The Honorable Robert M. Bell
Chief Judge,
Maryland Court of Appeals
361 Rowe Boulevard
Annapolis, Maryland 21401
Re: "Amicus" briefing regarding any and all cases relating to the application or computation of diminution credits or sentence interpretation in the State prison system. To wit:
Beshears v. Wickes; Henderson et al. and others pending or not yet filed
Dear Judge Bell:
The purpose of this letter is to bring to the Court's attention and to supplement your findings regarding the factors and influences impinging on "diminution" credits and other sentencing factors which may or may not be apparent to the Court by formal pleadings or argument whether with regard to individuals or class action, but nevertheless greatly lend themselves to the "diminution credit" (and sentencing interpretation) issues. I am motivated to write not only because I have received a significant amount of mail from prison inmates whose "mandatory release" dates suddenly and without warning were extended months and years into the future -- I am motivated by the Baltimore Sun article of October 9 averring judicial admission of a "mistake". It is my estimation that evidentiary dimensions of the "diminution" situation(s) may well have been overlooked, glossed over or omitted entirely from consideration by this Court and by lower tribunals.
My vantage point and my interest has been generated by my volunteer work in the Maryland prison system since 1981. I have no formal legal background but some exposure to law and the courts by way of being a paralegal during and after college (B.A., University of Pennsylvania, 1978) as well as having reviewed perhaps thousands of inmate legal documents over a period approaching twenty years. My authority to pursue prisoner and other such issues is sanctioned by the First Amendment of the United States Constitution, and my ability to act very much resides in a freely accessible, reasonably priced, efficient and effective U.S. Postal Service.
I am known to and/or have met literally hundreds of prison inmates and I frequently receive reports, copies and complaints from inmates all over the system by mail, sometimes by phone, and frequently by family member or other intermediary contact.
My mailing burden from Maryland state inmates on these matters has proliferated to such an extent that for the most part I am generally unable to take on individual causes and I have developed a strategy to work with groups, including but not limited to Inmate Council representatives in various prison facilities, or in the alternative, I embark on solving "test cases" as they may arise.
In my experience, by far, "time" calculation is probably the most disputed and challenged element of inmate life but (as I have written in a recent newsletter), time counting is beyond my ken:
Diminution Specifics: At the present time, in Maryland, prisoner records are generated and maintained manually and "dim" credits, sentencing directives, adjustment days and so forth are computed manually, frequently at many intervals throughout an inmate's confinement. As can be expected when many persons independently review and derive information from paper documents, recording findings in personal handwriting and not by computer input, error rates tend to be high and the streams of consciousness followed to arrive at a "final" "release date" are frequently not generally reproducible by the next person assigned the arduous task of arriving at the "next" "final" "release date" (said latter person often employed at a different facility in a different region utilizing different forms, formats and protocols).
The forms and other paperwork have a tendency to vary by sentencing jurisdiction(s), period of history and even Maryland penal institution. For example, the copy of the sentencing order that finally becomes incorporated in an inmate's basefile could be pink, blue, yellow or goldenrod, or a collectional mixture of any of them. It is not unusual to come across a very poor photocopy of a very faint, barely legible, reproduction of the last sheet of a handwritten four- or five-part multipart form as the only justification for the State to continue to incarcerate a person for years on end.
The next factor impinging on sentencing clarity, "dim" credits and the like relates to "social" or "occupational" foibles where, for example, a record never gets into a file, is buried among so many other (frequently irrelevant) documents, or, admittedly, gets added to someone else's file, lost never to be found. The Court may have already received petitions where an inmate claims credits from a local detention center that were never forwarded or never seen in his State Division of Correction files, the inmate powerless to compel production or obtain his just due.
Institutional staff responsible for collation or reporting can be unreliable, unskilled, and subject to high turnover, all of which greatly impact the availability of expertise at any DOC site. It is more than conceivable (though I cannot cite a specific instance personally offhand) that if the lead person responsible for inmate record-keeping (internally referred to as the "timekeeper") dies, is retired or fired, an entire facility may find itself "Lost in Space", "up a creek without a paddle", "pending (indefinite) reorganization" and so forth and so on. Mountains of appeals and challenges first begin to go to the warden, then to the Commissioner, then to the Inmate Grievance Office, and then to the Circuit Courts, and finally, to Special Appeals or your Court.
With regard to other branches of government: Executive orders, policies and directives as well as Attorney General handling often produce confusing viewpoints and pressures from term to term, administration to administration and from appointee to appointee. As you might be able to discern by your recent and pending caseload, the climate conveyed by the Attorney General's office is now as conservative as possible over the wide range of prisoner issues. You have probably also found that research and statistics in these areas might be characterized as "hit or miss", "incomplete", "ambiguous" and/or "self-serving".
It should be noted that the supply of opposing attorneys (i.e., PRISM -- there is no other) is extremely limited, constricted by dearth of budget and staff, and overwhelmed by the sheer quantity inmate matters falling under their contract and mandate. I for one have found that, no matter how victorious PRISM may be before your Court, dissemination of information to inmates and/or DOC administrators is slow, laborious and not likely to effectuate the intent of your Court's decision in any type of timely manner.
Having monitored the legislature for some years now, it is my judgment that, at least with regard to diminution credits and guidelines, legislative output can be and is confusing because those responsible for reaching compromises and crafting statutes are themselves confused by the intricacies and nuances of the topic area and are themselves become confused enacting what may be otherwise high-minded, benevolent policy intentions into law.
Complicating periodic legislative adjustments to diminution statutes are ex post facto considerations and the timetables that stem therefrom. Retrospective, prospective, partially retrospective, blanket(?) application are aspects of the topic guaranteed to occupy the deliberations of conference committees even unto the final hours of any given session(s). The effect at the institutional level, where persons might be serving (multiple?) sentences extending from eighteen months to life and beyond can only be characterized as chaotic and can only get more chaotic as time goes on.
The legislature, never being able to function holistically as to defining or establishing diminution credits, and usually under pressure of being advised of large and unexpected population extrapolations, at least during this decade, has put through "dim" legislation with the aim of differentiating violent, non-violent, drug use, drug selling, and drug possession, while in the meantime factoring in double-celling or overcrowding.
Once the resulting "dim" statutes are attempted to be implemented by "real" people to be applied in practice to "real" situations involving "real" offenders, all of us out here, including your own Circuit Court judges, run squarely into such quizzicalities as those deriving from (for example) Beshears and Henderson. I note at least one sequelae of those particular Court of Appeals opinions was a headline in the Baltimore Sunpaper: "Court [of Appeals] admits prison foul-up". Further into the same article, the chief Assistant Attorney General for the Department of Public Safety is quoted, "It's confusing to me. I can't imagine it's not confusing to everyone else. It appeared it was confusing to the Court."
Yet as evidence of the legislature's lack of understanding of the application of diminution credits or of comprehending their significance, only in the past two years (not ten) has the legislature, at Assistant Attorney General urging, closed a "loophole" where persons released on parole and were then reincarcerated were eligible to retain "good time" from the prior sentence and apply them against the instant sentence -- sometimes therefore "serving" an entire sentence or much of it before it is started.
Further evidence of the perils of inability to approach the "dim" and other aspects of criminal law holistically, are standards set forth and enacted with regard to certain offenses (e.g., burglary - violent in some parts of Article 27, non-violent in others) which create legal and administrative conflicts frankly nightmarish in execution and effect in offices all over the Department of Public Safety, from the Division of Correction to the Division of Parole and Probation, not to mention in excess of 100 inmates.
In view of the legislative decision that the existing Maryland Commission on Criminal Sentencing Policy report its findings by July 1 of next year, there presents an opportunity to straighten the situation out to the extent possible while at the same time, foresee and incorporate advances in computer technology and perhaps management enhancements arising by the cooperation of the legislature, the courts, the administrators from the Department of Public Safety and others with the goal of implementing a true, mutually workable incentive system in Maryland prisons.
And finally: I reveal that it is the larger goal of this letter to request this Court to cooperate, advise, contribute, coordinate, apprise, and guide the legislative and executive branches of Maryland government unto and until the only (vitally important) incentive system available to Maryland prisoners is clarified, consistent and cohesive.
Sincerely,
Nancy Moran
nm
cc:
The Honorable Alan M. Wilner, author Henderson decision
The Honorable Joseph H.H. Kaplan, interpreter Beshears
The Honorable Joseph F. Murphy, Jr., Chief Judge, Court of Special Appeals
Governor Parris Glendening
Senator Thomas V. Mike Miller, Jr., President of the Senate
Delegate Casper R. Taylor, Jr., Speaker of the House
Stuart O. Simms, Esquire, Secretary of Public Safety
Stuart M. Nathan, Assistant Attorney General for Public Safety
Mr. Richard A. Lanham, Sr., Commissioner of Correction
Mr. Roland Knapp, Director, Parole and Probation
The Honorable John F. McAuliffe, Commission on Criminal Sentencing Policy
Stephen Z. Meehan, Esquire, PRISM