Criminal Law & Practice
SECTION NEWSLETTER
Fully Discretionary Sentencing:
Why shouldn’t our Judges be Trusted?
Our fine state, the
“Free State”, has a long and proud tradition of Judicial Branch independence
from the Executive and Legislative Branches, which has substantially
contributed to the continuing reality of its moniker. At the forefront of
this tradition is judicial sentencing discretion. Maryland Criminal
Procedure Rule 4-345, in conjunction with the inherent judicial power to
defer rulings, has historically permitted our independent Judges to fully
exercise that discretion. So what has changed in the last 2 years? Why are
proposals placing arbitrary time limitations on the exercise of this
discretion now before the Court of Appeals and restrictive legislation
before the legislature? The answer is plain and simple. Under-informed and
inflammatory press coverage focusing, as usual, on a very few high profile
failures, aided and abetted by elected prosecutor’s who choose to ignore the
much greater number of Maryland’s citizens who have successfully
rehabilitated themselves with the help of a judges exercise of discretionary
authority to reconsider a sentence.
The authority and
discretion to reconsider sentences is primarily used by our Judges to
encourage those convicted of a crime, whether incarcerated or on probation,
to work hard at rehabilitation towards some concrete and beneficial goal.
Under the current Rules of Procedure, the exercise of this discretion
actually occurs in many different ways. No rule making or legislation is
required as our judges already have the authority to place time limitations
upon their own decision-making and the fact is that many already do. Some
Judges include time limitations or conditions such as achievement of certain
rehabilitative goals in their written orders holding reconsideration under
advisement.
However, the guiding
principle is always the ultimate goal of justice. Those reporters,
politicians and prosecutors who have made this issue their cause celebre do not even attempt to make a case that the discretion to
reconsider sentences has been misused or abused in any way by our Judges.
That is because in a vast majority of cases, reconsideration is unavailable
because of a plea agreement or denied outright by the court in the exercise
of---yes that is right---discretion! Our Judges exercise their discretion
to reconsider sentences only when substantial justice so requires.
Judicial sentencing
discretion has been increasingly limited across our country by mandatory
minimum sentencing and mandatory sentencing guidelines. Sentences have
become longer and incarceration rates have skyrocketed to a point where our
nation has the highest incarceration rate in the free world. Mandatory
minimums and mandatory sentencing guidelines have shifted the balance of
power in the criminal justice system away from the court and into the hands
of the prosecutor. Imposition of any further limitation on judicial
sentencing discretion is merely another step toward mandatory sentencing in
Maryland and an even greater imbalance in the criminal justice system.
Maryland’s democratic
judicial selection process has resulted in a culturally and racially diverse
bench made up of men and women of good conscience and strong intellect, with
the courage and ability to think independently in the exercise of their
judicial discretion. For some reason, those who support limiting the
discretionary authority to reconsider sentences have lost their trust in our
Judges. Not surprisingly, they suggest that this power should be
restricted to the executive branch, i.e., the prosecutor and parole board.
They disingenuously
argue that it is somehow unjust to subject victims to the reconsideration
process but do not have the same objection to the parole process, which of
course, is controlled by the executive branch(or at least no objection is
currently on their agenda). Ironically, they complain that it is difficult
for them to locate victims for notification purposes as is required under a
relatively recent victim’s rights law the passage of which they championed.
Finally, they complain of the “burden” on their resources of having a
prosecutor present in the courtroom and prepared for reconsideration
hearings, as if such hearings are somehow unlike the type of hearings
prosecutor’s handle day-in and day-out.
In a “free state” in a
free society, justice requires the balancing of many different interests.
The victim’s desire for retribution and final punishment are surely valid
interests. But other interests, important to the society as a whole,
interests such as rehabilitation, deterrence and restitution, also must be
appropriately weighted. Our Judge’s are well equipped to continue to serve
the citizens of Maryland in this most important of judicial functions in a
free society and must be trusted to do so.
Richard A. Finci
Houlon, Berman, Bergman, Finci & Levenstein, LLC
Criminal
Defense Attorney
Member, MSBA Criminal Law Section Council
Member, Maryland State Commission on Criminal Sentencing Policy
Past President,
Maryland Criminal Defense Attorney Association
Criminal Law and Practice : Newsletters
