ANNAPOLIS — “Hodgepodge” is not a term one generally wants to hear associated with a state’s penal code, but it’s how a veteran member of the Senate Judicial Proceedings Committee has come to describe it.
Sen. Michael Hough (R-Frederick & Carroll) is again calling for a complete review of the state’s sentencing system. Each session, lawmakers bring bills to Judicial Proceedings — on which he has served since 2015 — asking to modify the classifications or sentence for an offense. In at least a handful of cases each year, what’s on the books doesn’t make sense, Hough said.
“We can’t fix them all during session. That’s why we need a holistic approach,” Hough said.
His bill, SB 149, would create a task force to review penalties, consider reclassification of crimes, examine systems used by other states and study the history and intent of the criminal and civil classifications in Maryland. The bill received unanimous support in the Senate on Thursday.
Hough recruited freshman Del. Dan Cox (R-Frederick & Carroll) to sponsor the bill in the House of Delegates. Cox practices law at his firm, The Cox Law Center LLC, in Emmitsburg. He works primarily on civil cases.
On Tuesday, Cox waited more than five hours to present his version of the bill to the House Judiciary Committee, on which he sits. The bills heard before his, however, inadvertently underlined some of the changes needed in the state’s penal code.
Selling, trading and bartering a child for money, property or a thing of value is currently a misdemeanor under Maryland law. Del. Nick Mosby (D-Baltimore City) is seeking to upgrade it to a felony.
“We’re talking about vulnerable individuals. We’re talking about a child,” Mosby said. “... This bill is trying to be proactive, rather than reactive, to the egregious crime of selling a child.”
In testimony on a separate bill to modify the state’s parole process for people sentenced to life in prison, opponents noted that those convicted of first-degree murder had to wait 15 years, while those convicted of the lesser second-degree murder charge had to wait 20 years before being eligible for parole. It would make more sense if the more serious conviction had a longer waiting period.
Then a woman whose daughter was murdered testified in support of HB 493, which would upgrade the crime of soliciting a person to commit murder from a misdemeanor to a felony.
“There are a lot of opportunities, I think, to make sure we’re putting violent offenders behind bars,” Cox said in an interview.
While the bills heard before Cox’s highlighted crimes where sentences may need to be increased, it does not mean the balance of justice could not be tipped the other way. Cox noted that “it’s an old code.” There are misdemeanors that may need to be rewritten as civil penalties — or crimes listed as felonies that carry jail sentences of one to two years that should be misdemeanors.
Caylin Young of the Maryland ACLU, who testified in support of Cox’s bill, also said the few examples heard that day showed that sentencing wasn’t consistent in the state and asked the committee to let a task force review the code.
At the center of the problem is that Maryland has historically classified and set sentences for crimes individually and not within a defined framework.
Hough and Cox’s bills would form the Task Force to Study Crime Classification and Penalties, which would look at all crime classifications as felony, misdemeanor or civil offense. It would also consider if a system should be established to guide the classification and sentencing of crimes.
Lawmakers would then be able to decide where a crime and its punishment fit into the existing framework, rather than assigning it a felony or misdemeanor in the “hodgepodge” manner it has been, Hough said. This is important because a felony conviction can strip a Maryland resident of hundreds of rights and misdemeanors have short statutes of limitations to bring a case to court, he said.
The task force would not require the state to adopt a new penal system, Cox said. The task force would make recommendations, which would then have to be acted on legislatively, Hough said.
The change, however, could save both the Judiciary and Judicial Proceedings committees time in the future, by not having to individually reevaluate crime classifications and sentences each session.
“If we passed my bill, you would have not have had as long of a hearing today,” Cox joked with his committee.
The task force is also a natural extension of the state’s justice reinvestment work, which Hough has been intimately involved in for the past four years.
In 2015, the General Assembly passed an emergency bill, which established a Justice Reinvestment Coordinating Council, to which Hough was assigned. The aim was to use a data-driven approach to develop “a statewide framework of sentencing and corrections policies to further reduce the state’s incarceration population.”
The bill was followed in 2016 with the sweeping Justice Reinvestment Act, which in 96 pages revised jail and prison sentences for violent offenders, while offering rehabilitation and second chances for those who committed lesser crimes. The bill also created the Justice Reinvestment Oversight Board, to which Hough was also assigned and has served on since.
In 2017, Hough introduced his initial legislation for a Task Force to Study Crime Classification and Penalties to evaluate the entire penal code. The bill passed the Senate 47-0 that year, but stalled in the House Judiciary Committee without a vote due to concerns of the task force’s report being released in an election year with lame-duck politicians.
The bill was refiled in the Senate by Hough this session and passed the chamber 44-0 on Thursday. He believed the House version had a strong possibility of passing as well.
If passed, the task force would take effect on June 1, 2019, and remain in effect for two years and one month, until June 30, 2021.