Three Cases Sharply Divide Maryland’s Highest Court On Life Sentences For Juvenile Offenders

Joseph Dudek
Sep 3, 2018 · 8 min read

On Wednesday, the Court of Appeals of Maryland (Maryland’s highest court) handed down its opinion in Carter v. Maryland resolving three appeals brought by convicted juvenile felons. The issues raised in these consolidated cases fractured the seven-judge Court. The majority opinion dropped footnotes to identify how the judges had voted on individual issues:

Footnotes clarifying how majorities were formed

And two judges — including the Chief Judge — wrote separately to express disagreement.

These deeply divided opinions are difficult in every sense. They are factually and emotionally difficult subject matter (here, life sentences for minors). They are difficult areas of the law (here, the Eighth Amendment’s prohibition of “cruel and unusual punishment”). They are difficult to read, because the three opinions span 88 pages. They are difficult to organize in one’s mind, because one must juggle the perspectives of seven judges. And they are difficult to apply to future cases, because one must be confident that (s)he is quoting from or citing to a portion of the opinion upon which a majority of judges agree. So let’s start from the beginning.

“A Sentence of Life Without the Possibility of Parole”

Their names are in the opinion, but I hate reciting the full names of juvenile felons even if they are now adults. I will call them D.C., J.E.B., and M.T.M.

Created using wordle.net

D.C. committed his crime in 1998 when he was 15 years old. He was convicted of first-degree murder (and two other crimes related to the handgun he used). Maryland asked for a 50-year sentence. D.C. maintained his innocence, including at the sentencing hearing. The judge sentenced D.C. to life in prison.

J.E.B. was one month shy of his 18th birthday when, in 1995, he and two friends (drunk and high) robbed and violently assaulted a 67-year-old man. The judge who sentenced J.E.B. found him irredeemable; the purpose of the sentence was “ segregating people of this sort, who are capable of this kind of behavior … where they can’t harm the rest of us.” So J.E.B. was sentenced to life in prison.

M.T.M. and three friends started a schoolyard brawl in 2004. M.T.M. was 17 years old and a high school student. His friends were older. When things started going south for M.T.M.’s group, he and one other friend fired a total of 12 shots from the same handgun. Four students in the crowd around the fight were injured — one is now paralyzed and wheelchair-bound. M.T.M.’s older buddy pleaded guilty and received a 50-year sentence. A judge drastically exceeded the sentencing guidelines to put M.T.M. in jail for 100 years.

Most relevant to this case, D.C. and J.E.B. are eligible for parole 25 years into their sentences and M.T.M. is eligible 50 years in (approximately 2055). D.C. and J.E.B. argued that their 25-year parole eligibility is a farce because Maryland never actually grants parole to felons serving life sentences. Thus, the argument continues, they are juveniles serving life-without-parole sentences, which is forbidden under the Eighth Amendment. M.T.M. argued that his minimum-50-year sentence is equivalent to life-without-parole sentence and just as unconstitutional.

Two issues, three convicts, and seven judges. Let’s break it down.

Issue One: Are D.C. and J.E.B. Serving Unconstitutional Sentences?

Preview: (4-3) No.

Recall D.C.’s and J.E.B.’s core argument: Even though they are technically eligible for parole (one has had a parole hearing already), there is a 0% chance that Maryland’s governor will ever grant parole to anybody. The Supreme Court has held that it is cruel and unusual to imprison a juvenile offender without “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” When J.E.B. first filed his case in 2016, he recited the history of parole in Maryland over the previous 20 years:

  • 27 inmates recommended for parole by the Parole Commission;
  • 24 recommendations denied by the governor(s); and
  • 3 recommendations still pending.

These statistics are reinforced (D.C. and J.E.B. argue) by the fact that the legislature has not given the governor a set of criteria to consider when deciding whether to grant parole. So we ask: If governors never parole inmates, is there really a system for parole in Maryland?

Yes. A four-judge majority held that a combination of the Parole Commission’s regulations and a recent executive order by Governor Hogan make the parole system constitutional (as applied to these juvenile offenders). The Parole Commission considers the constitutionally-relevant factors: “the offender’s age at the time of the offense, other factors that distinguish juveniles from adults, and developments that indicate that the offender has demonstrated maturity and rehabilitation.” Similarly, a February 9, 2018 executive order from Governor Hogan concedes that “the Governor shall assess and consider the same factors and information assessed by the … Parole Commission” as well as “other lawful factors deemed relevant by the Governor.” In other words, the governor promised to administer a constitutional parole system just in time. And that is good enough.

A three-judge dissent argues that Maryland has fallen short of its constitutional obligations:

[Supreme Court precedents tell us] that juvenile offenders must be afforded a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Maryland’s current parole scheme … calls for consideration of a number of factors. But mere consideration of those factors falls short of the federal constitutional benchmark. If “demonstrated maturity and rehabilitation” is a factor only to be “considered” rather than a necessary and sufficient condition of release, then the Commission remains free, in the exercise of unfettered discretion, to decline even to forward a recommendation of parole to the Governor. Further, were the Governor to receive a recommendation in favor of parole for a juvenile offender serving a life sentence, there remains in the Executive Order the Governor’s exercise of discretion to deny parole notwithstanding that, by the terms of the Executive Order, the Governor “shall consider” certain additional factors.

In other words, juveniles who demonstrate that they have matured and been rehabilitated should be released, not just considered for release.

The dissent’s discussion and application of the law is even-keeled — the epitome of even-handed disagreement with respected peers. But the closing paragraph is unsparing:

Chief Judge Barbera invoking St. Thomas Aquinas to discuss the meanings of justice and mercy

More simply, the four-judge majority, the legislature, and the governor should each take a long, hard look in the mirror.

Issue Two: Is M.T.M. Serving an Unconstitutional Sentence?

Preview: (5-2) Yes.

So what about M.T.M., who will not face a parole board until approximately 2055? This the Court will not tolerate, because it is equivalent to a life-without-parole sentence.

But where do we draw the line after which a “lengthy term of years” sentence is equivalent to a life sentence? Unfortunately, the Court leaves the answer murky by requiring a look at many different “benchmarks,” including:

  • The difference between the sentence and one’s natural life expectancy;
  • The difference between the sentence and one’s typical retirement age;
  • The difference between the convict’s parole date and the parole date that would attach to a life sentence;
  • Sentences of 50 years or more; and
  • The effect of (recent) legislation on a state’s sentencing and parole procedure.

The Court clarified that, in measuring against these benchmarks, a court may consider the entire “stacked” sentence when someone is convicted of multiple crimes and ordered to serve consecutive sentences.

Under this test, M.T.M.’s sentence (four 25-year sentences served consecutively) is unconstitutional. Even if each 25-year sentence would satisfy the five benchmarks above, a 100-year total sentence with 50 years before parole consideration would not. Note that, for example, an adult sentenced to life in prison in Maryland would be eligible for parole after serving 15 years. M.T.M. would have to wait more than three times longer than the worst criminal offenders in Maryland. Thinking back to the factors and remembering that M.T.M. will be 67 when he is considered for parole, we note that his mandatory sentence comes dangerously close to his life expectancy, passes his retirement age, is unfathomably longer than it would be under a life sentence, and crosses the 50-year threshold.

This holding caused another dissent from two different dissenting judges. They argued that, because M.T.M. is likely to be alive when he is eligible for parole, he is not serving the equivalent of a life sentence. In the dissenting judges’ view, the other “benchmarks” are cherry-picking from lonely, random cases or are derived from dicta (“judicial comment[s] made while delivering a judicial opinion, but … that [are] unnecessary to the decision in the case and therefore not precedential”). In other words, courts talk about many things, but the only truly important thing (in the dissenting judges’ view) is whether the inmate is likely to serve for his entire life. End of discussion.

Quick Tallies on Judge Voting

Three judges found all of the sentences unconstitutional: Judges Barbera (Chief), Greene, and Adkins.

Two judges found no constitutional problem: Judges Watts and Getty.

Two judges would allow D.C.’s and J.E.B.’s life sentences to operate under Maryland’s new parole executive order, but would require that M.T.M. gets a new sentence. But because of the interaction among these disparate views, the opinion of these two judges was the opinion of the Court.

Interesting Takeaways About Judges

For those law nerds out there, there is a fascinating interplay between the judges’ votes in this case and their legal backgrounds. Steve Klepper has already noted two points on this subject:

  1. “Strikingly, it is Chief Justice Barbera (former criminal appeals chief for State) who would have voted for all three defendants;” and
  2. “Judge Watts (joined by Judge Getty) would have ruled against all three petitioners. She, in contrast with Chief Judge Barbera, was a pubic defender for 9 years (after 4 years as a prosecutor).”

That’s right! Chief Judge Barbera — whose used to run the Maryland office tasked with defending convictions and sentences against attack on appeal — would have reversed all of these sentences. Meanwhile, a nine-year veteran of the public defender’s office appears comfortable if the three are never released under any circumstances. That is (at least superficially) surprising, and there’s more:

Judge Getty sided with Judge Watts, and would have affirmed all of these lengthy sentences. For D.C. and J.E.B., this vote means relying on Governor Hogan’s executive order in which he promises to consider a prisoner’s age (at the time the crime was committed), maturity, and rehabilitation in considering Parole Commission recommendations. Judge Getty came to the Court of Appeals with more executive- and legislative-branch experience than any of his peers. Most tellingly, he was the Chief Legislative Officer for Governor Hogan from 2015 to 2016 and the Policy Director for Governor Ehrlich from 2003 to 2007. His views (or reliance) on a governor’s executive function are always worth noting. This case is no exception.

Finally, Judge McDonald — who spent eight years in the U.S. Attorney’s Office and fourteen years as the Maryland Attorney General’s Office’s Opinions and Advice Chief Counsel — carved a middle-ground which enough judges joined. He affirmed two sentences and reversed the third. Journalists, pundits, scholars, and onlookers often talk about the organization of the Supreme Court of the United States and its ideological center, “swing” justice. Wednesday’s opinion is some evidence that Judge McDonald occupies a similar position on Maryland’s high court.

About the Author

Joe writes about Maryland’s appellate courts. He is an associate at Gohn Hankey & Berlage LLP in Baltimore. You can find his background and contact information here. You can also find Joe on Avvo here. He is also a 2019 Super Lawyers Rising Star.

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