Mental Illness and Maryland’s Toothless Review of Criminal Sentences

By Steve Klepper (Twitter: @MDAppeal)

Not many unreported opinions of the Appellate Court of Maryland receive coverage in the Washington Post. But Thursday’s edition included an article by Justin Jouvenal on the new unreported opinion in Alain Jean Marie Robbins v. State. I urge you to read the opinion—authored by Judge Nazarian and joined by Judges Berger and Leahy—particularly pages 26 to 29.

Reluctantly affirming the second-degree assault convictions of a woman who kicked deputies while in an acute mental health crisis, the Court wrote that in our “admittedly gratuitous appellate opinion, Ms. Robbins was grossly over-charged, over-prosecuted, and over-sentenced when what she really needed was help.” Although the sentence was “suspended save for time served,” the defendant “still has five consecutive five-year suspended sentences hanging over her head and, although currently at liberty, she stands one non-technical probation violation away from exposure to a quarter-century in prison.”

This opinion hit hard, especially when I later learned of the heartbreaking testimony by the defendant’s teenage son at sentencing.

I’ve alluded to this point for many years but never posted about it outright. My father, who had bipolar disorder, went through a multi-year manic phase. Until his license was revoked, my father was a psychologist. He conducted a sophisticated Medicaid fraud scheme, embezzling $600,000 in the early 1980s. At the time, it was the nation’s largest single-provider case of Medicaid fraud. The embezzlement was for a delusional purpose, something that in dream-like logic was going to save our family from an impending apocalypse. He spent less than two years in prison, but it broke him—as did the IRS debt, under which annual interest and penalties were far higher than he could ever hope to earn.

Like Ms. Robbins’ son, I became the parent figure in the relationship at an early age. I remember the telephone conversation when the switch occurred. I was 14. Over the years, as I listened to him rant about those who put him in prison, while he apologized only for what he did to our family, I came to the difficult conclusion that he was criminally responsible for his acts, even considering his mania. He knew what he was doing was illegal.

Ms. Robbins did not have such a mental state. She appears not to have understood was what happening.

The Court deserves praise for pointing out the severity of the sentence, even though the sentence was suspended. For those facing mental health challenges, such a Sword of Damocles makes things immeasurably worse. In my father’s case, he never knew when his IRS file would be transferred to a different employee who might decide to garnish his entire paycheck, forcing him to scramble to find a sympathetic ear who would allow him to bring home enough to live on. The constant worry made his mental illness worse. It made it harder for him to conform his behavior to the law.

The Appellate Court criticized Ms. Robbins’ sentence, but Ms. Robbins’ appellate lawyers, consistent with established law, did not challenge her sentence. Sentences are virtually immune from appellate review in Maryland’s appellate courts.

If a sentence violates no statutory maximum or other bright-line legal limit, the only review in Maryland’s appellate courts is for violation of the “cruel and unusual punishment” bar of the Eight Amendment and Article 25 of the Maryland Declaration of Rights.

The last time such a challenge succeeded was in 1993’s Thomas v. State, back when there was no statutory cap for simple battery; by charging only that common law crime, the State circumvented a 10-year cap that would have applied under an on-point statute, and the resulting 20-year sentence was unconstitutional.

Since Thomas, sentences that have passed constitutional muster, based on a defendant’s criminal history, have included:

• a “sentence of thirty-six and one-half years” that included consecutive terms of “fifteen years for the theft over $500 from Toys ‘R’ Us [and] fifteen years for the attempted theft of a television set, valued at over $500, from Target” in 2009’s Clark v. State; and
• consecutive sentences totaling 70 years imposed on a “vexatious litigator” for “theft of $1,215 of waivable fees” in 2017’s Hinton v. State (unreported).

Because of sentencing judges’ “almost boundless discretion,” appellate advocates almost never challenge that discretion in Maryland’s appellate courts. The only realistic review of a sentence is by requesting review before a panel of three trial judges, a process in which the defendant takes the risk that the three-judges will impose a more severe sentence.

What often happens in the appellate courts, then, is that the overlong sentences are the elephant in the room but not the subject of the conversation. Instead, experienced appellate practitioners cite those sentences to drive home the stakes on a defendant’s challenge on other issues.

I do not like this dynamic. For example, in a 2021 Maryland Supreme Court case, the questions presented did not (and could not) include the truly compelling issue—the defendant received a ten-year sentence for perjury upon a finding that she falsely accused someone of fourth degree sex offense, a crime carrying a one-year maximum sentence.

In federal court, there is greater room for an appellate attorney to directly attack a sentence, even when it falls within the sentencing guidelines. A sentence that is lawful and procedurally sound may still be challenged as substantively unreasonable in relation to the goals of sentencing. It is a tough hill to climb, but it works on rare occasion. And federal appellate counsel can at least make the argument—which, win or lose, is often the argument that defendants want to see their advocate making.

Turning back to Ms. Robbins’ case, the Court’s opinion indicated a strong possibility that, if Maryland were to allow meaningful appellate review for substantive unreasonableness, this sentence would be vulnerable.

The time may well be here for Maryland lawyers to raise substantive unreasonableness challenges in the Maryland appellate courts. Maybe the appellate courts will change course and consider non-constitutional challenges to sentences. Or maybe the Supreme Court of Maryland, if asked, will hold that Article 25 is broader than the Eighth Amendment. Even if those challenges fail, at least criminal defendants will see their attorneys raising the arguments they want their attorneys to make.

One final note: The Appellate Court of Maryland should report its opinion. Yes, the notable part of the opinion is “admittedly gratuitous” dicta. But the opinion was issued before approval of the proposed non-retroactive amendment to Rule 1-104 allowing limited citation to unreported opinion. In any event, a major point of reporting opinions is not just to set precedent, but to become part of the national conversation among appellate courts on issues of great importance. The Robbins case is of great importance to the national conversation, and its powerful words deserve to be cited as such.