Unger – 2018

Unger v. Maryland Four Years Later:

Implications for Criminal Justice Reform

January 23, 2018, 3-5 pm

Co-sponsored by University of Baltimore School of Law and MD Restorative Justice Initiative

On January 23, 2018, The University of Baltimore (UB) Law School hosted a symposium on “Unger v. Maryland Four Years Later:  Implications for Criminal Justice Reform,” co-sponsored by the University of Baltimore Juvenile Justice Project and the Maryland Restorative Justice Institute.  Unger v. Maryland is the 2012 decision by the Maryland Court of Appeals that ordered retrials for nearly 250 persons given life sentences in criminal trials during the 1970s and 1980s. The Maryland Court of Appeals recognized that a jury instruction directing the jury to decide questions of law was structurally flawed and fundamentally unfair. As a result, more than 130 prisoners serving life sentences for violent crimes in the state of Maryland were granted new trials.  Most pleaded guilty, were sentenced to “time served,” and were subsequently released.

Since the 2012 Unger decision, 182 persons have been released after three to four decades in prison.  About 25% of this “Unger Population” were under age 21 at the time of their convictions.  Their average age was 64.  Some persons eligible for retrial have since died in prison, while trials are still pending in a small number of cases.

Through a unique collaboration of social workers, lawyers, and other activists, the “Ungers” have received uniquely designed social services and other re-entry support since their release.  Only one person has been charged with any criminal act (a misdemeanor) since release. (The national average for recidivism is 38 percent.)

The event opened with a showing of the film: “The Ungers: Righting a Miscarriage of Justice,” a CBS News segment describing the outstanding record of the men and one woman since being released from prison under the Unger decision.

This was followed by a panel of those closest to this story, moderated by Jane Murphy, Professor of Law and Director of the Juvenile Justice Project at University of Baltimore School of Law, to explore the experiences of those released and the implications for criminal justice reform, including proposed legislation before the 2018 Maryland General Assembly seeking to remove the Governor from the parole process.

Panelists and Their Roles

The panelists were

  • Jeff Ross, Appellate Division, Office of the Public Defender
  • Tony Gioia, Chief Counsel, Baltimore City State’s Attorney Office
  • Elizabeth Smith, Forensic Social Work Fellow, Law and Social Order Service Program, University of Maryland Francis King Carey School of Law
  • Kereem Hassan (spelling?), one of the “Ungers” released
  • Walter Lomax, Executive Director, Maryland Restorative Justice Initiative
  • Scott D. Shellenberger, State’s Attorney, Baltimore County, Maryland

Jane Murphy noted that the Ungers have significant ramifications for the criminal justice system, saying that their success “should be a beacon for” reform of the justice system in regard to parole and release, especially of older prisoners.  She asked each panel member to explain his or her  role in the Unger story.

Jeff Ross, Appellate Division, Office of the Public Defender, began representing Unger clients in 2012, right after the decision.  He teaches an Unger clinic course at University of Maryland Law School.  He hopes the major battles over the Unger case are finished.

Tony Gioia, Chief Counsel, Baltimore City State’s Attorney Office, was involved from the beginning, since many of the 240 individuals who were affected by the Unger decision were from Baltimore City. It wasn’t clear what the Unger decision meant or what could happen as a result of it.  Judges who were assigned to retry the cases were working on a blank slate.  The State was winning Unger claims under some judges and losing under others; the decisions were inconsistent.  There was not a lot of law to go on.

Mr. Gioia’s first job was as a law clerk.  He realized there was a principle at stake here.  The Circuit Court couldn’t reabsorb this many felony cases.  Gioia was responsible for overseeing a case-by-case review of the Unger cases in Baltimore City.  He found that he wanted to know if each person was still “the same person as the one who went in jail.”  By the end of 2012, he thought that some should definitely be tried but that others should be looked at closely to determine whether they should or should not be tried.  Finally, 125 individuals were released.  The template used in Baltimore City to determine who should be given a new trial and who should not was exported to the rest of the state.

Elizabeth Smith, Forensic Social Work Fellow at the Law and Social Order Service Program, University of Maryland School of Law was a student.  With Mike Milleman, a University of Maryland Law School professor, and Rebecca Bowman-Rivas, the Law & Social Work Service Program Manager, she began to work with law students on 48 cases, finishing   pre-release plans and re-entry plans.  After her graduation, she watched seven people walk out of jail under plans she had developed.  She noted that 94% of the “Ungers” are African-American, even though the crime statistics in Maryland are 50-50, African-American to White.  Most of these people had been under 21 when they were convicted.

The opportunity to work on Unger cases was important for her.  She wanted to continue the work that she had done in Law School, even though there was no one to pay her for doing it.  Then the Open Society Institute (OSI) offered to fund her.  The project is winding down now.  Walter Lomax came to work with them as they developed plans for pre-release and re-entry for senior citizens.  Now they are working to fine tune these plans.

They have worked with more than 100 returning citizens under Unger.  She found that all these men, and Etta, the lone woman, were of good character.  When Rodney Stokes, a prisoner on work release, killed his girlfriend outside the Maryland penitentiary in Baltimore in 1993, he also killed Maryland’s restorative system of justice. “We had work release; then we didn’t.”  Because the “Ungers” and their families gave feedback about what worked and what didn’t, Ms. Smith said it has been possible to continuously improve the support system and help others succeed.  The “Ungers” have less than 1% recidivism.  They are doing what they can for the older people still in prison.  Returning citizens have so much wisdom, so much possibility for help with policy and prison practice.  She said, “The humanity, humility, and hope they have shown illustrates for our students and for us how (well things can work out after release).”

Etta Myers, Director of the Maryland Justice Project and one of the “Ungers,” was scheduled to be on the panel, but she had undergone surgery the day before and was unable to be present.

Kereem Hassan (spelling?), also one of the “Ungers”, replaced her on the panel.  He was in the penitentiary when he first heard of Unger.  In 1981, after the Unger case was decided and the judges were advised that they could not instruct juries in the (unconstitutional) manner that was the norm in Maryland, he was told the change in the courts was not retroactive and never would be.  When that all changed in 2012 under Unger vs. Maryland and he came home, he made a list of what he was going to do, and he has been doing it.  He said, “We’re not all bad, and we sympathize with the victims.  We want them to get some closure.”  He said that Elizabeth Smith and the University of Maryland Law School helped them a lot (even though Elizabeth is a Pittsburgh Steelers fan, he being a Ravens fan, of course).  And he said that Mr. Lomax stood up for them and gave them what they need.

Walter Lomax, Executive Director, Maryland Restorative Justice Initiative (MRJI).  Before Unger, the MRJI supported returning citizens, “but Unger was the miracle that helped to show that these older lifers would not be a threat to public safety.”  MRJI helped to get re-entry programs for them.  Through an advisory committee, they were able to identify all the needs of these men and one woman with 97% accuracy.  Now MRJI can advocate for older people who are still in prison.  We need to overcome the “Life means life” mantra that has come into play since Stokes.

Scott D. Shellenberger, State’s Attorney, Baltimore County, Maryland, had a role similar to that of Tony Gioia’s.  Once the decision came down, he had to determine what it meant and how to make decisions about whether to re-try each individual or not.  In Baltimore County, there were 13 cases that received new trials, of these, there were 10 guilty pleas; one man passed away, and two cases are pending.  The cases were originally tried in 1969 – 1979.  He asked the audience to imagine that in 1974 something horrible happened to you; and now 40 years later, the survivors are told that we have to start over, and all the witnesses are gone.

In the Unger cases, he had to consider both what is best for society and what is best for the individual involved.  They are still trying to evaluate that in one of the Baltimore County cases.  He gave great credit to the Unger people for showing us that things are much better than we thought, and he thanked them for making these decisions easier.  He noted, too, that we have a very different justice system now than when these cases were originally tried, before 1981.  In particular, we have improved forensics.  It is much easier to get good data.

Lessons from Unger

Jane Murphy, moderator: What are the lessons from Unger for future criminal justice policy?

Jeff Ross.  There are more opportunities now for change because of what the “Ungers” have shown us.  The basic lesson is that the parole system is broken.  One of my clients was convicted at 14 and served 38 years.  But for Unger, he would still be in prison.  A system that would do that is wrong, and it is still wrong.

The Supreme Court has distinguished between commutation and parole.  Parole is a regular part of the rehabilitative process.  The institutional record of the Unger clients indicates rehabilitation.  They should have had the normal expectation of parole; however, parole was not offered.

I understand what Scott and Tony went through; they had to act as a parole board.  But that’s not their job.  We have a parole board.  I don’t think the law changes the nature of the governor’s role under 301D.  The way back to a functioning parole system is to eliminate the governor’s role in parole.  Some of the focus needs to be on that, and it needs to happen on a bi-partisan basis.  It needs to recognize the suffering of victims, but it also needs to recognize and take into account the example of the “Ungers”.  I see Tony as the unsung hero of this situation because of the way the “Ungers” were handled in Baltimore City.

Tony Gioia.  These folks were 25 and younger when the crimes were committed.  The lesson for me is that these people did change.  They made conscious decisions every day between doing good or doing other.  I have huge respect for the licensed social workers at the University of Maryland for the support they gave them.  Everyone released should have 2 years of support by a knowledgeable social worker.  It costs at least $30,000 to imprison just one person; we can afford the social work salary.  It would be dramatic savings.  It makes a great deal of sense to do this, but who will do it?  It is not an appropriate role for the Department of Corrections.

What should we do about parole?  I don’t speak for the (Baltimore State’s Attorney’s) office.  But the parole system isn’t working as it did before 1995.  Working with the “Ungers”, we were put in a position to act as parole commissioners.  What we all did is consistent with the Unger decision.  We have to fix parole.  I am not prepared to say the governor should be taken out of parole decisions, but the governors have not been making parole decisions without bias, bias based on political considerations.  It is now time to take the governor out of the picture.  Silence is assent.  We must speak out.  My personal philosophy is somewhat right of center, but we have to do what is just.  We need people in office with the courage to do the right thing.

Tony Gioia heaped praise on the social workers who have had such a positive impact on the returning citizens released under Unger and recommended that all returning citizens have a social worker assigned to them for 2 years to help them succeed in their readjustment to society. He noted that this cost would be a fraction of the cost of reincarceration.

Walter Lomax. “Life without parole” didn’t exist when the Ungers went to prison.  Many of the governors would not acknowledge that the Parole Commission had sent a recommendation.  Now there is a rule that they must give a decision within 180 days.  Republican governors have released people for parole; no Democrats have.

We can’t go back past Willie Horton.  We CAN be successful moving forward.  Releasing a lifer for parole is seen as a political liability for the governor.  But the argument that was used to keep them in prison is no longer valid.  Unger folk received their sentence with a promise of parole if they did certain things.  They did them.  Parole was not granted.

Parole commissioners are chosen by their qualifications.  We are advocating for them to be the final word.  Give them a fair chance of being released according to the law.  Three governors have shown us that the spirit of the process is no longer there.  We advocate reviving the spirit of the process.  I served time in prison and I met people there that I hope will never be released.  But there are people, and many current older inmates, who will not be a threat to public safety; in fact, they will be an asset to young men and women.  Ask our elected officials to use our taxes much more wisely.  The Maryland Restorative Justice Initiative estimates that the cost of incarceration is $38,000/person/year.  We know what these people need when they are released.  If it is in place, it will go well.

Jane Murphy: Scott, has Unger changed your view on the governor’s role in parole?

Scott Shellenberger.  No.  A person who committed murder or first-degree rape, for example, must be held accountable to society.  If a mistake is made, there is no recourse with parole commissioners; with the governor, with elected officials, there is recourse.  We can now use the “Ungers” experience to persuade the governor to grant parole when warranted.  But I have not changed my position; the governor should be involved in parole decisions.

Cases for parole are stronger now because of the Ungers.  The JRA (Justice Reinvestment Act, 2016) creates a sea change in the justice system in Maryland.  Expungement is now available for about 200 different cases.  The Erroneous Conviction Taskforce (of which Shellenberger is chair) is studying this situation.  Walter Lomax is a member of the taskforce.  I wasn’t in favor of some of the JRA bail reform; I was wrong.  It’s working.  Money bail has been taken out of the system and the situation and people are released on their own recognizance.  It has not led to a decrease in public safety.  Unger got reform moving, and reform will continue as we continue under JRA.

Elizabeth Smith. There is huge strain on the prison system because of having an aging prison population.  Those the parole board has repeatedly recommended for parole need not be there.  I would prefer to return to a system with expectation of parole.  Geriatric inmates (people over 50) are costing $78,000/year.  We have a quarter million people aging in prisons in the USA.

We can talk about trauma and multi-generational trauma, but when you have someone who has taken their own education seriously, well, I don’t believe in monsters, but in monstrous acts; and we all have that capacity.

For the work we did, we have been fortunate to work with many grass roots neighborhood organizations who have made big differences.

Comments from the floor:

Keith Wallington, Justice Policy Group, touted the successful re-entry program and introduced Stanley Mitchell, an “Unger” man who spent 30 years in the Maryland prison system. Mr. Mitchell helped in the Justice Policy Group’s study of the Ungers to determine “what worked for us as Ungers when we came home, and what didn’t. We can be out and do well, no special treatment, no one owes us anything.  Rules have to be followed but we ask that they be followed fairly.  We want jobs if we are able.  We need a one-stop-shop place to fill out forms and get help with basics.  We have been active as community volunteers.  We are living proof that we are not animals, we can re-enter society.”

Attorney Lila _____.  There is a discrepancy between who gets life in Maryland and who does not.  With the ‘Ungers,” we have a legal window to challenge the parole system and its constitutionality.

Next Tuesday, there are four cases at the Court of Appeals regarding parole complaints, and there is a pending Federal suit against Maryland’s system.  Legislative bills are expected this session that will remove the governor from the system (SB249), as well as other bills that would increase obstacles to parole in Maryland and remove credits earned by inmates.

ACLU representative.  Even when we are legally right, it’s uphill.  It is right to focus on the victim, but we need to consider what is really helpful for the victim’s healing.  People oppose legislation that is common sense for our society.  We need more dialogue.  Perpetrators owe something to their victims.  They need to do something about that debt.  We need to call out the parole system for being as broken as it is. There are inadequate services for healing and correcting broken people; length of their sentence is not a useful evaluation.

Mary Price.  Families Against Mandatory Minimums.  Most people facing parole hearings have no lawyer.  Lawyers, we have cases for you, please step up.

Walter Lomax.  We have a “Lifers’ Bill” coming before the Maryland Senate, SB249.  There is a rally in support of it on February 1.  See our letter to help you lobby, write, or call, in support of parole opportunity for lifers.

Question from the floor:  What is the benefit of having the governor involved in parole decisions?

Scott Shellenberger. The person who makes the decision needs to be responsible to the public.

Jeff Ross. There are two other states where the Governor still has a role in parole, California and Oklahoma.  In California, the governor’s decision needs to be made using the same standards that the Parole Commission uses.  Currently in Maryland, that is not the case.  In Maryland there are no criteria to guide the Governor’s decision-making. It’s not working.  There are 2,000 lifers in Maryland, and there have been 2 paroles.

Scott Shellenberger. There has been no bill that proposed standards for the governor’s decision on parole.  If you put out a bill in that sets standards for the governor to use, I’d be happy to consider it.

Question from the floor:  If the Parole Commission is appointed by the governor, isn’t that accountability?

Scott Shellenberger. No, because they have overlapping 6-year terms.  Some of the current commissioners were appointed by O’Malley (previous Governor), and the next governor will have appointments made by Hogan.  This should be changed; commissioners should be appointed by the sitting governor.

Mark _____, Justice Policy Institute.  I am intrigued by Tony’s recommendation that licensed clinical social workers (LCSWs) be assigned to returning citizens.  What is Scott Shellenberger’s reaction?

Scott Shellenberger. Evidence of the work with Unger men and woman shows that this is a good idea.  We need to be smarter about the release process.  It should work for younger people but would need to have different emphases.

Elizabeth Smith. Do you need a separate branch of Justice?  Social workers?  Who does this?  DOC does not seem appropriate. There is no agency that does what JRA is really looking at re: release.  It works in other countries, looking at socioeconomic circumstances, resources, ….

Jane Murphy. We (University of Baltimore Law School) have an Innocence Project. “I regret that we don’t have a Social Work component.”

Joseph Tauber. “I served time in Maryland.  I was released, then I re-offended.  I’m sorry.  The federal system that time.  They had a great (pre-release and re-entry) system in Washington, DC, and that’s why I’m successful and here today.  I’m trying to get folks here to look at it.”  It is called the Office of Returning Citizen Affairs.

Response from Scott Shellenberger. They have no money bail in DC.  Their pre-trial program costs $65 million to run.  We’d have to find that money.

Elizabeth Smith. It is hard to be able to transfer cost from Medicare or Medicaid to the individual upon release.  DC’s program is wraparound; it’s great.  The permanence of it is key.

The JRA has provision for moving monies saved from reducing incarceration to pay for pre-trial, release and services inside. However, so far it is proving difficult to quantify actual cost savings.  We need a “budget reset”!

Elizabeth Smith. It is important to recognize that our model works because it was a law school model, not an agency model.  We had the freedom to do the things we did for returning citizens that an agency social worker does not have.

 

MAJR thanks Rosalie Dance, Adrian Bishop, Carolyn Hadley, and Robert J. Rhudy for attending the meeting and submitting this report.