Help from the Justice Reinvestment Act may be limited

By Karen Federman Henry

When the Maryland Legislature enacted the Justice Reinvestment Act (JRA) in 2016, it did so with an eye toward an overhaul of the criminal justice system.  The overarching goal of the JRA was to reduce Maryland’s prison population and use the related monetary savings to provide treatment to offenders before, during, and after their incarceration.  The JRA would accomplish this by reducing maximum penalties for drug distribution convictions, by repealing mandatory minimum sentences for nonviolent drug crimes, and by limiting the duration of incarceration imposed for a technical violation of probation.  While the concept focuses on rehabilitation rather than punishment, achieving the goals may be easier said than done.  A recent example appeared before the Court of Appeals, which concluded that the JRA did not expand the ability of an individual to seek appellate review of a revocation of probation to allow a direct appeal, but instead, the individual must seek leave to appeal a decision.  See Conaway v. State, No. 69, Sept. Term, 2018 and Johnson v. State, No. 76, Sept. Term, 2018 (combined).

Tomekia Conaway had violated her probation by failing to complete a drug treatment program successfully—a condition of her probation.  When her probation was revoked, the circuit court sentenced her to 15 years of incarceration.  Conaway filed a “Notice of Appeal or Alternatively Application for Leave to Appeal,” which the Court of Special Appeals denied after reading and considering the application.  She sought certiorari in the Court of Appeals based on the argument that she had a right to a direct appeal to the intermediate appellate court under the JRA.  Luke Johnson also failed to comply with the conditions of his probation, which required him to notify his probation officer before leaving the state and prohibited him from having contact with certain places and individuals.  The circuit court sentenced him to 10 years of incarceration, and Johnson filed an appeal and Application for Leave to Appeal that was dismissed by the Court of Special Appeals—the application was not granted or denied as provided by the applicable statute, but remained pending.

Using fundamental statutory construction principles, the Court viewed the specific language contained in the provision for probation revocation to govern—the language specified that “[r]eview of an order of a circuit court revoking probation shall be sought by application for leave to appeal.”  Md. Code, Cts. & Jud. Proc. § 12-302(g).  The Court’s decision left the sentence of incarceration that accompanied the revocation of probation subject to the same need to seek leave to appeal—if leave is not granted, the sentence remains unaltered.

For purposes of the JRA, it remains unclear whether this result helps or hinders the goals of the Act.  On the one hand, both of these individuals had the opportunity to succeed during probation and not return to prison for any period of time.  Having failed to comply with the conditions of their probation, it seems fair to reinstate a period of incarceration.  On the other hand, if the goal of the JRA is rehabilitation and re-entry into the community, perhaps the programs available to these two individuals were inadequate to prepare them for their probation.  It may be too soon to seek amendments to the law, but the dilemma posed by this case could be a sign of additional quandaries to come.

(Steven M. Klepper and Brad McCullough did not contribute to this post.)

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