Maryland Legislature

Published on: January 15, 2019

Baltimore City Crime Prevention Plan Announced

The Governor of Maryland recently introduced a host of forthcoming law enforcement initiatives specifically aimed at reducing violent crime in Baltimore City. Baltimore’s violent crime rate has been trending in the wrong direction for years, and is a constant source of concern for residents, visitors and those who conduct regular business in the city. Putting all the embarrassing national news headlines aside, the bottom line is that people just don’t feel safe in Baltimore. While the Governor has shown discretion by not outwardly blaming the city’s leadership, it’s clear from his actions that he has no faith the local government can do what it takes to reverse this disturbing trend. The city’s leadership does not even appear to be directly involved with the creation or implementation of these new initiatives, which include the formation of violent crime joint operations center downtown.

The joint operations center will serve as home base for upwards of 200 new law enforcement officers from sixteen agencies and seven law enforcement task forces such as the FBI, DEA, ATF and the U.S. Marshals. The Baltimore Police and the State’s Attoney’s Office will also have a presence in the center, in addition to a special operations unit of the Maryland State Police. With all these new law enforcement officers pounding the pavement there will certainly be hundreds of new cases to prosecute, but if you think the Governor simply planned to hand all these cases over to the local prosecutor then think again. The Governor wants many of these cases to be handled in federal court, and is doing so by expanding the reach of Project Exile, a program where city gun crime offenders are prosecuted in federally. The feds are not footing the entire bill for the increased workload, as the Governor actually pledged state money for the sole purpose of hiring more federal prosecutors to prosecute violent crime in the city. Federal sentencing guidelines are harsher with respect to violent offenses and crimes involving firearms, and the U.S. Attorney’s Office is notorious for high conviction rates. A defendant is far more likely to serve significant prison time in the federal system due to mandatory sentences and no parole.

The governor also announced greater funding for victim and witness relocation programs, which will increase the likelihood that state and federal prosecutors will have their witnesses ready and available when it comes time for trial. Violent crime cases are routinely dismissed due to witness unavailability, and this has become a major issue in Baltimore City for state and federal prosecutors alike. Another announcement from last week was the introduction of the Repeat Firearms Offenders Act of 2019, which will double the minimum mandatory prison sentence from 5 years to 10 for those convicted of felon in possession of a firearm. This law was modified a few years ago to make the mandatory sentence discretionary if the disqualifying crime and any punishment (including probation) ended more than 5 years prior to the new incident date. The effectiveness of mandatory minimum sentences is arguable, but politicians love them so they’re here to stay.

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Published on: May 23, 2018

Maryland Reports Largest Prison Population Decline

By Benjamin Herbst

The national prison population continues to decline, and for the first time in almost fifteen years the total number of inmates dipped below 1.5 million. Last year Maryland lead the entire nation with a dramatic 10 percent reduction in prisoners, which brought the state inmate population down almost 2 thousand to a total of around 18 thousand. While the simplest explanation for the decline is the passage of the Justice Reinvestment Act, a closer look reveals a variety of factors at play.

The Justice Reinvestment Act or JRA was a groundbreaking and massive piece of legislation that sought to reduce money and manpower dedicated to jailing defendants, and to divert these resources to treating and rehabilitating convicted defendants. The JRA eliminated harsh mandatory sentences for repeat drug offenders convicted of non-violent offenses such as possession with intent to distribute narcotics. The maximum penalty for possession of CDS not marijuana was also lowered to one year, which eliminated the possibility of a prison sentence for drug possession. While most state correctional inmates are serving the original sentence handed down by the judge, a large portion are doing time for violating their probation. Lawmakers became aware that the sentences handed down for probation violations were getting out of control, and used the JRA to do something about it.

Each day dozens of defendants plea out to large suspended sentences in order to be released from jail, and many end up back in court on a violation. Some of these violations are extremely minor, and could be avoided by more patient probation officers. In the past defendants faced years in prison for extremely minor violations, but since the JRA went into effect there are now limits on the sentences handed down for these so called technical violations. The limits are not binding on the judge, but are certainly persuasive when it comes to sentencing a probationer for a positive drug test, failing to complete treatment or not paying restitution.

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Published on: May 15, 2018

Supreme Court Clears Path For Maryland Sports Gambling

By Benjamin Herbst

Back in March the Maryland House of Delegates passed a bill that would place legalized sports gambling in the hands of voters come November. At the time wagering on sports was effectively prohibited under federal law in almost all states, but Maryland lawmakers had expected the day to come when the Supreme Court would put an end to the illogical ban under the Professional and Amateur Sports Protection Act (PAPSA). That day finally came yesterday when the nation’s highest court declared PAPSA unconstitutional by a vote of 6-3. We won’t bore our readers with the technical nuance of the ruling, but a brief explanation should be helpful to those not inclined to tackle the 30 page opinion. We will also comment on the expected impact of this opinion here in Maryland, which to put it plainly will be enormous.

Yesterday The Supreme Court reiterated that it is not the business of the federal government to regulate the way state governments regulate their citizens. PAPSA did not make sports gambling illegal under federal law, and in fact wagering on sports has never been a specific federal crime. Rather, PAPSA prohibited states from establishing their own sports wagering industry by allowing the Attorney General and individual sports organizations to bring legal action against anyone operating sports gambling business outside of Nevada. The Court basically told federal lawmakers that if they want to make gambling illegal then go ahead, but if not then states have the authority under the 10^thAmendment to make the decision for themselves.

Sports betting is now legal in all 50 states (or more accurately is not prohibited under federal law in any state), so what will the impact be in Maryland? As usual we’re starting off a little late to the game, as neighboring West Virginia has already passed sports gambling legislation and Delaware and New Jersey sports books will be up and running in no time. But at least some of our lawmakers had the wherewithal to anticipate the SCOTUS ruling and start the ball rolling. There will likely be a referendum on election day this year to officially legalize sports gambling at casinos and racetracks around the state, and there is no doubt that it will pass. By 2019 we could see sports books opening at Laurel, MGM National Harbor, Maryland Live, The Horseshoe in Baltimore and all other licensed gambling establishments. The main impact of legalized sports betting in Maryland will be the millions of dollars to spread around, though the profits may not be as high as people think as less than 5 percent of casino profits in Vegas are attributed to sports gambling. But legalized wagering will bring increased traffic to the casinos and likely boost the already massive $1.7 billion in yearly revenue currently generated by Maryland casinos. Casinos sports books don’t simply generate revenue through bets, as they are entertainment destinations for gamblers and sports fans alike.

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Published on: March 25, 2018

State Senate Passes Marijuana Bill

By Benjamin Herbst

Legalizing marijuana through an amendment to the state constitution remains a possibility, but independent of this of this massive policy shift lawmakers are still working diligently to modernize marijuana laws. There have been over twenty marijuana related bills introduced by Maryland lawmakers this year, but few will end up as law, and even fewer will have a impact in courtrooms across the state. One marijuana bill that could potentially have an impact on the court system recently passed in the Senate by a wide margin, and is now headed to the House for a vote the first week of April. If this bill passes and is later signed into law the threshold for criminal possession of marijuana would increase from 10 grams to 1 ounce, meaning it would no longer be a crime to possess between 10 and 28 grams of pot.

If the marijuana threshold bill becomes law the amount of civil citations would likely double, but these cases have much less of a burden on the court system than criminal cases. Defendants in civil marijuana cases typically prepay the fine and forgo showing up to court, which is permitted for anyone age 21 and over. When fines are prepaid witnesses (generally police officers) do not need to be summonsed and judges and courtroom clerks can be utilized for other cases. Even if a defendant requests a trial, most jurisdictions treat these cases like minor traffic violations, and do not assign assistant state’s attorneys to prosecute them. Although most defendants over the age of 21 prepay the pot citation fines, we advise these defendants to show up to court and contest the allegations. Paying a fine for a civil marijuana citation will result in a conviction, albeit for a civil violation that is not subject for public inspection and does not appear on the judiciary website (casesearch), but it’s still a conviction for an offense that is illegal under federal law. Requesting a court appearance could result in a more favorable outcome than prepaying the fine such as a probation before judgment, a STET, a nolle prosequi or a not guilty finding. Each of these outcomes would allow the defendant to resolve the case without a conviction and eventually apply for an expungement. If you have the time to show up to court or the money to hire an attorney it would definitely be in your best interest.

The marijuana threshold bill passed 36-11 in the Senate, a wide margin by any calculation. Naturally for this many Senators to vote to increase the criminal possession threshold there would have to be some concessions in the other direction, as most politicians are weary about being too lenient on an issue that is perceived as a criminal in nature. The concession for this bill is an added provision making it illegal to consume marijuana in the passenger compartment of a motor vehicle that is driving, standing or parked on a public road. This provision, listed in section 21-903 of the transportation article would apply to drivers and passengers. In other words a cop could pull a car over and cite all its occupants for illegal marijuana use. This offense is not a major or jailable traffic crime, but it does carry up to a $530 fine and one point (3 points if there is an accident). It is virtually the same as the provision against consuming alcohol inside a vehicle, but the alcohol consumption statute only applies to drivers, and not passengers. We expect that this measure will pass in the House virtually unchanged, and eventually end up as law in October, but there are never guarantees when it comes to Maryland and marijuana laws. The Blog will continue to follow this bill and others related to state criminal and traffic laws. If you would like to speak to a lawyer about a criminal or traffic citation, or any other offense contact Benjamin Herbst at 410-207-2598 for a free consultation. Benjamin specializes in DUI, drug possession and alcohol consumption/ open container defense, and is available anytime to discuss your case.

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Published on: March 17, 2018

Comprehensive Crime Bill Passes Senate

By Benjamin Herbst

Maryland State Senators recently passed a sweeping bill that would modify a number of existing criminal laws ranging from drug dealing to gun possession, and now the bill moves on to the House for a vote later this month. The measure passed by a wide margin in the Senate, and the governor’s approval is expected as long as it arrives at his desk. The bill made headlines for including provisions that increase jail sentences for repeat offenders and adding funding for crime prevention initiatives, but there are numerous other proposals that could have major impacts in courthouses around the state.

Firearms and fentanyl have become two of the main hot button criminal law issues of the past few months, and the comprehensive criminal bill touches on both. With respect to firearms, the bill adds a provision that would enable police officers and prosecutors to apply for wiretaps in cases involving certain public safety code gun laws. These laws include the sale of stolen firearms and the transportation of guns for the purpose of illegal trafficking. Crimes involving straw purchases of regulated firearms may also be investigated through the use of wiretaps under the proposed law. A straw purchase would be buying a gun for someone who cannot or does not want to buy one, and while straw purchases are generally legally, when it comes to firearms the opposite is true. Other firearm provisions in the new bill include raising the maximum and minimum penalty for certain crimes involving handguns. Under the law a second conviction for wear, transport and carry of a handgun would carry a 15-year maximum penalty, up from 10 years. If the second offense occurs on school property the minimum sentence would be increased to 5 years, up from 3. The 5-year minimum sentence for use of a firearm during the commission of a crime would remain under the proposed law, but it would be classified as a felony instead of a misdemeanor. A second offense of this provision would carry a new 10-year minimum sentence.

In addition to stricter gun laws the Senate version of the crime bill also enhances the potential punishment for crimes involving fentanyl. This powerful synthetic narcotic has been responsible for thousands of overdoses, and in many cases the user had no idea that he or she was using it. The strength of fentanyl makes it an easy swap for heroin, and the abundance of it leads to higher profits for dealers. Previously fentanyl was grouped with morphine and opium derivatives with respect to the large amount section of the Maryland drug distribution laws, which meant that it would take more than 28 grams to trigger the 5-year mandatory penalty. Under the proposed law possession of more than 5 grams of fentanyl would trigger enhanced penalties reserved for suspected volume dealers.

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Published on: February 23, 2018

Lawmakers Debate Recreational Marijuana Bill

By Benjamin Herbst

This week in Annapolis lawmakers debated bill that would pave the way for the legal recreational use of marijuana in Maryland for any person over the age of 21. Senate bill 1039 proposes an amendment to the state constitution, which should signal just how serious lawmakers are about legalization becoming state policy. Along with the ability to consume marijuana, the law would allow for the possession of up to 1 ounce of flower and 5 grams of concentrate. State residents would also be permitted to grow up to 6 marijuana plants in their home or other private property, as long at the cultivation could not be viewed by the public without the use of visual aids. A small caveat to legally growing under the proposed law is that no private citizen would be permitted to have more than 3 mature and flowering plants at one time, thus the process of cultivation would have to be spread over time. The limits on the amount of pot that a person may legally possess do not apply to that which is grown in the home. In other words a citizen could have three flowering plants that yield over a pound of pot, and it would be legal to possess all of it inside private propery. Other provisions of the senate bill include the ability to share up 5 grams of cannabis with another person who is over the age of 21. Sharing means not receiving anything of value in exchange for the pot, so no bartering of t-shirts, concert tickets etc. would be allowed.

If and when the bill eventually becomes law (whether it be this year or some time in the future) there will be limits on what legalizing marijuana actually means, and also some protections for those who choose to use marijuana. Legalization does not mean employers would have to make accommodations for employers who want to use cannabis at the workplace, and these employers could decide to ban the possession of cannabis at work. Employers would be protected if they decided to fire an employee for violating a workplace drug policy that barred marijuana use. Laws that currently apply to tobacco smoking in public places would also apply to cannabis under the new proposed legislation. A business that permits tobacco smoking on its premises could also allow pot smoking as long as there is no access by individuals under the age of 21 and the business is compliant with local ordinances. Another important provision is one that bars a landlord from prohibiting tenants from consuming cannabis in forms other than smoking. Most residential leases have provisions barring the use of drugs on the building property, but marijuana would not be considered a drug under the proposed law.

In addition to establishing basic regulations for recreational marijuana, the bill would grant authority to the General Assembly and the State Comptroller to establish licensing and taxing regulations for the marijuana commerce. Lawmakers wrote into the bill that their goals in crafting cannabis policy are to remove the production and distribution of cannabis from the illegal market, and to eradicate profits generated for criminal enterprises through the sale of marijuana. In addition lawmakers will emphasize the goal of keeping marijuana out of the hands of individuals under the age of 21.

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Published on: February 8, 2018

Drunk Driving Penalties May Increase

By Benjamin Herbst

Despite rarely appearing in statistical crime reports, drunk driving is one of the most common jailable offenses committed in Maryland each year. The number of yearly statewide drunk driving arrests is in the thousands, and hundreds of these are the direct result of an accident causing death or serious injury. The penalties for driving under the influence or while impaired are about average in relation to other states in the country, but in the last few years there has been legislation to make these penalties progressively harsher. Lawmakers recently added mandatory engine interlock in certain cases and increased the length of license suspensions for testing over the legal limit or for refusing the test. Despite the recent progress Annapolis lawmakers are far from finished, and will continue to modify drunk driving laws. This year a bill is on the table in both houses that may not come into play as often as mandatory interlock and long license suspensions, but it’s one that will send a clear message to repeat offenders.

While a first time offender can be sentenced to as much as a year in jail for committing a DUI it is still classified as a traffic offense, and even multiple convictions will not technically leave a person with a criminal record. As the laws are currently written in the transportation code the stiffest penalty for a drunk driving case is three years in jail, and this only applies on the third or subsequent conviction. There are other factors that may escalate the sentence such as drunk driving with a minor in the car, though even with enhancements a DUI or DWI is still considered a misdemeanor traffic offense regardless of how many times the defendant has been convicted. Maryland law does not allow for the expungement of a DUI or DWI even if the defendant has received a probation before judgment, so there will always be a record of a case where defendant pleads guilty or no contest. This is a harsh consequence, but based on the new bill it appears that Annapolis lawmakers believe simply being barred from expungement and increasing possible penalties is not enough of a deterrent to drive drunk.

If new bill ends up becoming law later this year it will take drunk driving laws to a new level, and one that many states currently have in place. The call from lawmakers is to classify a standard DUI or DWI charge as a felony with a 10-year maximum jail sentence and a possible $10,000 fine provided the defendant has certain prior convictions. Specifically the bill would establish that anyone with a prior conviction for vehicular homicide or manslaughter by vehicle or vessel is subject to being charged with a felony if they are arrested for drunk driving. This includes manslaughter from criminal negligence or gross negligence. It also could give the state the power to charge felony DUI if the defendant has three or more prior convictions. No other aggravating factors need to be present in order for these enhanced penalties to come into play, and the only requirement on the state to charge felony DUI would be that they notify the defense 5 days before trial in the district court and 15 days prior to trial in the circuit court.

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Published on: January 18, 2018

Lawmakers Pondering Stiffer Criminal Penalties

By Benjamin Herbst

Criminal laws were at the forefront of the last few Maryland legislative sessions as lawmakers tackled highly controversial issues with prior marijuana and narcotics laws. Medical marijuana became state law just a couple years ago and now dispensaries are already selling their products to registered patients. Last year the hot topic was eliminating lengthy mandatory prison sentences for non-violent drug cases and streamlining the procedures for parole and probation violations. Both of these goals were achieved with the passage of the Justice Reinvestment Act, which also lowered the potential maximum punishment for not marijuana drug possession. The threshold for felony theft was also increased from $1,000 to $1,500, and other theft crimes were altered to account for inflation. Compared to the last few years there is little buzz around Annapolis with respect to new criminal legislation, but lawmakers know that nothing peaks the interest of the voting base like crime and will act accordingly when contemplating ideas for potential bills

Human trafficking is one crime that has stirred up debate among state lawmakers at this early stage of the 2018 legislative session. A Glen Burnie delegate already proposed to change adult human trafficking, which has a broad definition under Maryland law, from a misdemeanor to a felony. Taken literally human trafficking means the buying, selling or trading of human victims that are forced to engage in labor or sexual activity. It is estimated to be a one to two hundred billion dollar industry worldwide. In Maryland this law comes into play to punish any type of activity that furthers the business of prostitution. This includes providing a place for a prostitute to engage sexual activity, inducing or enticing someone to become a prostitute or profiting in any manner from solicitation. A person who is commonly referred to as a pimp is the prime target for this law.

Recently there has been an influx of undercover sting operations targeting human trafficking in the Baltimore metro area. Many of these stings take place in Anne Arundel County at a variety of BWI Airport hotels, but Howard County and Baltimore County police departments also take part in these stings at other locations. Police typically make contact with potential suspects by posting fake adds on the website Backpages. After a potential John responds to one of these fake adds an undercover police officer posing as a prostitute will attempt to agree to offer sex for money in one of the hotel rooms. As soon as an agreement is reached (or sometimes before) the undercover gives the takedown signal and a team from an adjacent room barges in to make the arrest for solicitation. This type of sting does not usually result in information leading to a human trafficking arrest, but the goal is to try to decrease the market for paid sex and thereby reduce the amount of pimps and prostitutes. Human trafficking cases typically begin with the arrest of a prostitute who agrees to give police information about their pimp. It is a complete defense for a person arrested on prostitution charges to assert they were working under duress or pressure from a pimp, and police often use this portion of the law as a selling point for cooperation.

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Published on: October 17, 2017

What Is Maryland Law Regarding Technical Probation Violations?

By Benjamin Herbst

Numerous Maryland criminal laws changed on October 1^st, but no change may have more of an impact in courtrooms around the state than the new sentencing rules for technical violations of probation. In theory probation is a convenient and fair tool for a judge to punish a defendant without imposing a jail sentence. While many defendants complete their probation term without incident and then move on with their lives, a large percentage don’t fair so well. Probation violations are too common in Maryland, and many should never happen in the first place. A probationer that is arrested for a new criminal or jailable traffic offense can expect a violation of probation to be initiated, as the officer really has no choice. But new law violations (also known as rule 4 violations) account for less than half of all VOPs. The majority of violations are technical, and these are the type that have been addressed by the legislature.

A technical violation is a violation of a condition of probation that does not involve an arrest or summons issued after a police officer files a statement of charges, a violation of a no contact or stay away order or generally speaking any violation of criminal law not including minor traffic offenses. Additionally, absconding from probation is not a technical violation. Absconding means avoiding supervision, but in reality missing more than one probation appointment could classify as absconding under the law. Every other type of violation is considered technical; this includes testing positive for drugs or alcohol, missing one appointment or showing up late to an appointment, not completing treatment, community service or anger management, and failing to pay restitution, fines and court costs. There are numerous other ways to be charged with a technical violation, as it depends on the specific conditions of probation. Probation agents can be patient and hold off on informing the judge of certain technicals, but in other cases agents are extremely inpatient and on a power trip. It is this type of agent that has contributed to the overwhelming number of VOPs that are currently clogging up the courts and the jails, but the hope is the new law may bring change.

As of the beginning of this month the maximum sentences for technical violations is now governed by a statute that almost always must be followed by state judges. Any defendant charged with a technical violation faces a maximum sentence of 15 days for a first offense, 30 for a second offense, 45 for a third and the full suspended time after that. In rare cases judges may deviate from these rules by making a finding that adhering to the new limits presents a danger to public safety, a victim or a witness. The new law will not only prevent knit picking judges from slamming a defendant for a positive drug test, but hopefully it will make probation officers think twice before violating one of their defendants. Agents may show more patience in borderline cases where a defendant has shown some progress, but this remains to be seen.

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Published on: October 1, 2017

New Laws Effective In Maryland

By Benjamin Herbst

Each spring the passage of new laws creates numerous headlines coming out of the State House in Annapolis, and no subject creates more buzz than criminal legislation. Marijuana has dominated the last few years of criminal legislation headlines, but this year decriminalization and medical cannabis takes a back seat to a massive new set of laws falling under the Justice Reinvestment Act. Of all the new laws contained in the Act, none will be as impactful as the provision eliminating mandatory minimum jail sentences for a host of drug crimes. For decades a repeat offender for a low level drug dealing crime under 5-602 to 5-606 of the criminal code faced the possibility of a mandatory 10, 25 or 40 year sentence without parole. These mandatory sentences were often used as leverage by prosecutors to pressure defendants into pleading guilty, as the trial judge would have no choice but to slam a convicted defendant who turned down a plea deal. As of today though, a repeat offender for common street level drug dealer crimes such possession with intent to distribute narcotics will no longer face the possibility of a mandatory prison sentence upon conviction.

The new law repealing mandatory minimum sentencing only applies for street level drug dealing crimes and will have no effect on the so-called drug kingpin statute described in 5-612. These crimes, which include possessing, distributing or manufacturing 50 pounds or more of marijuana, 28 grams or more of opiates like heroin and 448 grams or more of cocaine will retain a 5-year mandatory sentence and a massive $100,000 potential fine. Mandatory minimum sentences for possessing a firearm in a drug trafficking crime are also unaffected by the new law.

In crafting the Justice Reinvestment Act lawmakers not only eliminated the mandatory minimum for low-level drug dealing, but also created an avenue for those already serving mandatory sentences for these crimes to file a special motion to modify their sentence. Starting today the courts are accepting motions to modify these sentences and will likely be inclined to grant them unless the state proves keeping the mandatory sentence intact is necessary for the protection of the public. Defendants currently serving prison time will have until September of 2018 to file for this special modification. Those serving mandatory sentences for drug kingpin crimes and firearm crimes are not eligible to file for this modification.

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