CONTROVERSIAL ISSUE

SUMMARY: Advocates of mandatory sentencing provisions for various crimes contend that criminal activity will decline if potential offenders are convinced that they will serve time in jail if they break the law. Support for this concept was strong in the Maryland General Assembly during the 1970's and 1980's when statutes were approved containing provisions for mandatory sentencing for a number of criminal offenses.

The types of crimes in Maryland that require a minimum mandatory sentence with no provisions for suspended sentences fall within five general categories: (1) violent crimes involving use of a handgun (Art. 27, Sec 36B); (2) use of a firearm in relation to drug trafficking (Art. 27, Sec. 281A); (3) subsequent drug "kingpin" offenders (Art. 27, Sec. 286); (3) subsequent drug distribution offenders in the vicinity of schools (Art 27., Sec. 286D); and, (5) third conviction for a violent crime (Art. 27, Sec. 643B).

The American Bar Association has opposed mandatory minimum prison sentences not subject to parole or probation since 1974. The Maryland State Bar Association for the first time opposed all mandatory sentencing provisions in any legislation introduced in the 1993 General Assembly.

The MSBA's opposition to mandatory sentencing in 1993 was based on several key points:

1. Mandatory sentencing is not an effective deterrent to crime because many potential offenders are unaware of which crimes have mandatory imprisonment provisions, and most criminals are confident that they will elude capture, and thereby never be subjected to any prison term;

2. Many observers of the criminal justice system believe that some offenders avoid punishment in cases where evidence for a conviction, though substantial, may not be convincing enough to remove all reasonable doubts in the minds of some jurors of the defendant's guilt. In these cases, the prospect of a mandatory sentence may lead the jury to find a defendant innocent when a guilty verdict would have been more appropriate;

3. Judicial discretion is a key element in diverting some offenders away from a career of criminal activity. While some criminals deserve maximum sentences, rehabilitation programs either in lieu of or in conjunction with a prison sentence may be more appropriate in other cases. Mandatory sentences remove this flexibility and limit the likelihood that some of these offenders may return to become productive and law-abiding citizens of our society; and,

4. Overcrowding in state and local correctional institutions has reached the point of crisis. More mandatory sentences only will serve to exasperate this problem. Until recently, laws with mandatory sentencing provisions have been approved without serious consideration given to the cost of additional prison space to house inmates for the entirety of their term.

Although the appeal of mandatory sentences has declined among many legislators in recent years, it is likely that measures containing these provisions will continue to be filed. There also has been greater interest in curbing the uses of parole and early release of prisoners, but the cost of building new facilities to incarcerate these inmates usually discourages even the most ardent anti-crime leaders from pushing these bills to passage. Given the current anti-tax mood of the General Assembly, and the price tag of a new state prison ($100 million +), it is unlikely that any extensive new mandatory sentences will be approved in the immediate future.

In the 1996 session, the General Assembly established the Maryland Commission on Criminal Sentencing with the goals of examining sentencing practices in the state and recommending changes to these patterns, if warranted.  The Commission's Final Report, issued in late 1998, recommended continuance of the body and affirmed the objectives of reducing disparity of sentences for similar crimes and maintaining judicial discretion.  Legislation extending the life of the Commission passed on the last day of the 1999 session.  It reaffirmed voluntary sentencing guidelines, but provided guidance to judges in determining appropriate punishment for criminal offenders.  An amendment added to the bill provided for review of sentences by panels consisting of three judges who may change sentences and may override a statutorily-imposed mandatory sentence by a unanimous vote by the panel.  Since 1999 the momentum for adding new mandatory sentences has stalled, but with the 2002 elections just around the corner, it would not be surprising if some legislators seek to rejuvenate the concept in the next session.

MSBA 2002 POSITION: Oppose all new mandatory sentencing provisions.  Carefully monitor legislation that would remove mandatory sentences for those offenses where adequate diversion or rehabilitation programs are available.

SAMPLE LEGISLATION:
Senate Bill 168, General Assembly of Maryland, 1994
House Bill 152, General Assembly of Maryland, 1997

Return to 2002 Final State Legislative Program Table of Contents

Back To Top