MSBA.org - Criminal Law and Practice

The Continuing Debate on Unbridled Judicial
Authority to Revise Sentences – A Prosecutor’s Perspective

Maryland defendants in criminal cases continue to enjoy a unique ability to change the sentences that were originally imposed upon them. This comes not from the parole board or a governor’s power to pardon, but comes from the judge who originally imposed the sentence, often years after the sentence was imposed. ^[^1] This practice of delayed sentencing diminishes the public’s confidence in the criminal justice system, places a heavy burden on already burdened prosecutors’ offices, and inappropriately erodes the principle of separation of powers. Imagine a victim’s reaction to being advised of not only a parole process and a review process by three judges, but of a process of revision involving the judge who originally imposed the sentence, or a substitute, who can reduce the sentence at any time. Although there is some disagreement over whether any other state allows for such open-ended sentencing revision authority, suffice it to say that no other state has the same custom, usage, and practice as we have in Maryland.

Judges are able to retain open-ended control over a sentence if a defendant, within ninety days of the sentencing, files a motion to revise the sentence under Rule 4-345. From a prosecutor’s perspective, the problem is this: The court can delay acting on this request to change a sentence for as long as it wishes. In my experience, this now happens with increased frequency.^[2]Some judges routinely deny such requests while others routinely grant them. It is a practice and procedure that defense attorneys understandably regularly employ on behalf of their clients. This practice, in essence, allows the judge to sit as a parole authority. This is properly an executive function, not a judicial function. The parole commission was created to deal with when it is best for the defendant and society to release a sentenced person. Judicial oversight [except for constitutional or statutory issues] over the parole decisions of the executive is bad for the system and creates an improper usurpation of a function assigned to another branch of government.

Judges are not parole boards. The judicial function is appropriately at an end with the imposition of a lawful sentence and a consideration of all pertinent factors including victim impact, allocutions, and sentencing guidelines. Victims and the public deserve to be able to rely on what happens in court and that the sentence imposed is the sentence to be served less the statutorily defined credits earned for that particular type of case as well as the deliberations and decisions of the parole board. Any argument that the prisoner is better behaved knowing that the judge can reduce his sentence at some distant point in the future is specious at best. Inmate discipline and control is entirely a matter for the parole board and well-established inmate disciplinary procedures.

It is significant to note that the other way for a defendant to obtain a revision of the sentence is to file under Rule 4-344, which provides rules for the Review of Criminal Sentences Act, Code, Article 27, Sec. 645JA-645JG. Now recodified as Criminal Procedure Article 8-101, ET. Seq. This procedure involves three judges (other than the sentencing judge) who review the sentence imposed. Here, the defendant must file a motion within 30 days of the sentence and the three-judge panel must file a written decision within 30 days. See CP Article 8-107(b). Since there is a requirement that the three-judge panel render a decision within 30 days, it seems consistent with the spirit of sentencing finality to require the same under a Rule 4-345 modification. Furthermore, written reasons are required of the three-judge panel in Rule 4-344. Nothing less should be required of Rule 4-345 revisions.

The burden of open-ended reconsiderations to a prosecutor’s office, particularly the large offices, is considerable. Victim notification of court proceedings in our pending cases is an appropriate burden on prosecutors’ offices. But to locate victims for cases long ago closed out can be daunting. In the event we are able to locate the victim or the surviving family, the prospect of further sentencing proceedings can be painful and traumatic. Consider the burden on the prosecutor who often times knows nothing about the case preparing for one of these “delayed sentencings.” Consider the following: A serious crime has resulted in a conviction by either trial or guilty plea. Later, years after the sentencing, years after the conviction has been upheld on appeal, years after a three judge panel review has upheld the sentence, after parole denied, then learning that the sentencing judge is contemplating a sentence reduction. ^[3] This breeds cynicism in a system that desperately needs public confidence. I am not so sure the system deserves public confidence under the current state of the rules.

No one can seriously argue that the sentence revision procedures now common in Maryland are efficient, fair, and rational. It is, quite frankly, a chaotic mix of wildly divergent practices that does nothing but breed mistrust and cynicism. I challenge anyone to give an accurate tabulation how many open motions for consideration there are now pending in the State of Maryland. I also challenge anyone to give an accurate accounting of sentence modification since 1980 that have been considered or granted at least five years after the imposition of sentencing. I would venture to guess that very few judges even know how many reconsideration cases they have under advisement. Victims, law enforcement, and the public are all entitled to a fair sentencing structure and process. This involves finality as well as some semblance of truth in sentencing. Maryland’s current procedure of delayed sentencing neglects these two important components.

The need for reform is obvious. That is why the issue will not go away. But reform has not been easy. There have been a number of proposals brought to the Rules Committee and Legislature over the course of the past ten years. Each proposal has been defeated, although some proposals have from time to time gathered momentum and gained considerable support. Defense attorneys and some judges have and will continue to strenuously oppose any type of reform, be it by rule or legislation. Those arguing for the status quo claim that it diminishes the power a sentencing judge has over sentences and erodes judicial discretion. According to the proponents of the status quo, any erosion over judicial discretion in sentencing power is to be opposed. My view is that a reasonable time frame during which this discretion must be exercised does not erode discretion. Interestingly enough, the Conference of Circuit Court Judges now feel that reform should occur. ^[4]

There is currently legislation pending once again in the General Assembly, but it appears that the battleground has shifted to the Court of Appeals. In the January 2004, the Rules Committee voted narrowly (11-10) not to recommend the five years for crimes of violence proposal put forth by the Conference of Circuit Judges. Notwithstanding the vote not to recommend the proposal, the Rules Committee agreed to send the matter on to the Court of Appeals for final resolution. ^[5] This represents a major break for the proponents of change. ^[6] Because the proposal from the Conference of Circuit Judges is clearly a compromise, opposition from both quarters has emerged. Many prosecutors feel the “5 year crime of violence” plan does not go nearly far enough while the Maryland criminal defense bar is strongly opposed to any change in the status quo.

This issue, for years, has sharply divided the bar and judges and given rise to heated rhetoric and public posturing. If the Court of Appeals adopts some reasonable limits to the current disjointed, chaotic, and arbitrary processes of sentence revision, I strongly suspect that those involved in the administration of criminal justice will be able to “move on” and devote their considerable energies to other matters.

February 2004
By Robert L. Dean
Deputy State’s Attorney for Prince George’s County
Member of the Court of Appeals Standing Committee on Rules of Practice and Procedure

[1] In the event the original sentencing judge is no longer available, the matter will be assigned to a new judge.

[2] It is the rule rather than the exception. Even the failure to ask a judge to take a sentence reconsideration request under advisement has become grounds for post conviction re

[3] Victims advocacy groups have encouraged reforms by legislation or rules.

[4] By letter dated October 2, 2003 the Honorable Daniel M. Long, Chair of the Conference of Circuit Judges, reported that the Conference of Circuit Judges unanimously endorsed certain proposed amendments to the Reconsideration Rule. The proposal endorsed would give a sentencing judge five years to modify a crime of violence.

[5] Significantly, several Rules Committee members voted against the proposal on the grounds that although they might not be opposed to the merits, it is a matter that the legislature should take up. As a member of the Rules Committee and a strong proponent of a rule or law change for over a decade, I voted in favor of the compromise as a step in the right direction. I also felt that since it was a Rule that has given rise to the current practice, it would be appropriate for the Rules Committee to create time limits to assure a more orderly and rational flow of decision making.

[6] Several years ago the Rules Committee overwhelmingly defeated a rules change proposal which would have imposed a time limit for ruling on reconsiderations. Other proposals earlier had failed to make it out of the criminal rules subcommittee.

Criminal Law & Practice