discretion abuses that discretion, his or her act is void.  If all lifers during a 15-year period are denied parole, completely consistent with a gubernatorial announcement, that they will not be considered for parole, the Governor has abuse his discretion.

In both its 2009 and 2010 sessions, the Maryland General Assembly addressed this issue with two proposals.  One proposal would have permitted the Maryland Parole Commission to parole an inmate who is subject to a life with parole sentence, without the need for the Governor’s approval.  One proposal would have permitted an inmate who is subject to a life with parole sentence to seek review by a three-judge panel, provided the inmate has served at least 20 continuous years.  Both proposals failed.

Our society hates crime and rightfully so.  We hate crime so much that we are willing to ignore the law and the Constitution and look the other way.  This is an outrage.  It is time for the Maryland General Assembly to step up and address this issue.  It is time for counsel to the Governor to explain the law to the Governor.  It is time to take seriously the legislative mandate of the two-step process for parole evaluation and parole consideration for lifers.

What about that 56-year-old referenced in the first paragraph above?  He is Morgan Freeman in “Shawshank’s Redemption.”  Freeman told the parole commission that the kid who committed the murder is long gone, and all that is left is an old man who wishes he could talk to that kid.


Kimberly Denesse June 15, 2010 at 6:52 pm

Thank you very much for writing this. Although I live in Louisiana, a state known for being too harsh with their sentencing, I can appreciate your words. I hope this ‘raindrop’ creates a chain reaction in the ocean of legal issues and prison reform.

crystal gay mason August 23, 2010 at 6:21 pm

My comments to your article:
It was very informative but
If it were your loved one who was viciously murdered and the murderer was given life with the possibility of parole you would think differently.
My daugher is no longer here on this earth to live her life and the person who stabbed her 34 times should NEVER be able to walk our streets EVER again. Parole should not be an option

Byron L. Warnken August 24, 2010 at 9:46 am

Thank you both for your comments. Ms. Mason, I cannot begin to know the pain you have experienced. If someone has been sentenced to life without parole, that was a conscious choice of the judicial system. If, however, life with the possibility of parole was the sentence given, it should be honored. Which is not to say that parole should always be granted. It is merely to say, it needs to be possible.

Linda Chambers September 4, 2010 at 8:13 pm

My husband is a lifer in Maryland with parole. He has served 16 years for a crime that he actually did not even commit, attempted murder, as whomever did this crime, shot the man in the leg and robbed him. However, he was a kid from the streets of East Baltimore at the time of this crime. Not doing the right things in life at the time but was looked at as a very violent person when sentencing took place. I come from a completely different part of the U.S and could never imagine a place like East Baltimore. But I see the good in him, and that he is not “the worst of the worst” as Maryland DOC wants to label all the lifers. He does deserve to come home to family and for the government to deny that is completely wrong and violates his rights and to hand down an even harsher sentence than someone who actually violently murdered someone if wrong. From my experience so far, no one in the Dept of Corrections headquarters or the govenors office will listen. A year and a half ago he was told that he was coming up for administrative review and still has never received anything from them. The DOC is breaking the law, the government is breaking the law and someone needs to step up and change this. My husband is a completely different person than he was at 18 years of age and its not because the system rehabilitates, because they dont, but he focuses solely on his family. And Ms. Mason, I am so deeply sorry that someone hurt your daughter as I know the situation in my life is completly different than yours and am truly sympathetic to you.

priscilla davis November 1, 2010 at 6:20 pm

trying to get my son out of prison what can i do

lynette butler November 26, 2010 at 6:11 pm

My cousin is serving life in prison how can I go about getting him parole whats the first step please help.

Tired Tax-Payer January 19, 2011 at 8:06 pm

Mr. Warnken, GREAT article. Unfortunately, California is also stuck on stupid crime policies. Perhaps, tax-payers will get a clue when the correction department strangles the last breath out of the education department. Of course, by that time, education will have already been out-LAWED.

Ms. Mason, I am so sorry for your tragic loss. Please understand, NO ONE is suggesting that such a crime go UNPUNISHED. However, the law does allow for the POSSIBILITY of parole as it relates to what is best for society as a WHOLE. Certainly, your personal experience entitles you to your preference and I believe that preference is taken into consideration at each and every parole hearing of the prisoner who killed your daughter. This IS as it SHOULD be. Still, NO ONE’S personal preference should be allowed to circumvent the law as it stands to serve justice for ALL & all includes EVERYONE.

At a certain point, every citizen needs to ask THEMSELVES whether they are upholding a truly just system or simply supporting a vengeful one. True Justice allows for the POSSIBILITY of mercy simply because vengeance robs us ALL of our humanity.

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