2015 State Legislative Report
This session there were no less than 17 bills relating to police practices and accountability. Maryland residents are extremely concerned about mass criminalization of communities of color, the use of excessive force by police and deaths as a result of police encounters. People want to know that police are playing by the same rules as everyone else, and when they break the law, they will be held accountable.
This session we supported bills that would reform the Law Enforcement Officers Bill of Rights (LEOBR), to ensure greater accountability and transparency. LEOBR relates to internal investigations of police misconduct, and has certain provisions that are barriers to accountability. For example, individuals have only 90 days in which to file a claim of police brutality and there are restrictions on who and how a complaint may be filed. Unfortunately, none of those bills received a committee vote. We also supported bills that would enable the State Prosecutor to be the prosecuting authority in police misconduct cases. States' Attorneys, traditionally the prosecuting authority in these cases, work closely with police every day, whereas the State Prosecutor is an independent entity whose mandate is to investigate elected officials.
We supported three different police reporting bills this session. The first was a continuation of the "driving while black" case we brought in the 1990s. HB 339/SB 413 requires police to continue to report on the race and ethnicity of drivers they pull over. This bill passed. HB 338/SB 173 would have required police departments to continue to report on the deployment of their SWAT teams. Even though some departments continue to report voluntarily, this bill failed. Finally, we supported HB 954, which would require police departments to report on civilian deaths as a result of a police encounter, and deaths of officers in the line of duty. An ACLU of Maryland briefing paper found that between 2010 and 2014, at least 109 people died in Maryland as a result of a police encounter. Requiring law enforcement to report on these deaths shows that these lives matter, and will help show whether there is a pattern or practice by police that needs to be changed. This bill passed.
We also worked extremely hard on a bill that would place basic parameters around law enforcement's use of body-worn cameras. Used properly, body-worn cameras can be a win-win for police and citizens, providing an independent account of an encounter. Unfortunately, the General Assembly passed a bill that did not include basic parameters of when the cameras should be turned on or off, and did not include basic privacy protections.
Our testimony on HB 627.
Another bill relating to police practices that we supported was HB 360/SB 528, making changes to Maryland's civil asset forfeiture law. Originally intended to cripple drug kingpins by seizing their money, civil asset forfeiture laws have become an incentive for police to take citizens' money and property with little to no proof that it was connected to drugs. The bill requires notification to the owner of the seized property; places restrictions on when property can be turned over to federal law enforcement, and requires the state to prove that the money or property was drug-related. This bill passed.
Our testimony on HB 360/SB 528.
ACCESS TO JUSTICE
This legislative session, the ACLU of Maryland supported a number of bills to increase access to justice. We supported three bills to raise the amount of damages that victims could collect for claims against government officials, including police. HB 113 and HB 114-both of which passed-raised the local and state tort claims caps. We are hopeful that the higher threshold of potential financial liability will have a deterrent effect on state and local officials' wrongdoing. We also supported HB 728, which would have increased local and state liability for claims of excessive force or misuse of force by law enforcement. This bill did not pass.
The ACLU of Maryland joined forces with other civil rights and civil liberties advocates to support HB 283/ SB 319, which would have allowed courts to award attorneys' fees for prevailing plaintiffs in Maryland constitutional claims. This legislation would have greatly incentivized private attorneys to take state constitutional claims to protect the rights of Marylanders: these cases are complex and often yield only injunctive relief, making it unlikely that victims of constitutional violations are able to secure counsel to pursue these claims. Unfortunately this bill did not pass.
Our testimony on HB 283.
We also supported two bills to increase and improve the right to counsel in civil and criminal cases. HB 348/ SB 468 would have established a workgroup to oversee the legal representation of income-eligible Marylanders in protective order and contested custody cases-this bill was unsuccessful. HB 1119/ SB 646 would have established caseload standards for the Office of the Public Defender-this bill also failed.
CRIMINAL JUSTICE REFORM
As in 2014, we again supported a number of bills to shield or expunge criminal records and allow individuals to access employment, educational, and housing opportunities. Fortunately, three bills were successful this year. HB 244/ SB 526-The Second Chance Act-will allow individuals to petition to have the police and court records of certain convictions shielded after three years have lapsed since the completion of the sentence with no further infractions. The bill was amended in a number of ways, including an added limitation allowing individuals to shield records in only a single county. Nonetheless, this is important legislation and we were glad to support this effort and will continue to work alongside our allies to improve re-entry conditions.
Our testimony on HB 244/SB 526.
We also supported passage of HB 124/ SB 651, which allows for the expungement of criminal records for offenses that are no longer crimes and HB 304/ SB 652, which eliminates the rule that bars individuals from expunging certain records if they are subsequently convicted of a crime.
Our testimony on HB124/SB 651.
On the heels of the 2013 Richmond v. DeWolf decision, a number of bills were introduced to manage the right to counsel at bail hearings. We were successful in opposing a bill that would have terminated representation by the Office of the Public Defender after the bail hearing, thereby disrupting the constitutional right to counsel for indigent defendants. Other bills would have required more onerous income verification for indigent defendants being represented by the Office of the Public Defender and establish a separate corporation for representing indigent defendants at bail hearings. These bills were also unsuccessful.
Perhaps the most problematic of all these bills was SB 942, which would have amended the Maryland Constitution, the basis on which Richmond was decided, to explicitly deny representation by counsel at an arrestee's initial appearance before a District Court Commissioner. Fortunately, this bill failed.
Our testimony on SB 942.
HB 397 would have established a study of the correlation of bail setting with certain other factors, including defendants' race, age, gender, socioeconomic level, and offense. The use of cash bail as a means by which to secure an individual's freedom after arrest is of concern to the ACLU of Maryland because it means that those with financial means are released, while those without are detained, without a determination of the individual's likelihood of flight or threat to public safety. Because detention of even 24 hours can result in someone losing their job, the cash bail system can have a disproportionate impact on poorer communities-as we know does the criminal justice system as a whole. HB 397 would have allowed the legislature to identify any disparities in the existing bail system; unfortunately, it did not pass.
The ACLU of Maryland supported various pieces of legislation to improve the conditions of Maryland's incarcerated population. We supported HB 301/ SB 414-a bill to require the Department of Public Safety and Correctional Services to report on its use of segregated confinement-including the bases for segregating inmates, the length of time for which inmates are segregated, and the mental health status of those put in segregation. A recent report showed that Maryland uses segregated confinement (holding people in a cell for 22-24 hours a day) more than other states, and for more minor infractions. HB 301/ SB 414 would have been the next step to understand Maryland's use of segregated confinement so as to inform the public and the legislature of appropriate policy responses. Unfortunately, this bill did not pass, but we will be working alongside our allies to push for greater transparency and reform in the future.
Our testimony on HB 301.
We also supported bills to increase the release of sick and aging prisoners, see our testimony on SB 336.
The ACLU of Maryland also targeted criminal justice reform at the sentencing stage. We supported HB 303/ SB 111, which would have removed the Governor from the parole process for individuals serving a sentence of life with the possibility of parole. Our advocacy on this issue was driven in large part by the report we recently released with the Maryland Restorative Justice Initiative, Still Blocking the Exit. The report documents the many injustices in the current system and sheds light on the personal accounts of those sentenced to life with the possibility of parole. Unfortunately, neither bill was voted out of committee.
We opposed SB 849, a bill that would have repealed the separate jury sentencing phase for defendants to be sentenced to life without parole. The repeal of the death penalty left life without parole as the harshest sentence available, which the statutory language indicates must be handed down by a separate unanimous jury decision.
Our testimony on SB 849.
The ACLU of Maryland supported HB 121, which added a safety valve to some mandatory minimum sentences. HB 121 would allow judges to depart from the requirement that they sentence someone to a certain length of time, if the judge finds that the imposition of the mandatory minimum sentence would result in substantial injustice to the defendant and it is not necessary for the protection of the public. Mandatory minimum sentences take flexibility and discretion away from judges and require them to mete out harsh sentences, even when the nature of the crime, the history and the character of the defendant, and the defendant's chances of rehabilitation indicate a shorter sentence should be imposed.
Our testimony on HB 121.
We also supported HB 1009/SB 654, which expanded Maryland's current Good Samaritan law. HB 1009/SB 654 provides immunity from criminal prosecution to an individual who seeks medical assistance for someone who they reasonably believe is experiencing a medical emergency after ingesting drugs or alcohol. The underlying importance of Good Samaritan laws cannot be overstated: it is more important to save a life than to make an arrest.
Our testimony on HB 1009/SB 654.
YOUTH JUSTICE REFORM
The ACLU of Maryland supported a number of bills to reform the treatment of youth in the criminal justice system. HB 337/ SB 366 would have abolished the practice of sentencing youth to life without parole. Unfortunately, the bill did not pass this year, but we will continue working with local and national allies to push for this much needed and way overdue reform.
Our testimony on HB 337.
We also supported HB 618/ SB 172, which requires that children be placed in juvenile facilities, instead of adult facilities, while the decision is being made whether to adjudicate the child's case in adult or juvenile court. We are glad that the legislature saw the wisdom in passing this bill-it will save a number of youth from the harms, often irreversible, that come with stays in adult facilities.
Our testimony on HB 618.
MARIJUANA POLICY REFORM
This session saw many bills on the issue of marijuana policy reform: bills to decriminalize possession of paraphernalia (HB 105 and SB 517); bills to create a system of control, taxation and regulation of marijuana (HB 911/SB 531); a bill to prohibit probation or parole revocation if someone is cited for marijuana possession (HB 615); a bill to criminalize possession of marijuana in a car (HB 393); a bill that would have made several changes to the current decrim law, including changing a code violation to a finding of "guilty" (HB 495); and a bill to remove medical marijuana from the criminal code (SB 456). We weighed in on all of these bills, encouraging the legislature to move to a saner drug policy, one based in health, personal integrity and good public policy. The legislature ultimately passed SB 517, which decriminalized possession of marijuana paraphernalia and instituted a stiff fine of $500 for smoking in public.