In Maryland, an Abrupt Change in Leadership Could Boost Sentencing and Parole Reform

As the 2020 legislative session gets underway, Senator William Smith, a new committee chair, says he will work to grow parole opportunities and expand youth justice above age 18, and will block new mandatory minimums.

This article is part of The Stakeholders, a Political Report series of Q&As with state and local actors on the criminal legal system.

The sudden resignation of a powerful Maryland senator who chaired a committee in charge of the criminal legal system is shuffling the politics of mass incarceration in Maryland. His replacement as chair by a more progressive lawmaker may make criminal justice reform more viable.

Bobby Zirkin, the outgoing chair of the Senate’s Judicial Proceedings Committee, is a moderate Democrat who championed conventionally tough-on-crime policies such as mandatory minimums and resisted reforms such as restrictions on cash bail. William Smith, the Democrat who is taking over as chair, says he has a “different ideological and political plan.” Smith, who represents parts of Montgomery County, told me that he hopes to change approaches to sentencing and parole, and also tackle education and housing in a way that helps keep people outside of the criminal legal system.

I talked to Smith last week about what this turnover means for criminal justice reform, and about his plans for the upcoming term. In the Q&A, transcribed below, he described an “unparalleled opportunity” to promote a new direction, a “holistic long-term approach” over the “knee-jerk reaction” to crime that consists of championing “stronger sentences and mandatory minimums that have been proven not to bear fruit with respect to long-term systemic change.”

Maryland’s 2020 legislative session began on Wednesday.

Smith’s predecessor Zirkin helped push through new mandatory minimums in 2018. Smith, by contrast, now invokes James Forman Jr.’s book “Locking Up Our Own: Crime and Punishment in Black America” to pledge this would not occur under his watch. 

“I will not let mandatory minimums come out of my committee,” he said. He added that he is “definitely open to repealing some of the mandatory minimums that are on the book.” He argued these sentencing rules trigger such excessive penalties that innocent defendants end up pleading guilty to crimes they did not commit in exchange for prosecutors lowering charges.

Smith said he would take on two other mechanisms that fuel long prison sentences as committee chair: the adult prosecution of youth, and meager parole opportunities.

While Governor Larry Hogan has sought to prosecute more minors as adults, which triggers harsher penalties, Smith made the opposite case: He called for expanding youth justice to make it possible for some people between the ages of 18 and 24 to not be prosecuted as adults and to thereby receive less severe sentences. The brain is still developing in that age range, he noted.

The youth justice system traditionally stops at age 18—only Vermont has “raised the age” above that threshold so far—but efforts to question that limit are rising around the country. 

It is hard for Marylanders serving long sentences to achieve parole. For people with life terms, parole recommendations must be approved by the governor, and parole grants have ground to a halt since the mid-1980s. Smith criticized the state’s governors, especially the two most recent Democrats, for insufficiently using their powers. But he also said this needs statutory change: expanding eligibility for older people, and enabling hearings after a prolonged period of incarceration. These are both reforms debated elsewhere in the country.

In pushing for such reform, Smith will benefit from newly empowered ideological allies. The turnover in his committee comes amid a broader shift toward progressives with the recent ascent of Bill Ferguson, a Democrat from Baltimore City, to the Senate’s presidency. Democrats enjoy a veto-proof supermajority in the legislature while Hogan is a Republican.

Smith indicated that he also intends to work on abolishing juvenile sentences of life without the possibility of parole, and on removing the governor’s direct role in the parole process. While he expressed interest in ending disenfranchisement, he said he would not push that issue this session. 

He also said a priority was confronting racial disparities in incarceration and in sentence length. These should “shock the conscience” but get little attention, he said. Seventy percent of the state’s prison population is African American, while just 30 percent of Marylanders are Black. 

Fighting this racial injustice requires systemic transformations beyond reforming what happens after people have entered the criminal legal system, he argued. He said he would work to reduce school suspensions and ban discrimination against renters based on the source of their income. “Operating outside of the criminal justice system is the best way to prevent these disparities,” he said. “Deal with housing, … the school-to-prison-pipeline.”

The interview was condensed and lightly edited for clarity.

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You are taking over the Judicial Proceedings Committee, with a record that is considerably more supportive of criminal justice reform than the senator you are replacing, Bobby Zirkin. What has made this political shift possible, and what effects do you think it’ll have on the state?

This is kind of a referendum on where our state is going. Last election cycle, we ended up keeping and gaining a couple of seats in the House and the Senate, so I think it starts off with that. Then, when the Senate President, Senator Mike Miller, announced he’s resigning to focus on his fight against cancer, that ushered in a new generation, which has caused an ideological and generational shift in the Senate. Senator Bill Ferguson from Baltimore City [the Senate’s new president] is 36 years old; Senator Miller was the Senate President for 32 years. 

So this is a huge shift in the state of Maryland and in the caucus. It’s an unparalleled opportunity to help a lot of folks out, with definitely a different ideological and political plan than my predecessor [Senator Zirkin]. I have a good relationship with him personally. I’m looking forward to working with everyone in Maryland. 

What inspired your interest in issues of criminal justice reform? Are there advocacy groups or events advocacy that have played an important role?

When I ran for the House of Delegates [in 2014], part of my platform was to focus on housing and the failed war on drugs. I moved to the Senate and continued to sit on the Judicial Proceedings Committee. You start to educate yourself and gain a greater understanding. You travel and realize what’s happening throughout the entire state, not just Montgomery County or the city suburbs. Obviously, the homicides in Baltimore City have made national headlines; Baltimore City in 2019 had 348 homicides, which is over 300 homicides for the fifth year in a row. This adds political pressure to do something now. 

And in that exigency, there’s a tendency to focus on harsher penalties and mandatory minimums. That’s something that we struggled with in the last couple of years: It begs for a more comprehensive approach than just the mandatory minimums and the higher sentences.

There is a fight now that would seem to echo your last point, between state officials pushing for an approach with heavier prosecution, and the state’s attorney of Baltimore, who objects that they are fueling the politics of mass incarceration. What is your view on that tension?

Most folks are familiar with Michelle Alexander’s “The New Jim Crow.” Just fantastic work. Another, maybe lesser-known, book, is “Locking Up Our Own,” by James Forman Jr. He sent every member of my committee a copy of his book at the end of our session two years ago. I got a hold of it, I started reading it, and I read it all in one night; I could not put it down. The short takeaway is that he goes in on how African Americans have played an integral role in what we call mass incarceration, in terms of mandatory minimum and harsher sentences, without taking a more holistic approach. That resonated with me because we were very close with implementing some of these things. I called him up. He said he would be in Baltimore one day and we sat down and had a great conversation. Education like that, and my experience talking with folks all throughout the state, solidified my view that we really have to take a comprehensive approach. 

Those things don’t always pay dividends right away. People want to see a payoff right away in the next year or two. Whereas some of the more systemic changes, some of the more structural changes, some of the longer-term investments that really will bear fruit take hard work and sacrifice now, and maybe you don’t see those political rewards right away. 

If you’re trying to pick more of a long-term strategic look and make the right decisions for our long-term future, ensure that people have economic opportunities, housing opportunities, opportunities to rehabilitate themselves when they’re incarcerated to come out ready to participate in our society. That’s the focus that I’m taking this year. 

Personally, as the new chairman of the Judicial Proceedings in the Senate, I am not interested and I will not let mandatory minimums come out of my committee at least. I can speak to that. But the House Committee has a say and the rest of the Senate has a say, and the rest of the House has a say.

Maryland already has some aggressive mandatory minimums and sentencing enhancements; as you just alluded, some were just created two years ago with your predecessor’s support; you yourself opposed final passage of that reform. You just said that you would not support new mandatory minimums in your committee. Will you also push for bills to eliminate existing ones?

I would support bills to eliminate mandatory minimums. But I want to be very careful because there’s nuance in everything. To make a blanket statement that you’re against mandatory minimums masks some of the nuance: What about for child rape or for some of the most heinous crimes. Do you think people should have a mandatory minimum of 5 to 10 years? Most people would say, ‘Yeah.’ That’s the tension. For a gun crime, if someone robs someone, should you have a mandatory minimum for that? That’s different. There’s an academic or intellectual honesty that you have to have when you’re talking about mandatory minimums. 

Personally, I have an allergy to mandatory minimums because I think it prevents the justice system from weaving through all of the circumstances and really seeking justice, to balance all the factors that were case-specific. There are a lot of perverse ways mandatory minimums are used, not just in the blind sentencing but also because they’re used as a tool of leverage that end up sweeping in people that should never have been swept in in the first place. Folks end up entering into pleas when they’re not even guilty of the initial underlying crime, because they’re afraid of the mandatory minimum hanging over their head. 

So I’m definitely open to repealing some of the mandatory minimums that are on the books. I’m definitely not interested in putting any more on the books, and they will not come out of my committee while I’m chair.

The Justice Policy Institute put out a report in November—and this is directly correlated to what we’re talking about, these longer sentences, these mandatory minimums. They put up this report, which showed that “Maryland leads the nation in incarcerating young Black men, sentenced to the longest prison terms, at a rate 25 percent higher than the next nearest state, Mississippi.” That should shock the conscience. It’s something we haven’t paid much attention to. And that’s something I want to focus the committee’s attention towards.

Besides mandatory minimums, one reason people serve these long sentences in Maryland is the difficulty of obtaining parole and early release, especially for people serving a life sentence. Eligibility for release is also delayed for others serving long sentences. As committee chair, what do you hope to achieve when it comes to reforming parole, and enabling more people who are serving lengthy sentences to be eligible for early release?

We will take a hard look at what parole looks like. We have a parole system where a parole board makes recommendations to the governor; the governor responds up-and-down. There’s some proposal to take the governor out of the question. I think that’s important, but you could get a governor who is less afraid of Willie Horton-style attacks in the future. Credit where it’s due, Governor Larry Hogan has a better record than his Democratic predecessors in terms of granting some of these long-term paroles. And [former Governor] Bob Ehlrich had a better record than [former Governor] Martin O’Malley and [former Governor] Parris Glendening before him, both of whom were Democrats. 

On the other hand, the governor has a terrible record with respect to only offering some of the stronger sentences and mandatory minimums that have been proven not to bear fruit with respect to long-term systemic change. Again, you may get those folks off of the street for a prolonged period of time, but what are you doing to a generation of people that may have a different path in life if only offered the tools to help them do so? You need a more holistic long-term approach, as opposed to the knee-jerk reaction that may bear some immediate fruit but ultimately leaves us in a worse posture.

You mentioned the governor’s role; Maryland is indeed unusual in requiring that governors approve the parole commission’s recommendations for anyone serving a life sentence. A few years ago, a bill to end the governor’s direct role died in the Senate. Do you favor reviving and passing that bill?

I voted for that bill, and I’m still in favor. So I would advocate for passage of that bill. 

I think that some of the more fruitful endeavors could go with allowing certain folks to have a parole opportunity a little earlier. If they’ve shown they’ve made significant progress —been in training education, behaved themselves, shown contrition — at least they can have an opportunity to hit the board a little earlier. Let’s say 25 years. Now, the balance there is that every time you have a parole hearing, the families of the victims have to be notified and participate in that process and that’s a revictimization, and that’s tough because you hear some of the most tragic stories there. But I think you balance that with, ‘Look, you’ve got an opportunity for an earlier parole date; if it gets rejected, then you can’t do it again for, let’s say, 5-10 years.’ I think that there’s a balance to be struck there. That’s something that could be of immediate benefit. 

Our elderly population: for the geriatric prison population, the recidivism rates are immensely low. It costs us a lot of money and it doesn’t leave our communities any less safe if we have these folks locked up and incarcerated. So that’s another point that we can make serious progress with regards to parole in Maryland.

So expand opportunities for parole for people above a certain age.

55.

On the other side of the age spectrum, Maryland still allows the possibility of life without parole sentences for minors, even as a lot of states have abolished that possibility. Will you support and push for a bill that abolishes life without the possibility of parole sentences for minors?

That’s definitely something I’m interested in; we’ve had a bill in our committee the past few years. For juveniles, for the emerging adult population, that’s something that we may need to adjust. I know that Senator Delores Kelley has been an advocate for that, so has Delegate Erek Barron. It’s tough, but it’s something that we can make some progress on this year. That’s something I’m definitely looking forward to working on.

Are there other issues relating to youth justice that you wish to prioritize?

We’re going to be focusing on the juvenile justice system. The Justice Policy Institute, some of the recommendations they highlight are specifically for emerging adults. That’s 18- to 24-year-olds. Between 18 to 24, proven science shows that you’re still developing, and maybe we need to take a different approach to how we’re sentencing people and if we’re sentencing people as adults. When you sentence folks as adults when they’re in that age group, you get a result like what you have in Maryland: 70 percent of all people in Maryland prisons and nearly 80 percent of people serving at least 10 years are Black, and I think most of them were sentenced as emerging adults.

By focusing on that population for sentencing restructuring, we’d do ourselves a great service in the future in preventing the next generation of recidivism and incarceration. So giving a hard look at how we sentence emerging adults is going to be something I direct the committee’s attention towards.

So you’re interested in pushing the boundaries of the juvenile justice system beyond the age of 18, and integrating people above the age of 18 into that system?

Yes.

Moments ago, you mentioned the staggering racial inequality in Maryland prisons. About 30 percent of Marylanders are African Americans, but the share of African Americans in the prison population is 70 percent. What do you see as the main factors in and outside of the criminal legal system that fuel this? What are specific ways that you wish to confront to diminish the racial disparities of the criminal legal system?

Operating outside of the criminal justice system is the best way to prevent these disparities. Deal with housing, deal with in-school suspensions or out-of-school suspensions, the school-to-prison-pipeline. Those are two things I have focused on. 

I wrote and passed a law so we would never do school suspensions for preschoolers. Studies show that pattern starts in the more formative years, and then we are in high school and there are truancy and academic achievement issues. All this compounds and makes people more susceptible and likely to engage in crime and get involved in the criminal justice system. It starts that early. 

A second thing I’ve been working on is housing. In Maryland, we still have what’s called source of income discrimination: you can discriminate based on someone’s legal source of income. If they have alimony, if they get benefits for being a veteran or from what happened on a job, all the way to Section 8 vouchers. What that does is that a number of voucher holders can’t participate in vibrant parts of our economy, in certain areas of opportunity where schools are better or it may be closer to your job or closer to public transportation, because the housing unit refuses to take that voucher. There’s a stigma attached to it. I have a bill this year, and I’m very optimistic it will pass, that will get rid of the source of income discrimination so that everyone can participate in and work closer to quality housing, schools, economic opportunities. 

From housing to the school-to-prison pipeline, to restructuring some of our sentencing guidelines, it’s a comprehensive approach.

On this matter of “operating outside of the criminal justice system,” in an op-ed last year you called for fighting “overcriminalization.” In it, you specifically endorsed legalizing marijuana. What other behaviors besides this do you think have been overcriminalized? How would you take the criminal justice system out of that?

That’s right. I’ve been the sponsor to legalize marijuana for several years, and continue to fight that fight. I’d say we’re a couple of years away. We have a commission working on some of those details of how to do this in the proper way. I’m optimistic we’ll see that sooner rather than later. 

I have to give a lot of credit to my colleague in the house, Delegate David Moon. When we ran together in 2014, he [talked of these] smaller, smaller antiquated crimes that serve as a pretext for engagement in communities of color for law enforcement. We’re talking about anything from loitering, gambling, truancy issues, licensing, suspended licences: all of these things are used as a pretext to get people caught up in the criminal justice system. 

So I’m happy to work with my friend and colleague in the House, David Moon, on those issues. We’ve been going through the codebook every year and trying to pluck away some of these smaller crimes that are really antiquated, but they’re still on the books, and they’re still used every day as the pretext for law enforcement to make that initial engagement and eventually get someone arrested and part of the criminal justice system.

In some states, there’s growing debate about voting rights for incarcerated people. Is that something you’re open to? What is your view of the proper place to restore voting rights?

There was unfinished business with respect to folks that were out on parole or probation, whether those folks could vote. We restored those voting rights just three years ago. Some great studies show that folks that are getting into civics and voting are much less apt to recidivate, and it gives them more people more of an incentive to participate in the political process. So we are making significant progress there. I would definitely look into what else can be done to expand or restore access to the franchise for folks, especially with criminal records. But we’ve done some significant work there.

So what would be your approach if the issue of expanding that further is raised?

It’s something I’m interested in, but it’s not something that’s on the agenda this term given the recent success that we’ve had.

One other factor fueling incarceration in Maryland: A third of prison admissions in Maryland are due to violations of parole or probation conditions. What do you think the state can and should do for probation and parole to be things that trip people up and incarcerate so many people–especially in connection to what you were saying about certain areas being overpoliced?

The Justice Reinvestment Act [in 2016] was fantastic: That approached some of those technical violations you talk about for parole and probation. But I think it didn’t go far enough. It addressed them in a sense that you test positive for marijuana when you’re going through your urinalysis or if you miss a meeting; no one should go back to jail because they were positive for marijuana or they missed a meeting because they couldn’t get there or don’t live close enough. Where I think we could make more progress is the revocation caps: putting a cap on how much time a person could actually serve if they do violate some aspect of their parole or probation. For instance, you shouldn’t be serving a longer sentence for the violation of parole than you did for the initial underlying crime.