Tag Archives: Brian Frosh

Did Maryland’s lawyer mislead the high court in the gerrymander case?

Prof. Michael McDonald says that’s what happened at oral argument when the state’s lawyer characterized McDonald, an expert for the Republican plaintiffs, as having found the Sixth District “competitive.” [Medium, McDonald on Twitter]

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“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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In miniature, November 10

Midterm campaign edition:

  • An issue in some races: “Critique of Maryland Congestion-Relief Plan Rests on Very Bad Logic [Austill Stuart] So much for the “Lexus Lanes” epithet: “Congestion pricing is not just slanted toward the elite” [Tyler Cowen]
  • Brian Frosh is part of a state-AG task force that subpoenas and investigates private groups and individuals for having promoted erroneous opinions on environmental questions. Which should have been more controversial during the campaign [Mark Uncapher]
  • Republican mailers assailed Dems on this issue, yet “supervised injection facilities save lives” [Jacob Sullum, Reason]
  • Sen. Ron Young (D-Frederick), at 12:55: stop saying we raised taxes 46 times, I counted and we only raised them 15 times [FNP podcast debate with Craig Giangrande]
  • In Maryland as elsewhere, “single payer in one state” is more of a political stunt than a practical program [Todd Eberly]
  • Poor showings at Tuesday’s polls for many lawmakers rated highly by Maryland Business for Responsive Government could spell trouble ahead on business issues [MBRG]

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In miniature, August 24

  • So embarrassing for Maryland that Attorney General Brian Frosh signed onto this turkey of a lawsuit challenging Congress’s curtailment of the SALT deduction [Howard Gleckman]
  • I was a guest of Jerry Rogers on WBAL to talk about the showdown between conservative religious adoption agencies and LGBT rights groups and you can listen here (background);
  • Baltimore politicos move to save city from non-threat / non-horror of private water supply [Joe Setyon, Reason]
  • Sen. Ben Cardin, sometimes painted as cautious or even moderate, throws red meat to Left on Brett Kavanaugh nomination [Bruce DePuyt, Maryland Matters]
  • “Among the questions about Mr. Elrich is one he raised himself by pledging to invite the president of the largest county employees union into interview and hiring deliberations ‘for any and all department heads’ in the county. That is an extraordinary promise…also unwise.” [Washington Post editorial]
  • How a machine based on the schools lobby ran politics for years in Montgomery County [Adam Pagnucco, The Seventh State]

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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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In miniature, June 12

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The Democratic primary results: Baltimore suburbs not keen on Brown

The Democrats this year had reasonably lively three-way races for both governor (Brown v. Gansler v. Mizeur, 51-24-22) and attorney general (Frosh v. Cardin v. Braveboy, 50-30-20). County-by-county results are available here. (Two weeks ago I analyzed the Frederick County primary results.) The results confirm much of the conventional wisdom about the various candidates’ appeal, and add a cautionary note for Democrats: their gubernatorial candidate, Anthony Brown, is running into trouble in the Baltimore suburbs.

Governor. Brown rolled up huge margins in Prince George’s, Charles, and running mate Ken Ulman’s Howard County, won Montgomery and Baltimore City big, and carried Frederick, Anne Arundel, and Calvert comfortably. Across the rest of the state he was at least competitive everywhere, running third only in Carroll. But Brown significantly underperformed his statewide 51 percent in suburban Baltimore County (38-30-29), perhaps signaling an opening for Republicans there — more on that below — as well as adjacent Harford (34-32-29) and Carroll.

Mizeur easily bested Gansler for second place in Baltimore City (53-16-29) and won narrower second-place finishes in Frederick and Howard. She ran extremely poorly, at less than 10 percent, in P.G. (77-15-7), despite picking a running mate from that county, and in Charles (64-23-9).

Gansler was not exceptionally strong anywhere, but managed to carry three counties where all three candidates ran competitively, Carroll, Cecil, and Queen Anne’s. Among his weakest showings were Baltimore City (53-16-29), Prince George’s, and Howard (59-18-22).

Attorney General. Cardin carried 11 mostly rural counties, including the three westernmost and most of the Eastern Shore. Braveboy carried her home Prince George’s handily but ran a weak third in Baltimore City, one instance among many of these two jurisdictions going off in different directions. Charles County was a close three-way race with Cardin ahead. Otherwise, Frosh carried all the central and urban counties and won by crushing margins in his home Montgomery County and in Howard, reflecting his dominant position with the educated liberal vote.

At a precinct level, I looked at Baltimore County, where Brown showed unusual weakness (38-30-29). The county gave Mizeur her best performance in any large jurisdiction other than Baltimore city; she ran strongly in precincts in Catonsville, Towson, and Lutherville, all with college-town, hip, or affluent voters. Gansler likewise found Baltimore County his best large county, and Jewish communities in Pikesville and elsewhere were just one of his sources of strength. In fact Brown, while sweeping African-American neighborhoods, often ran a distant second or even third in other parts of the county. There were more than 65 precincts around Baltimore County where Brown’s share of the vote was only in the teens, many of them in places like Arbutus, Essex, Dundalk, Phoenix, and Overlea.

Republican campaigners will no doubt be eyeing those areas as they begin considering how to peel away Gansler Democrats to vote for Larry Hogan in November.

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HB 867, the Maryland False Claims Act, and the District 4 race

I’ve been writing and speaking out for years about the evils of the federal False Claims Act and its state-level equivalents, but I certainly never expected the law to wind up becoming an issue in my hometown race for state senator. Yet that’s what has happened in Maryland’s District 4, where as Bethany Rodgers of the Frederick News-Post reported, candidates David Brinkley and Michael Hough have traded charges vigorously on the issue. Del. Hough (unusually for a Republican) crossed over to support the proposed Maryland version of the FCA in this year’s legislative session, but the bill failed on the last day of session when Brinkley, considered a master of the intricacies of the legislative process, used a procedural maneuver to kill the bill single-handedly, bitterly disappointing the bill’s sponsors, liberal Montgomery County Democrats Brian Frosh and Sam Arora, as well as the state’s trial lawyer lobby, which had made the bill a priority.

Del. Hough defended his position on Facebook as follows:

And at Red Maryland, a blog that has endorsed Hough, Brian Griffiths seeks to defend Hough from what he calls “bizarre accusations that he has sided with trial lawyers” in supporting the FCA, though such accusations would seem no more than baldly true (the question is hardly whether he sided with them, but whether he was right to do so). “I have absolutely no idea on what planet it is a conservative ideal to oppose harsher penalties for people who wish to defraud the people out of taxpayer funds.”

So what do these laws do, and why have they turned into a flashpoint for intense opposition from the business community, to the point where the Maryland Chamber of Commerce would vocally oppose HB 867 as “burdensome and unfair” in its provisions and Maryland Business for Responsive Government would treat it as a key vote, to Hough’s disadvantage?

Based on a Civil War era statute but drastically expanded in 1986 into its modern form, the False Claims Act allows freelance informers to accuse entities dealing with the government of fraud, and then pocket a hefty share of the proceeds of a resulting judgment or settlement. To encourage suit-filing, the law awards treble or other multiple damages, attorney’s fees, stiff statutory damages and other enhancers. The model in effect is privatized law enforcement — what could go wrong? And indeed the idea appealed for a time to many modern Republicans, even Ronald Reagan — until actual experience began to show its flaws:

  • The law has made rich various employees who participated in frauds themselves, or who failed to inform higher-ups of their discovery of accounting problems (which of course might have upset the chance of bagging an FCA award for themselves). It has even provided a reason to *not* report fraud too quickly, as in the famous case of a GE employee later accused by chairman John Welch of having “sat back and waited in the weeds so the damages would mount.”
  • While the law has been used against many genuine frauds, it also gets deployed against what many would see as simple differences of opinion in complicated, high-stakes areas of government contracting — reimbursement formulas, overhead rates — as well as against industry customs accepted as normal by the players and not challenged by the government at the time. Because stakes are so high — including treble or other multiple damages — defendants often settle for some fraction of the demand. The law thus incentivizes actions based on gray areas of contracting regulation with high stakes over actions based on definite or classic frauds where recovery will not be large (say, because the fraudster will be bankrupt.)
  • Animal rights activists have used the law to go after a cancer researcher who received federal funds for animal research, supposedly on the theory that he misrepresented the results of his research. That’s one of many instances in which the law is used to pursue vendettas or for extra legal leverage in disputes between private actors — say, between labor unions or community organizers and the companies they attack.
  • A hedge fund was found to have sold short the stock of a target firm (betting that its stock would fall) and then filed a False Claims Act naming the company, predictably bringing about the very stock drop it had bet on.

By the time the business community had begun to mobilize to point out the issues of fairness and practicality at stake, the law had made a group of lawyers immensely rich, and they have formed the nucleus of a powerful lobby with many allies in elected office — mostly Democrats, but also including a Republican here and here — to defend the law and push for its further expansion. By 2009, when another expansion was proposed, Hans von Spakovsky and Brian Walsh of the Heritage Foundation were writing that: “Tort lawyers are about to get another big payoff from Congress and the Obama administration for the hundreds of millions of dollars they contributed to candidates in the last election cycle (over 75% of which went to Democrats). … amendments to the federal False Claims Act that will hurt our economy but make the trial lawyers very happy indeed.” (full report). Inserting FCA-like provisions into the Dodd-Frank bill was a key objective of liberal Democrats, and their success in doing so is seen by many businesses as among the worst features of that law.

The proposed Maryland version would have gone much further — with consequently even greater risk of abuse — than the federal FCA or its various state equivalents. For example, it had a much less usable statute of limitations, meaning that clever lawyers could reach back to sue over long-distant supposed misdeeds. And as the Council on State Taxation warned, because it had vague language that did not exclude tax disputes, it might be seized on to justify suits by Lawyer A demanding a retroactive hike in the tax bill of Company B — plus multiple damages, lawyers’ fees, etc. — and a court might agree to let such a claim go forward.

Del. Hough does not seem to have been very persuasive in convincing Republican colleagues that HB 867 represented the true conservative position.  (Virtually every Democrat voted for the bill.)  Every single Republican member of the Senate joined in siding with Sen. Brinkley’s position against Del. Hough’s, and so did the great majority of Republican delegates, including every other GOP member of the Frederick County delegation. (That includes Hough’s own slate-mate Kathy Afzali, as well as Kelly Schulz and Patrick Hogan.) Of big-time conservatives in the House of Delegates, virtually every one sided with Brinkley’s position over Hough’s, the most notable exception being Del. Michael Smigiel of the Eastern Shore.

Smigiel, it should be noted, has the good excuse of being a trial lawyer in his day job.

 

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