On June 28, 2021, the Rules Review Subcommittee of the Maryland Judiciary’s Equal Justice Committee held a listening session on Criminal Procedure. The session was moderated by Court of Special Appeals Judge Douglas R. M. Nazarian and Anne Arundel County District Court Judge Sidney A. Butcher.
The committee was formed in June 2020, in an effort to build on the judiciary’s knowledge and proficiencies and to strengthen its commitment to equal justice under the law. The Committee is to recommend strategies to dismantle any discriminatory behaviors in all aspects of the Judiciary’s functions. It will identify necessary improvements, resources, and support services, and develop educational opportunities for ongoing Judiciary-wide engagement in the pursuit of equal justice for all.
The listening sessions are designed for members of the committee and the subcommittee to obtain input regarding how the rules have operated in a way that raises concerns regarding disparate treatment. This particular session was devoted to criminal procedure rules and specifically those that may provoke concerns for discriminatory behavior or implicit bias grounded in race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation.
The first speaker noted that the Maryland Rules and Public Safety Articles call for the state to have a validated race-neutral risk assessment tool, but Maryland does not have one. He encouraged the court to add substance to that rule by urging the State to fund and adopt an appropriate statewide validated, race-neutral, risk assessment tool. He also urged the committee to study plea agreements, as 90% of cases are resolved by plea agreements but more than 70% of people sentenced to prison are Black, which is more than double the rate of population as shown by various studies.
Finally, he noted there was a rule previously recommended by the committee which provided that if someone is sitting in jail with a technical violation of probation in a case where there is a presumptive sentencing of 15, 30, or 45 days, a different judge than the sentencing judge should be able to consider the pretrial release. The current rules do not allow for this, which results in many people sitting in jail beyond the presumptive maximum of a technical violation. Because technical violations are often the result of poverty, the current rule disproportionately impacts people of color and has the effect of being discriminatory de facto.
The second speaker addressed the impact of the adoption of Rule 4-216.1 in 2017. The purpose of the rule was to promote the release of defendants on their own recognizance or when necessary pursuant to an unsecured bond, to reduce the pre-trial population by significantly reducing reliance on money bail. While the rule succeeded, the speaker believed work was needed to address the excessive use of preventive detention, which replaced money bail.
Detention may be appropriate in cases in which the court finds that the individual presents a risk of danger to society or is at risk for not appearing for court. Due to excessive pretrial detention the pretrial population has barely decreased despite the efforts under the rule. Further, more than 60% of people detained are not prosecuted and are subsequently released.
The data suggests that Black Marylanders are arrested, prosecuted, and denied release by commissioners at much higher rates than white Marylanders. The speaker proposed a change to the rule to require that particularized findings be made on record of the individualized considerations required by the rule as it relates to all of the more onerous forms of a pre-trial detention or pretrial release conditions. The purpose of the rule is to inhibit judges from too quickly and too easily relying on preventive detention or other expensive conditions that will prevent a person’s release.
Next, a speaker presented concerns regarding the increase in implicit bias in matters involving discretionary decisions, and noted that relatively simple rule changes could go a long way towards eliminating the bias. Next, a speaker expressed a need to modify the assessment tools used to determine bail, as the current tools have a disparate negative impact on Black people.