Overwhelmed by the bulging federal prison population, the U.S. Department of Justice recently announced that it would accept clemency petitions from prisoners serving life sentences for low-level, nonviolent drug offenses. These petitions could lead to the release of hundreds of predominantly African American and Latino prisoners who were imprisoned as a result of excessive and discriminatory drug sentencing laws. This is a commendable step.
In Maryland, state officials are willing to release prisoners who were convicted of violent offenses to correct an injustice that happened years ago. The following case illustrates this point.
In 1979, J. Brown (not his real name), a 31-year old African American man, was tried for robbery and murder in Baltimore City. He was allegedly the “get-away” driver for a home invasion during which one of the residents was killed. The questionable case against him resulted in two hung juries. Finally, the third jury convicted him, but only after the judge gave jury instructions now deemed unlawful. He received a life sentence with the possibility of parole.
During his incarceration, J. Brown took advantage of educational and job training opportunities. He was even recommended for parole, but remained incarcerated because Maryland’s governors refused to release a lifer. Two years ago, Maryland’s highest court decided that the jury instructions given in criminal trials prior to 1980 were unconstitutional. These instructions allowed jurors to reject fundamental principles, such as the constitutional requirement that a criminal defendant be considered innocent until proven guilty beyond a reasonable doubt. Believing that the flawed instructions created unfair trials, the Maryland Court of Appeals in Unger v. State ruled that people convicted in those criminal cases—over 200 prisoners—are entitled to new trials.
Since May 2013, with legal help from the University of Maryland School of Law’s Clinical Program and the Maryland Office of the Public Defender, more than 50 people serving life sentences, including J. Brown, have been released from prison. Realizing the challenges they would face in retrying such cases, state’s attorneys across Maryland agreed to release these prisoners under strict conditions, including supervised probation and enrollment in reentry programs to help them find housing and employment. Social workers, supported by funding from the Open Society Institute-Baltimore, began developing home plans with prisoners—most of them senior citizens—while they were incarcerated. And, reentry organizations, such as the Living Classrooms Foundation and the Jericho Re-entry Program provided job training and connected them to health benefits.
OSI-Baltimore is supporting this work for several reasons. First, people accused of crimes have a constitutional right to a fair trial, which includes the presumption of innocence and the prosecutor’s burden to prove guilt beyond a reasonable doubt. Had jurors received proper jury instructions, some may have not been convicted. Additionally, a disproportionate number of the prisoners entitled to new trials are African Americans who were tried by all-white juries, suggesting that unconstitutional racial discrimination occurred during jury selection.
Secondly, OSI wants to challenge the assumption that people convicted of violent crimes and released from prison will commit similar crimes. A U.S. Department of Justice report analyzed more than 200,000 prisoners from 15 states, including Maryland, and found that only 1.2% of prisoners convicted of murder and 2.5% of those convicted of rape were rearrested for similar offenses within three years of their release. And research shows that people age 50 or older are less likely to reoffend, giving prosecutors and judges more confidence to release or grant new trials for prisoners incarcerated for decades as most pose no public safety risk.
Finally, releasing aging prisoners who pose no risk could save state dollars. In Maryland, it costs about $38,000 annually to incarcerate a person and even more to care for an aging prisoner with medical conditions. Many of the prisoners who have been released by the Unger decision are 60 or older, in failing health and not a threat to public safety. With support, these aging prisoners can safely return to communities and become contributing Maryland residents.
In this work, we must remember the surviving family members of victims who lost their lives. As someone related to people who lost or almost lost their lives to violence, I know the harm done well. But as a lawyer, I also know we must correct errors and maintain a criminal justice system we can be proud of—one where the people involved receive justice and second chances.
Read the stories of two individuals released as a result of Unger v. State.