Brian Saccenti, Becky Kling Feldman and Michael Millemann are counsel for many of the petitioners in Unger v. Maryland. Saccenti is the chief of the appellate division of Maryland’s Office of the Public Defender. Feldman is the chief of the collateral review division of the same office. Millemann is a professor at the University of Maryland Francis King Carey School of Law.
In the past year, more than 60 Maryland prisoners sentenced to life imprisonment have been released as a result of Unger v. Maryland, a 2012 decision of the Maryland Court of Appeals. This decision cleared the way for people convicted in the 1960s and 1970s to challenge their convictions based on an unconstitutional practice that invited juries to disregard fundamental requirements of proof beyond a reasonable doubt and the presumption of innocence.
The exemplary track records of these inmates, in prison and after release, demonstrate that people can be rehabilitated and safely released back into their communities.
The experience of David Belton, reported last month in The Post, is typical of those released. They served an average of 38 years in prison. Many were juveniles when the crimes were committed. When they were locked up, the president was named Johnson, Nixon, Ford or Carter. For many, there was war in Vietnam. There were no cellphones, home computers or Internet.
Many were on work release, a commonplace practice at that time to prepare these men for a successful release into the community. In 1995, Gov. Parris Glendening (D) decided, based on politics not sound policy, to stop paroling lifers. Subsequent Democratic administrations have largely continued this no-parole policy.
Of the people released so far, nearly all are on probation. Several were released in wheelchairs or with walkers. Several were released into hospice care or assisted-living facilities. Others have been released into transitional housing, where they are being provided with help in re-adapting to freedom. The rest were released to their families.
In making the transition to a radically different free world, these citizens have been aided immeasurably by a post-release social work program funded by the Open Society Institute. Many have found jobs, and all have become contributing members of their families and communities.
Their stories demonstrate that people change. And they have worked hard to do it. That a person committed a serious crime as a teenager or young adult does not tell us what he or she will be like at age 50 or 60. Admittedly, some people who are dangerous when they are 17 are still dangerous when they are 70. But this is the exception, not the rule.
So how to separate the wheat from the chaff — those who are reformed and safe to release from those who are not? This is why Maryland has a parole commission. Commissioners are appointed by the secretary of the Department of Public Safety and Correctional Services, with the approval of the governor, and serve six-year terms. A person with a life sentence is not eligible for parole until he has served 15 years or, in some cases, 25 years. The commission conducts an extensive review, which typically includes consideration of the crime, the testimony of the victims or representatives, prison disciplinary records, work histories, educational achievements, mental health evaluations and other evidence of rehabilitation. Where these factors indicate a person has reformed and can be safely released, the commission recommends parole.
Since 1995, the parole commission has recommended dozens of aging lifers for early release after determining that they do not present a threat to public safety. Democratic governors have rejected almost all these recommendations, ignoring the critical legal distinction between sentences of life with parole and life without parole.
Throwing away the key may be politically popular, but it is not good public or fiscal policy. A limited amount of money is available for public safety. Money spent on needless incarceration is money that cannot be spent on programs that actually reduce crime. According to the best data, the average cost of incarcerating each lifer is more than $38,000 a year. This means the release of these Unger prisoners is saving the state more than $2.25 million per year — money that now can be used for other public safety needs.
If these people posed a danger, it would be worth the money to keep them locked up. But the records of the people released after Unger demonstrate that this is not the case. In fact, many of the people released had been recommended for parole and would have been released years ago if not for the dramatic change in parole policy that occurred in 1995.
Most states do not require the governor’s approval to parole a lifer. Maryland should join those states by removing the governor from the parole process and entrusting the decision to the parole commission. Doing so would protect the public from inmates who continue to pose a risk to public safety while giving a second chance to those who have earned it. And it would restore a sense of justice to Maryland’s incarceration policy.