Maryland State Commission on Criminal Sentencing Policy

Transcription

1 Maryland State Commission on Criminal Sentencing Policy Date: Tuesday, May 10, 2016 MSCCSP MEETING Time: Location: 5:30 7:30 pm (dinner to be served starting at 5:00 pm) Judiciary Education and Conference Center Training Rooms 1 & 2 (lower level) 2011D Commerce Park Drive Annapolis, MD Call to order 2. Declaration of quorum AGENDA 3. Approval of minutes from December 8, 2015 MSCCSP meeting 4. Approval of minutes from December 8, 2015 public comments hearing 5. Update on Risk Assessment Feasibility Study (Status report) David Soulé, Ph.D. 6. Juvenile Delinquency Score Project (Status report) Jinney Smith, Ph.D, Maryland Data Analysis Center 7. Guidelines Subcommittee report Judge Shannon Avery a. Review of criminal non-support and criminal contempt as guidelines offenses (Action item) b. Review of Prior Adult Criminal Record Scoring Instructions (Action item) 8. Executive Director Report David Soulé, Ph.D a. Update on SB 1005 (Justice Reinvestment Act) and impact on MSCCSP (Status report) b. Implementation of revisions to sentencing matrix for certain drug offenses (Status report) c. Update on MAGS (Status report) 9. Date, time, and location for next three 2016 meetings a. Tuesday, July 19, 2016 or Tuesday July 26, 2016 b. Tuesday, September 20, 2016 or Tuesday, September 27, 2016 c. Tuesday, December 6, 2016 or Tuesday December 13, Old business 11. New business and announcements 4511 Knox Road, Suite 309 College Park, MD (301) / phone (301) / fax

2 MSCCSP Meeting Minutes May 10, 2016 Minutes Maryland State Commission on Criminal Sentencing Policy Judiciary Education and Conference Center Annapolis, MD May 10, 2016 Commission Members in Attendance: Honorable Glenn T. Harrell, Jr., Chair Honorable Shannon E. Avery, Vice-Chair Delegate Curtis S. Anderson Senator Robert G. Cassilly William M. Davis, Esquire, representing Public Defender Paul B. DeWolfe Honorable Brian L. DeLeonardo Barbara Dorsey Domer Richard A. Finci, Esquire Brian D. Johnson, Ph.D. Senator Delores G. Kelley Honorable Patrice E. Lewis Honorable Laura L. Martin Honorable James P. Salmon Rachel Sessa, representing Secretary Stephen T. Moyer Delegate Joseph F. Vallario, Jr. Staff Members in Attendance: Sarah Bowles Stacy Najaka, Ph.D. Katharine Pembroke David Soulé, Ph.D. Kwame Apea, MSCCSP Intern Visitors: Elizabeth Bayly, Department of Legislative Services; Hon. Philip Caroom, Judiciary Risk Assessment Advisory Group; Linda Forsyth, Community Liaison for Senator Kelley; Claire Rossmark, Department of Legislative Services; Mateus Rennó Santos, Maryland Data Analysis Center; Jinney Smith, Maryland Data Analysis Center. 1. Call to order and introduction of new Commissioners Judge Harrell called the meeting to order at 5:30 p.m. Judge Harrell introduced Brian L. DeLeonardo, State s Attorney for Carroll County, who was appointed to the Commission by Governor Hogan as the state s attorney representative. Judge Harrell also introduced Senator Robert G. Cassilly, who was appointed to the Commission by the President of the Senate. 2. Declaration of quorum Judge Harrell declared a quorum. 1

3 MSCCSP Meeting Minutes May 10, Approval of minutes from December 8, 2015 MSCCSP meeting. The Commission approved the minutes as submitted. 4. Approval of minutes from December 8, 2015 MSCCSP public comments hearing. The Commission approved the minutes as submitted. 5. Update on Risk Assessment Feasibility Study (Status report) David Soulé, Ph.D. Dr. Soulé gave a presentation to update the Commission on the status of the risk assessment feasibility study. Dr. Soulé noted that the purpose of the report was to set the course for helping the Commission to make an initial decision regarding whether to recommend use of an actuarial assessment instrument to be deployed prior to sentencing, and if so, to map a series of decisions to be made regarding the development and deployment of an instrument. The intent was to identify the appropriate questions to be addressed and to ask for feedback regarding what additional information would be needed in order to make these decisions in the next meetings. Dr. Soulé began with a brief recap of the activities related to this project since some of the Commissioners were not members of the Commission for the entirety of the review period. The process started in May 2010 when the Judiciary s Ad Hoc Committee on Sentencing Alternatives, Re-Entry & Best Practices (or AHSC) invited the Commission s former Vice- Chair, Dr. Wellford and Dr. Soulé to speak with the AHSC about the potential use of assessment at sentencing. Later in that year the Commission agreed to study the potential use of risk assessment at sentencing and began with an introductory review via a series of presentations to learn the basics of how risk assessment works, to learn how other agencies in Maryland were already using risk assessment at other points in the criminal justice process, and to review examples from other states that use risk assessment as part of their sentencing guideline systems. In 2011 the Commission determined that there was enough evidence of successful use of risk assessment as a diversion tool to support further exploration of using risk assessment in this manner in Maryland. At that point, it was also determined that the Commission would benefit from exploring funding options to help determine how to incorporate risk assessment into the sentencing guidelines. Eventually a grant was obtained through the Governor's Office of Crime Control & Prevention to conduct the Risk Assessment Feasibility Study. In September 2014, the research team at the University of Maryland presented their first white paper Decisions Points in Risk Assessment Implementation and then provided a second Follow-Up Report to the MSCCSP: Using Assessment Instruments During Criminal Sentencing at the Commission s December 2015 meeting. During the first UMD presentation, considerable discussion took place regarding the pros and cons of a risk-only approach versus the more comprehensive riskneeds assessment. Accordingly, the Follow-Up Report provided a comprehensive review of various risk-needs instruments and their potential for use at sentencing, a review of the additional information-demands of the risk-needs assessment instruments, and a series of recommendations regarding the likely policy-related decisions that would need to be made at various steps along the way. During the course of the lengthy review period, the Commission has been presented with an abundance of information on actuarial assessment instruments. At the conclusion of the December 2015 meeting, Judge Harrell asked the MSCCSP staff to synthesize and organize all of this information into one decision map. Dr. Soulé reviewed the decision map, distributed in advance of the meeting. 2

4 MSCCSP Meeting Minutes May 10, 2016 The decision map hinges on revisiting the initial decision regarding whether to support the use of a formal actuarial assessment at sentencing or to consider one of three alternate options. If the Commission decides to move forward with supporting the use of an actuarial assessment instrument at sentencing, then there are a series of next-level decisions to make including: whether the instrument should target a specific population; whether it should focus on risk (only) or risk and needs; whether to develop a new tool or adopt an existing tool; what risk factors and measures of recidivism should be used; what data source should or could be used to develop, validate, and/or implement the instrument; how should the project be funded, and; who would have the authority to administer the instrument and at what point in the sentencing process. Dr. Soulé noted that the decision map is not necessarily set in stone in terms of the order of or specific decisions to make. Dr. Soulé did not review the next-level decisions in detail, as prior reports thoroughly covered them and the Decision Map Supporting Information document, distributed in advance of the meeting, provided a summary. He noted, however, one cannot make an informed decision about the initial consideration of the use of actuarial assessments unless he or she first considers the full litany of issues surrounding each subsequent decision point. Given all the information provided, the MSCCSP staff identified four initial options for Commission to consider and potentially choose at the next meeting: Option 1-Maintain the current system: The Commission may opt to maintain the present sentencing guidelines system and not implement a pre-sentencing assessment tool. The Commission is not legislatively mandated to implement a risk assessment tool, so it could be decided that the costs to implement a tool outweigh the benefits. Option 2-Wait: The Commission may postpone a decision regarding the pre-sentencing risk assessment until after the post-sentencing screener instrument and risk assessment instruments outlined in the Justice Reinvestment Act have been implemented by the Department of Public Safety and Correctional Services (DPSCS) and evaluated. In particular, the screener instrument, which will presumably be shorter and scored based on available official records, may present a more realistic option to model for use at sentencing. Option 3-Seek funding to conduct an offender score validation study: As an alternative to deployment of a separate risk assessment instrument, the MSCCSP may wish to consider a validation study of the offender score component of the guidelines to determine how well the offender score predicts re-offending and how much weight should be given to each particular dimension. Given that prior criminal history is by far the strongest predictor of future risk, re-validating the offender score using recent recidivism data, would be another way to efficiently identify offender risk level. Option 4-Make a decision about whether an instrument should target a specific population and if it would be risk assessment or risk-needs assessment and seek funding to proceed with next steps: If the Commission is committed to finding a way to incorporate an actuarial assessment tool into the sentencing guidelines, then the Commission needs to first make a decision whether 3

5 MSCCSP Meeting Minutes May 10, 2016 the instrument should target a specific population and whether to implement a risk assessment or risk-needs assessment instrument and then seek funding. Dr. Soulé asked each Commissioner and member of the JRAAG to identify, by the end of May, any questions he or she felt needed to be addressed in order to make a decision about the next step in this process. MSCCSP staff would research the questions and provide responses before the next Commission meeting, with the hope that the Commissioners feel they are prepared to make an informed decision and are ready to potentially take action on one of the four initial options at the next meeting. Senator Kelley asked about research on which particular qualities of an individual s past are most predictive of future reoffending. Dr. Soulé responded that this was something the MSCCSP staff could synthesize for the Commission in advance of the next meeting. Delegate Anderson asked what the time frame would be for implementation of the tools contemplated by the Justice Reinvestment Act and if there is a budget for them, as there would be no point in duplicating costs if they are similar. It seems to Delegate Anderson that the tools that DPSCS will be using would be apropos to look at. Ms. Sessa noted that the implementation date is October 1, The DPSCS goal for the Division of Parole and Probation (DPP) is to start with a screener and for those screened as moderate or high risk a more robust LSI-R assessment. She indicated that she could provide more information on the instrument and the tentative rollout deadline. The DPP is moving quickly and may implement it before the deadline. Delegate Anderson asked why a sentencing assessment would be any different from the Division of Correction s (DOC s) or DPP s assessments. Ms. Sessa indicated that she was not in a position to answer that, but noted that the DOC assessment is required under the Justice Reinvestment Act. Dr. Soulé noted that a problem which has come up repeatedly is who would administer a sentencing risk assessment and at what point in the process prior to sentencing. The PSI report seems a logical place, but only a minority of guidelines cases involve PSIs. Dr. Soulé further noted that if the risk assessment were incorporated into the PSI, the assessment would only be available for a minority of cases, as judges generally only order PSIs for more serious offenses. Judge Avery noted that the DOC assessment is more targeted towards classification of the inmate for determining security level on the inside. For sentencing purposes the assessment would be looking at a different outcome. With respect to the PSI, Judge Avery noted that if PSIs were more relevant to judges, more judges would order them. Having a more valid and credible risk assessment would make them a lot more valuable, so judges would likely order them more often. Dr. Soulé noted that this might create resource problems for the parole and probation agents who complete the PSIs. Mr. Finci noted that the Guidelines Subcommittee and Commission originally recommended exploring a very narrow assessment option, only to opt out nonviolent (or low risk) offenders from incarceration in the first place. They felt this would have support from the judiciary and other stakeholders, but a broader tool would start impeding on judicial discretion and overgeneralizing people in ways that would be a much larger change. If people are now thinking of some broader tool, that is not what the Subcommittee considered and recommended. 4

6 MSCCSP Meeting Minutes May 10, 2016 Ms. Martin agreed, further noting that the original thought was that either the state or defense could score the tool, as with the guidelines. It would not be as comprehensive as a full risk and needs assessment, but, based on resource constraints, is a more realistic option. Senator Kelley asked whether the risk tool used for security classification, referred to by Judge Avery, could also identify services needed. Judge Avery responded that her understanding was that the LSI-R does identify needs. Judge Avery noted that sound public policy requires providing good information to judges, and in her opinion, tools like the LSI-R do not always take the idiosyncrasies of local communities into account. So if you want to look at someone at risk for violence, you might not look at the nonviolent drug offense for which he is currently facing conviction, but you might look at social characteristics of the person that are not necessarily quantifiable but that we know from localized research are part of the transactional violence around drug dealing. So all of it comes back to a PSI analysis rather than a risk assessment number that might be attractive in some ways, but might not be conveying the information to the judge that the judge needs to know. Senator Kelley suggested that given the paradigmatic changes of the Justice Reinvestment Act, waiting a couple of years for new data might make sense. Judge Harrell noted that this was not on the schedule as an action item for the current meeting, and that the new members should have a chance to review the materials and weigh in. But given how long the study has been ongoing, the Commission should move towards a decision sooner rather than later, i.e., over the course of the next meeting or meetings. 6. Juvenile Delinquency Score Project (Status report) Jinney Smith, Ph.D., Maryland Data Analysis Center Dr. Smith presented an update on and preliminary results from the juvenile delinquency score project. She began with an overview of the project (further detailed in the December 2015 meeting minutes). The project will require linking data from the Commission, from the Department of Juveniles Services (DJS), and DPSCS. In 2015 the Maryland Data Analysis Center (MDAC) applied for data from the DJS and the DPSCS. MDAC requested data from DJS in June 2015, completed a memorandum of understanding in February 2016, and DJS is now matching its data to Commission data. MDAC and DPSCS completed a memorandum of understanding in November 2015 and MDAC received the DPSCS data in May MDAC analyzed data from the Commission while working on obtaining data from DJS and DPSCS, and Dr. Smith presented preliminary results from those data, cautioning against drawing any firm conclusions in the absence of more detailed juvenile record data (from DJS) or recidivism data (from DPSCS). Dr. Smith was asked a question about how the data are matched. She explained that because of the highly sensitive nature of juvenile records, DJS is linking the data and will then return the combined data to MDAC for analysis after stripping out identifying information. Once they return the de-identified data, MDAC will be unable to confirm accuracy, but the DJS staff, Dr. Smith noted, seem to know what they are doing. The key person doing the linking is a UMD Criminology Ph.D. and former research director for the Commission. Because tens of thousands of records are involved, matching will take some time. Dr. Smith expressed her hope to be able to proceed to the next stage of the study by the end of 2016 and expects that MDAC will conclude the study during

7 MSCCSP Meeting Minutes May 10, 2016 The next stage of the study will be to deconstruct the juvenile delinquency score as recorded on the guidelines worksheet with the DJS data to analyze the juvenile delinquency score for its predictive validity and any problems. Depending on those findings, if the Commission decides that an alternate juvenile delinquency scoring system would improve the reliability and validity of the juvenile delinquency score, MDAC will be able to model and test new designs to construct and validate a new juvenile delinquency scoring system. Senator Kelley asked whether the data would contain status offenses. Judge Caroom noted that as a matter of statutory and case law, someone should never be committed for a status offense and so they should not show up in the juvenile record that would then contribute to the offender score and sentencing guidelines (unless a status offense and an ordinary offense happened to be sentenced at the same time). In response to questions from Delegate Anderson, Dr. Soulé noted that part of the project is to see whether people are scoring the juvenile delinquency correctly based on DJS data. Dr. Smith added that the third part of the study would address what kind of juvenile history to consider if the Commission decides to retain a juvenile delinquency record component. Other jurisdictions handle juvenile records in a variety of ways, e.g., only including commitments to a secure facility or of at least 30 days. Senator Kelley also suggested considering the level of poverty in cases. Juveniles with private counsel get private social workers and forensic investigators, for example, which children with public defenders do not receive. Delegate Anderson, however, noted that a public defender will often be far better versed in the juvenile justice system than a private attorney. Senator Kelley clarified that she was referring to resources available, not knowledge. Mr. Davis disagreed, asserting that the resources available to the Public Defender are greater than those for the private bar. He did agree, however, that poverty is an issue because kids may not have families to go back to, whereas a magistrate may be more inclined to send a child home if there is more support and resources available at the child s home. Senator Kelley responded that resources available to public defenders vary greatly from county to county. Judge Lewis noted that when looking at someone with prior commitments, she is more concerned with what the commitment is for, rather than the fact of the commitment. At sentencing she is interested in whether there is some indication of progression because that is what the public safety issue is for her. Dr. Soulé stated that the Commission will likely find that commitment is a poor measure to use. When the guidelines were created and then thoroughly revised by the Study Commission, detailed data on findings of delinquency were limited, so the guidelines used commitment as a proxy measure for seriousness of the record. Dr. Soulé indicated that he hopes this study will determine whether commitment is still a good measure, and if not, offer options for how to refine measurement. 7. Guidelines Subcommittee report Judge Shannon Avery Judge Avery reported on two proposals from the Guidelines Subcommittee. a. Review of criminal non-support and criminal contempt as guidelines offenses (Action item) Judge Avery referred to the memorandum with the subject line Whether to retain criminal 6

8 MSCCSP Meeting Minutes May 10, 2016 nonsupport and contempt as guidelines offenses, distributed prior to the meeting. These are atypical offenses and different counties handle them very differently. After discussion the Guidelines Subcommittee decided to recommend to exclude these offenses from the definition of guidelines offenses. The Commission unanimously approved a motion to exclude criminal non-support and criminal contempt from the guidelines offense definition. b. Review of Prior Adult Criminal Record Scoring Instructions (Action item) The Guidelines Subcommittee recommended excluding adjudications based on acts that were no longer criminal offenses and expunged or expungable adjudications from the prior adult criminal record. Delegate Anderson asked how the person preparing the guidelines would know that an adjudication was expunged or expungable. Ms. Martin indicated that the Subcommittee envisioned that the parties would take up with the judge whether a conviction was expungable. Mr. Finci noted that many people have expungable adjudications but have not expunged them, so the defense bar has the obligation to point out to the judge that they were expungable and should not go into the offender score. Judge Lewis noted that if someone has an open case and is facing sentencing, prior convictions are not expungable. Judge Avery indicated that the Guidelines Subcommittee would revisit that aspect of the proposal, but wanted to move forward with the aspect of the proposal concerning acts that are no longer crimes. (NB: The current language refers to convictions that were expunged or eligible for expungement at the time of the instant offense, not at the current sentencing event.) The Commission unanimously approved a motion to exclude adjudications based on acts that are no longer crimes from the prior adult criminal record and additional minor clarifying stylistic changes to the Maryland Sentencing Guidelines Manual and corresponding COMAR provisions. 8. Executive Director Report David Soulé, Ph.D. and Stacy Najaka, Ph.D. a. Update on SB 1005 (Justice Reinvestment Act) and impact on MSCCSP (Status report) Dr. Soulé gave a presentation to update the Commission on the Justice Reinvestment Act (JRA) as it relates to the Commission. In preparation for the presentation, each Commissioner was sent a memorandum titled Justice Reinvestment Act Summary and Impact on the MSCCSP. The JRA is one of the most substantial and wide-ranging criminal justice-related legislations to ever pass in Maryland. The JRA mandates change across multiple areas in the criminal justice system, ranging from pre-trial detention through reentry and completion of supervision. SB 602 of 2015 created the Justice Reinvestment Coordinating Council (JRCC). The JRCC consisted of an inter-branch and bipartisan group of criminal justice stakeholders including representatives from the General Assembly, the Judiciary, prosecutorial and defense bars, local and state corrections, law enforcement, and reentry services. The Pew Charitable Trusts provided technical services in analyzing the data with respect to Maryland s correctional populations. Pew also helped guide the framework for recommendations to reduce the number of inmates in Maryland prisons, control state spending on prisons, and to reinvest those savings into more effective strategies to increase public safety, and at the same time help offenders avoid returning to prison. The JRCC submitted a final report in December 2015 with 19 recommendations and those recommendations helped form the basis for the JRA of

9 MSCCSP Meeting Minutes May 10, 2016 The JRA includes three mandates for the Commission. In Section 3, the JRA creates the Justice Reinvestment Oversight Board within the GOCCP. The Board is charged with, among other things, monitoring progress and compliance with the implementation of the recommendations from the JRA. In an effort to inform the Board s charge to monitor compliance with the Act, the first mandate on the MSCCSP is, in collaboration with DPSCS, the Parole Commission, and the Judiciary, to create performance measures to track and assess the outcomes of the laws related to the recommendations of JRCC. The second mandate requires each county, DPSCS, the Parole Commission, the Administrative Office of the Courts, and the Commission to semiannually: collect and report data to the Board that is disaggregated by race and ethnicity in order for the Board to perform its duties under State Government Article, Section The data reporting required in this second mandate includes seven data elements (noted on pages 2-3 of the memorandum). Among the seven data reporting elements outlined in the statute, the Commission, through data collected via the sentencing guidelines worksheet, only has access to a limited sample of cases for two out of the seven data elements. Specifically, the Commission maintains data for sentence length for guidelines offenders and amount of restitution ordered, when reported for guidelines offenders. Accordingly, it seems likely the majority of the data required by this mandate will need to be provided by agencies other than the Commission. The third mandate requires the Commission to study how more alternatives to incarceration may be included in the sentencing guidelines and submit a report on these findings and recommendations to the Board, Governor, and General Assembly by January 1, No further specifics about the required study were included in the legislation. A second group of JRA provisions affecting the Commission are those that explicitly or implicitly impact the Commission. While not a mandate within the legislation, these provisions will require substantial attention from the Commission. Numerous penalty revisions will require the MSCCSP to review these changes and determine if and how the seriousness categories for these various offenses should be revised. There are also provisions of the JRA that do not directly affect the Commission, but may provide opportunities for the Commission. The JRA requires the DOC and the DPP to implement a risk screener and full risk-needs assessment for those sentenced to the DOC, as well as for each person assigned to probation, parole, or mandatory supervision. Although the risk screener and the more comprehensive risk-needs assessment will occur after sentencing, it is quite possible that the post-sentence implementation of these instruments will help inform the Commission s ongoing Risk Assessment Feasibility Study. Similarly, the Commission may be able to benefit from the Section 5 mandate requiring the GOCCP to complete a gap analysis between offender treatment needs and available services. This GOCCP report is due on December 31, 2016, and therefore should help inform the Commission s mandate to complete a study on alternatives to incarceration (due on January 1, 2018) as there will seemingly be overlap in these two reports. In summary, there are four primary activities required of the Commission due to the JRA. To assist with organizing the various required actions, MSCCSP staff drafted a rough and tentative timetable for Commission activity. The first action required will be those relating to collaborating with the Justice Reinvestment Oversight Board and other agencies to develop performance measures to track and assess the outcomes of the laws related to the recommendations. The Commission start date for these activities is to be determined at this 8

10 MSCCSP Meeting Minutes May 10, 2016 point as the JRA does not provide a specific deadline for creating these measures. However, the requirement for the Board to meet quarterly and submit a status report by January 1, 2017, suggests that Board will likely be established relatively quickly. The second action required of the Commission is to begin reporting data to the Board in order for the Board to perform its duties under SG, Since the Commission has limited access to only a few of the data listed in SG, , other agencies will likely need to take the lead on providing most of the data to the Board. Judge Harrell asked if anyone had any insight into when the Justice Reinvestment Oversight Board would be operational. Judge Caroom noted that the JRCC would expire, but while it still exists, the members will meet in May to discuss the time frame for the new Justice Reinvestment Oversight Board. Judge Harrell noted that he and Dr. Soulé would be meeting in the next few weeks to discuss the Commission s role, particularly in the collaborative tasks. Senator Kelley suggested asking Governor Hogan to increase Commission resources to fulfill the JRA s requirements. Judge Caroom asked whether the Commission would have any involvement with respect to the new limits for parole or probation violations. Dr. Soulé responded that the Commission does not currently have a role in that. Collecting worksheets for violations would more than double the guidelines worksheets the Commission receives, and the current guidelines would not inform decisions concerning violations. Senator Kelley added that the Commission is not part of the operational corrections system; the Commission s records concern the voluntary sentencing guidelines. Mr. Finci expressed concern about the delay in the penalty changes, which do not go into effect until October He would like to prioritize publicizing what the changes will be to the guidelines. Others expressed disagreement. Judge Harrell noted that once he and Dr. Soulé meet and develop a proposed work schedule, if people believe certain tasks should take priority, within resources, the Commission can consider reprioritizing then. b. Implementation of revisions to sentencing matrix for certain drug offenses (Status report) Dr. Najaka noted that the previously approved changes to the intersecting cells corresponding to seriousness category IV and V drug offenses would go into effect July 1, On June 1 the Commission will release a new version of the Maryland Sentencing Guidelines Manual with the revised matrix and updated sample cases. A Guidelines E-News with the changes and a link to the new manual will also be distributed. Also on June 1 a new version of MAGS will ask users whether sentences in cases in affected categories will occur on or after July 1. Responses will dictate which version of the drug offense matrix MAGS uses. c. Update on MAGS (Status report) Dr. Najaka noted that in addition to incorporating the drug offense changes (see item 8(b) above), the June 1 MAGS release will include new information icons and will allow judges and their designees to view, print, and save.pdf versions of submitted worksheets. 9

11 MSCCSP Meeting Minutes May 10, 2016 Since the Commission s last meeting Cecil and Harford Counties have deployed MAGS (on January 1 and April 1, 2016, respectively), bringing the total to eight jurisdictions. Baltimore County is scheduled to be the next jurisdiction to implement MAGS on October 1. d. Introduction of undergraduate intern Dr. Soulé introduced Kwame Apea, a University of Maryland student who has interned with the Commission during the spring 2016 semester, and expressed the Commission s appreciation for Mr. Apea s contributions and hard work. 9. Date, time, and location for next three 2016 meetings The Commission reviewed options for the remaining 2016 meeting dates and selected the following options: a. Tuesday, July 12, 2016; b. Tuesday, September 20, 2016; and c. Tuesday December 13, Old business None. 11. New business and announcements None. The meeting adjourned at 7:50 p.m. 10

12 Maryland State Commission on Criminal Sentencing Policy Date: Tuesday, July 12, 2016 MSCCSP MEETING Time: Location: 5:30 7:30 pm (dinner to be served starting at 5:00 pm) Judiciary Education and Conference Center Training Rooms 1 & 2 (lower level) 2009D Commerce Park Drive Annapolis, MD Call to order 2. Declaration of quorum AGENDA 3. Approval of minutes from May 10, 2016 MSCCSP meeting 4. Continued review of risk assessment feasibility study a. Presentation from Joseph Clocker, Acting Director, and Tia Brunson, Program Manager, Maryland Division of Parole & Probation (Status report) b. Begin actuarial assessment decision map process (Action item) 5. Guidelines Subcommittee Report Judge Shannon Avery a. Proposed classification of new/revised offenses with October 1, 2016 enactment dates (Action item) b. Proposed classification of select unclassified existing offenses punishable with more than 1 year of incarceration (Action item) c. Revisiting prior adult criminal record instructions and expungement (Action item) 6. Executive Director Report Dr. David Soulé a. Proposed 12 month activity schedule for MSCCSP (Status report) b. Presentation of proposal for study on alternatives to incarceration (Action item) 7. Next meeting September 20, 2016, Conference Room 2 (upper level), Judiciary Education and Conference Center 8. Old business 9. New business and announcements a. Richard Finci Request to consider whether sex offender registration should be counted as criminal justice involvement for purposes of determining application of criminal record decay factor (Request for future review) 4511 Knox Road, Suite 309 College Park, MD (301) / phone (301) / fax

13 MSCCSP Meeting Minutes July 12, 2016 Minutes Maryland State Commission on Criminal Sentencing Policy Judiciary Education and Conference Center Annapolis, MD July 12, 2016 Commission Members in Attendance: Honorable Glenn T. Harrell, Jr., Chair Honorable Shannon E. Avery, Vice-Chair Senator Robert G. Cassilly LaMonte E. Cooke Honorable Brian L. DeLeonardo Paul B. DeWolfe, Esquire Barbara Dorsey Domer Elizabeth Embry, Esquire, representing Attorney General Brian E. Frosh Richard A. Finci, Esquire Brian D. Johnson, Ph.D. Senator Delores G. Kelley Honorable Patrice E. Lewis Colonel William M. Pallozzi Honorable James P. Salmon Delegate Joseph F. Vallario, Jr. J. Michael Zeigler, representing Secretary Stephen T. Moyer Staff Members in Attendance: Justin Bernstein Sarah Bowles Katharine Pembroke David Soulé, Ph.D. Visitors: Hon. Philip Caroom, Judiciary Risk Assessment Advisory Group; Linda Forsyth, Community Liaison for Senator Kelley; Claire Rossmark, Department of Legislative Services; Hon. Michael Whalen, Judiciary Risk Assessment Advisory Group; Webster Ye, Assistant to Delegate Vallario. 1. Call to order Judge Harrell called the meeting to order at 5:30 p.m. 2. Declaration of quorum Judge Harrell declared a quorum. 3. Approval of minutes from May 10, 2016 MSCCSP meeting The Commission approved the minutes as submitted. 1

14 MSCCSP Meeting Minutes July 12, Continued review of risk assessment feasibility study a. Presentation from Joseph Clocker, Acting Director, and Tia Brunson, Project Manager, Maryland Division of Parole & Probation (Status report) Judge Harrell noted that Joseph Clocker was unable to attend or send a surrogate. b. Begin actuarial assessment decision map process (Action item) Judge Harrell noted that the MSCCSP staff had responded, in a handout distributed in advance of the current meeting, to the questions received following a solicitation at the May 10 meeting for questions that members felt required addressing to make a decision about the next step in the process. Judge Harrell referred the Commission to the decision tree document distributed in advance of the meeting and reviewed the four options presented. He noted that several of the downstream questions under Option 4 (implement an actuarial assessment) might influence which option the Commission adopts. Senator Kelley moved in favor of Option 2 (wait and see) in light of the various assessments that the Department of Public Safety and Correctional Services (DPSCS) will be implementing pursuant to the Justice Reinvestment Act (JRA). Senator Cassilly seconded the motion. Judge Avery indicated her support for the motion, asserting that from the point of view of the circuit court, a shift in the Commission s vision to an educational role would be more useful than having two instruments operating at the same time. She believes the judiciary would welcome educational material that might relate to research and data focusing on public safety and risk, to allow for balancing of different sentencing considerations. Trying to reinvent the wheel by developing its own instrument does not make sense to her at this point, she said. Mr. Finci also supported a wait and see approach based on the changes, both structural and attitudinal, from the JRA. Mr. Finci stated the Commission should wait and see where the Justice Reinvestment process leads before interjecting a risk assessment tool into sentencing. Mr. Zeigler indicated that the Division of Parole and Probation would share its results and data with the Commission related to the JRA risk instruments. Dr. Johnson also expressed support for waiting, for efficiency purposes. He stated the Commission should try to learn from other agencies processes, and at some point in the future, if the Commission is able to work with DPSCS to provide an assessment that would be much more efficient than developing a separate tool. Judge Caroom agreed that judges need more training, and agreed that it made sense for the Commission not to try to reinvent the wheel while DPSCS is in the process of implementing a family of assessment instruments. He suggested that the Commission affirmatively seek out a partnership with DPSCS. Judge Caroom asserted it could benefit the public and allow all to do their jobs better if a low risk screener can identify those for whom incarceration or intensive treatment will increase the probability of recidivism. If DPSCS could give the Commission or judges a low risk screener as part of a presentencing investigation report, which would use the same data and LSI-R suite of screeners, that screener could be integrated into a standard or shorter presentencing investigation report. The guidelines could 2

15 MSCCSP Meeting Minutes July 12, 2016 include a provision to the effect of notwithstanding the offender score, if someone screens as low risk to recidivate (and more likely to do so if incarcerated), not incarcerating the person is a guidelines compliant sentence. He further noted that DPSCS does not want someone under its jurisdiction that does not belong there, but DPSCS does not have a chance for input before sentencing unless asked for it. Mr. Cooke asked Judge Caroom about the effect on local correctional agencies. Judge Caroom stated that if implemented by DPSCS as part of an updated and more systematic presentencing investigation report, he did not think his suggestion would affect county budgets at all. The data needed for a low risk screener may be available entirely online without needing an interview, so DPSCS may be able to do that from headquarters without local involvement. If the Division of Correction (DOC) is going to be screening everyone coming into its system, and is going to identify low risk people, if it were able to identify before sentencing someone who appears headed to the DOC, why not make it a part of the sentencing guidelines process. Senator Kelley stated that additional infrastructure might not be necessary, but we might need to make greater use of the historical record to find predictors, such as when and how someone first entered the justice system. She asked Mr. Zeigler to keep the Commission informed as it progresses through various decision points. Judge Harrell indicated that this was what he understood Judge Caroom to be saying, that the Commission engage with DPSCS and DOC as it goes through its process to see how the Commission can help and how the Commission can avoid redundancy. He noted that the seconded motion at this point was Option 2 (wait and see), which did not mean that the matter was resolved, but rather that it would return. He stated that the Commission would engage with DPSCS and the DOC in the meantime and at an appropriate time the Commission will try to have Mr. Clocker or another appropriate person keep the Commission posted on how it evolves. The motion passed without opposition. 5. Guidelines Subcommittee report Judge Shannon Avery Judge Avery noted the Commission s charge to review and assign seriousness categories to criminal offenses. She reported that the Guidelines Subcommittee reviewed new and revised offenses at its June 30 teleconference. She referred the Commissioners to memoranda distributed in advance of the meeting and asked Dr. Soulé to review the Subcommittee s recommendations for the Commission. a. Proposed classification of new/revised offenses with October 1, 2016 enactment dates (Action item) The Commission reviewed the offenses on the first six pages of the memorandum individually. i. Chapters 456 & 457 (SB 969 & HB 1236) - Motor Vehicle Offense - Knowingly sell, offer, install, reinstall, import, misrepresent, etc., a counterfeit, nonfunctional, or no airbag (TR, ). The Commission adopted the Guidelines Subcommittee s recommendation to categorize the offense as a property offense with seriousness category VI, without opposition. 3

16 MSCCSP Meeting Minutes July 12, 2016 ii. Chapter 478 (HB 188) - Surveillance and Other Crimes Against Privacy - Unauthorized disclosure of information obtained or generated by examining licensed persons, etc. (FI, 2-117). The Commission adopted the Guidelines Subcommittee s recommendation to categorize the offense as a property offense with seriousness category VI, without opposition. Chapter 478 (HB 188) - Surveillance and Other Crimes Against Privacy - Unauthorized disclosure of information obtained or generated by examining banking institutions and credit unions, etc. (FI, ). The Commission adopted the Guidelines Subcommittee s recommendation to categorize the offense as a property offense with seriousness category VI, without opposition. iii. Chapters 517 & 518 (SB 160 & HB 157) - Manslaughter and Related Crimes - Manslaughter by vehicle or vessel, subsequent (CR, 2-209(d)(2)). The Commission adopted the Guidelines Subcommittee s recommendation to categorize the offense as a person offense with seriousness category III, with three votes in opposition. Chapters 517 & 518 (SB 160 & HB 157) - Manslaughter and Related Crimes - Criminally negligent manslaughter by vehicle or vessel, subsequent (CR, 2-210(f)(2)). The Commission adopted the Guidelines Subcommittee s recommendation to categorize the offense as a person offense with seriousness category V, with three votes in opposition. Chapters 517 & 518 (SB 160 & HB 157) - Manslaughter and Related Crimes - Negligent homicide by vehicle or vessel while under the influence of alcohol, subsequent (CR, 2-503(c)(2)). The Commission adopted the Guidelines Subcommittee s recommendation to categorize the offense as a person offense with seriousness category IV, with three votes in opposition. Chapters 517 & 518 (SB 160 & HB 157) - Manslaughter and Related Crimes - Negligent homicide by vehicle or vessel while impaired by alcohol, drugs, or CDS, subsequent (CR, 2-504(c)(2); CR, 2-505(c)(2); CR, 2-506(c)(2)). The Commission adopted the Guidelines Subcommittee s recommendation to categorize the offense as a person offense with seriousness category V, with three votes in opposition. Chapters 517 & 518 (SB 160 & HB 157) - Assault and Other Bodily Woundings - Cause a life threatening injury by motor vehicle or vessel while under the influence of alcohol, subsequent (CR, 3-211(c)(3)(ii)). The Commission adopted the Guidelines Subcommittee s recommendation to categorize the offense as a person offense with seriousness category V, with two votes in opposition. Chapters 517 & 518 (SB 160 & HB 157) - Assault and Other Bodily Woundings - Cause a life threatening injury by motor vehicle or vessel while impaired by alcohol, subsequent (CR, 3-211(d)(3)(ii)). The Commission adopted the Guidelines Subcommittee s recommendation to categorize the 4

17 MSCCSP Meeting Minutes July 12, 2016 offense as a person offense with seriousness category V, with two votes in opposition. Chapters 517 & 518 (SB 160 & HB 157) - Assault and Other Bodily Woundings - Cause a life threatening injury by motor vehicle or vessel while impaired by drugs, subsequent (CR, 3-211(e)(3)(ii)). The Commission adopted the Guidelines Subcommittee s recommendation to categorize the offense as a person offense with seriousness category V, with two votes in opposition. Chapters 517 & 518 (SB 160 & HB 157) - Assault and Other Bodily Woundings - Cause a life threatening injury by motor vehicle or vessel while impaired by a controlled dangerous substance, subsequent (CR, 3-211(f)(4)(ii)). The Commission adopted the Guidelines Subcommittee s recommendation to categorize the offense as a person offense with seriousness category V, with two votes in opposition. With respect to Chapters 517 & 518, Dr. Soulé noted that the Guidelines Subcommittee had asked whether the Commission typically provides a separate and more stringent classification for subsequent offender sentencing enhancements, and Dr. Soulé stated that the Commission s usual practice was to provide a step-up in classification when the statute provides for increased enhanced sentences. Delegate Vallario expressed concern that increasing the severity for subsequent offenders will penalize the defendant twice for a prior conviction through both the prior adult criminal record and the enhanced seriousness category. Mr. Finci asked whether the guidelines require simply that the person has a prior conviction or also a notice that the person is a subsequent offender. Judge Lewis replied that as a matter of law, without a notice a judge cannot sentence a defendant under a subsequent offender provision, which would then trigger the enhanced seriousness category. Judge Avery stated that the increased seriousness category reflects the statutory scheme. Manslaughter by motor vehicle or vessel as a first offense has a seriousness category IV, and so the Guidelines Subcommittee was recommending that the subsequent offense have a seriousness category III. This is consistent with the Commission s prior practice. iv. Chapters 199 & 200 (SB 393 & HB 490) Fraud, Miscellaneous - Violate certain provisions of Health Occupations Article, Title 8 (Nurses), Subtitle 7 (Prohibited Acts; Penalties) (HO, 8-710). The Commission adopted the Guidelines Subcommittee s recommendation to categorize the offense as a person offense with seriousness category VI, without opposition. The Commission followed the recommendation of the Guidelines Subcommittee to take no action with respect to the offenses on the remaining 16 pages of the memorandum. These were either new offenses that provide for no more than one year of incarceration or existing offenses amended in ways that did not change the penalty structure of the offense. By Commission rule, any offense providing for no more than one year of incarceration automatically receives a seriousness category VII (COMAR B(2)(f)) unless the 5

18 MSCCSP Meeting Minutes July 12, 2016 Commission chooses to adopt a different seriousness category. By taking no action on these new offenses, the Commission allowed the default rule to take effect. For the existing offenses amended in ways not substantively relevant to the sentencing guidelines, some nonsubstantive changes to COMAR and the Guidelines Offense Table will nevertheless be necessary to reflect, e.g., changes to subsection designations. The new and revised offenses on which the Commission took no action are: v. Chapter 96 (HB 131) - Consumer Protection Laws - Threaten or seek enforcement of nondisparagement provision in a contract or penalize consumer for making a protected statement (CL, ; CL, (penalty))). vi. vii. viii. ix. Chapter 485 (HB 439) - Consumer Protection Laws Door-to-door sales unfair or deceptive trade practices (CL, ; CL, ; CL, (penalty))). Chapter 513 (HB 409) Public Health & Safety, Crimes Against Adult providing alcohol to a person under 21 when adult knew or reasonably should have known the person under 21 would drive, resulting in death or serious injury (Alex & Calvin s Law) (CR, (d); CR, (c)). Chapter 546 (SB 283) Animals, Crimes Against Possess implement of dogfighting with intent to unlawfully use (CR, ). Chapter 739 (HB 1420) Fraud, Miscellaneous Practicing massage therapy without a license or registration or misrepresentation as a practitioner of massage therapy, subsequent (HO, 6-504). x. Chapter 4 (SB 517/15) & CH 514 (HB 565) - CDS and Paraphernalia - Possession unlawful possession or administering to another, obtaining, etc., substance or paraphernalia by fraud, forgery, misrepresentation, etc.; affixing forged labels; altering etc., label; unlawful possession or distribution of controlled paraphernalia marijuana (CR, 5-601(c)(2)(i); CR, 5-620(d)(2)). Chapter 4 (SB 517/15) - CDS and Paraphernalia - Paraphernalia use or possession, with intent to use, subsequent (CR, 5-619(c)(3)(ii)). xi. xii. Chapter 6 (HB 980/15) Election Offenses Voting by person convicted of a felony and currently serving a court-ordered sentence of imprisonment (EL, ). Chapter 41 (SB 724) Alcoholic Beverages Intoxicated and endanger safety of person or property; or intoxicated or drink alcoholic beverage in public place and cause public disturbance (AB, 6-320). Chapter 41 (SB 724) Alcoholic Beverages County-specific provisions concerning giving, serving, dispensing, keeping, or allowing alcoholic beverages without license; bottle clubs; places of public entertainment-anne 6

19 MSCCSP Meeting Minutes July 12, 2016 Arundel, Baltimore, Calvert, Caroline, Charles, Dorchester, Frederick, Kent, Prince George s, Queen Anne s, Somerset, Talbot, Wicomico, or Worcester Counties, or Baltimore City (AB, ; AB, ; AB, ; AB, ; AB, ; AB, ; AB, ; AB, ; AB, ; AB, ; AB, ; AB, ; AB, ; AB, ; AB, ). Chapter 41 (SB 724) Fraud, Miscellaneous Out-of-State unlicensed sellers of alcohol (AB, 6-326). xiii. Chapter 370 (SB 285) Fraud Miscellaneous Act as a contractor without a license, 1st offense (BR, 8-601). Chapter 370 (SB 285) Fraud Miscellaneous Act as a contractor without a license, subsequent (BR, 8-601). xiv. Chapters 532 & 533 (SB 156 & HB 98) Influencing or Intimidating Judicial Process Retaliation for testimony, reporting a crime, performance of juror s or officer of the court s duties (CR, 9-303(c)(1)). Chapters 532 & 533 (SB 156 & HB 98) Influencing or Intimidating Judicial Process Retaliation for testimony, reporting a crime, performance of juror s or officer of the court s duties, related to felony violation of Title 5 offense or crime of violence (CR, 9-303(c)(2)). xv. Chapters 536 & 537 (SB 178 & HB 493) Extortion and Other Threats Felony Extortion by anyone, $100,000 or greater (CR, 3-701(c)(3)). Chapters 536 & 537 (SB 178 & HB 493) Extortion and Other Threats Felony Extortion by anyone, at least $10,000 but less than $100,000 (CR, 3-701(c)(2)). Chapters 536 & 537 (SB 178 & HB 493) Extortion and Other Threats Felony Extortion by anyone, at least $1,000 but less than $10,000 (CR, 3-701(c)(1)). Chapters 536 & 537 (SB 178 & HB 493) Extortion and Other Threats Misdemeanor Extortion by anyone, less than $10,000 (CR, 3-701(d)). xvi. Chapters 544 & 545 (SB 278 & HB 155) Stalking and Harassment Stalking (CR, 3-802). xvii. Chapter 612 (HB 121) False Statements, Other False Statement rumor as to bomb (CR, 9-504(b)). xviii. Chapter 629 (HB 751) Sexual Crimes Sexual contact with inmates in correctional and juvenile facilities or with person ordered to obtain services (CR, 3-314). 7

20 MSCCSP Meeting Minutes July 12, 2016 xix. xx. Chapter 633 (HB 822) Sexual Crimes Rape, 2 nd degree (CR, 3-304(c)(1)). Chapter 633 (HB 822) Sexual Crimes Sex Offense, 2 nd degree (CR, 3-306(c)(1)). Chapter 633 (HB 822) Sexual Crimes Sex Offense, 3 rd degree (a)(1) employ or display a dangerous weapon, etc.; (a)(2) with substantially cognitively impaired, mentally incapacitated, or physically helpless individual(cr, 3-307(a)(1); CR, 3-307(a)(2)). b. Proposed classification of select unclassified existing offenses punishable with more than 1 year of incarceration (Action item) Dr. Soulé noted that from time to time MSCCSP staff become aware of an offense allowing for more than one year of incarceration that the Commission has not previously categorized. Judge Avery noted the Guidelines Subcommittee had distinguished between offenses based on the culpable mental states involved. xxi. xxii. Election Offenses Violation of any provision of Subtitle 3 (Absentee Voting) of Title 9 (Voting) of Election Law Article (EL, 9-312). The Commission adopted the Guidelines Subcommittee s recommendation to categorize the offense as a property offense with seriousness category VII, without opposition. Election Offenses Voter registration offenses (EL, ). The Commission adopted the Guidelines Subcommittee s recommendation to categorize the offense as a property offense with seriousness category VII, without opposition. xxiii. Election Offenses Tamper, damage, or prevent correct operation of voting equipment (EL, ). The Commission adopted the Guidelines Subcommittee s recommendation to categorize the offense as a property offense with seriousness category VI, without opposition. Election Offenses Remove, deface, or destroy equipment or supplies placed in polling place by election officials (EL, ). The Commission adopted the Guidelines Subcommittee s recommendation to categorize the offense as a property offense with seriousness category VI, without opposition. xxiv. Election Offenses Neglect of official duties by election official or official of political party (EL, ). The Commission adopted the Guidelines Subcommittee s recommendation to categorize the offense as a property offense with seriousness category VII, without opposition. xxv. Election Offenses Unlawful actions by an election judge (EL, ). The Commission adopted the Guidelines Subcommittee s recommendation to categorize the offense as a property offense with seriousness category VII, without opposition. 8

21 MSCCSP Meeting Minutes July 12, 2016 xxvi. Election Offenses Falsely or fraudulently making, defacing, or destroying a certificate of candidacy or nomination (EL, ). The Commission adopted the Guidelines Subcommittee s recommendation to categorize the offense as a property offense with seriousness category VI, without opposition. xxvii. Boating Offenses Operate a vessel while under the influence of alcohol, 1st offense (NR, 8-738(e)(1)(i)). The Commission adopted the Guidelines Subcommittee s recommendation to categorize the offense as a person offense with seriousness category VII, without opposition. Boating Offenses Operate a vessel while under the influence of alcohol, 2 nd offense (NR, 8-738(e)(1)(ii)). The Commission adopted the Guidelines Subcommittee s recommendation to categorize the offense as a person offense with seriousness category VI, without opposition. Boating Offenses Operate a vessel while under the influence of alcohol, 3 rd or subsequent offense (NR, 8-738(e)(1)(iii)). The Commission adopted the Guidelines Subcommittee s recommendation to categorize the offense as a person offense with seriousness category V, without opposition. c. Revisiting prior adult criminal record instructions and expungement (Action item) Judge Avery noted that at its May 10, 2016, meeting, the Commission voted to make several changes to the scoring instructions for the prior adult criminal record. That discussion tabled certain other changes related to scoring expunged adjudications. After further discussion and in keeping with the spirit of the JRA, the Guidelines Subcommittee was now re-recommending the proposed change, which would exclude from the prior adult criminal record all adjudications that were expunged from the record or proven by the defense to have been eligible for expungement prior to the date of the current offense. Under existing Commission rules, the prior adult criminal record excludes only expunged and expungable probations before judgment or convictions under the Federal Youth Corrections Act. Senator Cassilly noted that while some adjudications are eligible for expungement as a matter of statutory right, others may require a hearing and judicial determinations that giving due regard to the nature of the crime, the history and character of the person seeking expungement, and the person seeking expungement s success at rehabilitation, that the person is not a risk to public safety; and that an expungement would be in the interest of justice. He asked whether the proposed amended instructions meant to include both categories (i.e., if eligible for expungement included adjudications where a state s attorney might have objected and a judge might have denied a petition, if the defendant had filed a petition) and whether they should do so. Judge Avery stated that they were referring to offenses that are expungable as a matter of statutory right. Mr. Finci noted that all the amendment is saying is that if, for example, at criminal court sentencing for a new offense, a person had a prior probation before judgment for drug possession, three years had passed by the date of the new offense, but the person had never 9

22 MSCCSP Meeting Minutes July 12, 2016 gotten around to expunging the adjudication, the sentencing guidelines would not include the old adjudication in the prior adult criminal record for the new case. Senator Cassilly expressed concern that as worded, the eligible for expungement proposed language would include any adjudications where the petitioner could have petitioned for expungement, without requiring a showing from the defense attorney that at the time of the offense the old adjudication was automatically expungable. Judge Salmon moved to amend the suggested revisions to add as a matter of right after the words proven by the defense to have been eligible for expungement and before the words prior to the date of offense to clarify that the provision only referred to those adjudications already expunged or eligible for expungement as a matter of right. The Commission approved the following amended language for the instructions in 7.1C of the Maryland Sentencing Guidelines Manual, and corresponding changes to COMAR B(3)(a)(i): Except as noted in this paragraph below, the prior adult criminal record includes all adjudications preceding the current sentencing event, whether the offense was committed before, during, or after the instant offense(s). [Unless expunged from the record or proven by the defense to have been eligible for expungement prior to the date of offense pursuant to CP, to ,] The prior adult criminal record shall not include: i. [PBJs and convictions under the Federal Youth Corrections Act (FYCA) shall be included.] adjudications that were expunged from the record or proven by the defense to have been eligible for expungement as a matter of right prior to the date of offense pursuant to CP, to Note: Text enclosed in [bolded square brackets] deleted from current text. Bolded underlined text added to existing text. Struckthrough text deleted from original amendment. 6. Executive Director Report Dr. David Soulé a. Proposed 12 month activity schedule for MSCCSP (Status report) At the May 10, 2016, Commission meeting questions arose regarding the timeline for when the Commission would review the classification of offenses with penalty structures affected by the JRA taking effect October 1, In light of these questions, and considering the other additional requirements for the Commission in the JRA, Judge Harrell and Dr. Soulé agreed to draft a proposed activity schedule for the Commission for the next 12 months. Dr. Soulé presented this schedule for review by the Commission, referring to a document with the title Proposed Staff and Board MSCCSP Activity Schedule for the Next 12 Months, distributed in advance of the meeting. Much of the schedule is driven by mandates from the JRA and does not include many of the routine activities that the Commission addresses on a regular basis. The schedule also notes a funding consideration. In light of the additional responsibilities, Judge Harrell and Dr. Soulé discussed requesting additional funds starting in FY 2018 to 10

23 MSCCSP Meeting Minutes July 12, 2016 expand the hours for the policy analyst position. The Commission currently has a staff with 4.3 positions. This includes 4 full-time staff and 1 part-time policy analyst who works 20 hours per week for 9.5 months per year (which roughly equals one-third of the hours of a full-time position). The MSCCSP staff would like to expand the policy analyst position to cover all 12 months and provide 40 hours per week during the 2.5 month summer period. This minor staff addition would be helpful particularly for completing the study mandated by the JRA concerning alternatives to incarceration. Dr. Soulé noted that further staff considerations depend on the JRA mandates concerning work with the Justice Reinvestment Oversight Board. Dr. Soulé asked whether anyone present had any questions or comments concerning the proposed schedule and funding request. Senator Kelley suggested submitting the request early. She also noted that the MSCCSP staff may need to expand its research capabilities. Judge Harrell noted that the Commission has a seat at the table and Dr. Soulé would be present when those involved meet to discuss allocation of the JRA responsibilities between agencies and the Justice Reinvestment Oversight Board, and will make sure the Commission s voice is heard. He also stated that expanding the policy analyst position will help the Commission across the board, not limited to addressing the JRA requirements. b. Presentation of proposal for study on alternatives to incarceration (Action item) Section 8 of the JRA requires the Commission to study how more alternatives to incarceration may be included in the sentencing guidelines and submit a report of the findings and recommendations to the Justice Reinvestment Oversight Board, Governor, and General Assembly by January 1, This requirement derived largely from evidence cited in the Justice Reinvestment Coordinating Council s Final Report that indicated lengthy prison sentences have little impact on recidivism and more specifically that the most effective response to drug addiction and drug-related crimes includes, among other things, alternative sentencing to divert nonviolent drug offenders from costly incarceration to evidence-based supervision. The Justice Reinvestment Coordinating Council s Final Report went on to note that many sentencing guidelines recommendations call for incarceration sentences even for lower-level, nonviolent offenses and that in order to impose an alternative to incarceration, judges must sentence outside of the guidelines. That last statement was misleading because the sentencing guidelines, by rule, deem sentences to corrections options programs as guidelines compliant sentences (for cases not including a crime of violence, child sexual abuse, or escape) provided that the initial sentence plus any suspended sentence, falls within or above the applicable guidelines range. Regardless of the potential misconceptions about the sentencing guidelines, the Commission is now required to conduct a study on how more alternatives may be included in the sentencing guidelines. Accordingly, the MSCCSP staff drafted a basic outline for the proposed study that Dr. Soulé presented for the Commission s review. First, the outline proposes that the study will review the history of corrections options in Maryland with respect to the sentencing guidelines. The next step is to address the current state of corrections options in Maryland with respect to the sentencing guidelines. MSCCSP staff would complete an inventory of sentencing alternatives available to circuit court judges. This would briefly recap previous attempts to inventory corrections options, use the gap 11

24 MSCCSP Meeting Minutes July 12, 2016 analysis required of the GOCCP by December 31, 2016, and rely on a survey of each county s circuit administrative judge to assess what alternative sentencing options are available in each jurisdiction. Lastly, the study would look at information on other states and the federal system to learn if and how alternatives to incarceration are incorporated in their sentencing guidelines in their respective jurisdictions and how that information can inform decisions in Maryland. Dr. Soulé noted that he would like input from the Commissioners on the best way to proceed with the inventory process. The Commission has completed similar inventories in the past and they have been tedious to complete. Dr. Soulé spoke with Kelley O Connor in the Judiciary and Gray Barton, the Director of the Office of Problem Solving Courts, to solicit input with respect to surveying the circuit court county administrative judges. Ms. O Connor indicated that her office would be willing to send out a survey on the Commission s behalf, but also suggested that the Commission run the survey by Judge Rattal, as Chair of the Specialty Courts Committee, for his input before distributing it. It was also noted that it would be helpful if the Commission could narrow down the field in terms of what types of alternatives the Commission is seeking to identify. The JRA does not define alternatives to incarceration, so as a first step, Dr. Soulé indicated that he would like Commissioner input on the scope of alternatives to be addressed by the survey of circuit court judges and the larger report, keeping in mind the types of alternatives that could reasonably be included in the guidelines. For example, an alternative to incarceration could seemingly range from something as simple as a fine to more restrictive alternatives, such as residential substance abuse treatment. There are a large variety of programming services available within that continuum and they vary tremendously by jurisdiction in terms of eligibility criteria, supervision, duration, and a whole host of other criteria. Dr. Soulé noted the sentencing guidelines current definition of corrections options, which refers to home detention; a corrections options program under law which requires the individual to participate in home detention, inpatient treatment, or other similar programs involving terms and conditions that constitute the equivalent of confinement; inpatient drug or alcohol counseling under Health General Article (HG), Title 8, Subtitle 5, Annotated Code of Maryland; or participation in a drug court or HIDTA substance abuse treatment program. Correctional Options includes programs established by the State Division of Correction, provided that the program meets the Commission s criteria, as described. This definition is fairly narrow and primarily pertains to drug court, home detention, and inpatient drug treatment. The definition was adopted by the Commission from the four sections of the Criminal Procedure Article ( 6-216, 6-219, 6-220, and 6-225) that define custodial confinement to include a corrections options program established under law which requires the individual to participate in home detention, inpatient treatment, or other similar program involving terms and conditions that constitute the equivalent of confinement. The Commission adopted its current definition to focus on intermediate sanctions or those that fall in a nexus between probation and jail/prison. This evolved from the work of the Study Commission. At the time there was a specific assumption about what corrections options would be, and an assumption that judges would sentence defendants with a guidelines recommendation of 12 to 18 months to a Corrections Options Authority. The 12

25 MSCCSP Meeting Minutes July 12, 2016 Corrections Options Authority never came into existence. The Commission then borrowed from the definition of what the corrections options program was to mirror the equivalent to confinement, but not within a jail or prison, and the Commission later added other programs such as drug court. Dr. Soulé asked for input from the Commissioners on the types of alternatives the inventory should seek to identify. As examples, would the Commission include any program that can be included as a condition of probation, community service, intermittent incarceration (or weekend incarceration), and work release? Senator Kelley noted that the Study Commission had looked at restorative justice, perhaps paired with restitution, and she stated the current study may want to look at those. Judge Harrell noted that the Maryland State Bar is involved in the restorative justice concept. Judge Avery added that in juvenile justice there may also be some restorative justice programming. Judge Avery asked why community supervision or probation was not considered an alternative to incarceration. Dr. Soulé stated that it is not currently within the Commission s definition of corrections options because the Commission was concerned with intermediate sanctions (sentences in between probation and placement in prison or jail), which were very popular in the late 1990s when the General Assembly established the Commission. The idea was to have sentences for defendants needing more supervision or services than they might get on ordinary probation but for whom incarceration was unnecessary. Judge Avery then stated that for her, there was a disconnect because many of the examples Dr. Soulé had provided require involvement from the Division of Parole and Probation. Dr. Soulé replied that Judge Avery was raising the question he was asking, which was whether the study would look at all of these as potential alternatives to incarceration any condition of probation. If the Commission is looking to incorporate those into the sentencing guidelines, there is a range of eligibility criteria. Dr. Soulé s question was whether the Commission wanted to narrow down the inventory; what are we looking for in terms of identifying alternatives. Judge Avery suggested that because the point is to keep people out of prison if there is an appropriate alternative, regardless of the label used, the Commission should be looking at programming which is just good programming. She emphasized the need to identify good programming outside of Maryland as well. Mr. Finci stated his view that the JRA s requirement seemed more related to how to integrate alternatives to incarceration into the guidelines themselves than related to identifying what programs exist or should exist. In Washington, DC, and in the federal system, he noted, guidelines ranges in the grids include instructions to the judge to consider certain options such as home detection, halfway housing, or work release, specific to the particular location on the grid. Judge Avery responded that the way to do that is to provide alternatives in the grid such as X length of incarceration or Y length of home detention or Z split sentence, or with needsbased programming under the Division of Parole and Probation. Dr. Soulé noted that within Washington, DC, or the federal system, all the programming is under the auspices of a single agency, whereas Maryland has many local correctional agencies with different programs available in different locations. For the sentencing 13

26 MSCCSP Meeting Minutes July 12, 2016 guidelines to incorporate alternatives to incarceration into the sentencing guidelines matrices, the Commission would need to confront that the statewide sentencing guidelines would in effect not be uniform throughout the state. Mr. DeWolfe noted that in his opinion, the JRA indicates that the current sentencing scheme overuses incarceration for nonviolent drug offenders. The JRA mandate to study alternatives is asking the Commission to expand its view of possible sentencing ranges. Perhaps rather than try to pigeonhole options into what is incarceration or custody, the Commission may need to look broader than that. And if reinvestment means taking money saved from not incarcerating and putting it into alternatives, the Commission should be looking into what is possible, not only what currently exists. Senator Kelley stated she hopes the Commission does not just take something old that in its own right needs a paradigm shift. People inherited the systems we find ourselves in, the Commission must look at everything and as it makes recommendations about new modalities the Commission must look at how best to implement those modalities in light of demonstration projects and research. Mr. DeLeonardo agreed that the JRA means to create a mechanism for incorporating alternatives to incarceration into the sentencing guidelines matrices, but alternatives to incarceration is not only not jailing people, it also affects people who historically would only get probation. The JRA is intervening more for offenders who would normally just get passed along. But, he added, the scope has to be what is available in every jurisdiction in Maryland. It seemed to him that this would need to be state-provided alternatives, rather than drawing on separate programs in different counties. Or it could be generic, such as a recommendation to drug court or its equivalent of intensive supervision. Mr. Cooke asked about pretrial release. Many people are incarcerated awaiting trial, and a number of them could be eligible for a program pretrial. Judge Lewis noted that asking an administrative judge will help determine what exists. But if you send a survey out to trial court judges to ask what they have used successfully in the last three to five years, you may find out something else. Some lawyers or family members, for example, may find amazing programs out of state. Even if only one defendant used a certain program, it may be something that could and should be available more broadly. That is what problem-solving courts are doing. And where problem-solving courts are not available, judges still may be doing creative things. Judge Lewis added that while she supports pretrial release, it may be outside the purview of the Commission. Mr. DeLeonardo agreed with the sentiment that we need more programs and judges use great creativity, but the Commission s mandate, as he views it, is how to go out and take current alternatives to incarceration that a judge can factor in. Incorporating more alternatives in the guidelines is, to him, very different from what are great ideas for diversion. You cannot include something in the sentencing guidelines that does not exist in that jurisdiction, he said. The JRA has other provisions creating alternatives to incarceration, he did not know that it should be the Commission doing that through the sentencing guidelines. The Commission should be looking at what alternatives exist and look into how the sentencing guidelines can integrate those. 14

27 MSCCSP Meeting Minutes July 12, 2016 Judge Avery noted that the origin of the Commission concerned disparities in sentencing across the state. Identifying alternatives to incarceration available in one part of the state and not another can highlight such disparities. There may be a great program available in Allegany County which is not available in Baltimore City, but that does not mean the guidelines should not point out that this geographic disparity exists, something the Commission is charged with addressing. Dr. Johnson asked whether pretrial diversion programs can or should count as alternatives to incarceration. Someone with an adjournment in contemplation of dismissal will never show up in sentencing guidelines data. So is the Commission interested in a broader scope of alternatives that include not only options to judges at sentencing, but also other procedural mechanisms that prevent people from going to jail or prison? He also drew attention to the issue of how and where to substitute alternatives in the sentencing guidelines. Assuming that we have some set of alternatives that everyone agrees is useful and appropriate, at least for some offenders, how do we build those options into the current guidelines and provide some guidance to judges on how and when they should be applied? In other states that have included alternatives to incarceration, a criticism has been that there has been no real guidance to judges on how and when to use particular alternatives to incarceration. Once we answer the how and when the issue is what is effective, is available, etc. We might be able to learn both from other states and around Maryland. An evaluation of Pennsylvania found, as some Commissioners have suggested, tremendous variation throughout the state, in terms of what is available, which judges use, how often judges use them, and levels of funding. The best predictor of how many people get alternatives to incarceration is how many dollars the jurisdiction invests in alternatives. Which leads to the question of whether it is the Commission s job to try to make things uniform, or just say that in particular cells certain alternatives are within the guidelines. Mr. Cooke recommended asking not only judges, but also program administrators, wardens, and sheriffs. Dr. Soulé noted that MSCCSP staff may need help from some of the Commissioners to reach out to their constituents to ask them to respond in a timely manner. Mr. Vallario stated the majority of the alternatives to incarceration will fall on the locals. It will be a burden on the locals. Someone has to come up with the funds to do those programs. Dr. Soulé noted part of justice reinvestment involves taking money saved from not incarcerating and letting counties create programs using those funds. 7. Next meeting September 20, 2016, Conference Room 2 (upper level), Judiciary Education and Conference Center 8. Old business None. 15

28 MSCCSP Meeting Minutes July 12, New business and announcements a. Richard Finci Request to consider whether sex offender registration should be counted as criminal justice involvement for purposes of determining application of criminal record decay factor (Request for future review) Mr. Finci stated he received an inquiry from his constituents as to whether required sex offender registry is a relationship to the criminal justice system for purposes of the offender score or criminal justice system involvement which would eliminate application of the decay factor in a particular case. This was not part of the original guidelines, because there was no sex offender registration at the time. Mr. Finci had never heard of this issue before, and neither had Laura Martin or Judge Avery. Mr. Finci moved to assign the question to the Guidelines Subcommittee to study and make recommendations to the full Commission at a future meeting. This may involve drafting a new definition for criminal justice system involvement or a frequently asked question. Senator Kelley stated that it is a collateral consequence. Mr. Finci noted that in 2013 the Court of Appeals held that it was a criminal sanction, and in the case at bar the requirement operated as an ex post facto law. The requirement is also part of a civil statute, so in that sense it is not part of the criminal law. The motion to assign the matter to the Guidelines Subcommittee passed without opposition. b. Judge Harrell Release of white papers from Risk Assessment Feasibility study Judge Harrell noted that a law professor had asked for the two white papers written by the University of Maryland research team as part of the risk assessment feasibility study. Judge Harrell indicated the researchers had given their approval and the Office of the Attorney General was reviewing the legal issues involved in making the papers publicly available on the Commission website. Judge Harrell asked whether any of the Commissioners had a problem with making the materials available. No one expressed any issue. The meeting adjourned at 7:30 p.m. 16

29 Maryland State Commission on Criminal Sentencing Policy MSCCSP MEETING Date: Tuesday, September 20, 2016 Time: Location: 5:30 pm 7:30 pm (dinner to be served starting at 5:00 pm) Judiciary Education and Conference Center Conference Room 2 (upper level) 2011A-B Commerce Park Drive Annapolis, MD Call to order 2. Declaration of quorum AGENDA 3. Approval of minutes from July 12, 2016, MSCCSP meeting 4. Guidelines Subcommittee Report a. Review of penalty revisions from the Justice Reinvestment Act (Action item) b. Review of whether sex offender registration should be counted as criminal justice involvement for purposes of determining application of the criminal record decay factor (Status report) 5. Executive Director Report a. Introduction of new policy analyst/interns (Status report) b. Update on study on alternatives to incarceration (Status report) c. MAGS update (Status report) d. Upcoming JRA implementation meeting (Status report) e. Update on guidelines worksheet submission rate (Status report) 6. Next meeting December 13, 2016, House of Delegates Office Building, Judiciary Committee Room a. Annual Public Comments Hearing starts at 5:00 pm b. MSCCSP meeting starts at 6:30 pm 7. Old business a. Next report/presentation from the Maryland Data Analysis Center on the Juvenile Delinquency Score Project is expected at the December 13, 2016 meeting 8. New business and announcements Knox Road, Suite College Park, MD (3 0 1 ) / phone (3 0 1 ) / fax

30 MSCCSP Meeting Minutes September 20, 2016 Minutes Maryland State Commission on Criminal Sentencing Policy Judiciary Education and Conference Center Annapolis, MD September 20, 2016 Commission Members in Attendance: Delegate Curtis S. Anderson Senator Robert G. Cassilly William M. Davis, Esquire, representing Public Defender Paul B. DeWolfe Honorable Brian L. DeLeonardo Barbara Dorsey Domer Elizabeth Embry, Esquire, representing Attorney General Brian E. Frosh Richard A. Finci, Esquire Brian D. Johnson, Ph.D. Senator Delores G. Kelley Honorable Patrice E. Lewis Honorable Laura L. Martin Honorable James P. Salmon Delegate Joseph F. Vallario, Jr. Staff Members in Attendance: Sarah Bowles Stacy Najaka, Ph.D. Katharine Pembroke David Soulé, Ph.D. Elizabeth Mullin, MSCCSP Intern Visitors: Linda Forsyth, Community Liaison for Senator Kelley; Claire Rossmark, Department of Legislative Services 1. Call to order Senator Kelley, acting Chair, called the meeting to order. 2. Roll call and declaration of quorum The meeting began at 5:30 p.m. when attendance reached a quorum. 3. Approval of minutes, July 12, 2016 meeting The Commission approved the minutes as submitted. 4. Guidelines Subcommittee report Laura Martin Ms. Martin presented the report of the Guidelines Subcommittee on behalf of Judge Avery Knox Road, Suite 309 College Park, MD (301) / phone 1

31 MSCCSP Meeting Minutes September 20, 2016 a. Review of penalty revisions from the Justice Reinvestment Act (Action item) Ms. Martin reported that the Guidelines Subcommittee reviewed the revised penalty structures going into effect October 1, 2017 for offenses pursuant to the Justice Reinvestment Act (JRA). She referred the Commissioners to the memoranda containing the Subcommittee s recommended seriousness categories for the offenses with revised penalties. She noted that at the Subcommittee s September 7 th teleconference, the staff provided the Subcommittee with recommended seriousness categories based on comparable offenses. The Subcommittee agreed with all of the staff s suggested revisions and recommended that the Commission do the same. Ms. Martin highlighted two recommendations of note: (1) expanding the definition of corrections options and (2) an increase in the seriousness category for felony bad check, $100,000 or greater and felony credit card crimes, $100,000 or greater. She asked Dr. Soulé to summarize those recommendations. Following a brief discussion, the Commission adopted the Guidelines Subcommittee s recommendations as a whole, without opposition. The criminal penalties revised pursuant to the JRA are summarized below with the revised (or maintained) seriousness category noted in bold underline print next to the respective offense. Finally, the adopted revision to the definition of corrections options is presented following the list of impacted offense penalties. NOTE: In some instances, the change to the penalty only impacted the fine and not the statutory maximum period of incarceration (e.g., some of the CDS distribution, PWID, etc., offenses) and therefore the MSCCSP did not believe a change in the offense seriousness category was warranted, whereas with respect to other offenses, the change in statutory maximum penalty was sufficient as to warrant a revised seriousness category (e.g., possession of non-marijuana offenses). In other instances, the change was related to a specific attribute of the offense itself (e.g., a revision to the threshold loss amount for a theft- or fraud-related offense) and the MSCCSP reasoned that the change was consistent with the existing seriousness category, and therefore no change to the seriousness category was necessary. Revised Drug Offenses Possession non-marijuana, 1 st conviction, CR, 5-601(c)(1)(i), VII Possession non-marijuana, 2 nd or 3 rd conviction, CR, 5-601(c)(1)(ii), VII Possession non-marijuana, 4 th and subsequent convictions, CR, 5-601(c)(1)(iii), VII Possession marijuana, CR, 5-601(c)(2)(i), VII (no change) Unlawful distribution, manufacture, etc. narcotics and hallucinogenics, CR, 5-608(a), CR, 5-609(a), IIIB (no change) Unlawful distribution, manufacture, etc. narcotics and hallucinogenics, subsequent, CR, 5-608(b), CR, 5-609(b), IIIB (no change) Distribution-Unlawful distribution, manufacture, etc. MDMA/ecstasy 750 grams or more, CR, 5-609(a), IIIA (no change) 4511 Knox Road, Suite 309 College Park, MD (301) / phone 2

32 MSCCSP Meeting Minutes September 20, 2016 Distribution-Unlawful distribution, manufacture, etc. MDMA/ecstasy 750 grams or more, subsequent, CR, 5-609(a), IIIA (no change) Unlawful distribution, manufacture, etc. non-narcotics, subsequent, CR, 5-607(a), IV (no change) Manufacture, distribute, dispense, or possess certain Schedule I or II controlled dangerous substances, large amounts as specified in CR, 5-612, CR, 5-612, IIIB (no change) Revised Property Offenses Felony theft or theft-scheme, $100,000 or greater, CR, 7-104(g)(1)(iii), III Felony theft or theft-scheme, at least $25,000 but less than $100,000, CR, 7-104(g)(1)(ii), V Felony theft or theft-scheme, at least $1,500 but less than $25,000, CR, 7-104(g)(1)(i), VI Misdemeanor theft or theft-scheme, at least $100 but less than $1,500, 1 st conviction, CR, 7-104(g)(2)(i)(1), VII (no change) Misdemeanor theft or theft-scheme, at least $100 but less than $1,500, 2 nd and subsequent convictions, CR, 7-104(g)(2)(i)(2), VII (no change) Misdemeanor theft or theft-scheme, less than $1,500, 5 th and subsequent convictions, CR, 7-104(g)(4), VI (no change) Felony bad check, $100,000 or greater, CR, 8-103, CR, 8-106(a)(3), III Felony bad check, at least $25,000 but less than $100,000, CR, 8-103, CR, 8-106(a)(2), V (no change) Felony bad check, at least $1,500 but less than $25,000, CR, 8-103, CR, 8-106(a)(1), VI Misdemeanor bad check, at least $100 but less than $1,500, CR, 8-103, CR, 8-106(c), VII (no change) Multiple bad checks within a 30-day period, each at least $1,500 but less than $25,000 and totaling at least $1,500 but less than $25,000, CR, 8-103, CR, 8-106(b), VI Felony credit card crimes, $100,000 or greater, CR, 8-206(c)(1)(iii), CR, 8-207(c)(1)(iii), CR, 8-209(c)(1)(iii), III Felony credit card crimes, at least $25,000 but less than $100,000, CR, 8-206(c)(1)(ii), CR, 8-207(c)(1)(ii), CR, 8-209(c)(1)(ii), V (no change) Felony credit card crimes, at least $1,500 but less than $25,000, CR, 8-206(c)(1)(i), CR, 8-207(c)(1)(i), CR, 8-209(c)(1)(i), VI Misdemeanor credit card crimes, at least $100 but less than $1,500, CR, 8-206(c)(2), CR, 8-207(c)(2), CR, 8-209(c)(2), VII (no change) Misdemeanor credit card crimes, less than $100, CR, 8-206(c)(2), CR, 8-207(c)(2), CR, 8-209(c)(2), VII (no change) 4511 Knox Road, Suite 309 College Park, MD (301) / phone 3

33 MSCCSP Meeting Minutes September 20, 2016 Possess, obtain personally identifying information or willfully assume the identity of another, benefit $100,000 or greater, CR, 8-301(b), (c), CR, 8-301(g)(1)(iii) (penalty), III Possess, obtain personally identifying information or willfully assume the identity of another, benefit at least $25,000 but less than $100,000, CR, 8-301(b), (c), CR, 8-301(g)(1)(ii) (penalty), V Possess, obtain personally identifying information or willfully assume the identity of another, benefit at least $1,500 but less than $25,000, CR, 8-301(b), (c), CR, 8-301(g)(1)(i) (penalty), VI Possess, obtain personally identifying information or willfully assume the identity of another, benefit at least $100 but less than $1,500, CR, 8-301(b), (c), CR, 8-301(g)(2) (penalty), VII (no change) Use a re-encoder or skimming device for purpose of identity theft, benefit $100,000 or greater, CR, 8-301(d), CR, 8-301(g)(1)(iii) (penalty), III Use a re-encoder or skimming device for purpose of identity theft, benefit at least $25,000 but less than $100,000, CR, 8-301(d), CR, 8-301(g)(1)(ii) (penalty), V Use a re-encoder or skimming device for purpose of identity theft, benefit at least $1,500 but less than $25,000, CR, 8-301(d), CR, 8-301(g)(1)(i) (penalty), VI Use a re-encoder or skimming device for purpose of identity theft, benefit at least $100 but less than $1,500, CR, 8-301(d), CR, 8-301(g)(2) (penalty), VII (no change) Intent to manufacture, distribute, or dispense personally identifying information, CR, 8-301(g)(3), V (no change) Falsely represent self as another person, CR, 8-301(c)(1), (f), CR, 8-301(g)(4) (penalty), VII (no change) Use an interactive computer service to disclose personal identifying information of an individual in order to annoy, threaten, embarrass, or harass, CR, 8-301(b- 1), CR, 8-301(g)(4) (penalty), VII (no change) Possess, obtain, or help another obtain a re-encoder or skimming device for purpose of identity theft, CR, 8-301(e), CR, 8-301(g)(4) (penalty), VII (no change) State health plan fraud, $1,500 or greater, CR, 8-509, CR, 8-510, CR, 8-511, CR, 8-512, CR, 8-513, CR, 8-514, CR, 8-515, CR, 8-516(c) (penalty), V (no change) State health plan fraud, less than $1,500, CR, 8-509, CR, 8-510, CR, 8-511, CR, 8-512, CR, 8-513, CR, 8-514, CR, 8-515, CR, 8-516(d) (penalty), VII (no change) Trademark counterfeiting, $1,500 or greater, CR, 8-611(c), V (no change) Trademark counterfeiting, less than $1,500, CR, 8-611(d), VII (no change) 4511 Knox Road, Suite 309 College Park, MD (301) / phone 4

34 MSCCSP Meeting Minutes September 20, 2016 Obtain property of vulnerable adult or an individual at least 68 years old by deception, intimidation, or undue influence, $100,000 or greater, CR, 8-801(c)(1)(iii), III Obtain property of vulnerable adult or an individual at least 68 years old by deception, intimidation, or undue influence, at least $25,000 but less than $100,000, CR, 8-801(c)(1)(ii), V Obtain property of vulnerable adult or an individual at least 68 years old by deception, intimidation, or undue influence, at least $1,500 but less than $25,000, CR, 8-801(c)(1)(i), VI Obtain property of vulnerable adult or an individual at least 68 years old by deception, intimidation, or undue influence, at least $100 but less than $1,500, CR, 8-801(c)(2), VII (no change) Revised Person Offenses Murder, 2 nd degree, CR, 2-204, II (no change) Murder, 2 nd degree, attempted, CR, 2-204, III (no change) Child Abuse physical, with death, victim younger than 13 years old, CR, 3-601(b)(2)(iii), I Child Abuse physical, with death, victim at least 13 years old, CR, 3-601(b)(2)(ii), II (no change) Child Abuse physical, with death, previous conviction for child abuse, CR, 3-601(c)(2), I Use of or threat of force to coerce participation or prevent leaving gang, CR, 9-802, VII (no change) Use of or threat of force to coerce participation or prevent leaving gang in school or within 1,000 feet of school property, CR, 9-803, VI (no change) Participate as member of criminal gang in commission of crime; in receipt and use or investment, of proceeds of $10,000 or more from underlying crime in the acquisition of real property or establishment or operation of any enterprise; in acquisition or maintenance of any interest or control of any enterprise or property through an underlying crime, CR, 9-804(f)(1)(i), One category more serious than most serious underlying offense. If no conviction on underlying offense, category=iv (no change) Participate as member of criminal gang in commission of crime; in receipt and use or investment, of proceeds of $10,000 or more from underlying crime in the acquisition of real property or establishment or operation of any enterprise; in acquisition or maintenance of any interest or control of any enterprise or property through an underlying crime resulting in death of victim, CR, 9-804(f)(1)(ii), One category more serious than most serious underlying offense. If no conviction on underlying offense, category=iii (no change) 4511 Knox Road, Suite 309 College Park, MD (301) / phone 5

35 MSCCSP Meeting Minutes September 20, 2016 Organize, supervise, finance, or manage a criminal gang, CR, 9-805, III (no change) Revision to the Definition of Corrections Options Revision #1 - MSGM 2, Definitions (Corresponding to COMAR (B)(4)) [Correctional] Corrections Options Home detention; A Corrections Options program under law which requires the individual to participate in home detention, inpatient treatment, or other similar programs involving terms and conditions that constitute the equivalent of confinement; Inpatient drug or alcohol counseling under Health General Article (HG), Title 8, Subtitle 5, Annotated Code of Maryland; [or] Participation in a drug court or HIDTA substance abuse treatment program[.]; or A sentence, with required substance abuse treatment, for the possession, administration, obtainment, etc. of controlled dangerous substances (CDS) currently outlined in CR, 5-601(c) and pursuant to CR, 5-601(e)(3). 1 [Correctional] Corrections Options includes programs established by the State Division of Correction, provided that the program meets the Commission s criteria, as described above. 1 Before imposing a sentence for the possession, administration, obtainment, etc. of a CDS under CR, 5-601(c), the court may order the Department of Health and Mental Hygiene (DHMH) or a designee to conduct an assessment of the defendant for substance use disorder. If a substance use disorder assessment is ordered, the court shall consider the results of the assessment when imposing a sentence under CR, 5-601(c) and suspend the execution of the sentence, order probation and, if the assessment shows that the defendant is in need of substance abuse treatment, require the DHMH or the designee to provide the medically appropriate level of treatment; or the court may impose a term of imprisonment and order the DOC or local correctional facility to facilitate the medically appropriate level of treatment. (CR, 5-601(e)). Revision #2 - MSGM 12.4, Corrections Options Program Based on the definition provided in chapter 2, the person completing the sentencing guidelines worksheet shall record if the offender was sentenced to a Corrections Options program. Please specify whether the offender was ordered to participate in drug court treatment (yes/no) or any other [Correctional] Corrections Options program, such as home detention or a sentence, with required substance abuse treatment, for the possession, administration, obtainment, etc. of controlled dangerous substances currently outlined in CR, 5-601(c) and pursuant to CR, 5-601(e)(3) (yes/no) Knox Road, Suite 309 College Park, MD (301) / phone 6

36 MSCCSP Meeting Minutes September 20, 2016 Ms. Martin noted that the Subcommittee also discussed when to publicize the revisions. Specifically, the Subcommittee debated when the revisions should be promulgated through COMAR. Some Subcommittee members took the position that the revisions should be published in the Maryland Register as soon as possible (with a pending COMAR enactment date of October 1, 2017). Others argued that the MSCCSP should postpone starting the promulgation process until closer to the enactment date in the event that the 2017 Legislative Session produces additional JRA-related revisions or any other criminal penalty revisions. Additionally, the MSCCSP staff questioned whether the COMAR promulgation rules would allow for the submission of proposed amendments far in advance of their enactment date and whether the submission of proposed amendments now with a pending enactment date of October 1, 2017 would prevent the Commission from submitting additional proposed amendments to the same regulation in the interim. Given the complexity of the rules surrounding the COMAR promulgation process, the Subcommittee asked the staff to reach out to the Office of the Attorney General (OAG) for advice. The staff did so and solicited input from the Division of State Documents (DSD) as well. Dr. Soulé summarized the responses. Based upon the advice of the OAG and the DSD, the MSCCSP can start the COMAR promulgation process now even if the regulation will not take effect until October 1, Additionally, starting the process now for these proposed amendments will not prevent the MSCCSP from submitting additional proposed amendments to the same regulation prior to October 1, The question then becomes whether the Commission should take such action. Ms. Martin added that this was not something the Subcommittee agreed upon. Mr. Finci stated that he believes many judges want to exercise their discretion to apply what will be the law under JRA and not treat defendants before them today differently or more harshly than they will treat defendants a year from now. Publicizing what the guidelines will look like a year from now gives the judges better information about how to exercise that discretion. Ms. Martin noted that we do not know what is going to happen with JRA in the upcoming Legislative Session, and we may be spinning our wheels earlier than needed, doing a lot of unnecessary work that is going to have to change. Senator Kelley recommended that the MSCCSP start drafting the changes to the MSCCSP regulations since there is a lot of work involved. Further, she noted that she does not expect there will be significant changes to JRA in the 2017 General Assembly given the scope of what occurred in Delegate Anderson concurred. Ms. Martin asked why the Legislature set the enactment date in 2017 as opposed to Delegate Anderson and Senator Cassilly replied that it was done to give the various agencies and entities affected by JRA ample time to plan for the changes. Dr. Soulé stated that from an administrative standpoint, it is difficult to draft proposed amendments to a regulation that has revisions already pending (the key regulation in this instance is which contains the Guidelines Offense Table). Even if there are no additional changes to JRA, there likely will be other new and revised penalties 4511 Knox Road, Suite 309 College Park, MD (301) / phone 7

37 MSCCSP Meeting Minutes September 20, 2016 resulting from the 2017 Legislative Session that will impact the Guidelines Offense Table. If the Commission agrees that the JRA-related revisions should be published in advance of their enactment date, Dr. Soulé suggested an alternate approach whereby the staff publishes the proposed amendments directly on the MSCCSP website. This permits the MSCCSP to simultaneously promulgate through COMAR (at a later date) the JRArelated revisions noted above and any revisions resulting from the 2017 Legislative Session. Dr. Soulé further noted that the MSCCSP website would seem the most logical place for judges and attorneys to look for pending guidelines revisions, and the format the MSCCSP website would use to describe the proposed revisions would be easier to read than the format that must be used for proposed changes in the Maryland Register. Ms. Domer asked how practitioners would be made aware of the pending revisions. Dr. Soulé responded that the MSCCSP could follow the protocol used to announce the recent changes to the drug matrix. In that instance we notified key criminal justice stakeholders of the pending revisions via . Judge Salmon made a motion to post the pending JRA-related revisions to the MSCSSP website and to wait to begin the COMAR promulgation process until after the Commission has reviewed any new and revised penalties resulting from the 2017 Legislative Session so that all revisions with an effective date of October 1, 2017 can be promulgated together. The Commission adopted the proposed action, without opposition. b. Review of whether sex offender registration should be counted as criminal justice involvement for purposes of determining application of the criminal record decay factor (Status report) Ms. Martin reported that the Guidelines Subcommittee discussed whether sex offender registration constitutes criminal justice system (CJS) involvement, and whether the Maryland Sentencing Guidelines Manual should be amended to include specific instructions pertaining to the criminal record decay factor and sex offender registration. At the July 12, 2016, MSCCSP meeting, Mr. Finci brought to the Commission s attention a question he received from a Maryland public defender pertaining to the application of the decay factor to Part C (prior adult criminal record) of the Offender Score. Mr. Finci requested that the Subcommittee further investigate this issue. Specifically, the public defender inquired whether a defendant s inclusion on the sex offender registry would preclude application of the decay factor when calculating a defendant s prior criminal record score. In addition to this question, the Subcommittee also considered whether sex offender registration would constitute criminal justice supervision when scoring Part A (relationship to CJS when instant offense occurred) of the Offender Score. The Subcommittee questioned whether this issue was raised with any frequency and asked Mr. Finci to reach out to the Maryland State Bar Association and Ms. Martin to reach out the State s Attorney s Association for input. Neither received feedback that would indicate that this is a recurring issue. After a brief discussion of what constitutes criminal justice involvement and criminal justice supervision, the Commission agreed 4511 Knox Road, Suite 309 College Park, MD (301) / phone 8

38 MSCCSP Meeting Minutes September 20, 2016 with the Subcommittee s recommendation to table the issue and to revisit it only if there are sufficient practitioner questions. 5. Executive Director Report Dr. David Soulé a. Introduction of new policy analyst/interns (Status report) Dr. Soulé announced that Jennifer Lafferty joined the MSCCSP staff as a Policy Analyst, Graduate Research Assistant and introduced Liz Mullen, an undergraduate intern, to the Commission. b. Update on study on alternatives to incarceration (Status report) The Justice Reinvestment Act directed the MSCCSP to study how alternatives to incarceration may be included in the sentencing guidelines and to submit a report of their findings with recommendations to the Justice Reinvestment Oversight Board, Governor, and General Assembly by January 1, Dr. Soulé discussed the two primary focuses of the study. First, the MSCCSP staff plans to conduct research on how other states and the federal system incorporated alternatives into their guidelines. The report will include best practices on types of successful alternatives to incarceration, while also discussing how other jurisdictions explicitly incorporated these alternatives into their sentencing guidelines. There are at least two other states, along with the federal guidelines, that incorporated alternatives to incarceration into their guidelines. Dr. Soulé reached out to his colleagues at Sentencing Commissions in other jurisdictions to gather further information as to how other states incorporated alternatives into their guidelines. The staff will also create an inventory of alternate sentencing options currently available in Maryland. Accordingly, the staff drafted a survey to be distributed to the circuit courts, to each parole and probation field office, and to each county corrections administrator. Dr. Soulé directed the Commission s attention to the draft survey distributed prior to the Commission meeting. The survey will be distributed by the Administrative Office of the Courts via as a web-based application. The survey will come from the Judiciary in hopes of getting a better response rate and it will include a cover letter explaining its purpose. Judge Harrell and State Court Administrator Pam Harris will sign the survey s cover letter. Mr. Finci suggested that the survey should be narrowed and exclude probation and restitution as these options are available statewide. Judge Lewis agreed, noting that restitution and fines exist as a matter of statute. Mr. Finci also suggested that the survey should differentiate between private or jail-based electronic home monitoring. Ms. Martin suggested that home confinement be treated in the same manner. Judge Lewis agreed that it was important to determine if a program is jail-based or private. Dr. Johnson expressed that in his opinion the Justice Reinvestment Act is about diverting people from incarceration and he therefore questioned whether collecting data concerning conditions of probation really confronts the question as to what options judges are using in lieu of incarceration. Mr. DeLeonardo indicated that judges may be more willing to release an offender from incarceration in order to allow participation in alternative programs, such as home detention. He further noted that while it may not divert people 4511 Knox Road, Suite 309 College Park, MD (301) / phone 9

39 MSCCSP Meeting Minutes September 20, 2016 from incarceration entirely, it does shorten some sentences. There was a general agreement that split-sentences should be included in the alternatives study. Judge Lewis noted that she would like to see a question asking the judges to list the top five programs utilized with a split sentence or probation. Judges want programs that are successful and, as there is no accreditation, judges sometimes use trial and error to determine which programs have a positive impact on defendants lives. These are the programs that are worth sinking money into because the return will be beneficial. Senator Kelley agreed as there will be a wide universe of responses and the survey will result in programs not previously considered. Senator Kelley added that the survey should ask judges to share any formats they use to evaluate a program s success. Dr. Soulé indicated that Mr. Cooke provided feedback on the survey and he noted that the survey did not include any pre-trial services or pre-trial supervision. Dr. Soulé stated that the staff excluded pre-trial programming because, as previously noted, they were focusing on programs that judges could utilize at sentencing. However, Mr. Cooke previously noted, while judges cannot technically sentence an offender after the fact to pre-trial programming, it may make sense to include such programming in our list of alternatives if it diverts offenders from jail or prison as one could make the argument that judges take into account programming that occurs between charging and sentencing when deciding on a sentence. Dr. Soulé asked for feedback from the Commissioners as to how judges are using pre-trial services and if charges are being dropped after completion of the program. Judge Lewis suggested an open-ended question asking for pre-trial diversion programs that judges employ that result in a non-prosecution. Ms. Martin stated that Calvert County uses a pre-trial diversion program for cases in which a civilian is charging a civilian. Before the charges go through, cases are screened and pulled out for mediation. If all parties agree, they attend mediation and the case will be nolle prosequi. Dr. Soulé questioned whether these type of programs could be incorporated into the guidelines as these offenders are not being sentenced. Judge Lewis stated these programs could be incorporated because some of these programs may be used post-plea. Judge Lewis indicated that she believes the importance of a program is its quality; both what it does for the defendant and what it does for betterment of the community. Judge Lewis therefore asked whether the Commission should bloom a program to have a post-plea component if it s successful. She noted the Commission should think about whether the program would be a good use of resources. Mr. DeLeonardo questioned whether the focus should be on alternative programs that are currently available at sentencing or finding programs that should be created. Dr. Soulé indicated that he does not see the broader scope of identifying additional programs that should be added at sentencing as part of the task for the Commission (noting that others may disagree). Senator Kelley indicated that correctional options are not always part of the judge s sentence, but they are still options. Ms. Martin reminded the Commission that State s 4511 Knox Road, Suite 309 College Park, MD (301) / phone 10

40 MSCCSP Meeting Minutes September 20, 2016 Attorney s Offices decide when pre-trial options turn a case into a non-prosecution and, therefore, to be consistent with the Commission s mandate from the JRA, the Commission should focus on sentencing options. Delegate Anderson stated that he did not believe the legislature wanted the Commission to stay within its box. By virtue of who the Commission is and its knowledge, he believes that legislators want to hear more than what can be acted upon. Dr. Johnson indicated that mediation could be incorporated at sentencing as an alternative even if mediation is not being currently used. Senator Kelley questioned if there were any active restorative justice programs in Maryland and stated that she would like the survey to question opinions on restorative justice programs. Judge Lewis stated that the MADD Victim Impact Panels are restorative justice. Dr. Johnson stated that certain mediation programs also qualify as restorative justice. Ms. Martin referenced a post-mediation program that is used for vehicular homicides when victim s family members want to meet with the defendants. Judge Lewis suggested that asking about these pre-trial programs could help determine programs that could also be used post-trial. Senator Kelley discussed how the Commission could use successful pre-trial programs to develop correctional options. Dr. Soulé indicated that there was disagreement among the initial members of the Sentencing Commission as to whether the Commission was tasked with developing corrections options programs to identifying appropriate offenders for corrections options and incorporating these alternative programs into the guidelines after they have been established. Dr. Soulé further noted that when the Study Commission discussed this, there was a plan in place to adopt a Corrections Options Authority but the planned was never finalized as there were too many unresolved issues especially regarding the MSCCSP s role (develop programs or guidelines based on other agency s program), program availability, who would administer corrections options, and funding. Ms. Domer questioned how administrative judges would find statistics as to how many defendants are sentenced to a given program. Dr. Soulé indicated that the staff included this question in the draft as an attempt to gather information on the scope of the program, and whether, for example, it is used once a year or regularly. Mr. DeLeonardo suggested that words, such as regular or frequent, be used instead of numbers. Delegate Vallario questioned the use of pre-trial services and cited an example concerning an individual who had been on pre-trial services for two years (the defendant checked in every Friday without incident) and this proved to be very helpful to the judge when making a determination. Pre-trial services vary in different areas and there would be benefits to making services uniform throughout the state. For example, St. Mary s county had many options, such as meeting with a counselor or urinalysis once a week. There are many things happening throughout the state that are helpful when judges are making determinations Knox Road, Suite 309 College Park, MD (301) / phone 11

41 MSCCSP Meeting Minutes September 20, 2016 Dr. Johnson inquired whether the guidelines worksheets collected information on alternatives. Dr. Soulé responded that the worksheets collect limited information on corrections options (drug courts or other). Dr. Johnson expressed concern that asking judges how many people they sentence to a given program may not provide accurate information and suggested that after the survey is complete, the guidelines worksheets be amended to include the most commonly used alternatives. Dr. Soulé agreed that the next logical step would be to include a drop-down menu in MAGS to allow those filling out the worksheets to provide more detailed information on sentencing alternatives imposed. Dr. Soulé further indicated that half of the jurisdictions are using paper worksheets and half are using MAGS. The paper worksheets have no room for additional information. Dr. Soulé reminded the Commission that MAGS will not be fully deployed until Dr. Soulé surmised that it seems that the majority of the Commissioners would like the survey and corresponding report to have a broad scope and identify a wide range of potential options including options that are not currently available at the point of sentencing, such as pre-trial initiatives that may lead to potential post-trial programming options. The Commission will then have to determine which of these, if any, may be appropriate to incorporate in the guidelines. Dr. Johnson asked if any information would be collected concerning the amount of money invested in each program. He also noted that the person responding may not know this information. According to studies in other states, the strongest predictor of an alternative program s use is the amount of state dollars invested in the program. Dr. Johnson asked if it would be possible to collect information on the financial support for these programs. Dr. Najaka indicated that the staff discussed following up with the programs for questions about their financials and to gather additional information that may not be readily accessible to those completing the surveys. Dr. Soulé stated that once the programs were identified, the staff would follow up with the programs. c. MAGS Update (Status report) Dr. Soulé informed the Commission that MAGS will be deployed in Baltimore County on October 1, At that time, Baltimore County will become the 9 th jurisdiction to use MAGS and, since many of the larger jurisdictions use MAGS, 50% of all guidelines worksheets will be completed and submitted via the online system. The MSCCSP staff will provide multiple training sessions for judges, court staff, state s attorneys, public defenders, and parole and probation agents on September 23 rd and 30 th. d. Update on JRA implementation (Status report) Dr. Soulé noted that the JRA work group is scheduled to meet for the first time tomorrow, September 21st, and he expects to be able to provide further updates on the JRA implementation process at subsequent MSCCSP meetings. e. Update on guidelines worksheet submission rate (Status report) Dr. Soulé stated that in 2014, the MSCCSP started receiving data from the Administrative Office of the Courts allowing the staff to identify guidelines-eligible 4511 Knox Road, Suite 309 College Park, MD (301) / phone 12

42 MSCCSP Meeting Minutes September 20, 2016 cases. Since that time, the staff has been able to produce jurisdiction specific reports to help identify cases that are missing guidelines worksheets. The data identifying guidelines cases has been particularly helpful for creating a monthly feedback process in those jurisdictions that are using MAGS. Dr. Soulé further indicated that the guidelines worksheet submission rate has steadily climbed in the past few years and it was 83% for FY This represents approximately an 11% increase in worksheets received in the past 4 years. In terms of absolute number of worksheets received, this equals approximately 1,100 more worksheets which means the MSCCSP has data on 1,100 more sentencing events on a yearly basis. Dr. Soulé indicated that is a substantial increase in information to help inform the Commission s policy decisions. MAGS and the corresponding monthly feedback reports are largely responsible for this improvement, but Dr. Soulé recognized the MSCCSP staff who work diligently to analyze the data received from the guidelines worksheets and also the data received from the AOC to provide timely feedback to all of the jurisdictions. Ms. Martin agreed that the reports are useful, detailed and extremely helpful. Mr. DeLeonardo questioned whether the jurisdictions not using MAGS receive monthly feedback. Dr. Soulé indicated that they typically receive feedback on an annual basis, but the staff focuses this feedback on jurisdictions that have lower worksheet submission rates. Due to delays related to the routing and data entry of the paper worksheets for non- MAGS jurisdictions, it is not practical to send monthly feedback reports to the jurisdictions that are not yet utilizing MAGS. In the non-mags jurisdictions, the staff focuses on working closely with jurisdictions with low submission rates. Delegate Anderson questioned whether there was a consensus concerning who inputs information into MAGS. Dr. Soulé stated that this varies by jurisdiction but that the state s attorneys and probation and parole agents initiate the worksheets in every jurisdiction. Either the judges administrative assistants or law clerks complete the sentencing information and submit the completed worksheet. 6. Date, time, and location of annual Public Comments Hearing The annual Public Comments Hearing will take place on Tuesday December 13, 2016 at 5:00pm in the House of Delegates Office Building, Judiciary Committee Room. The Commission s business meeting will follow at 6:30 pm. 7. Old business Dr. Soulé noted that a presentation from the Maryland Data Analysis Center on the Juvenile Delinquency Score Project is expected at the December 13, 2016 business meeting. 8. New business and announcements None. The meeting adjourned at 6:47 p.m Knox Road, Suite 309 College Park, MD (301) / phone 13

43 MSCCSP Maryland State Commission on Criminal Sentencing Policy Chair Hon. Glenn T. Harrell, Jr. Vice-Chair Hon. Shannon E. Avery Commissioners Del. Curtis S. Anderson Sen. Robert G. Cassilly LaMonte E. Cooke Hon. Brian L. DeLeonardo Paul B. DeWolfe, Esq. Barbara Dorsey Domer Paul F. Enzinna, Esq. Richard A. Finci, Esq. Hon. Brian E. Frosh Brian D. Johnson, Ph.D. Sen. Delores G. Kelley Hon. Patrice E. Lewis Hon. Laura L. Martin Sec. Stephen T. Moyer Col. William M. Pallozzi Hon. James P. Salmon Del. Joseph F. Vallario, Jr. The Maryland State Commission on Criminal Sentencing Policy Invites You to Attend Our: 2016 Annual Public Comments Hearing When: December 13, :00 p.m. Where: House of Delegates Office Building Judiciary Committee Room (Room 100) 6 Bladen Street Annapolis, MD If you wish to bring any sentencing-related issue to the attention of the Commission, please contact David Soulé, Executive Director of the Commission. Those who wish to speak at the meeting are asked to confirm their plans for attendance and submit written testimony in advance at least three days prior to the meeting. You may contact Dr. Soulé via at: dsoule@umd.edu. Executive Director David A. Soulé, Ph.D. University of Maryland 4511 Knox Road, Suite 309 College Park, MD (301) / phone (301) / fax

44 Public Comments Hearing Minutes December 13, 2016 Minutes Maryland State Commission on Criminal Sentencing Policy 2016 Public Comments Hearing House of Delegates Office Building Annapolis, MD December 13, 2016, 5:00 p.m. Commission Members in Attendance: Honorable Glenn T. Harrell, Jr., Chair Honorable Shannon E. Avery, Vice-Chair Delegate Curtis S. Anderson Senator Robert G. Cassilly William M. Davis, Esquire, representing Public Defender Paul B. DeWolfe Honorable Brian L. DeLeonardo Barbara Dorsey Domer Elizabeth Embry, Esquire, representing Attorney General Brian E. Frosh Richard A. Finci, Esquire Brian D. Johnson, Ph.D. Senator Delores G. Kelley Honorable Patrice E. Lewis Colonel William M. Pallozzi Honorable James P. Salmon Delegate Joseph F. Vallario, Jr. Staff Members in Attendance: Sarah Bowles Stacy Najaka, Ph.D. Katharine Pembroke David Soulé, Ph.D. Tessa Guiton, MSCCSP Intern Speakers: Michael Schindler, Maryland Resident The Public Comments Hearing began at 5:15 pm when Judge Harrell declared a quorum and called the meeting to order. Judge Harrell asked the Commissioners to introduce themselves and to note their affiliation. He then requested the first speaker to begin. 1

45 Public Comments Hearing Minutes December 13, 2016 Note: The views expressed in the Public Hearing comments are those of the speaker(s) and do not reflect the official policy, position, or opinions of the Maryland State Commission on Criminal Sentencing Policy (MSCCSP). The MSCCSP does not endorse the content of the comments, nor does it guarantee the accuracy, reliability, or completeness of the information. Michael Schindler, Maryland Resident Mr. Schindler read his written comments. He noted that while racial disparity is a factor in sentencing, more often the greater disparity is economic. Defendants that cannot afford any defense due to economic restrictions are more likely to be offered plea bargains or stiffer sentences than those who are financially able to afford defense services. He stated that this disenfranchised group of people often encompasses most people of color. He further noted that plea bargains often come with side effects for defendants, one of which is the pressure of being sentenced to a longer term if a plea bargain is not accepted. Mr. Schindler suggested that if the State is willing to offer a plea bargain, there should be a stipulation in place preventing a defendant from being sentenced to more than that plea. Not only does this place pressure on the defendant to take a plea bargain, even if they are innocent, it also affects their long term ability to file any future motions. He stated that this often happens to individuals who are less educated, and mentally and emotionally challenged. Mr. Schindler expressed his respect for public defenders, but noted that they are often overloaded, and plea bargains are an inviting way to close many cases they are faced with. He further stated that their workload makes it impossible to devote the necessary time and financial resources to every defendant. Mr. Schindler then stressed that the public should not only be aware of sentencing policies concerning incarceration, but that they should also be aware of the programs that exist in our system to help educate and rehabilitate offenders, considering most offenders will re-enter society in a given amount of time. He further noted that judges should have meaningful discretion and flexibility that is protected from public opinion, and suggested that judicial hearings be established at a lower level to allow for decisions to be reviewed at a later date. Mr. Schindler concluded his comments by expressing the need for a voice or representation on behalf of these populations, and noted that educating both the public and offenders is the key to moving forward. While everyone believes there must be a penalty or consequence for breaking the law, Mr. Schindler stated the severity and duration of that penalty must be weighed by our system. He noted that Maryland focuses on rehabilitation rather than punishment, which suggests that there is redemption and hope for those in our criminal justice system. In closing, Mr. Schindler stated that we have to protect the public, but when it comes to sentencing, it is important to remember there are groups of people who are disadvantaged. Delegate Anderson expressed that Mr. Schindler s comments were extremely insightful. Judge Harrell indicated that the MSCCSP is currently studying alternatives to incarceration and asked Mr. Schindler for his input. Mr. Schindler mentioned home monitoring as an alternative, but 2

46 Public Comments Hearing Minutes December 13, 2016 stated he is not sure how effective it is. He also emphasized the importance of training public safety officials, as well as inmates re-entering society. Senator Kelley noted that in addition to the work accomplished via the Justice Reinvestment Act, there are several members of the General Assembly still interested in tackling other aspects, specifically pre-trial, and that Mr. Schindler s remarks were apropos to some of these considerations. In particular, the recognition that often during the acceptance of pleas, people feel they have no other option. She noted that individuals, who are sometimes eventually found innocent, have accepted pleas as a way to avoid life without parole, for example. Mr. Davis expressed his appreciation for Mr. Schindler s respect toward public defenders. However, he noted that while public defenders can unfortunately have daunting caseloads at times, he does not think it is fair to the people who are dedicated to public defense to suggest an attorney might recommend that someone take a plea bargain in order to lessen their caseload. Mr. Davis stated that there are many dedicated individuals in the public defender s office who work tirelessly to ensure that they have the necessary time to appropriately represent defendants. Mr. Schindler responded by stating that although he appreciates Mr. Davis perspective, many people do not share the same perspective. Senator Kelley agreed that public defenders work very hard, but many have two or three times the workload that we would consider the recommended maximum. They cannot do everything as well as they are trained to do or want to do when there is not a sufficient amount of time to spend on cases. She noted that it s going to take more resources to prevent some of the negatives consequences, as expressed by Mr. Schindler, from occurring. Judge Harrell thanked Mr. Schindler and asked if there were any additional speakers present who wished to address the Commission. Senator Kelley requested that the minutes acknowledge additional written testimony submitted by Michael Mattox despite his absence from the hearing. Copies of the submitted written comments are attached as an appendix to these minutes. The Hearing concluded at 5:30 pm. 3

47 Public Comments Hearing Minutes December 13, 2016 Appendix Written Comments Submitted in Advance at the 2016 MSCCSP Public Comments Hearing The views expressed in the Public Hearing testimony are those of the speaker(s) and do not reflect the official policy, position, or opinions of the Maryland State Commission on Criminal Sentencing Policy (MSCCSP). The MSCCSP does not endorse the content of the comments, nor does it guarantee the accuracy, reliability or completeness of the information. Only testimony that was provided electronically to the MSCCSP is included. 4

48 Public Comments Hearing Minutes December 13, 2016 Comments Submitted by Michael Schindler My name is Michael Schindler. I am the author of several sensitivity training manuals for professionals in Corrections and Law Enforcement, and re-entry of inmates into society. I am currently working on a manual for presentation to Jr. and High School students. Racial disparity in sentencing is a factor; but more often the greater disparity is economic. Those defendants that cannot afford any defense due to economic restrictions are more likely to be offered plea bargaining or stiffer sentences than those persons financially able to afford those services. This disenfranchised group of people often encompasses most people of color. Plea bargains often come with side effects for the defendants. One of them is the pressure of being sentenced to much longer terms if they do not take a plea bargain. There should be a stipulation that if the State is willing to make a plea bargain that defendant cannot be sentenced to more than that plea; unless there are mitigating circumstances. Not only does it place pressure on the defendant to take a plea bargain; even if they are innocent, it also affects their long term ability to file any future motions. This often happens to those persons less educated, and mentally or emotionally challenged. These are the most likely persons to have economic disparity. I have great respect for our Public Defender officials. They are faced with the daunting task of scheduling their time and resources. They are often overloaded and plea bargains are an inviting closing to many cases they are faced with. The work load on this institution makes it impossible to devote the necessary time and financial resources to every defendant. Not only should the public be aware of sentencing policies concerning incarceration, but also the programs in our systems to educated and rehabilitate those offenders. The fact of the matter is most of our offenders will reenter into society in a given amount of time. In the vast majority of cases this is inevitable. The public should understand this. Judges should have the meaningful judicial discretion and flexibility; that is protected from public opinion. Judges decisions are based on the facts or lack thereof and are more likely to be fair and impartial. There should be a judicial hearing at a lower level to review these decisions at a later date for defendants. There should be a voice or representation of the populations we are serving. Educating the public and offenders is the key to moving forward. When people break the law everyone believes that there must be consequences. The severity and duration of this payment must be weighed out by our system. Maryland focuses on rehabilitation rather than punishment. This suggests that we believe there is redemption and hope for those persons in our justice system. Thank you for your time. 5

49 Public Comments Hearing Minutes December 13, 2016 Comments Submitted by Michael Mattox Note: Mr. Mattox indicated that he would be unable to attend the public hearing and requested that the following comments be submitted in his absence. These comments were submitted via an sent to Dr. Soulé. HELLO MY NAME IS MICHAEL MATTOX I AM WRITING ON BEHALF OF AND SUPPORT FOR MY BROTHER DORIAN MADDOX AN INMATE SERVING A LIFE SENTENCE AT MCI-H I SUPPORT THE EFFORTS OF MAJR FIGHTING FOR THE RIGHTS OF MD INMATES MY BROTHER HAS BEEN INCARCERATED FOR OVER 40 YEARS HE HAS BEEN RECCOMENDED FOR PAROLE CURRENTLY IN JULY OF 2015 AWAITING A DECISION FROM THE GOVERNOR HE WAS RECCOMENDED ALSO IN THE PAST WAS AT PRERELEASE STATUS BEFORE THEN GOVERNOR GLENDENING'S DECISION TO DENY PAROLE FOR ALL LIFERS GOVERNOR HOGAN PROMISED DURING HIS CAMPAIGN RUN TO EXPEDIANTLY ADDRESS THE PAROLE SITUATION OF LIFERS IN MD THAT HAS NOT HAPPENED I DO BELIEVE THE GOVERNOR SHOULD BE EXCLUDED FROM THE PAROLE PROCESS AND THE PAROLE COMMISSION DECISIONS BE RESPECTED THE PAROLE SYSTEM AS IT IS CURRENTLY IS OUTDATED AND UNFAIR I WILL CONTINUE TO FOLLOW YOUR EFFORTS AND OFFER MY SUPPORT IN THIS EFFORT TO ASSIST MD LIFERS ELIGIBLE FOR PAROLE SINCERLY MICHAEL MATTOX. 6

50 Maryland State Commission on Criminal Sentencing Policy MSCCSP MEETING and ANNUAL PUBLIC COMMENTS HEARING House Office Building Annapolis, MD Tuesday, December 13, 2016 SCHEDULE Meeting Time Location Public Comments Hearing 5:00 pm Break 6:15 pm Judiciary Committee Room (Room 100) Commission Meeting 6:30 pm Note: Dinner will be available at the start of the break. 1. Call to order 2. Declaration of quorum AGENDA 3. Approval of minutes from September 20, 2016 MSCCSP meeting 4. Update on the Study Examining the Impact of the Juvenile Delinquency Score on the Sentencing Guidelines Dr. Jinney Smith, Associate Director, Maryland Data Analysis Center (Status report) 5. Guidelines Subcommittee Report Judge Shannon Avery a. Review of guidelines calculation rules for offenses revised pursuant to the JRA committed prior to but sentenced on or after October 1, 2017 (Action item) 6. Executive Director Report Dr. David Soulé a. Update on study on alternatives to incarceration (Status report) b. Request to assign task of developing recommendations to include in study on alternatives to the Guidelines Subcommittee (Action item) c. Update on MSCCSP FY 2018 budget submission (Status report) 7. Proposed schedule for 2017 meetings (Action item) a. The MSCCSP typically does not meet during the General Assembly Session. The General Assembly reconvenes on January 11, 2017 and Sine Die is April 10, b. Proposed dates for 2017 meetings: i. Tuesday, May 9, 2017 ii. Tuesday, July 11, 2017 iii. September 19, 2017 iv. December 12, Old business 9. New business and announcements 4511 Knox Road, Suite 309 College Park, MD (301) / phone (301) / fax

51 MSCCSP Meeting Minutes December 13, 2016 Minutes Maryland State Commission on Criminal Sentencing Policy House Office Building Annapolis, MD December 13, 2016 Commission Members in Attendance: Honorable Glenn T. Harrell, Jr., Chair Honorable Shannon E. Avery, Vice-Chair Delegate Curtis S. Anderson Senator Robert G. Cassilly William M. Davis, Esquire, representing Public Defender Paul B. DeWolfe Honorable Brian L. DeLeonardo Barbara Dorsey Domer Elizabeth Embry, Esquire, representing Attorney General Brian E. Frosh Richard A. Finci, Esquire Brian D. Johnson, Ph.D. Senator Delores G. Kelley Honorable Patrice E. Lewis Colonel William M. Pallozzi Honorable James P. Salmon Delegate Joseph F. Vallario, Jr. Staff Members in Attendance: Sarah Bowles Stacy Najaka, Ph.D. Katharine Pembroke David Soulé, Ph.D. Tessa Guiton, MSCCSP Intern Visitors: Linda Forsyth, Community Liaison for Senator Kelley; Claire Rossmark, Department of Legislative Services; Mateus Rennó Santos, Maryland Data Analysis Center; Jinney Smith, Maryland Data Analysis Center; Webster Ye, Assistant to Delegate Vallario 1. Call to order The meeting began immediately following the Public Comments Hearing at 5:30 pm. 2. Approval of minutes, September 20, 2016 meeting The Commission approved the minutes as submitted Knox Road, Suite 309 College Park, MD (301) / phone 1

52 MSCCSP Meeting Minutes December 13, Update on the Study Examining the Impact of the Juvenile Delinquency Score on the Sentencing Guidelines Dr. Jinney Smith, Associate Director, Maryland Data Analysis Center (Status report) Dr. Jinney Smith, Associate Director, Maryland Data Analysis Center (MDAC) and Mateus Santos, PhD Candidate, University of Maryland, presented the second of a three-part series of presentations on the impact of the juvenile delinquency score on the sentencing guidelines. Recapping her presentation from the May 2014 meeting, Dr. Smith noted that preliminary results of the MSCCSP s data were not conclusive, but they showed, in terms of sentencing outcomes, potential variations across subgroups. Dr. Smith received additional data from the Department of Juveniles Services (DJS), and criminal history background records from the Department of Public Safety and Correctional Services (DPSCS). Dr. Smith drew the Committee s attention to the current Juvenile History Scoring Instructions. Dr. Smith reminded the Commission of the current rules and noted that as the current rule reads, the juvenile score is used within the overall offender score (up to two of nine points). Dr. Smith and her colleagues created an estimated DJS score by scoring the DJS records using the sentencing guidelines scoring rules. They layered these scores on the MSCCSP s data and this analysis revealed an issue. Using the full juvenile history records, Dr. Smith noted that it was difficult to recreate the scores on the actual sentencing guidelines worksheets. Comparing the estimated scores to the actual worksheet scores, Dr. Smith found that of the 16,470 cases reviewed, the scores matched in only 13,506. Applying the five-year decay, this number rose to 13,706 or 83.2%. In this analysis, Dr. Smith applied the five-year decay rule as follows: to do a retrospective five-year decay; if the offender was crime free for five years retrospectively, they received a score of zero. Dr. Smith noted that this language is ambiguous on the one-page guidelines worksheet and suggested that this language may need clarification. Additionally, Dr. Smith and the MSCCSP staff conducted a survey asking individuals what data they had available when they completed the guidelines worksheet, what types of data they used, hypothetical scoring situations and what additional information they had available. This survey was sent to one State s Attorney and one Parole and Probation Field Supervisor in each jurisdiction. Dr. Smith stated that the survey revealed that individuals in different jurisdictions are recording juvenile scores in different ways. During Dr. Smith s presentation, Senator Kelley noted that the current juvenile delinquency score policy may be re-punishing children who were born into bad circumstance or whose families could not afford to get them into community services. She noted different counties are interpreting the current policies differently and that maybe these policies should be reconsidered. As an example, Dr. Smith presented the Commission with the following hypothetical: According to the MSCCSP s Guidelines Manual, an individual who is under 23 years old should be assigned a juvenile score of 0 if he or she has been crime free for 5 years since the last finding of a delinquent act or last adjudication. Suppose an individual is aged 22, had one adult conviction at age 19, and had 2 adjudications and 2 commitments when 13 years old. Does this individual meet the crime free criterion specified above? Dr. Smith noted that States Attorneys and Probation and Parole Agents scored this differently. She 4511 Knox Road, Suite 309 College Park, MD (301) / phone 2

53 MSCCSP Meeting Minutes December 13, 2016 noted that there is ambiguity in terms of how the five-year rule is applied. Interestingly, the MSCCSP staff and Dr. Smith s team also disagreed on the scoring of this hypothetical. Mr. DeLeonardo noted that there may be a difference in individuals views of what constitutes a commitment. Dr. Smith indicated that the DJS maintains adjudication and commitment data in two separate data files. She further noted that the files do not indicate which adjudications lead to commitments. While one can attempt to create a time-line and link the cases, individuals frequently have more than one adjudication. Dr. Smith noted that because of the file structure, one always has to separate the commitments from the adjudications. She also noted that there may be a situation in which an individual is committed but still reporting for status reports to a judge, and because this commitment would appear to be reordered at each status hearing, the individual would appear to have multiple commitments when, in actuality, this was the same commitment. Dr. Smith indicated that she removed these situations from the analysis by referring to the recurring petition IDs. If the underlying petition ID remained the same, they determined that this was just one commitment. However, they were not able to differentiate between a more serious commitment or a commitment to a secure facility. Mr. Finci noted that this review began when it came to light that different jurisdictions view the term commitment differently. For example, in one jurisdiction, a juvenile is committed to a community diversion program, and this could be counted as a commitment for the purposes of scoring the juvenile record. Judge Lewis stated that the National Association of Women Judges is concerned about this process in regards to young girls as sometimes commitments are made on the basis of safety issues and family issues, even when the juvenile has not been adjudicated a delinquent. Sometimes these girls are detained as a protective matter and this may increase their juvenile delinquency scores. Dr. Smith noted that she did not specifically look at gender as the sample sizes were so small. Judge Lewis stated that she would still like to see the information separated by gender. Senator Kelley noted that, due a lack of funding, girls are not getting what they need from juvenile facilities. Additionally, girls typically have higher levels of mental health needs and patterns of abuse but that the resources are not meeting their needs. Dr. Smith noted several difficulties in working with the data from DJS and some missing information. Judge Harrell asked about the impediments to obtaining the missing information from DJS. Dr. Smith noted that while some files have references to the offenses, the delinquency code associated with the offense does not correspond to the adult criminal code. She indicated that there was no easy way to create a hierarchical ranking in coding the offenses and that while this may be done manually, there are currently not enough resources to complete this task. Senator Kelley stated that Dr. Smith previously indicated that there is a great deal of variability in the definitions of commitment among the jurisdictions. Dr. Smith noted that they cannot see that in the data, but it is what they have been told. The DJS data is operational agency case-management data and it takes a great deal of effort to manipulate these data for research purposes Knox Road, Suite 309 College Park, MD (301) / phone 3

54 MSCCSP Meeting Minutes December 13, 2016 Senator Kelley asked if anyone was looking at the data in terms of economics or income levels. Dr. Johnson indicated that that type of information was not collected. Senator Kelley stated that because low income juveniles make use of some services, they are adjudicated in a way that middle class juveniles are not. Dr. Smith indicated that DJS does not collect that information. Judge Lewis indicated that we need a better definition for both a commitment and a delinquent act. Judge Lewis further indicated that until there is a more complete dataset indicating the underlying causes of adjudication or commitment, it is impossible to make accurate comparisons. Judge Harrell noted that at the end of Phase III of this project, a recommendation should be made concerning the need for these data. Dr. Smith s last analysis was a preliminary recidivism analysis using only the MSCCSP data. Dr. Smith looked at individuals whose sentences did not include additional incarceration. The three-year re-arrest and reconviction rates by juvenile delinquency score showed the following: individuals with a juvenile delinquency score of zero had a 60% rearrest rate and a 39% reconviction rate; individuals with a juvenile delinquency score of one had a 80% rearrest rate and a 59% reconviction rate; and individuals with a juvenile delinquency score of two had a 87% rearrest rate and a 73% reconviction rate. Dr. Smith noted that putting aside the conflicting definitions, just looking at these data, the scores appear to work. These numbers are not broken down by type of reconviction, this is the group in its entirety. However, as these rates reflect adult rearrest and reconviction, these data can later be broken down into crime types. Judge Avery noted that the difference in offense would inform policy considerations differently and this should be taken into account. Dr. Smith noted that broad distinctions can be made, such as the difference between felonies and misdemeanors, but beyond that, differentiating by crime type would lead to very small variables. Judge Avery noted that the categories could be broader, such as drug crimes, property crimes and crimes of violence. Dr. Smith stated that she eventually hopes to look to re-incarceration rates, in addition to rearrest and re-conviction rates. Dr. Smith also stated that the juvenile delinquency score was never pre-validated. This study is being done now because it had never been done for Maryland. Judge Avery noted that she personally prefers to have substantive information to guide both herself and policy in general. To that note, focusing on only recidivism and rearrest does not provide enough information. Better information would include information on the seriousness of the offenses committed, especially when compared to the seriousness of past offenses. Senator Kelley indicated that juveniles can be on probation for the duration of their teenage years. She questioned whether minor violations are considered recidivism, such as not paying fines or status offenses. She stated that she believed the state of Maryland needs to define these terms. Judge Harrell indicated that he believed it would be important to have a searchable database by gender and by types of crimes. While this may not be created by the end of Phase III, he would like the see an indication of how this database could be created and who could create it Knox Road, Suite 309 College Park, MD (301) / phone 4

55 MSCCSP Meeting Minutes December 13, 2016 Returning to the survey, Dr. Smith indicated that when asked if only commitments over 30 days should be counted, respondents indicated that it would be very difficult to calculate the score if commitments had to be a certain length. When asked if commitments were redefined to only include commitments to DJS secure facilities, respondents answered that it would be very difficult to isolate only certain commitments. When asked if adjudications could be redefined to only include acts that were equivalent to those of a certain seriousness category, more respondents answered that this would be feasible when calculating the overall score. Dr. Smith indicated that the MDAC team would look at this more fully for the next phase. Dr. Smith discussed the goals for the Phase III of the project and asked for information of interest to the Commission. Senator Kelley indicated that she would like to see a qualitative study focusing on the various definitions between jurisdictions. Judge Lewis reiterated that there is a concern about judicial bias over economics. Someone who has greater needs should not necessarily have greater sentences and our resources should be directed to appropriate places. Judge Lewis noted that studies show over and over again that the earlier an offender is a part of the criminal justice system, the longer they are a part of the criminal justice system. Mr. Davis stated that under the Roper case, children are constitutionally different than adults. He suggested that the Commission adopt a plan to take age into account. He further suggested that Dr. Smith look at the data to see if children in the adult courts are receiving downward departures based upon their age. Dr. Smith indicated that the data excludes juveniles sentenced in an adult court and noted that her current study is only focusing on adults aged 18 to 22 who are sentenced in an adult court. Mr. Davis stated that the case law in Maryland is clear that children should be treated differently and that the current sentencing guidelines do not reflect this difference. He noted that there are at least twenty people or so who may be eligible for re-hearings on their sentences because they were sentenced to life without parole as a juvenile. He clarified that he does not believe the Maryland Court of Appeals has ruled on all of these cases, but that these cases are in different states of review. Mr. DeLeonardo noted that age is considered in the reverse waiver hearing. He questioned the purpose of the juvenile delinquency score study and whether this study went beyond validating the use of the juvenile scoring system. Senator Kelley suggested that having unclear definitions in any study makes the study unclear. Dr. Smith indicated that this study is retroactively studying whether individuals with differing juvenile delinquency scores reoffend at differing rates. Dr. Smith indicated that she hopes to complete the draft of Phase III by the May meeting but there may be delays that push this draft to July. Judge Harrell indicated that the Commission would like to have an advance look at any information by the May meeting. 4. Guidelines Subcommittee report Dr. David Soulé Judge Avery indicated that the Guidelines Subcommittee met on November 30, 2016 via teleconference to review one issue but as she could not make this meeting, Dr. Soulé gave the update Knox Road, Suite 309 College Park, MD (301) / phone 5

56 MSCCSP Meeting Minutes December 13, 2016 Dr. Soulé indicated that this issue concerned how to handle scenarios where a defendant is convicted for one of the drug or property offenses with decreased penalties pursuant to the Justice Reinvestment Act that was committed prior to, but sentenced on or after, October 1, Referring to the memorandum with this title, Dr. Soulé noted that pursuant to Waker v. Maryland, Maryland case law indicates that a defendant in the aforementioned scenario is subject to the statutorily-defined penalty in effect at the time of sentencing, unless, pursuant to ex post facto laws, doing so would result in a punishment harsher than that in effect at the time the offense was committed. The Guidelines Subcommittee agreed that Waker does control in these scenarios. As noted in the second document titled Proposed Revisions to the Maryland Sentencing Guidelines Corresponding to the Justice Reinvestment Act there are multiple drug and theft/fraud related offenses with reduced penalties effective October 1. The second issue addressed by the Guidelines Subcommittee was given that Waker controls in these scenarios, and that the Maryland Sentencing Guideline Manual instructs to use the sentencing guidelines in effect at the time of sentencing, how should the guidelines should be calculated to specifically accommodate offenses committed prior to, but sentenced on or after, October 1, 2017? Previously when offense penalties were revised and/or the Sentencing Commission revised the seriousness category for an offense, the Commission simply removed the old version of the offense from the Offense Table and inserted the revised version. The Guidelines Subcommittee recommended this protocol for drug offenses revised pursuant to the JRA. Dr. Soulé indicated that the Maryland Automated Guidelines System (MAGS) would display two rows for each of the revised drug offenses. The first row displays the statutory maximum penalty and seriousness category in effect prior to October 1, The second row displays the new statutory maximum penalty and seriousness category in effect on and after October 1, For the property offenses revised by the JRA (and those are essentially the theft- and fraudrelated offenses), Dr. Soulé noted that not only were the respective penalties revised, but the elements of the offenses themselves are also changing as the monetary threshold categories will be shifted. The Guidelines Subcommittee decided to recommend adoption of the same basic approach that was used for the drug offenses. If a defendant commits a theft- or fraudrelated offense prior to, but is sentenced on or after, Oct 1, 2017, the individual scoring the guidelines will select the closest analogous new offense and its corresponding seriousness category and statutory maximum. To select the closest analogous offense, the user will select the new offense with the dollar amount threshold closest to the old offense, unless the dollar amount involved places the offense into a lower dollar amount threshold, in which case the user will select the new offense corresponding to the lower dollar amount threshold. Dr. Soulé gave an example of how this process works. Dr. Soulé noted that this is important because, by rule, the guidelines cannot exceed the statutory max for an offense, so it is necessary for MAGS to apply the correct statutory 4511 Knox Road, Suite 309 College Park, MD (301) / phone 6

57 MSCCSP Meeting Minutes December 13, 2016 maximum and cap the guidelines at that appropriate maximum. The negative of this approach is that it requires a user to select an offense title that differs from the convicted offense title. Dr. Soulé noted that this approach is justified in order to get the guidelines correct, and the judge or judge s designee can always note the original convicted offense title in the Additional Information section of the worksheet/mags. During the Subcommittee teleconference, Mr. Finci asked if it would be possible to program MAGS such that anytime a user selects a revised theft- or fraud-related offense, a pop-up window would appear asking the user whether the dollar amount of the theft or fraud falls between the old and new dollar amount thresholds for the offense. Dr. Soulé indicated that while this is an option, this would require substantial programming and there is no current funding for this type of programming enhancement. Dr. Soulé stated that a Guidelines E-News would be distributed with an example. Additionally, the rules regarding the use of an offense s current seriousness category when calculating the prior record score will be reiterated. Dr. Johnson questioned how the revised theft- and fraud-related offenses will be treated in analyses of guidelines compliance. Dr. Soulé said that from a data standpoint, these will have to be considered new offenses as they have different statutory maximums and guidelines. Mr. Finci recommended that the MSCCSP encourage individuals using MAGS to determine the dollar amount involved in theft offenses. Dr. Soulé noted that the guidelines worksheets requests the amount of economic loss to the victim but that this amount can be higher or lower than the plea suggests. Judge Lewis suggested that the guidelines worksheet also include the actual amount of theft that the defendant agreed to under the terms of the plea. Dr. Soulé noted that there was a unanimous decision by the Guidelines Subcommittee to make these recommendations and Judge Avery indicated that while she did not participate in the subcommittee teleconference, she does agree with the recommendation. There was a motion to proceed accordingly, and the Committee voted unanimously to accept the proposed recommendations. 5. Executive Director Report Dr. David Soulé a. Recognition of interns Dr. Soulé acknowledged two undergraduate interns, Tessa Guiton and Elizabeth Mullin, who worked with the Commission staff during the fall semester, and thanked them for their contributions. b. Update on study on alternatives to incarceration The Justice Reinvestment Act directed the MSCCSP to study how alternatives to incarceration may be included in the sentencing guidelines and to submit a report of their findings with recommendations to the Justice Reinvestment Oversight Board, Governor, and General Assembly by January 1, Dr. Soulé discussed the steps MSCCSP staff has taken to address this mandate. First, the staff is reviewing and summarizing background 4511 Knox Road, Suite 309 College Park, MD (301) / phone 7

58 MSCCSP Meeting Minutes December 13, 2016 information on the work previously completed by the Study Sentencing Commission relative to corrections options. Dr. Soulé noted that while this work took place in the late 1990s, it is still relevant and should shed some light on why specific guidelines were not developed for corrections options, as mandated in the Sentencing Commission enabling legislation. Secondly, the staff is also reviewing how alternatives to incarceration are utilized in other states and jurisdictions with a particular emphasis on how they are incorporated into sentencing guidelines. Lastly, Dr. Soulé reported that MSCCSP staff created an online survey or inventory of alternatives to incarceration that incorporated feedback provided by Commission members at the last meeting. The survey was distributed in November to Circuit Court Administrative Judges, Parole & Probation field supervisors, and local correctional administrators in each jurisdiction. Dr. Soulé noted several preliminary findings from the survey. Dr. Soulé then directed the Commission s attention to a report released last Friday from the Brennan Center for Justice at New York University School of Law. The study is entitled How Many Americans are Unnecessarily Incarcerated and argues for greater use of alternatives to incarceration, particularly for low level, non-violent offenders. He indicated that the staff will thoroughly review the Brennan Center report and may incorporate aspects of it into the Commission s final report on alternatives to incarceration. c. Request to assign task of developing recommendations to include in study on alternatives to the Guidelines Subcommittee As the staff works to identify what recommendations the study on alternatives to incarceration might include, Dr. Soulé indicated that it might be helpful if this task was assigned to the Guidelines Subcommittee, so that staff could first work with a smaller group of Commissioners and then bring forward recommendations for the full Commission to consider. He then asked the Commission to consider inviting Commission members LaMonte Cooke and Secretary Moyer s representative, Rachel Sessa, to be involved in this task as special guest Subcommittee members. Given Mr. Cooke s experience with local programming as a corrections administrator, and Ms. Sessa s affiliation with the DPSCS, their input would be a beneficial during these deliberations among the Subcommittee. The MSCCSP agreed with Dr. Soulé s recommendation unanimously. d. Update on the MSCCSP FY 2018 budget submission Dr. Soulé reported that at the end of September, the staff submitted a fiscal year 2018 budget in accordance with the $500,000 target given to the Commission. In the course of preparing for this budget submission, and in conjunction with a careful assessment of budgetary needs with respect to the mandated duties of the MSCCSP, two over-the-target requests for FY 2018 were submitted totaling $63,714. The first priority over-the-target request equaled $54,000 to create a dedicated source for contractual services to provide information technology support for updating and maintaining MAGS. In the request to the Governor, it was noted that the Department of Public Safety and Correctional Services (DPSCS) has been a tremendous partner for the MSCCSP by hosting MAGS within its secure server environment. It was further noted that MAGS has been maintained and updated at little to no cost to the MSCCSP, as the DPSCS has covered these costs within its budget Knox Road, Suite 309 College Park, MD (301) / phone 8

59 MSCCSP Meeting Minutes December 13, 2016 Since the MSCCSP has relied on DPSCS to fund the contractual programming support for the MAGS application, Dr. Soulé noted that there are often times when programming bugs cannot be addressed in a timely manner, as the funding is not available immediately to support the necessary contractual services. The lack of a dedicated funding source means that MAGS is less efficient than it could be for both the end users and the MSCCSP. Dr. Soulé further explained that the cost for creating the MAGS application was done almost exclusively with funds received from a federal Bureau of Justice Assistance grant. MAGS has operated for more than four years without any requested additional funds. However, as the use of MAGS expands statewide and the number of agencies and individuals accessing MAGS continues to grow, the MSCCSP will need its own funding to support continued maintenance of the system. Dr. Soulé continued by reporting that the second priority over-the-target request is for a budget adjustment of $9,714 to increase the summer hours for the MSCCSP s part-time policy analyst position (staffed by a graduate research assistant) to allow this individual to work 40 hours per week during the 10-week summer period. Currently, the MSCCSP is staffed with 4 full-time equivalent positions and one part-time GRA who fills the policy analyst position. The GRA works 20 hours per week for 9.5 months of the academic calendar year. This equates to roughly one-third of the hours of a full-time position. Thus, in sum, the MSCCSP staff represents 4.3 positions. The submitted over-the-target request would allow for the expansion of the policy analyst position to provide 40 hours per week during the 10- week summer period (400 total hours) when the graduate research student is not taking classes. Mr. DeLeonardo asked if Commissioners are typically notified of budget submissions in hopes that they may be able to offer either verbal or written support of the request. Judge Harrell suggested that the FY 2018 budget submission letter previously sent to the Governor s office be forwarded to all Commissioners and asked for any possible support regarding this request. 6. Date, time, and location of the next Commission meeting. The next meeting was scheduled for Tuesday, May 9, 2017 at the Judiciary Education and Conference Center. The remaining meetings for 2017 were scheduled for July 11, September 19, and December Old business None. 8. New business and announcements None. The meeting adjourned at 7:51 p.m Knox Road, Suite 309 College Park, MD (301) / phone 9