Executive Summary

In 2002, the SCCSP classified criminal offenses passed by the 2002 Maryland General Assembly; began reporting of new data on reconsidered sentences, types of pleas, and victims' involvement in sentencing; considered legislation concerning diminution credits; provided data and information to state agencies and media, including the Baltimore City Criminal Justice Coordinating Council and several of its component agencies; performed training sessions across the state for users of the guideline manuals and worksheets; completed a training video for guidelines use and began development of online applications of the process; continued use of its advisory worksheet workgroup composed of practitioners from around the state; piloted of "deliberative focus groups" on correctional options and disseminated a report on their findings and recommendations; worked with the state Family Violence Council on better data collection on felony domestic violence offenses; and posted research reports on topics related to sentencing and to criminal justice to provide a resource for state policymakers desiring thorough information for their decisions. In 2002, the SCCSP also revised its web site (www.msccsp.org) to make it more thorough and user-friendly and to allow citizens and policymakers to have better access to information concerning Maryland circuit court sentencing.

The SCCSP continued its recording and reporting of data on state circuit court sentencing. The analysis in this report revealed that, although aggregate rates of judicial departures remain above a benchmark of 33%, the aggregate rate declined from 58% to 51% between 1999 and 2000, and then again from 51% to 49% between 2000 and 2001. In the past three years, departure rates across the board have experienced a significant downward trend. Between 1999 and 2000, all judicial circuits experienced a decrease in departure rates. This overall downward trend continued through 2001, although some circuits experienced no rate changes and the rates of others actually increased. In the Eighth Circuit, a very high departure rate for drug offenses in combination with the large number of drug offenses relative to person and property offenses strongly influenced its aggregate compliance rate. The exploratory analysis of compliance for drug offenses from 1999 through 2001 suggests that the high departure rate stems primarily from the high departure rate for cocaine and heroin distribution cases (Seriousness Category III - Without Importation). If these two offenses were excluded from the departure calculation, the statewide departure rate for all remaining drug offenses would have decreased by 32% (65%-33%). Similarly, if these two offenses were excluded from the statewide departure rate for all offenses, the overall rate would have decreased by 19% (53%-34%) for the 1999-2001 period.

Comparison of judicial departure rates by mode of disposition (plea agreement, plea without agreement, jury trial, or court trial) revealed that sentences imposed as a result of a plea agreement or plea without agreement were more likely to fall below the recommended sentencing guidelines range (although this was not true for property offenses). Upward departures were most common among cases resolved by a jury trial.

In 2001, the SCCSP decided that judicial departure rates were affected by two factors that needed inclusion in reasonable discussions of departures from sentencing guidelines. First, the SCCSP agreed to count sentences that resulted from "ABA pleas," that is, pleas binding on prosecution, defense, and the sentencing judge, as within guidelines to reflect the consensus of the parties and the communities that they represented. Second, recognizing the state's interest in promoting sentences to correctional options, such as substance abuse treatment and other similar programs, even though those sentences might not fall within the sentencing guidelines, the SCCSP agreed to accept sentences to certain specified alternative sanctions (specified in COMAR) as within guidelines.

As to be expected, these adjusted departure rates fell in all of the eight circuits. For the Second Circuit, the decrease was relatively small at 4% (30% to 26%). The Eighth Circuit, on the other hand, experienced, a much larger decrease (66%), attributable to the large number of drug cases disposed of by ABA pleas in that circuit. The second largest decrease can be found in the Seventh Circuit (21%). The departure rates for the remaining five circuits decreased between 5% and 12%. Overall, the statewide departure rate fell by approximately 40%.

In 2002, the Maryland General Assembly passed HB1143, which required the SCCSP to "review reductions or increases in original sentences" due to reconsideration of sentences in state circuit courts and to report those sentences in its Annual Report by offense type and circuit court. As this is the first year of implementing the data requirement, the SCCSP does not have baseline data with which to compare these submissions. The SCCSP is working closely with the state Administrative Office of the Courts (AOC) to ensure that all circuit court judges know to submit the worksheets for reconsidered sentences and to try to compare its data with AOC data. In addition, the SCCSP has coordinated with the Maryland Bar Association in its report with the law schools at the University of Maryland and the University of Baltimore on the factors leading to reconsidered sentences. The SCCSP expects to refine its reporting process in the coming year to provide the most thorough portrait possible of the use of reconsidered sentences in the state circuit courts.

In 2003 the SCCSP will examine possible adjustments to the sentence ranges in the cell of each guidelines matrix, as well as considering inclusion of correctional options into the matrices. It will also report data on the new items added to the sentencing guidelines worksheet, such as additional victim information and data on reporting of time to be served before parole consideration for violent offenses. New reports on sentencing-related issues and concerns will go up on the SCCSP web site on a regular basis for use by the public and state policymakers, including more of its new "Sentencing FAX" reports and reports on the future effect of technological change on sentencing practices in Maryland and across the nation. The SCCSP will continue its use of Deliberative Focus Groups (DFG), perhaps moving into other topic areas such as public priorities for the state sentencing policy agenda. SCCSP staff will develop and expand its training exercises and materials to ease and promote the use of the guidelines in all circuit courts and oversee implementation of the worksheet process on-line. The SCCSP will work diligently to fulfill its legislatively mandated mission of bringing proportional, nondisparate sentencing to the state criminal justice process and to the people of Maryland.

The State Commission on Criminal Sentencing Policy

Establishment and Charge of the State Commission

1. Sentencing should be fair and proportional and that sentencing policies should reduce unwarranted disparity, including any racial disparity, in sentences for offenders who have committed similar offenses and have similar criminal histories;
2. Sentencing policies should aid citizen understanding of the time that an offender will actually be incarcerated, if any;
3. Sentencing guidelines are voluntary and that it is voluntary for the courts to sentence within the guidelines;
4. Prison capacity and prison usage should give priority to the incarceration of violent and career offenders;
5. Sentencing policies should preserve meaningful judicial discretion in the imposition of sentences and sufficient flexibility to permit individualized sentences; and
6. Sentencing judges in every jurisdiction in the State should be able to impose the most appropriate criminal penalties, including corrections options programs for appropriate offenders.

The SCCSP was designed and authorized with the purpose of fulfilling those legislative intentions.

SCCSP Composition

SCCSP Authorizations

1. Specify the range of sentences applicable to crimes of given degree of seriousness;
2. Specify a range of increased severity for defendants previously convicted of or adjudicated delinquent for one or more crimes before the current offense; and
3. Provide a list of aggravating or mitigating circumstances.

The SCCSP also has authority to "adopt guidelines to identify defendants who would be appropriate for participation in corrections options programs." These guidelines are to be considered by the sentencing court in selecting either the ordinary guideline sentence for a defendant or sanctions under corrections options.

Furthermore, the SCCSP received the power to collect and automate the state sentencing guidelines worksheets with assistance from the Maryland Administrative Office of the Courts. Using the data collected, the SCCSP is to monitor circuit court sentencing practice and to adopt changes to the guidelines consistent with legislative intent. The data collected would also support the legislatively mandated use of a correctional population simulation model designed to forecast prison bedspace and resource requirements. Forecasts exceeding available state resources would have to include alternative guidelines recommendations to bring prison populations into balance with state resources.

The SCCSP also received the authority to conduct guidelines training and orientation for system participants and other interested parties in a timely manner. The SCCSP was to administer the guidelines system in consultation with the General Assembly and to provide formal fiscal and statistical information on proposed legislation concerning sentencing and correctional practice.

SCCSP Activities in 2002

COMAR. The Maryland General Assembly required in the SCCSP enabling legislation that the Commission put the process for completion of the voluntary sentencing guidelines into COMAR. While the initial work was achieved by 2001, classification of new offenses from the 2002 General Assembly and additions to the sentencing guidelines worksheet required new submissions in 2002. The additions included new information on victim involvement in criminal sentencing and recording of data regarding announcement of 50% of sentences to be served prior to parole consideration, as required by state law. These new elements went into effect in October 2002.

Legislation considered. In 2001, the SCCSP voiced its support for legislation treating the "banking" of earned credits when serving prison sentences the same for those on mandatory supervision as for those on parole, and it repeated that support for the successful legislation in 2002. In addition, the SCCSP opposed legislation to require reporting of sentences by judges in cases involving violent offenses. The SCCSP did not oppose legislation mandating reporting of new sentences due to acceptance of petitions to reconsider previous sentences. The legislated requirement is provided later in this report. In 2002, the SCCSP began preparation for consideration of potential legislation on sex offender risk assessment, in conjunction with the state's Joint Departmental Sex Offender Task Force. It also started work with the state Bar Association and the law schools at the University of Baltimore and the University of Maryland on the issue of judicial reconsideration of sentences.

Training and materials. SCCSP staff in 2002 continued its mandated work of supplying training and materials on the sentencing guidelines throughout the state. To supplement the additional work for COMAR, the SCCSP updated its sentencing guidelines manual and held training sessions around the state, at the invitation of circuits and districts. Staff also completed a training video for jurisdictions for future instruction of new personnel. The SCCSP continued work and consultation with its sentencing guidelines worksheet workgroup, composed of practitioners and users around the state, to provide regular feedback on use of and problems with the worksheets. Finally, the SCCSP began development of an on-line worksheet process accessible through the Internet, with greater expected efficiencies and cost-savings for all users.

Public information. While much of the SCCSP effort at public information and education went into its web site, discussed later in more detail, the SCCSP in 2002 maintained its development of different mechanisms to hear from the public and to let it know about state sentencing issues and policies. Commissioners and staff were speakers and participants at state, regional, and national meetings, conferences, and workshops on sentencing-related topics throughout 2002, including meetings in Anne Arundel, Frederick, and Montgomery Counties and in Cumberland, Westminster, and Baltimore City. In addition, the SCCSP completed its first use of "deliberative focus groups" (DFGs) to determine public reaction to correctional options and public recommendations for funding and implementing them. The first DFG was held in Howard County in 2001, and in 2002 DFGs were held in Prince George's County and at the University of Maryland. The full report of the DFGs and their findings can be found on the SCCSP web site.

Subcommittee work. The SCCSP's permanent subcommittee on sentencing guidelines did the initial work and made the recommendations for all the COMAR submissions mentioned above. In addition, the subcommittee in 2002 began consideration of the current sentencing practices of circuit courts for each cell of each matrix in the sentencing guidelines process. This consideration allowed initial deliberation on what cells, if any, should be adjusted in the future and on the possible introduction of correctional options recommendations, such as Baltimore City's "Tamar's Children" program, into the matrices.

Special reports. The SCCSP issued several reports in 2001, either done by its staff or submitted to the SCCSP by outside consultants. (These are listed and discussed further in the later section on the Commission web site.) These reports included five done by graduate students in the University of Maryland's Department of Criminology & Criminal Justice. Although the students' work did not necessarily express the opinions or recommendations of the SCCSP, they did draw many favorable responses from readers inside and outside the state. Three more reports-on effectiveness of sentencing guidelines systems, on trends in women's sentencing, and on trends in penalties for sexual abuse and domestic violence--have been developed in 2001 and will be completed early in 2002. In addition, a full report on the DFG held in Howard County was completed and disseminated statewide and nationally.

The SCCSP Web Site: Resource for State Policymakers

The site has changed dramatically in design in 2002 to improve the look and navigability. The site is now divided into 5 sections: Commission, Guidelines, Publications, Data, and Resources.

The Commission section provides information about the Maryland State Commission on Criminal Sentencing Policy. Among the items within this section are a description of the Commission's origin and purpose, a list of current Commission members, a staff directory, and copies of the minutes from past meetings.

The Guidelines section was designed to assist those responsible for the completion of sentencing guidelines worksheets. This is the main section for practitioner use. Among the items found within this section are an overview of the current guidelines, a copy of the current Maryland Sentencing Guidelines Manual including eight sample cases, a guidelines offense table, and information on training.

The Publications section contains publications produced by the SCCSP. Among the items within this section are copies of the Commission's most recent annual report, quarterly newsletter, and Sentencing FAX, a periodic publication highlighting data on sentencing practices in the State's circuit courts. In addition, this section contains briefings on such topics related to sentencing and other criminal justice issues.

The Data section provides data extracted from sentencing guidelines worksheets submitted to the SCCSP. This is an entirely new feature of the website. Here data have been extracted from the SCCSP's annual reports to show sentencing trends in the state. In addition to a brief overview of the data, this section contains tables on departure rates by circuit, offense type (person, drug, and property), and disposition (plea, plea without agreement, court trial, and jury trial). A copy of the Commission's information request policy and form can also be found in this section.

The Resources section provides information on sentencing-related resources. Included within this section are reports and other publications on sentencing research, links to Maryland State Government agencies, other sentencing commissions, as well as state and national criminal justice organizations.

On the front page there is a sidebar with one additional section, News and Information. This section is used to highlight the most recent additions to the website. Updates to the site are also described in the What's New section accessible on the sidebar. This page contains a listing of each update to the site, with links to the new information. Here attention is drawn to updates to the Sentencing Guidelines Worksheet and the Sentencing Guidelines Manual as well as legislative changes such as the recodification of the criminal code.

The SCCSP staff will continue to use the website as a primary means of communication with the criminal justice field. Updates and new information relevant to sentencing practices in the state will continue to appear on the site.

Judicial Departure from Maryland's Voluntary Sentencing Guidelines

Analyses of judicial departures in Maryland have traditionally focused on sentences for single count convictions because they permit the examination of departures by crime category, offense type, and cell of the sentencing matrix. Since multiple count convictions can consist of any combination of person, drug, and property offenses, meaningful interpretations of sentencing patterns within matrices cannot be obtained. An additional data restriction, the lack of record-keeping reliably distinguishing between multiple sentences that run consecutively and concurrently during particular years, precluded analyses of multiple count convictions in the present report.

The present examination of judicial departure rates will focus on sentences for single count convictions between calendar years 1999 and 2001. Single count convictions account for approximately 75% of the total number of guidelines worksheets received each year. For example, of the 11,000 sentencing guidelines worksheets submitted to the SCCSP in 2001, roughly 8,000 contained single count convictions.

Judicial Departure Rates Overall

Figure 1 provides a breakdown of the rates from 1999 through 2001. In the past three years, with greater SCCSP effort at improving them, departure rates have declined 9%. The comparison revealed that although aggregate rates of judicial departures were above the benchmark, the aggregate rate declined from 58% to 51% between 1999 and 2000, and then again from 51% to 49% between 2000 and 2001.

From calendar year 2000 to 2001, departure rates remained relatively constant. The First, Second, Third, and Sixth Circuits had lower departure rates in 2001 than the previous year, while the Seventh and Eighth Circuits stayed almost the same, neither varying over two-tenths of a percentage from the previous year. Departure rates decreased most in the Sixth Circuit from 46% in 2000 to 38% in 2001.

Judicial Departure Rates by Crime Category

In addition, the departure rates in four circuits (the First, Second, Fourth, and Seventh) were fairly similar and relatively low for each crime category. For example, in the Seventh Circuit, the departure rate by crime category ranged from 27% for property offenses to 36% for person offenses. The aggregate departure rate across crime categories in these circuits fell below or narrowly passed 40%.

In three of the remaining four circuits (the Third, Fifth, and Sixth), the aggregate departure rate for each circuit fell between 37% and 49%. All three circuits had relatively stable departure rates for two of the three categories, with the third category falling slightly above or below the other two. In the Third Circuit, the person category contained the aberrant departure rate (nearly 10% less than the other two). For the other two circuits, the property category provided a noticeably higher rate than the other two.

Finally, the Eighth Circuit's aggregate departure rate was above the rates of the other seven circuits. In this circuit, the departure rate for drug offenses was especially high (77%). The high departure rate for drug offenses, coupled with the large number of drug offenses relative to person and property offenses, drove the Circuit's aggregate departure rate. While the aggregate departure rate in the Eighth Circuit was 59%, the departure rate for both person offenses and property offenses was moderately less (51% and 48%, respectively).

Judicial Departure Rates by Type of Disposition

Adjusted Judicial Departure Rates

Table 1 examines adjusted judicial departure rates, taking into account cases disposed of by ABA plea agreements and/or sentenced to a corrections options program as defined in COMAR. As to be expected, the adjusted departure rates fell in all of the eight circuits. For the Second Circuit, the decrease was relatively small at 4% (30% to 26%). The Eighth Circuit, on the other hand, experienced a much larger decrease (66%). This significant drop was primarily attributed to the large number of drug cases disposed of by ABA pleas in that circuit. The second largest decrease was found in the Seventh Circuit (21%). The departure rates for the remaining five circuits decreased between 5% and 12%. Overall, the statewide departure rate fell by approximately 40%.

Report on Adjustments from Reconsidered Sentences

Summary

The current analysis revealed that, in the past three years, with greater SCCSP effort at improving them, departure rates have declined 9%. Although aggregate rates of judicial departures remain above a benchmark of 33%, the aggregate rate declined from 58% to 51% between 1999 and 2000, and then again from 51% to 49% between 2000 and 2001.

Comparison of judicial departure rates by mode of disposition (plea agreement, plea without agreement, jury trial, or court trial) revealed that sentences imposed as a result of a plea agreement or plea without agreement were more likely to fall below the recommended sentencing guidelines range (although this was not true for property offenses). Upward departures were most common among cases resolved by a jury trial.

Between 1999 and 2000, all judicial circuits experienced a decrease in departure rates. The rates in five of the eight circuits (Fourth, Fifth, Sixth, Seventh, and Eighth) fell more than 5%. The Fourth Circuit experienced a departure rate nearly twice that amount (9%). The remaining three circuits (First, Second, and Third), however, exhibited a less significant downward trend. The departure rates in the First and Third Circuits decreased by approximately 3%, while the Second Circuit experienced a 4% decrease.

This overall downward trend continued through 2001, despite the fact that some circuits experienced no rate changes and the rates of others actually increased. Between 2000 and 2001, neither the Seventh nor Eighth Circuits experienced any change in departure rates. During this same time period, the Fourth and Fifth Circuits actually experienced an increase in departure rates. The increase was fairly small for the Fifth Circuit (1%), but more moderate for the Fourth Circuit (4%). Yet, these relatively minor increases were not significant enough to affect the overall departure rates.

The most aberrant departure rate can be found in Eighth Circuit drug cases (77%). Departure rates in this category of offenses remain significantly higher than all other cases. In the Eighth Circuit, the very high departure rate for drug offenses in combination with the large number of drug offenses relative to person and property offenses strongly influenced its aggregate compliance rate. The exploratory analysis of compliance for drug offenses from 1999 through 2001 suggests that the high departure rate stems primarily from the high departure rate for cocaine and heroin distribution cases (Seriousness Category III - Without Importation). If these two offenses were excluded from the departure calculation, the statewide departure rate for all remaining drug offenses would have decreased by 32% (65%-33%). Similarly, if these two offenses were excluded from the statewide departure rate for all offenses, the overall rate would have decreased by 19% (53%-34%) for the 1999-2001 period.

The present analyses suggest that the aggregate departure rates have begun a downward trend over the past three years. Trends in aggregate departure rates, however, obscure variation at the circuit level, as evidenced by the range in departure rate percentages. The high aggregate judicial departure rate for drug offenses was strongly influenced by the high departure rate for two offenses, which occurred predominantly in one circuit.

SCCSP Planned Activities for 2003

Conclusion

The SCCSP continued its recording and reporting of data on state circuit court sentencing. The analysis in this report revealed that, although aggregate rates of judicial departures remain above a benchmark of 33%, the aggregate rate declined from 58% to 51% between 1999 and 2000, and then again from 51% to 49% between 2000 and 2001. The decline marks successful SCCSP efforts to improve departure rates since its inception. Between 1999 and 2000, all judicial circuits experienced a decrease in departure rates. This overall downward trend continued through 2001, despite the fact that some circuits experienced no rate changes and the rates of others actually increased. In the Eighth Circuit, a very high departure rate for drug offenses in combination with the large number of drug offenses relative to person and property offenses strongly influenced its aggregate compliance rate. The exploratory analysis of compliance for drug offenses from 1999 through 2001 suggests that the high departure rate stems primarily from the high departure rate for cocaine and heroin distribution cases (Seriousness Category III - Without Importation). If these two offenses were excluded from the departure calculation, the statewide departure rate for all remaining drug offenses would have decreased by 32% (65%-33%). Similarly, if these two offenses were excluded from the statewide departure rate for all offenses, the overall rate would have decreased by 19% (53%-34%) for the 1999-2001 period.

Comparison of judicial departure rates by mode of disposition (plea agreement, plea without agreement, jury trial, or court trial) revealed that sentences imposed as a result of a plea agreement or plea without agreement were more likely to fall below the recommended sentencing guidelines range (although this was not true for property offenses). Upward departures were most common among cases resolved by a jury trial.

In 2001, the SCCSP decided to include in its judicial departure rates two factors that needed consideration in reasonable discussions of departures from sentencing guidelines. First, the SCCSP agreed to count sentences that resulted from "ABA pleas," that is, pleas binding on prosecution, defense, and the sentencing judge, as within guidelines to reflect the consensus of the parties and the communities that they represented. Second, recognizing the state's interest in promoting sentences to correctional options, such as substance abuse treatment and other similar programs, even though those sentences might not fall within the sentencing guidelines, the SCCSP agreed to accept sentences to certain specified alternative sanctions (specified in COMAR) as within guidelines.

As to be expected, the adjusted departure rates fell in all of the eight circuits. For the Second Circuit, the decrease was relatively small at 4% (30% to 26%). The Eighth Circuit, on the other hand, experienced, a much larger decrease (66%). This significant drop is primarily attributed to the large number of drug cases disposed of by ABA pleas in that circuit. The second largest decrease can be found in the Seventh Circuit (21%). The departure rates for the remaining five circuits decreased between 5% and 12%. Overall, the statewide departure rate fell by approximately 40%.

In 2002, the Maryland General Assembly passed HB1143, which required the State Commission on Criminal Sentencing Policy (SCCSP) to "review reductions or increases in original sentences" due to reconsideration of sentences in state circuit courts and to report those sentences in its Annual Report by offense type and circuit court. As this is the first year of implementing the data requirement, the SCCSP does not have baseline data with which to compare these submissions. The SCCSP is working closely with the state Administrative Office of the Courts (AOC) to ensure that all circuit court judges know to submit the worksheets for reconsidered sentences and to try to compare its data with AOC data. In addition, the SCCSP has coordinated with the Maryland Bar Association in its report with the law schools at the University of Maryland and the University of Baltimore on the factors leading to reconsidered sentences. The SCCSP expects to refine its reporting process in the coming year to provide the most thorough portrait possible of the use of reconsidered sentences in the state circuit courts.

In 2003, the SCCSP will continue its review of the state sentencing guidelines and make necessary changes to ensure their consistency and coherence. It will maintain its training and information activities and its work with Maryland circuit courts to decrease rates of departure from the voluntary guidelines. The SCCSP will work diligently to fulfill its legislatively mandated mission of bringing proportional, nondisparate sentencing to the state criminal justice process and to the people of Maryland.