Maryland Notes: MD Rule 4–345

by Keith Wallington and Lila Meadows

This past summer, the Maryland Court of Appeals deliberated a rule amendment that would have created another avenue for release for long sentenced individuals. Unfortunately, the court decided not to adopt the changes.

Rule 4–345 governs the revisory power of the court regarding sentences imposed for criminal convictions. Prior to July 1, 2004, the court rule allowed individuals serving life and other long sentences an opportunity to build a sustained record of rehabilitation for the court to consider when deciding whether a sentence modification was appropriate. When the rule was amended in 2004 to limit the court’s power of review to five years, the change was especially detrimental to those serving long sentences, especially for young people who typically struggle in their early years of incarceration.

The proposed amendments would have allowed two groups of people to petition for a second sentence modification: (1) those who were convicted before the age of 25, were sentenced to a term of imprisonment of at least 15 years, and who have served the greater of 15 years or 60% of that sentence; and (2) those who have reached age 60 and have served at least 15 years.

The proposed changes would have allowed those clients to make their case before the same court that imposed the initial sentence, providing an opportunity to demonstrate that they are no longer a risk to public safety and that they have earned, and therefore deserve, release.

Rule change vs JRA:

Opponents highlighted recent legislation as a reason for the court to reject the proposed changes. The Juvenile Restoration Act (JRA) went into effect October 1, 2021 and allows individuals who were under the age of 18 at the time of the offense, and who were sentenced to 20 years or more, to petition the court for a modification of sentence after serving 20 years. The JRA requires the court to hold a hearing on the motion and make findings regarding an individual’s suitability to rejoin the community after considering factors such as the nature of the crime, age at the time of the offense, home and community environment, victim impact, and evidence of maturation and rehabilitation.

While passage of the JRA moves Maryland closer to providing juveniles lifers with a meaningful opportunity to rejoin the community, it stops short of recognizing what neuroscience has told us about individuals ages 18–24, that neurologically they have much more in common with children than adults, and are capable of tremendous change and rehabilitation.

Geriatric provision:

The proposed change would also have provided a pathway to reconsideration for individuals over the age of 60 who have served at least 15 years, regardless of their age at the time of the offense. In 2019, the Department of Public Safety & Correction Services reported that 982 incarcerated individuals were over the age of 60, while an additional 2,362 were between the ages of 51 and 60. While Maryland does have a geriatric parole statute, in practice there is no viable pathway to release based in part on age. As of April 2021, not a single individual has been released under this provision. Medical parole, which could benefit elderly prisoners, is also woefully underutilized. Setting eligibility at age 60 would have been consistent with eligibility for geriatric parole, which was lowered to age 60 by the General Assembly with the passage of the Justice Reinvestment Act in 2017.

Critical differences between parole and motions for modification of sentence:

During the 2021 session the General Assembly passed legislation that would increase parole eligibility for those serving life sentences to 20 years, and remove the governor from the process. Unfortunately, the governor exercised his veto authority. The General Assembly must override the veto at the beginning of the 2022 legislative session.

Even if the bill does become law, parole is not a substitute for what the rule change would have provided — judicial authority to reevaluate and potentially modify a sentence. There are critical differences between parole proceedings and motions for modification of sentence, the chief being due process protections. In Maryland, individuals are not afforded a right to counsel in parole proceedings and cannot be represented by counsel in parole hearings. Moreover, individuals have no right to introduce evidence or call witnesses during those proceedings. These due process protections would have been available to petitioners filing a motion under Rule 4–345 and are critical to a full review.

Although the court ultimately decided not to adopt the rule this year, we will still fight to get the tenets of the rule in place.

[With thanks to contributing author Lila Meadows]