Unger Update

Unger v. Maryland Four Years Later: Implications for Criminal Justice Reform

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 reason for the order is that juries were given what the 2012 decision determined were unconstitutionally flawed instructions to the effect that they were free to determine the law and facts in making their findings of guilt or innocence.

The symposium, facilitated by UB Law Professor Jane Murphy, featured six panelist including Jeff Ross, Appellate Division, Maryland Office of the Public Defender; Tony Gloia, Chief Counsel, Baltimore City State’s Attorney Office; Elizabeth Smith, Forensic Social Work Fellow, Law and Social Work Service Program, University of Maryland School of Law; Walter Lomas, Executive Director, Maryland Restorative Justice Initiative; Scott Shellenberger, State’s Attorney, Baltimore County; and Kareem Hassem (sp?), who was released under the Unger decision and is currently working for the city of Baltimore. The panelists described the Unger decision, court proceedings and releases as a consequence of the decision, lives and needs of persons following their releases, and lessons and public policy changes needed from the Unger experience.

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. Some persons eligible for retrial have since died in prison, while trials are still pending in a small number of cases. Only one person has been charged with any criminal act (a misdemeanor) since release. The national average for recidivism is 38 percent.

Tony Gioia noted that there is still confusion around the meaning of the court’s decision within the Maryland judicial system. Judges’ rulings to date have been inconsistent. It is not clear whether all cases should be reopened. Scott Shellenberger observed that it is necessary to evaluate cases on the basis of what is best for the victim, the offender, and society as a whole. He noted that much more evidence is required to convict today than was required when some of these offenders were originally convicted. In a majority of the Unger cases tried to date, persons have been released without trial when they submit guilty pleas, and sentences have been reduced to time served.

Elizabeth Smith has worked on pre-release plans for 48 offenders who were released due to the Unger decision. She noted that 90 percent of those released were African American and had been convicted by predominantly white juries. She stressed what they had to give to their communities and the high cost of maintaining this elderly cohort within the state system. 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. Stanley Mitchell, an Unger release, highlighted the need for a “one stop shop” to provide assistance with forms, ID, licenses, and most importantly, access to employment.

Several of the panelists described how, prior to the late 1980s, persons receiving life sentences in Maryland with good prison behavior records often received parole after fifteen to twenty years incarceration. But with Maryland law requiring the governor’s consent to parole for persons with a life sentence (Maryland is one of only three states in the U.S. with this requirement) – and following former Governor Parris Glendening’s statement in 1995 that “Life means life” –
parole for “Lifers” has virtually ceased. Legislation has been filed for the past several years, pending consideration again this session, to remove the need for the governor to ratify the recommendation of the Maryland Parole Board for a lifer release, a change supported by Walter Lomax and others on the panel. This legislation will again be considered this session by the Maryland General Assembly. Mr. Lomax favors the approach of having the parole board make the decision regarding parole and providing support to those who are released.

While opposed to this change, Scott Shellenberger acknowledged that the post-Unger experience has been demonstrating that “you can age out of violent crime.” When a participant noted that the governor of California is required to make his or her decision regarding parole for juvenile lifers based on the same criteria used by the parole board, Mr. Schellenberger expressed interest in this approach.

The panel also emphasized the need for improved mental health, education, work training, and other services to persons in prison, as well as the very great need for assistance to formerly incarcerated persons and their families in obtaining jobs and reintegrating into their homes and communities. Panel members described activities underway through a “Maryland Justice Reinvestment” program (created in part through the advocacy of Maryland Alliance for Justice Reform with other groups) that promotes activities to reduce our state’s prison population and reallocate financial savings to address conditions leading to crime, as well as and lower the state’s high recidivism rate among released offenders.

MAJR thanks Carolyn Hadley and Robert J. Rhudy for attending the meeting and submitting this report.