Maryland Legislature

Published on: October 17, 2017

What Is Maryland Law Regarding Technical Probation Violations?

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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Published on: July 3, 2017

Maryland Drug Overdoses On The Rise

By Benjamin Herbst

Police departments, lawmakers and even the governor have made combatting drug overdoses a major point of emphasis over the last few years. Many law enforcement agencies are training their officers in overdose recognition and equipping them with overdose prevention drugs. Police are now responding to the scene of a possible overdose with the mindset that their first call of duty could be saving a life rather than making an arrest. Lawmakers are tying to do their part as well by creating legislation aimed at punishing drug dealers whose product causes a death, and attempting to protect those who offer aid to overdose victims. The governor has always taken a hardline stance against heroin, highlighted by his recent declaration that opioid use is now in an official state of emergency warranting an additional $50 million in resources. Numerous citizen based community organizations have also joined forces with the government in this battle, but despite their best efforts the overdose numbers are heading in the wrong direction.

According to data recently released by the State Department of Health and Mental Hygiene the number of statewide deadly overdoses increased by a whopping 66% from 2015 to 2016. This puts last year’s total number of deaths at 2,089, which is the highest ever and triple the amount from 2010. About one third of these deaths occurred in Baltimore City, with the majority of the others occurring in Baltimore and Anne Arundel counties. Prince George’s County and Montgomery County rounded out the top five of this unfortunate statistic. Only two jurisdictions, Cecil County and St. Mary’s County reported declines in the number of deadly overdoses from 2015 to 2016.

The majority of victims were found with multiple drugs in their system, and not surprisingly the most common drugs present in the deceased were heroin and fentanyl. These two opioids have been public enemy number one in both urban and rural areas in the region for the last couple of years. The rise of fentanyl has been well documented but despite the awareness there are no signs that it even remotely close to being controlled. This deadly synthetic opioid, which is often mixed with or sold as heroin, contributed to over 1,100 Maryland deaths in 2016, up from 350 in 2015. Alcohol, which continues to get a pass in due to its deep roots in American culture, contributed to around 30% of the deaths and cocaine to around a quarter. Prescription opioids such as morphine and oxycodone that were once a leading cause of overdoses were just the fourth leading cause last year in the state.

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Published on: June 5, 2017

Appeals Court Keeps Medical Marijuana Moving

By Benjamin Herbst

A recent Maryland Court of Appeals order likely prevented months of further delays to the medical marijuana program, and now registered patients may have access to cannabis by the end of the summer. The high court order blocked a Baltimore City judge from conducting a hearing about whether to stop the state medical cannabis commission from issuing more final grow licenses. Only one of the fifteen approved growers currently has a final license that allows the legal commencement of the cultivation process. The other fourteen were not able to secure a final license under the Baltimore City Circuit Court judge’s temporary restraining order, which was requested by minority owned grow companies that were not one of the fifteen to receive preliminary licenses to operate. The restraining order was supposed to expire on the date of the hearing, but now there will be no hearing and the order has expired.

The Court of Appeals did not release a full opinion on the matter, but rather stayed the restraining order portion of the lawsuit that is challenging whether the licensing process took race into account as required by law. The disgruntled growers requested the restraining order after arguing they would suffer greater harm should the medical marijuana program be allowed to proceed before their lawsuit is resolved. The Baltimore judge had barred the fourteen growers awaiting final licenses from participating in the restraining order hearing, which raised issues of fairness and standing, and may have prompted the Court of Appeals to issue the emergency order. Another issue the high court likely considered was the amount of money the licensed growers invested and stood to lose if the growing process was halted indefinitely. Lawyers argued that the companies who received preliminary licenses invested over $150 million in final preparation to begin growing and distributing.

Over the last four years most of the news headlines pertaining to medical marijuana here in Maryland have focused on incompetence, delays and corruption. News of the recent order by the Court of Appeals appears to buck this trend, and we could finally be approaching the home stretch where the first dose of medical cannabis reaches a patient in need. Estimates of the program officially becoming active in late summer are cautiously optimistic, but at this point there does not appear to be any impending issues that could threaten this timeline. There is always the risk that the federal government could somehow get involved, though this appears unlikely. The state’s highest court has spoken rather loudly that it believes medical marijuana should proceed without further delay. Whether the program could abruptly be halted sometime again in the future is another question, and one that will constantly be hanging over the heads of the licensed growers, distributors and patients. It has been argued that the licensing process was unconstitutional at its core, and this issue will be resolved in court or by way of negotiated settlement. A settlement however would likely have to involve the legislature granting additional license to the aggrieved parties, which is a long shot and would have legal issues of its own. For now though the medical cannabis program steams ahead and the Blog will continue to follow any more potential hiccups.

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Published on: May 23, 2017

Drug Dealer Sentenced To 10 Years For Manslaughter

By Benjamin Herbst

Lawmakers have made numerous attempts to curb the heroin epidemic in Maryland, and the governor has gone so far as to pronounce a state of emergency as overdose numbers continue to spike. Some Annapolis legislators considered passing a law that would allow the state to prosecute drug dealers under an enhanced 30-year jail penalty if their product caused a death, and we may see similar bills hit the state house floor in the future. State law enforcement is also joining in the fight, as Baltimore murder police are now beginning to investigate drug overdoses for potential links to dealers. The city police commissioner recently announced that five detectives working out of the homicide department will respond to both fatal and non-fatal overdoses. Baltimore is not the first jurisdiction to seek criminal evidence at overdose scenes, as Harford County narcotics detectives have already been showing up with first responder medics for the last two years. The Harford County Sheriff’s Office though was forced to scale this initiative back, as the sheer amount of overdoses proved too tough to manage.

State’s Attorney’s Offices around Maryland have also tried to do their part in furthering the agenda to combat the overdose epidemic. We previously posted about a defendant in Worcester County that was convicted and sentenced under state manslaughter law for selling heroin that ultimately resulted in a deadly overdose. Now another state prosecutor’s office has reported a manslaughter conviction in a CDS narcotics distribution case, and the defendant received the maximum penalty provided by the law. A Waldorf woman was just sentenced to 10 years in state prison in the Circuit Court for Charles County for selling fentanyl to man who later died of a drug overdose. The woman allegedly told the deceased buyer that her product was heroin when she knew that it was actually fentanyl, a far more powerful narcotic. This was reportedly the first time a defendant was convicted for manslaughter for selling drugs involved in an overdose in Charles County. The 34 year-old woman was also recently sentenced to 14 years in prison for another unrelated drug distribution charge, and was convicted and sentenced to probation on a third controlled dangerous substance case.

Law enforcement and state prosecutors may continue to seek enhanced penalties for drug dealers whose buyers overdose, but the deterrent effect of these measures is tough gauge. Harford County made a legitimate effort to seek out and prosecute dealers by investigating overdoses, but after two years their fatal and non-fatal overdose numbers remain largely unchanged. Efforts in Baltimore City may suffer the same fate, as the heroin epidemic is not under control in Maryland or anywhere else in America for that matter. In response to the public outcry government officials such as lawmakers, police chiefs and state’s attorneys tend to take the easy way out by announcing new initiatives to target suppliers. But a press release or two about a dealer serving extra time in prison gives these officials a false sense of accomplishment. The overdose numbers are not decreasing, and rather than targeting the endless supply of small time dealers officials should focus more on education, treatment and perhaps safe zones for users. While legalization and strict regulation of heroin would eliminate the type of street overdoses in the Worcester and Charles County cases, this is not a realistic solution at this point in time. The fact that legalization does not even warrant serious discussion is unfortunate, but there will come a time when government officials will have no choice but to consider it.

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Published on: May 16, 2017

Medical Marijuana Facing Restraining Order, Governor’s Inquiry

By Benjamin Herbst

Medical marijuana growers throughout Maryland are putting the finishing touches on their multi million-dollar greenhouses, and after 4 years of waiting some are prepared to start planting or processing powerful strands of pot within a matter of weeks. But enthusiasm within the walls of the 23 state licensed grow and processing facilities is somewhat tempered as numerous impediments to commencing operations remain. The latest impediment comes in the form of an emergency motion filed in the Circuit Court for Baltimore City, which requests a judge to issue a temporary restraining order preventing the state cannabis commission from issuing final grow licenses. One of the companies that did not receive a preliminary grow license filed the motion on the grounds that the commission ignored a portion of the law that requires actively seeking racial and ethnic diversity throughout the licensing process. Lawyers learned of this omission during ongoing depositions as part of the discovery process of pending litigation against the state. This request for a temporary restraining order comes on the heels of the governor issuing an executive order requesting a study whether minority companies face disadvantages in the medical marijuana industry. In addition, it still remains a possibility that lawmakers may be recalled to Annapolis for a special legislative session to address racial diversity concerns with respect to the 15 awarded grow licenses.

As if the restraining order motion and the governor’s inquiry into the fairness of the process weren’t enough, the Maryland Medical Cannabis Commission is now under fire for possibly circumventing public contract bidding regulations. State officials with the Office of Legislative Audits have been critical of how the commission awarded the contract to evaluate grower and distributor licenses to an economic studies group at Towson University. It turns out that Towson charged 60 percent more per application that had originally been budgeted for, and the price to review the 512 applications came to a whopping $2.6 million. Auditors clearly believe that the commission spent too much of the state’s money, and it probably did. However at the time the commission was severely inexperienced and underfunded, and ill equipped to handle hundreds more applications than expected. There was understandably tons of pressure to get the straggling medical marijuana program off the ground, and the commission likely made a decision to have the applications reviewed by a competent institution as quickly as possible.

Towson has yet to receive payment on the $2.6 million bill but they are expecting the state to pick up the entire tab. The bottom line is that the university did the work and whatever excess costs were incurred should really be attributed to lawmakers. The process to evaluate and rank the applications was extremely complicated, and placing an arbitrary limit of 15 licenses was short sighted and illogical. In addition, the commission was not afforded adequate resources to do its job, as commissioners were volunteers from the state who did not receive specialized training. Taxpayers would have been better served by a commission made up of a paid, full-time staff with experience implementing one of the many medical marijuana programs in the country.

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Published on: April 16, 2017

Legislative Session Ends With Unresolved Marijuana Issues

By Benjamin Herbst

Lawmakers celebrated the end of the state’s annual legislative session with balloons and confetti falling from the ceiling, but despite hundreds of passed bills not all elected officials left Annapolis feeling a sense of accomplishment. There were a few criminal law bills that passed the General Assembly including a measure that will classify human trafficking involving a minor as a sex offense, which will require a defendant to register upon conviction. In addition, lawmakers passed several bills taking aim at the heroin epidemic, a battle that the governor has greatly emphasized. But as has been the case for the last five years, marijuana once again dominated the criminal law headlines, and arguably stole the show for the entire legislative session. The irony in all of this is that medical marijuana is already state law, and has been for a few years now. Despite the lack of groundbreaking news on the topic it just keeps sparking intense debate, and this year the debate may continue even after the official end of the 2017 session.

Several lawmakers have called for a special legislative session to take place in the next few weeks to shore up contentious issues that could further delay the launch of Maryland’s medical cannabis program. Although registration for the program has already opened, with some 1,200 patients registering last week and more than 250 doctors signing on, medical cannabis is unlikely to be available by the September target date. There remain two disgruntled growers with pending litigation against the state after their applications were approved and then curiously dropped by the committee. In addition, democratic lawmakers are still pushing hard for the state to add five more licensed growers to the list of fifteen, which would include those with minority ownership. These House lawmakers tried until midnight on the last day of the session to convince their colleagues in the Senate to add more growers, and some even agreed to license the two growers that are suing, but time ran out before an agreement was reached.

Despite zeros on the clock, some lawmakers feel they still have a shot to increase the number of growers by calling a special legislative session. A special session may be called by the governor or a majority of lawmakers, and would likely last just one day. But before a special session could take place there would likely have to be some sort of agreement on whether to include the two disgruntled growers in the additional licenses. Right now though the House Speaker does not believe the legislature should take measures to help two specific private companies, and in direct contrast the Senate President believes that helping these two companies is crucial to launching the medical marijuana program within a reasonable amount of time. As the Blog has stated in prior posts, a simple way to avoid the contentious debate and imminent delay would be to eliminate the cap on the number of grower licenses. All qualified applicants should be allowed to profit off of the medical cannabis program, and the increased tax revenue and licensing fees would afford the state the additional resources to regulate all of the growers. There is no logical reason for an arbitrary cap, but as we all know there is little logic in politics.

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Published on: March 28, 2017

State Lawmakers Debating Gun Bills

By Benjamin Herbst

Marijuana grabbed many of the criminal law headlines over the last few state legislative sessions, but this year it has taken a back seat to other pressing issues such as prescription narcotics, heroin and firearms. We recently posted about proposed bills targeting heroin dealers and there has been heated debate about potential laws designed to limit the amount of prescription pain killers a patient may receive. While the fate of these bills remains to be seen, there are also multiple guns bills that have recently appeared on the House and Senate floors in Annapolis.

The first bill is an attempt to alter a strict state law prohibiting the possession of firearms on public college campuses. As it stands now any person arrested for possessing a handgun at a state university or public school faces a felony charge with a 3-year maximum jail sentence. Possession of a knife or other deadly weapon on school property is a misdemeanor, albeit with the same maximum punishment. The new bill would alter the statute by eliminating the possibility of a felony charge for a person caught possessing a handgun on a college campus. Rather, this offense would become a civil infraction only punishable by a fine of up to $1,000 come this October year if the bill passes. The changes would not apply to gun possession at a public elementary, middle or high school.

A civil citation for possession of a handgun on a public college campus would be handled in the same manner as a citation for offenses such as possession of alcohol by a minor, or using a fake ID. The defendant would be summoned to appear in court, and failure to appear could result in the issuance of a warrant. Failure to pay any fine imposed could result in the defendant being held in criminal contempt of court. Despite these possible sanctions, which can include jail time, this type of citation is not criminal and may not be considered a criminal conviction if the defendant is found guilty. On the other hand, if these citations are not expunged they will be accessible to the public and negative collateral consequences could follow. This is in contrast to the marijuana civil citation statute, which does not permit public access on casesearch and at the courthouse. Defendants would be entitled to have an attorney present at court hearings for these citations, and the prosecutor could elect to place the case on STET or enter a nolle prosequi pursuant to an agreement.

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Published on: February 16, 2017

Lawmakers To Consider Legal Sports Gambling

By Benjamin Herbst

There are two illegal recreational activities that a large majority of the adult population feels should be allowed, and if and when this happens the state stands to rake in millions of dollars in new tax revenue. The first is recreational marijuana use, which is now supported by over 60 percent of the Maryland population according to the latest polls. The actual percentage of those in favor of legalizing pot is probably closer to 70 percent as many young adults do not participate in these polls. We previously posted an article about legislation to legalize recreational marijuana use, and will continue to follow its progress. The second illegal recreational activity currently being debated is sports gambling. You don’t need a poll to tell you the majority of adults support sports gambling- all you need is common sense. Every law office or other workplace with more than a few employees has a Super Bowl or March Madness gambling pool, and most have fantasy sports leagues that play for pride and more importantly money. Americans wagered an estimated five billion dollars on the Super Bowl this year, and since Vegas has the only legal sports books, over 95 percent of these bets were illegal. Bottom line is that the people want to bet on sports, and are doing it regardless of whether it is legal.

March Madness brackets and Super Bowl box pools are generally reserved for casual fans, some of which would not otherwise follow the games. This type of betting is safe and is of little or no concern to law enforcement. But regular betting on the outcome of games is a different animal. Bettors are required to use bookies or use offshore betting websites in order to place illegal bets, and there is no security or regulation within this industry. Bookmakers often take bets on credit and charge exorbitant interest or juice when their money is not paid on time. Offshore betting websites can disappear or be shut down at anytime, and bettors could lose their profits without any legal recourse. On top of all of this, the state is making absolutely no tax revenue on this activity, and to the contrary is forced to use justice system resources to attempt to police these illegal operations. The simple alternative is to legalize, tax and regulate sports gambling, and thankfully the Maryland legislature is about to take a big step in this direction.

House Bill 989 is set to hit the floor in Annapolis on March 1^st, and if approved would establish a task force to study the federal climate on sports gaming and then make recommendations for how to implement it. The task force would be made up of members of the State Senate, the House of Delegates and members of the State Lottery and Horse Racing groups. The members would reports their findings and recommendations to the Governor on December 1^st of each year. Fantasy sports gambling and betting on horse racing is already legal in Maryland, and the lottery advertises like crazy to get us to buy Powerball tickets and scratch offs. The lotto has even installed automated machines in many convenience stores to make it extra easy to take our money. There is simply no logical argument to be made against legalizing sports gambling, and thus there are obvious parallels to legalizing recreational marijuana. Let us just hope that within a reasonable time frame both become legal, taxed and regulated.

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Published on: February 8, 2017

Lawmakers Targeting Drug Overdoses

By Benjamin Herbst

Lawmakers are set to debate at least two new bills in the coming weeks aimed at combating skyrocketing narcotic overdose numbers. The first bill, which was introduced by delegates from Harford County and Anne Arundel County, would add a separate crime to the books targeting distributors of heroin and fentanyl. If House Bill 612 becomes law it would punish those found guilty of supplying the heroin or fentanyl that results in a deadly overdose. As it stands now the law would carry a 30-year maximum prison sentence, which could be imposed in addition to a sentence for drug distribution. There is an immunity clause within the statute that would apply to anyone who provides assistance for a person who is experiencing a medical emergency after using these two dangerous drugs. Any information given to medical providers by a person that supplied the heroin or fentanyl would be inadmissible, which in theory would serve to dissuade those from failing to render aid to an overdose victim out of fear of prosecution.

This new law could be effective provided that the law enforcement and state and local health officials get the word out about its existence. It may cause some drug dealers to think twice about selling heroin or fentanyl, which would be a win for lawmakers. As a practical matter though, the law probably would not have much of an effect in the courtroom. A person who is arrested for supplying illegal drugs that result in a deadly overdose already faces a 20-year maximum penalty for distribution of narcotics. And a judge would certainly take into account the fact that someone died as a result of the defendant’s conduct, making a lengthy prison sentence likely even without the new law. In addition, a state’s attorney could elect to charge the dealer with manslaughter and or reckless endangerment, which is a general crime that is defined as engaging in conduct that causes a substantial risk of death or serious injury to another. Manslaughter carries a 10-year maximum penalty while reckless endangerment carries 5 years, and these sentences could be consecutive to any sentence for drug distribution. Some jurisdictions such as Worcester County have already tried and convicted drug dealers for manslaughter, but House Bill 612 would achieve the same purpose while presenting less of a challenge to prosecutors.

In the coming weeks we may also see a law hit the State House floor in Annapolis that would limit narcotics prescriptions to a seven-day supply. There would definitely be exceptions for patients experiencing severe symptoms from certain terminal and long-term illnesses, and there may be other exceptions as well. This proposal, which came from the governor’s office, aims to limit the excess amount of prescription narcotics on the streets. Patients suffering from chronic pain are able to easily secure prescriptions for hundreds of narcotic pills per month, and many illegally sell some of their supply in order to fund their addiction. Others simply have a hard time keeping track of their medications and become victims to thefts by burglars, home workers, houseguests and even family members. Maryland would not be the first state to pass a law restricting opioid prescriptions, as at least seven other states already have strict laws on their books. The Blog will continue to follow the progress of these two proposals, and we may post a follow up article in the coming weeks, so stay tuned.

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