Maryland Chief Judge Mary Ellen Barbera of the Maryland Court of Appeals delivered the quadrennial State of the Judiciary address earlier this month. She described the state of Maryland’s judiciary as “fundamentally sound.” Given the inexcusable dearth of information that is made available to measure the performance of Maryland judges, I guess we’ll just have to take her word for it.
Although perhaps not for much longer. Gov. Larry Hogan has asked the General Assembly to enact “The Judicial Transparency Act of 2019.” The bill would require the Maryland State Commission on Criminal Sentencing Policy (MSCCSP) to publish detailed information on the sentences handed down for violent crimes across the state, including the sentencing histories of individual judges. The proposal, now before the General Assembly in the form of HB 229 (cross-filed with SB 176), is a sound one and it is long overdue.
The Maryland judiciary’s own record on transparency and accountability is dismal. In commentary published by The Daily Record in 2017, I pointed out that the database maintained by the MSCCSP contains a wealth of information about criminal sentences. The database does not, however, allow members of the public to determine the extent to which individual judges adhere to the sentencing guidelines promulgated by the commission.
The names of the judicial circuits in which the judges serve are captured in the database, but not the names of the individual judges. That information is unavailable because the judges don’t want it made available. I urged the judges to change their minds; they didn’t, and now the General Assembly should do what the judiciary should have done itself.
Maryland judges appear allergic to any kind of assessment of their performances. Unlike many other states, Maryland has no formal program for evaluating the performances of judges. In 1998, a select committee of Maryland judges and lawyers recommended that the state adopt a mandatory evaluation program run by the Administrative Office of the Courts. The recommendation has never been adopted.
Circuit court judges run in contested elections and appellate judges run unopposed in “retention” elections. In neither situation do voters have much information on which to base their decisions. Combine the absence of performance evaluations with a lack of transparency and the impression is created of a judiciary not keen on the possibility of negative feedback.
Retired circuit court judge Steven Platt co-chaired the committee that recommended a mandatory evaluation program for judges in 1998. He stated in 2017 that he still believed such a program was needed. “We’d be better with it than without it. Judges should be as subject to as much criticism as anyone else.”
Judges and others opposed to transparency of the judicial system disagree with Judge Platt about criticism. They believe that criticism from the public, and judges’ fear of that criticism, will lead to a loss of judicial independence.
The argument that judges must be insulated from criticism is troubling. In the case of the sentencing guidelines, for example, it means that a judge who consistently deviates from the guidelines does not get identified. Whose interests does that serve, other than the interests of the judge who wishes to avoid scrutiny?
And keeping citizens in the dark implies that citizens cannot be trusted to act responsibly with information about how judges do their jobs – a concept entirely unacceptable in a representative democracy. A lack of transparency does nothing more than fuel the worst fears of the public about the administration of justice.
If for some unfortunate reason HB 229 fails to pass, there remains something that Gov. Hogan can do. Based on the ages of the judges and the mandatory retirement age, it looks like he will get to replace five of the seven judges on the Court of Appeals, including the chief judge.
He can ask applicants for those judgeships if they support full transparency of judicial performance; it is an entirely apolitical and appropriate question. If an applicant does not support transparency, there are plenty of qualified candidates who do. And maybe when Judge Barbera’s successor gives the next State of the Judiciary address, we will have more to go on about the soundness of the judiciary than just his or her word.
[Published as guest commentary by Maryland Matters on February 12, 2019 but not posted to my blog until April 13, 2019. The date of posting that appears above was backdated to place all posts in the order in which they were written.]