By: Steve Lash Daily Record Legal Affairs Writer November 25, 2018
Del. Vanessa E. Atterbeary, incoming vice chair of the House Judiciary Committee, says much of the panel’s focus will be on ensuring that juvenile criminals get the services they need to avoid future legal entanglements. (File Photo)
The 2019 Maryland General Assembly session could become the year of the child in the areas of criminal justice and cyberbullying.
Leaders of the legislature’s judiciary panels list reform of the juvenile justice system and the prevention of online harassment of youngsters as top priorities for the 90-day session that begins Jan. 9.
Though perennially discussed, proposals to reform juvenile justice laws were overcome last session by the General Assembly’s zeal to stanch the record homicide rate in Baltimore. Meanwhile, an effort to expand Maryland’s law criminalizing online harassment of children died in the House Judiciary Committee amid free-speech concerns.
That House panel – for the first time in a quarter century – will have a new chair, as its longtime and influential leader Del. Joseph F. Vallario Jr., D-Prince George’s, was defeated in the Democratic primary in June. The incoming chair, Del. Luke Clippinger, D-Baltimore city, was reticent this month to discuss any legislative initiatives but said he will consider all proposals brought before the panel this coming session.
This article is the first part of The Daily Record’s coverage leading up to the Annapolis Summit, an event that marks the start of Maryland’s legislative session. Returning Senate Judicial Proceedings Committee Chair Robert A. “Bobby” Zirkin said he hopes juvenile justice reform in 2019 follows the model set by the landmark 2016 Justice Reinvestment Act, which changed the focus of Maryland’s handling of non-violent offenders from punishment to treatment.
The question legislators must ask is “what are we doing to ensure petty offenses do not become significant offenses,” said Zirkin, D-Baltimore County. “It’s all about public safety.”
The committee chair added, “We have a significant way to go to make our juvenile justice system work.”
A shot at a future
Sen. William C. “Will” Smith, the committee’s incoming vice chair, said juvenile justice reform should follow the “holistic approach” being taken under justice reinvestment.
Thus, reform should include sentencing models that ensure the youngsters’ physical safety, continued education and placement in a fostering community, he said. To achieve these goals, the system must prevent young offenders from being jailed with adults, provide adequate classes for them and, whenever possible, sentence them to supervised release, the senator added.
The incoming chair of the House Judiciary Committee, Del. Luke Clippinger, D-Baltimore city, replaces the panel’s longtime leader, Del. Joseph F. Vallario Jr., who lost in his district’s Democratic primary.
“A lot of the information is readily available to us,” said Smith, D-Montgomery, citing justice reinvestment programs.
Del. Vanessa E. Atterbeary, incoming vice chair of the House Judiciary Committee, agreed that juvenile justice reform is “going to be a big issue” this session. The panel’s focus will be on ways to ensure young offenders receive the services they need in a timely manner, said Atterbeary, D-Howard.
Del. David Moon, a Judiciary Committee member, said legislation should address treating the criminal, not punishing the crime, regardless of the offender’s age. Moon said he will reintroduce legislation to convert petty, non-violent offenses from being punishable by incarceration to be treatable as a mental illness that requires hospital care.
“Some large percentage of these cases are (related to) mental health,” said Moon, D-Montgomery. “We’re reaching a point where no one is going to deny this is a serious problem.”
Republican Sen. Robert Cassilly, of the Judicial Proceedings Committee, called juvenile justice reform a bipartisan, public safety issue that requires young offenders caught up in the system to be taught life and marketable skills but which also ensures violent offenders serve appropriate prison time.
“We can’t throw lives away,” Cassilly said of the need for treatment and vocational skills. “We want to make sure that we’re giving people a reasonable shot at a future when they get out.”
At the same time, the criminal justice system as a whole must “make sure that we’re putting bad guys in jail for the right amount of time,” said Cassilly, R-Harford.
Recidivism is “killing us for God’s sake,” he added.
Republican Del. Susan K. McComas, of the Judiciary Committee, shared Cassilly’s view that a hard-line approach is often necessary, even as treatment is the desired result in juvenile justice laws.
“The reform has got to be the carrot and the stick,” said McComas, R-Harford. “Sometimes if you give kids a break, they don’t get the message.”
McComas said Maryland’s mental health treatment and research facilities can assist the legislators in legislative reform proposals.
“We have a lot of great resources,” McComas added. “We just have to get it together.”
Beyond ‘Grace’s Law’
‘It was legislative malfeasance not to pass it last year,’ Senate Judicial Proceedings Committee Chair Robert A. “Bobby” Zirkin says of cyberbullying legislation. (File Photo)
The cyberbullying bill would expand a 2013 law named in memory of Grace K. McComas, a 15-year-old Woodbine girl who killed herself on Easter Sunday 2012 after an older teenager posted on social media vulgar insults, a death threat and called her “worthless.” Grace was not related to the delegate.
“Grace’s Law” makes it a crime punishable up to a year in jail and a $500 fine to engage in a continuous course of bullying online.
Zirkin, sponsor of the bill he will reintroduce to expand the law, said the statute’s mention of continuous conduct has proven to be too narrow in the world of social media.
Online abuse does not require the perpetrator to send a deliberately hurtful message multiple times to do harm, as a single posting can be expected to be shared, liked or otherwise reposted by others countless times, Zirkin said.
The 2019 bill, like its ill-fated 2018 version, will be narrowly drawn to address only speech intended to bully youngsters, which is not protected by the First Amendment, the senator said.
That argument failed to convince Vallario last session, as the bill died in the House Judiciary Committee – a result that still angers Zirkin.
“It was legislative malfeasance not to pass it last year,” Zirkin said, adding that the proposal he has dubbed Grace’s Law 2.0 will be among the first bills the Senate passes in 2019 and gets before the House Judiciary Committee and its new leadership.
“It will be a full-court press unlike any that I put on before,” Zirkin said. “This is a growing hazard for vulnerable children. Our law is wholly inadequate.”
Atterbeary said she will sponsor the bill in the House and hopes to shepherd it through the chamber.
She criticized the First Amendment argument that derailed the bill in committee last year, saying an absolutist free-speech position fails when youngsters are driven to suicide by the online harassment.
“To take a hard-line stance on free speech when we are talking about children’s lives is not even rational,” Atterbeary said.
Noting Vallario’s election defeat, the incoming vice chair added that “one of the major opponents is no longer here.”
Other issues
In addition to juvenile justice reform and cyberbullying, the judiciary committees will again consider legislation to enable convicts to challenge their convictions for up to three years after they discover or should have known their guilty verdicts would have collateral consequences, such as an enhanced sentence for a subsequent offense or deportation.
Smith, the Senate sponsor of the bill, has said three years are necessary to ensure relief for those “facing unintended consequences for the flawed conviction.”
The General Assembly passed the measure last session but it was vetoed by Gov. Larry Hogan, who said the current law’s standard of starting the clock when the convict knew or should have known of the error at trial is appropriate.
“The (vetoed) legislation allows a defendant who knows of an error to do nothing until faced with a collateral consequence, unnecessarily delaying a challenge in a manner that can only benefit the defendant,” Hogan wrote in a letter to legislative leaders explaining the veto, which could not be overturned because it occurred in the final year of the legislators’ four-year terms.
The judiciary committees will also consider gun-control measures, including ways to prevent the proliferation of 3-D printed guns, Smith said.
“It is something we have to address sooner rather than later,” the senator added.
In addition, Moon, of the House Judiciary Committee, said the panels will continue their examination of pretrial services programs as an alternative to pretrial incarceration in an era of bail reform.