Category Archives: Law

“Bail reform falling short of goals”

A Capital News Service series published at Maryland Matters confirms that in Maryland, at least, bail reform has had trouble meeting its intended goals. In particular, while the number held for inability to meet bail has dropped sharply since the adoption of reforms in February 2017, Baltimore in particular has seen an offsetting jump in the rate at which judges hold defendants without making bail available. Statewide, “the number of people held with bail decreased from 29.8 percent to 18.4 percent over the past 18 months, while the number of people held without bail has increased from 13.6 percent to 22.6 percent.” [Alicia Cherem and Carly Taylor with sidebar by Kaitlyn Hopkins and James Crabtree-Hannigan] I reported on the same trend in 2017 and again last year.

A second entry in the series examines the adoption of pretrial risk assessment algorithms which can make up for some of the lost functions of cash bail, a county-by-county process still under way across the state [Angela Roberts and Nora Eckert] A third looks at the “trial penalty”: numbers show that “defendants who reject plea bargains and are convicted when they choose to go to trial for many types of crimes face longer sentences – sometimes substantially longer – than defendants who make a deal.” [Shruti Bhatt, Angela Roberts and Nora Eckert]

It’s worth remembering that state ventures in bail reform can lead to quite different outcomes depending on the strategy tried. New Jersey, which has won praise for its careful development of pretrial services, “is approaching two years operating a bail system where people don’t have to pay money to be free from jail. The crime wave some warned about hasn’t happened.” [Scott Shackford, ReasonMarc Levin, Real Clear Policy] [cross-posted from Overlawyered]

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Brian Frosh, Title IX, and the presumption of innocence

Attorneys general from 18 states, including Maryland’s Brian Frosh, have signed a letter arguing against a presumption of innocence for students accused under Title IX, saying it “improperly tilts the process” in favor of the accused. There’s a good argument that the feds should not be dictating colleges’ disciplinary standards at all, but that’s not what’s at issue here; the signers favor strong federal intervention, but on behalf of standards more favorable to accusers.

Conor Friedersdorf has more at The Atlantic.

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Cyberbullying and the Constitution

The Maryland Senate has unanimously approved a new bill (“Grace’s Law 2.0”) expanding the state’s “cyberbullying” law. The bill would increase maximum penalties for violation to three years in prison while removing “requirements in current law that a harassing message must be sent directly to a victim and language that required a continuing course of conduct. The new law would allow prosecution for a single, significant act that has the effect of intimidating, tormenting or harassing a minor and which causes physical injury or serious emotional distress to a minor to be prosecuted if the actions were malicious and had the intended effect.”

In response to ongoing concern that the measure infringes the First Amendment, chief bill sponsor and Judiciary Committee Chair Sen. Bobby Zirkin (D-Baltimore County) said, “… If we’ve overstepped our bounds in any part of this, then we’ll find out when the Court of Appeals says so.” Put differently, we’re passing a bill parts of which may be unconstitutional, but we’re going to leave that to the courts to spot and fix.

One problem with this “it’s not our department” view is that it’s not just the judges on the Court of Appeals who take an oath to support the Constitution, it’s also the members of the Maryland General Assembly (related, federal). I was critical of the original “Grace’s Law” at the time; see also here.

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Citing First Amendment, court strikes down 2018 Maryland law regulating ad platforms

Last year following the Russian Facebook scandal the Maryland legislature passed a bill regulating newspapers (!) and other online ad platforms. Gov. Larry Hogan refused to sign it, citing First Amendment concerns. Now a federal court has agreed and blocked the law’s enforcement as an unconstitutional infringement on the freedom of the press.

I write about the case at Cato. “Social media trickery is bad. Chipping away at First Amendment liberties to stop it is worse.” (reprinted from Overlawyered).

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Sixth District panel begins work; Supreme Court will hear Benisek appeal

Major news Friday on two fronts in Maryland redistricting:

1) The Supreme Court will take up the Maryland gerrymandering case once again — its third trip to the Court — to review the three judge panel’s November decision finding the Sixth District unconstitutional.

2) The emergency commission to draw a new Sixth District compliant with the court’s opinion, on which I serve, met for the first time in Annapolis. One action we took was to schedule the three public hearings we will hold before adopting a recommended map. The dates and places (all 7 p.m., later venues TBD) are:

Frederick — Jan. 14, Frederick Community College, Jack B. Kussmaul (JBK) Theater, 7932 Opossumtown Pike, Frederick
Montgomery County — Jan. 31
Cumberland or Frostburg — Feb. 6

Coverage: Samantha Hogan/Frederick News-Post, Jennifer Barrios/Washington Post, Rachel Baye/WYPR, David Collins/WBAL, Luke Broadwater and Pamela Wood/Baltimore Sun.

Frederick hearing coverage: Steve Bohnel, Frederick News-Post; Katie Misuraca, WDVM; Catalina Righter, Carroll County Times.

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Some thoughts on conversion-therapy bans

Maryland Gov. Larry Hogan has signed into law the bill banning “conversion therapy” for minors. He is the fifth Republican governor to sign such a bill.

Now that it’s too late to matter, I’m going to be contrarian and observe that even if one considers the exercise of “gay cure” therapy on kids as quackery deserving of scorn and condemnation (which is basically my view) there are reasons that might give pause not to legislate a ban. They include:

1) Some under-18 persons may seek this therapy of their own will and not all necessarily do so under pressure from the adults in their lives;

2) Legislatures may not be a good place to define and ban quack therapies compared with, say, expert professional bodies or courts hearing malpractice cases;

3) In Maryland, or so I am told, such practice is already defunct because of peer pressure and malpractice-risk scrutiny, even if it continues in some other states;

4) These laws have a momentum and before long legislatures may be asked to ban it even for consenting adults and from lay as opposed to licensed therapists, maybe even in do-it-yourself formats like kits or books (as critics say would be the effect of legislation in California);

5) Religion is special under the Constitution and this would not be the first time government might want to tread extra-carefully around quack therapeutic practices that are closely tied up with believers’ religious convictions;

6) While the failings of orientation-change therapy have been well aired for years, we might not be as far along in understanding the different issues presented by therapy in the area of gender expression. .

All of which helps explain persons I respect might come out on either side.

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Seat Pleasant tax sits unpleasantly on local business owners

Congratulations! You may not have realized it was happening, but your municipality has put you in a special revitalization zone which means the property taxes you owe them will quintuple. That’s the message some suburban Maryland business owners got recently, subject of my recent Cato piece. Excerpt:

Specialists in local and state government policy are full of ideas for business-by-business and location-by-location tinkering with tax rates, both downward (as part of incentive packages to lure relocating businesses) and upward (to finance special public services provided in some zones, such as downtown revitalization). But there is a distinct value in terms of both public legitimacy and the rule of law in having uniform and consistent taxation that does not depend on whether a property owner or business is on the ins or on the outs with the tax-setting authorities.

[cross-posted from Overlawyered]

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Senate bid to deny Trump ballot access in Maryland

My letter to the editor at the Frederick News-Post:

I have myself been critical of President Donald Trump’s refusal to divulge his tax returns, but the bill advanced in the Maryland Senate purporting to make that a requirement for the next presidential ballot in Maryland is partisanship at its most inane. [Sponsors] are here attempting to (1) impose a new qualification on presidential candidates not found in either the U.S. constitution or federal law; (2) do so by means of denying ballot access in their own state, which means by restricting the choices of their own electorate; and (3) do so with the open aim of opposing a single particular candidate.

We may pause for a moment to imagine how this sort of stunt could be pulled by other partisans against other candidates, should it catch on.

No wonder California Gov. Jerry Brown (D) vetoed a similar bill because of the obvious constitutional concerns.

Related: in U.S. Term Limits v. Thornton (1994), a Supreme Court divided 5-4 held that Arkansas could not add to the qualifications for election to Congress enumerated in the Constitution by disqualifying candidates who had already served a set number of terms in office; it also specifically rejected the view that a restriction on ballot access does not act as a bar to office because it leaves open the possibility of running as a write-in.

Note also that the Arizona legislature in 2011, under the influence of “birther” sentiment, passed a measure requiring presidential candidates to provide proof of citizenship in order to get on the state’s ballot. Although natural born citizenship unlike the release of tax returns is of course a genuine constitutional prerequisite for serving as president, the interference with the appropriate distribution of federal-state power, as well as the intent to target one particular candidate, namely birther target and incumbent President Obama, was evident enough that conservative Arizona Gov. Jan Brewer vetoed the measure. [cross-posted from Overlawyered]

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What if bail reform leads to higher incarceration?

A campaign to get rid of the bail bond industry is currently in full swing across the country, with support from many liberals and libertarians. I’ve got an op-ed in the weekend Wall Street Journal’s “Cross Country” feature warning that Maryland’s experience over the past year should be a cautionary lesson:

Last fall the state’s attorney general, Brian Frosh, issued guidance that suddenly declared past bail methods unlawful, prodding the court system into an unplanned experiment. Judges may not set financial requirements if there is a reason to believe the defendant cannot pay, and unless they hold a suspect without bail, they must impose the “least onerous” conditions.

Now the results are coming in, and they can’t be what Mr. Frosh had in mind. An early report in March by Kelsi Loos in the Frederick News-Post found that since October the share of Maryland defendants held without bail had increased from 10% to 14%. The Washington Post later reported that from September 2016 to May the figure had jumped from 7% to 15%.

Meanwhile, fewer released defendants are showing up for trial. The Post, confirming anecdotal reports, writes that the “failure to appear” rate in January was 14.5%, up five points from October. Failing to show up for court sets up a defendant for more-severe consequences down the road, which can include being held without bail.

While bail reform is supposed to reduce the number of inmates held in jail, the number has instead increased in some places, though the results appear inconsistent.

If bail is taken away, judges need other tools to do the same job. Decades ago, when Congress steered the federal criminal-justice system away from bail bonds, lawmakers provided practical replacements, including systematic help in assessing a defendant’s risk of flight or re-offense, options for pretrial supervision, and methods of home and electronic detention. Several states have done the same. New Jersey now uses a mathematical algorithm to assess a person’s risk of fleeing or committing another crime. But the Maryland legislature, deeply split over Mr. Frosh’s destabilizing changes, has failed to set up such alternatives.

Maryland’s example doesn’t refute the idea of bail reform. But it does suggest state leaders should work to build consensus for comprehensive changes, instead of charging ahead with moralizing experiments.

On the current campaign to end bail bonds, see American Bar AssociationSens. Kamala Harris and Rand Paul and newspaperspraisingMarc Levin (conservative), ACLU (villainizing insurers), Gary Raney.

Other perspectives: Scott Greenfield (“pre-trial incarceration was a huge factor in obtaining guilty pleas from innocent defendants,” but algorithms, used as replacement in places like New Jersey, have problems too), Joshua Page (some families value bond company’s service), Dan Mitchell. On the uncertain stance of constitutional law, see Pugh v. Rainwater (Fifth Circuit 1977) and more (LaFave et al.), Walker v. City of Calhoun, 2016 (Cato amicus: bail must be individualized) and more (James McGehee).

[cross-posted from Overlawyered]

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Hamilton v. Paolozzi: gun rights of rehabilitated felons

Restore rights to a rehabilitated felon? Sure, says Maryland, but not gun rights. Constitutional check [Ilya Shapiro, Cato, on this certiorari amicus brief]

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