Maryland Legislature

Published on: March 28, 2016

Senate Passes Criminal Justice Reform Bill

The Justice Reinvestment Act is one step closer to becoming law after the Senate voted unanimously in favor of the bill last week. The Act would constitute the most comprehensive Maryland criminal legislation in decades should the governor sign it into law this summer, but first it heads to the House for further debate. There were a few hang-ups since the Blog posted on the Act a couple weeks ago that threatened its viability. These included a disparity in the amount of money the state would stand to save with the reform, and a heated debate on automatic penalties for technical parole and probation violations. But state senators sorted out these hang-ups and ultimately reached a firm consensus on the 96-page mega bill.

The main goal of the bill, which appears conspicuously in the title, is to save the state money by reducing the prison population and then to reinvest the money toward crime prevention. But as the 96-page bill length suggests, it’s not that simple. There is no single way to reduce the prison population because you can’t just decide to release a couple thousand inmates, and you can’t put a cap on how many defendants are sent there in the first place. Each criminal case is factually unique, which is why the trial judge is given almost full discretion on sentencing. In order to reduce the amount of prisoners you have to systematically adjust a judge’s approach to sentencing in the courtroom, and the amount of time a defendant actually serves after he or she is sentenced. Our reading of the mammoth bill leaves the impression that Annapolis lawmakers have developed four main platforms to adjust sentencing approaches.

The most obvious way to reduce the amount of defendants sent to prison is to lower the maximum penalties for the crimes they commit. Lawmakers have made those adjustments in the Act with respect to numerous offenses. They have lowered the maximum punishment for possession of marijuana from 1 year in jail to six months, and have lowered the maximum penalty of simple possession of other drugs from 4 years to 1 year. These other drugs include cocaine, heroin, and prescription pills such as oxycodone. Lawmakers have also lowered the maximum penalties for theft cases, which constitute the second most common class of criminal offenses after drug cases. Keep in mind that in Maryland DUI and DWI are considered traffic offenses despite being classified as criminal in many other states. Under the act, felony theft would require a minimum value of $2,000 instead of $1,000 and the maximum punishment would be cut in half from 10 years in jail to 5. The threshold for enhanced felony theft would rise from $10,000 to $25,000 and the maximum penalty would go from 15 to 10 years. Theft over $100,000 would carry a maximum 20-year sentence instead of the previous 25.

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Published on: March 23, 2016

Lawmakers Pushing To Criminalize Public Pot Smoking

By Benjamin Herbst

The twists and turns of marijuana legislation over the last couple years have made a tough go of understanding just where Maryland stands on pot policy. It’s safe to say that Annapolis has had a hard time passing marijuana laws that were successful the first time around. A few years ago patients and decriminalization advocates initially celebrated the passage of medical marijuana, but later experienced a huge let down when it was discovered the program had absolutely no chance of being implemented. Two years after that a medical program with actual teeth was established that unfortunately is still months away from implementation. Decriminalization of possession of less than 10 grams of pot was also celebrated, but some of the celebrations were muted after police began issuing criminal citations for possession of pot paraphernalia. The legislature failed to address the paraphernalia issue two years ago, and when they did last year the governor vetoed the law for not addressing smoking in public or while driving. This year the legislature overrode the governor’s veto and corrected the paraphernalia mistake, but the governor and numerous lawmakers still voiced displeasure that it is not a crime to smoke in public or in the car. As a result, Annapolis lawmakers are currently in the process of correcting another neglected component of marijuana policy.

This week the House passed legislation that would criminalize smoking marijuana in public and in a car on any state road. Public places have a broad definition under Maryland law, and include parks, restaurants, shopping centers, common areas of buildings such as stairwells, and even hotels. The ban also includes the common areas of apartment buildings that have more than four units, regardless of whether residents and guests are the only ones allowed on the grounds. House Bill 777, which will now moves to the Senate for approval, prohibits smoking marijuana in any of these public places. The bill originally prohibited any type of pot consumption, but this line was edited out and now all that is prohibited is smoking. One explanation for this edit may be the anticipation of edible medical marijuana that patients could discretely consume in public, but we will see if the Senate has other ideas about this specific line. A violation of this statute could trigger a criminal citation with a maximum punishment of a $500 fine, meaning that it does not carry the possibility of jail time. On the other hand, a violation could result in a permanent criminal conviction, and could trigger a probation violation or even a parole violation.

The bill also includes specific procedures for the expungement process of a criminal marijuana consumption statute. Unlike most criminal charges, a defendant who is convicted of this citation will still have to opportunity shield or even expunge a conviction for public consumption. Other offenses that fall under the new shielding statute include trespass, disorderly conduct, destruction of property, possession of a controlled substance and prostitution. Other offenses that can be expunged even after a conviction include drinking alcohol in a public place, loitering and riding a transit vehicle without paying a fare. A defendant must meet certain conditions including time limits before applying to expunge these convictions.

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Published on: March 16, 2016

Legislature Aims To Toughen DUI Laws

By Benjamin Herbst

A bill created to toughen state DUI laws is on the verge of General Assembly approval, and is likely headed for the governor’s desk this summer. The bill, named after a Montgomery County police officer that was killed after being hit by an alleged drunk driver, gained unanimous approval in the House yesterday and now moves onward to the Senate. Last week some critics felt the bill has been watered down by various amendments put in place by the House Judiciary Committee, but these fears were put to bed after the original restrictions were inserted back in the bill. As it stands now, the bill will make national waves as a concerted effort by Annapolis lawmakers to inflict harsher punishment on drivers who have been charged with DUI and DWI.

The original intent of the bill was to increase the implementation of the ignition interlock program. Maryland is already one of the largest program participants in the country, with well over 10,000 drivers using the device each year. The interlock device requires the driver to blow into a machine installed in the car, and an alcohol free breath sample is required for the car to start. The machine also has the technology to store data of samples that contain alcohol, which may be used in violation of probation procedures. Lawmakers originally wanted the interlock device to be mandatory for all defendants that either refused a Breathalyzer test after being arrested, or blew above .08. This provision was then modified to be an option in lieu of a license suspension, but now the mandatory interlock provision is back in the bill, and it’s safe to say that lawmakers will keep it there. Drunk driving related fatalities have been on a steady decline over the last ten years, and at least part of the decline has been attributed to the engine interlock program.

The bill is not specifically focused on engine interlock, but rather is a comprehensive upgrade of state impaired driving laws. There are also numerous provision related to suspending the driving privileges of those who have been cited or convicted of drunk driving. A first offender that blows over .08 now faces a 90-day license suspension, which doubles from the previous 45-day term. If the Breathalyzer results are over .15 the suspension will now be 180 days instead of the previous 90. Finally, if the suspected drunk driver refuses the Breathalyzer test his or her license will be suspended for a whopping 270 days for a first offense. This is a clear effort by the legislature to convince drivers to think twice before refusing to submit to the test. The suspensions increase upon second and subsequent offenses, and cap out at a maximum 2-year period for a third time offender who refuses a breath test. Keep in mind that an out of state driver who is arrested for DUI or DWI will not face a driver license suspension in Maryland, but rather their driving privilege in the state will be suspended. State and local police officers are not authorized to confiscate another state’s drivers license, but their home state will likely be notified, and may take action.

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Published on: March 9, 2016

Annapolis Lawmakers Mull Extensive Criminal Justice Reform

By Benjamin Herbst

Lawmakers in both houses and from both sides of the aisle are currently working on one of the most comprehensive criminal justice reform bills in recent memory. Senate Bill 1005, known at the Justice Reinvestment Act, is an 84-page behemoth of a bill that aims to revamp multiple areas of the current criminal justice system. The act’s two major areas of focus are reducing the state prison population, and then establishing specific avenues for allocating the savings. Maryland taxpayers are currently picking up a $1.3 billion yearly corrections tab, which is astonishingly high as a result of roughly 20,000 people being incarcerated in state and local jail facilities at any given time. For years lawmakers have wrestled with the conundrum of reducing the number of inmates without reducing the safety of our streets, and now it appears as if a reasonable solution is in the works.

Lawmakers want to reduce the prison population by up to 14 percent over the next ten years, thus saving almost $250 million per year. Since 14% of criminals are not simply going to take the next 10 years off, the only way to reduce the prison population is to release some offenders and to not incarcerate others in the first place. Maryland has not devised a revolutionary and unique system of selecting which offenders to release, but rather it is joining the federal government and numerous other states with the goal of reforming criminal drug laws. The bottom line is that lawmakers are finally realizing that society is not best served by spending $100,000+ per year to incarcerate a non-violent drug offender. We can lower maximum jail sentences and eliminate minimum mandatory prison sentences in non-violent drug cases without putting the public in harms way, and we can save millions in the process.

The Justice Reinvestment Act touches on three main ways to accomplish this, including lowering the maximum punishment for possession of narcotics such as heroin and oxycodone and stimulants such as cocaine, from four years to one year for a first offense. Second, the act and other legislation that is already in the works will also effectively do away with ineffective minimum mandatory prison sentences for certain drug felonies such as possession with intent to deliver, manufacturing, and distribution. Repeat drug felony offenders currently face parole ineligible 10-year mandatory sentences, while repeat offenders of violent crimes such as assault and robbery face no increased penalties. The contrast is simply illogical. Finally the act will place limitations on the penalties for certain violations of probation, which especially in the case of drug charges are responsible for hundreds of lengthy prison sentences each year. Reducing penalties for technical violations, or violations that do not involve additional criminal law violations, are the main focus of the act. There is language that would keep litigation of technical violations out of court, and in the alternative would allow probation officers to levy their own punishments. These changes will probably be met with some pushback, and may invoke constitutional law challenges, but it is hard to argue that technical violations are often blown out of proportion in court.

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Published on: February 27, 2016

New Bill Prohibits Smoking Pot While Driving…Or Parked

By Benjamin Herbst

The 2016 Maryland legislative session is officially heating up, and numerous new criminal law bills are being discussed in the House and the Senate each day. There are a handful of criminal law bills that are slowly advancing, while many others have already received unfavorable reports by the Judiciary and have been withdrawn. But one bill that seems destined for the governor’s desk is a proposal that smoking marijuana in a car officially be declared illegal. Regular readers will remember the ongoing saga where the governor vetoed a necessary marijuana paraphernalia decriminalization bill because is contained no provision allowing officers to stop a car after observing the occupants smoking pot. Giving officers this power may have been totally reasonable, but it had absolutely nothing to do curing the immense confusion in the state’s marijuana policy by decriminalizing paraphernalia. The governor was simply trying to flex is legislative muscle, though luckily the lawmakers in Annapolis overrode the veto. Pot paraphernalia is no longer a crime and now the natural legislative process has brought us a bill that would achieve what the governor stubbornly tried to do through veto power last summer. At the risk of being too harsh on our governor, we’ll give him the benefit of the doubt and suggest that the veto may merely have been a tool to motivate and remind the legislature to make toking in the car a no no.

House Bill 183, which is has moved to the Senate after unanimous approval in the House, will add a provision to the transportation article that already addresses drinking alcohol in a car. This law currently makes it illegal to consume any alcoholic beverage in a car or truck on a public highway regardless of whether the car is parked or moving. If the new bill becomes law it will modify the statute to include smoking or consuming marijuana in a parked or moving automobile on a public highway. Violation of this provision is not currently a criminal offense, but rather a traffic citation punishable by a $500 fine. The proposed bill keeps it that way, as its main utility is giving officers the legal authority to conduct a traffic stop based solely on observing marijuana use. This is exactly what the governor and some elected prosecutors publicly wanted last summer, but prosing new legislation and allowing the process to play out is the right way to achieve it. The Bill will most likely pass unmodified, although there could be some minor changes after the Senate is through with it. And when it hits the governor’s desk you can bet it will be one of the first he signs. Look for smoking pot in a car to be illegal and punishable by a $500 fine to be illegal starting in October of 2016.

We will continue to follow this bill and other criminal law bills at they progress through the legislature. One bill that is of particular interest is House Bill 307, which lowers the maximum penalty for possession of drugs such as cocaine, heroin, and narcotic painkillers from 4 years to 1 year. This is a proposal that is a long time coming considering the changes in marijuana possession policy. A 4-year maximum sentence for simple possession is unnecessarily high, as 1 year in jail is more than enough to deter and punish drug possession.

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Published on: February 18, 2016

Maryland Lawmaker Proposes Broader Drug Decriminalization

By Benjamin Herbst

While decriminalizing small amounts of marijuana in Maryland was a major victory for drug reform, some state lawmakers are far from satisfied. The last year has been productive, with medical marijuana perhaps less than a year away from going live, and marijuana paraphernalia being decriminalized. But arcane drug laws have done little to reduce the availability and abuse of controlled substances, and incarcerations for non-violent drug offenses continues to cost state and local governments millions of taxpayer dollars. In an effort to take drug reform to new heights one state delegate has introduced a package of bills, which focuses on prevention and treatment instead of punishment. This common sense approach acknowledges that eradication of controlled substance use is not a realistic goal, and as a result advocates expending government resources on mitigating the effects of inevitable drug use. As of now there are three bills that will hit the House floor this legislative season, with the perhaps the most controversial scheduled for a hearing in early March.

House Bill 1119 represents an unequivocal effort to decriminalize the simple possession of virtually all common street drugs. Simple possession, which is referred to as de minimis possession in the bill, is the same benchmark that was used to decriminalize marijuana. The legislature chose the arbitrary amount of ten grams as their benchmark for de minimis pot possession. This amount was likely a compromise between lawmakers searching for a line that could separate personal use with intent to distribute, but other than the fact that ten is a nice round number it makes absolutely no sense. Many marijuana users prefer to buy larger amounts at a time to minimize the number of purchases they need to make. It would hardly be out of the ordinary for a moderate user to buy an ounce (28 grams) or more at a time, and this amount would in no way indicate a desire to distribute for profit. Further, marijuana is rarely sold by ten-gram increments, especially not in America. Still though, setting the bar at ten grams is better than the alternative of initiating criminal charges for anyone possessing as little as one tiny bud.

The proposed house bill expands upon de minimis exception for marijuana to include benchmarks of two grams of cocaine, one gram of heroin, ten tablets of meth, .0015 grams of LSD or acid, and 1 gram of methadone / amphetamine. Possession of less than these amounts of each drug would not be a crime under Maryland law if the bill were to pass. These amounts are more realistic as indicative of personal use than the ten-gram cutoff for pot because they have not been watered down by endless debate and so called compromise. The bill would eliminate a large burden on the criminal justice system of prosecuting drug users who need help rather than jail time, but sadly it has little chance of becoming law in the next couple of years. Maryland has not shown a willingness to be ultra progressive with respect to drug policy and it is highly unlikely that Annapolis lawmakers would be the first to decriminalize cocaine and heroin possession. On the other hand, this bill could generate enough attention to start the discussion, which at this point is the best we can hope for this year.

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Published on: January 21, 2016

Legislature Overrides Governor’s Paraphernalia Veto

By Benjamin Herbst

Last spring we wrote about the illogical decision of our governor to veto a bill that cured a glaring inconsistency from last year’s marijuana decriminalization law. The now famous decriminalization statute failed to address the possession of marijuana paraphernalia, which until today remained a criminal offense despite the fact that possession of the pot smoked with it became a civil infraction. Senate Bill 517 attempted to fix that inconsistency by specifically stating that the drug paraphernalia criminal laws do not apply to marijuana drug paraphernalia. This bill also raised the fines for smoking pot in public and while driving to $1,000, up from $500. But the governor, clearly unhappy that the legislature failed to make smoking in public and while driving a criminal offense, vetoed the bill and thus the paraphernalia inconsistency remained. Those in support of the veto, such as the Baltimore County State’s Attorney, urged the legislature not to override it by invoking the classic “it puts your children at risk” argument. The county prosecutor hypothesized about a Maryland where smoking pot on playgrounds and while driving on the beltway could become commonplace. But the legislature saw through these agenda driven arguments, and did the right thing by overriding the veto.

As a result of today’s Annapolis override small amounts of marijuana plus the plastic bags, glass pipes, or rolling papers used with it are officially decriminalized. Police will still be able to charge public pot smokers with a hefty $1,000 fine, and they will also be able to conduct a traffic stop for the purpose of writing one of these tickets to the ever so scarce non-impaired pot-smoking driver. For now the mudslinging between the governor and some pro cannabis lawmakers will cool down, but this should in no way be considered a truce. The governor and the few socially conservative politicians left in the state will still likely attempt to push laws criminalizing public pot smoking. But these efforts will be met with an increased amount of opposition, as polling shows that the majority of Maryland residents now prefer additional relaxing of state marijuana laws not making them stricter again. Local politicians will be reluctant to focus much attention on making pot laws stricter; especially considering the developing political story on the Eastern Shore where a congressman may have jeopardized his political career by crusading against legalized marijuana in Washington D.C. This being a story that may warrant a post in the near future.

The Blog will continue to follow new criminal law and marijuana proposals coming out of Annapolis as the legislative session begins to ramp up. In the early stages of the session the topics generating the most attention are the veto overrides, but we do not expect any to be as newsworthy as the paraphernalia veto. Yesterday the house voted to override a veto on a law that gave convicted felons their voting rights back after being released from prison, and a vote to override the governor’s veto of a long overdue criminal forfeiture reform bill will take place sometime in the near future. Readers should expect an article on this issue within the next few weeks.

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Published on: December 23, 2015

Medical Marijuana Likely To Debut In 2017

By Benjamin Herbst

Frustration is mounting for those awaiting a final verdict on the fate of their medical marijuana grower and distributor licenses. The original timeframe called for the commission to hand out the licenses this coming January, but as we posted a month ago this was optimistic due to the unexpectedly high number of applications. While it was hoped the delay would only last a couple months, officials are now claiming that decisions will not become final until the summer. The minimum six-month delay has all but eliminated the chance of medical marijuana being available to Maryland patients in 2016, and now commission has declined to give an estimated timeframe for pretty much anything regarding the program. This lack of information seems unfair given the strict deadlines and financial burdens all the applicants are facing. One thing we do know is that the typical growing cycle for indoor cannabis is 4-10 months, which means it will take an average of 7 months from the time the first seeds are planted until the product will be ready for distribution.

While adding half a year for production to the commission’s expected summer application timeline means we’re at least a full year away from medical marijuana, there still may be more unforeseen obstacles. A couple months back the Anne Arundel County government was in the news after the executive threatened to ban local medical marijuana operations. This dispute was later settled by the county council, but now Calvert County has joined as another locality that may spar with the state over marijuana policy; its board recently voted in favor of requesting state lawmakers allow certain localities to ban medical cannabis. Calvert County officials cite concerns that their government employees are at risk federal of prosecution as long as marijuana is an illegal controlled substance under federal law. This is the same tired argument that anti-marijuana activists have been relying on for years, and is completely disingenuous. While it is technically possible that this scenario could take place, it’s not going to happen and anyone who believes it could happen is simply using it as a ploy. There is simply no chance the DEA would is start arresting local government employees for working on some aspect of state sponsored medical marijuana. The current administration has already vowed to stay away from state sponsored marijuana, and even the most socially conservative presidential candidate wouldn’t get involved.

The anti medical marijuana localities will eventually lose out to the state legislature, but their pushback could cause further delays for the program. If any of these quarrels end up in court there could be months of litigation while ailing patients continue to suffer and bona fide investors continue to hemorrhage money. Architects of the medical cannabis program want the state to remain unified on this issue, with grow operations and dispensaries spread evenly across Maryland. Let’s hope this can be accomplished by the start of 2017. The Blog will continue to follow this issue as always, and we’ll post a follow up article in the near future to keep our readers updated.

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Published on: November 11, 2015

State Ends Ballistic Fingerprinting For New Guns

By Benjamin Herbst

Regular readers of the Blog are aware that Maryland has enacted some of the toughest gun laws in the country. We have published numerous articles on this topic, including the red tape inhibiting law-abiding citizens from owning guns and obtaining concealed carry permits. Truth be told, it’s near impossible for an average Joe with no criminal record and a 9 to 5 job to be able to carry a handgun in our state. And while purchasing a gun is hardly an insurmountable task, it’s not walk in the park either. As far as criminal defendants are concerned, there are numerous statutes that include mandatory minimum jail sentences for gun crimes. Convicted felons or those previously convicted of a violent crime such as assault that are found in possession of a handgun face a daunting 5-year mandatory minimum prison sentence. In fact even those without a criminal record face the possibility of a 30-day minimum sentence for wearing, carrying or transporting a handgun. In addition there are numerous gun enhancements within other criminal laws such as the mandatory sentence for possession of a handgun in a drug trafficking crime.

While the state gun laws range from a pain for lawful buyers to a potentially life changing sentence for defendants, they also affect manufacturers and shop owners. The shop owners can’t sell as many guns because the laws dissuade potential buyers from taking the plunge. Sure, the gun lover will always be a good customer who is willing to deal with the red tape. But the new buyer, the one who is interested but has never owned a gun, is more likely in Maryland to say it’s just not worth it, and spend the money elsewhere. And finally there are the gun manufacturers. These manufacturers are hardly as sympathetic as the buyer or the local shop owner, but the burden of strict gun laws weighs on them as well.

Fifteen years ago the legislature enacted a law requiring gun manufacturers to fire a bullet in every gun they wished to sell in Maryland and then to send the spent casing to state law enforcement. Upon receipt the state police cataloged each casing and store them in the basement of its Pikesville headquarters. The goal was to build a massive database of every gun in the state for a crime-solving tool known as ballistic fingerprinting. On a microscopic level each gun leaves slightly different markings on the casing and the projectile, so in theory a casing recovered from a crime scene could be matched up with a specific firearm. With respect to the Maryland program the theory never played out once in 15 years. The state has spent over $5 million to record and store over 300,000 casing, and none of which have ever been attributed to solving a crime.

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Published on: October 1, 2015

New Criminal Laws Effective Today

By Benjamin Herbst

One year ago today Maryland made national headlines for officially decriminalizing simple marijuana possession, while back home the statewide buzz over decriminalization overshadowed each of last year’s new laws. The climate is vastly different this October 1^st, as almost all the media attention is focused on an approaching hurricane rather than the on statue books. But there are a few new laws effective today in the criminal arena that have the potentially to dramatically impact the lives of thousands of Marylanders. One of these laws is actually related to decriminalization, and was likely the inspired by lawmakers taking simple marijuana possession off the criminal books. Starting today anyone convicted of an offense no longer classified as a crime under state law will now be able to apply for expungement. This is huge news for the far too many that have been carrying around the baggage of an unwarranted criminal record for years. The large majority of these cases will undoubtedly be for possession of less than 10 grams of marijuana, which will no longer be a permanent scar on a person’s background. In addition, those who received probation before judgment for possession less than 10 will no longer have to wait three years to apply for an expungement, as applications may be filed immediately, or in some cases as soon as probation terminates.

In addition to expanded expungement, the aptly named second chance law also goes into effect today. This law will allow those convicted of certain nonviolent misdemeanors to shield their conviction from public view after 3 years. The eligible offenses include disorderly conduct and disturbing the peace, failure to obey a law enforcement officer, malicious destruction of property less than $500, and trespass on posted property. Other offenses include possession of drug paraphernalia, possession of a noncontrolled substance, and prostitution. Soliciting a prostitute or assignation is specifically excluded from the shielding statute. The second chance law also applies to certain misdemeanor traffic offenses such as driving on a suspended license or without a license and driving while uninsured.

In addition to the three year wait, which begins after parole or probation has ended, defendants wishing to avail themselves of the shielding statute must also be aware of other conditions. One important limitation is that person may only shield prior convictions once during his or her lifetime; so choosing wisely when to apply is of great importance. The statue was designed to give a prior offender one free pass when it comes to seeking employment or applying for school or some professional licenses, but it was not designed to give two or more free passes. If you apply to shield your prior convictions you must do so with the knowledge that it’s a one shot deal. Another provision prohibits shielding one particular conviction if there is a non-shieldable conviction attached to it. Finally, if an applicant incurs a new conviction during the three-year wait period, he or she will be prohibited from shielding the original offense unless the new offense is also eligible for shielding.

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