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May 8, 2007 - Washington Post (DC)

Bill Could Shorten Some Drug Dealers' Prison Time

O'Malley Is Torn Between Push for Treatment and Fear of Returning Offenders to the Streets

By Lisa Rein, Washington Post Staff Writer

Return to Drug War News: Don't Miss Archive

Gov. Martin O'Malley said he is considering whether to sign a bill that would put Maryland among the states seeking to reverse a long trend toward more severe punishment for some drug crimes.

The General Assembly approved a measure last month that would make twice-convicted drug dealers eligible for parole, meaning a 10-year sentence could be shortened to 2 1/2 years for a nonviolent offender. About two dozen other states are rewriting laws that mandate fixed prison terms as they confront a crushing volume of low-level criminals clogging state prisons.

Twenty-five years ago, Maryland joined a national movement to stem the rising drug trade, requiring sentences of 10 to 40 years for drug dealers. But locking up the hard-to-reform offenders with fixed sentences did little to prevent their re-arrest and even less to address the addiction that led to their crimes.

O'Malley (D) said last week that he is reviewing the bill and is "very much in favor of drug treatment." But he faces a conflict between his liberal sensibilities and his experience as a two-term mayor of Baltimore, where he saw daily homicides committed by drug addicts. "Anyone who doubts that drug distribution is a violent crime need only look at the morgues of this state," he said.

The Legislative Black Caucus, concerned that African Americans make up a majority of defendants jailed on drug charges, made House Bill 992 a top priority this year, but it was still among the most divisive of the just-concluded legislative session.

A veto would be O'Malley's first after a session in which he joined arms with the Democrat-controlled General Assembly on issues including the environment and a living wage, signing hundreds of bills.

The measure reflects a bipartisan shift in the politics of crime in Maryland, where corrections officials estimate that drugs played a role in the offenses of 70 percent of 22,692 state inmates.

Like many states, Maryland began enacting tougher drug sentences in the late 1980s and early 1990s in response to the rise in crack- related violence and such high-profile tragedies as the death of University of Maryland basketball star Len Bias of an overdose of cocaine in 1986.

Advocates for repealing fixed terms say locking up nonviolent offenders instead of treating them is ineffective, forbids judges from addressing individual cases and, in the case of second-time offenders, unfairly punishes low-level dealers who get the same 10 years in jail regardless of the quantity of drugs they are caught with.

This year's legislation follows a 2004 law signed by then-Gov. Robert L. Ehrlich Jr. ® that encouraged judges to divert nonviolent offenders from jail into drug treatment. But judges have complained that state funding hasn't kept pace with demand for beds.

"All of those at the table have learned that you can take a drug user, lock him up and keep him clean and sober for the time he's locked up," said Gary G. Everngam, a District Court judge in Montgomery County. "But when you let him out, he's still a drug user."

This year's bill took a roller coaster ride, failing on the House floor by one vote after a dramatic debate about crime, punishment and redemption-then squeaking by in the final days by five votes after its sponsor, Del. Curtis S. Anderson (D-Baltimore), revived it. Anderson, a Baltimore defense lawyer who is black, argued that most second-time offenders are nonviolent addicts who sell drugs to support their habits.

On the Senate floor last month, two Republicans said they favored rehabilitation over punishment.

"My thinking has completely changed," said Sen. Larry E. Haines (R- Carroll), telling colleagues of his recent work with addicts. "These people need treatment."

It's the same conclusion drawn in the past four years by 22 states, including Michigan, Texas and New York, that have rolled back mandatory minimum drug sentences or restructured penalties. At the federal level, the U.S. Sentencing Commission recommended last week that Congress reduce minimum sentences for first-time crack cocaine convictions. House leaders are expected to hold hearings on the issue.

The District does not have minimum mandatory sentences for drug dealers. Virginia gives judges more discretion in sentencing for drug cases, with mandatory minimums of five years for a third or subsequent conviction for drug distribution.

The bill's original language included funding for treatment. But it came to the floor of both chambers with none in a year with little new spending. This stirred concern among opponents, who said it would be irresponsible to parole drug offenders without a safety net.

"I'm not prepared to gamble with public safety by letting these people get paroled early and hoping they get treatment," said Del. Christopher B. Shank (R-Washington), the minority whip.

The number of drug offenders given fixed sentences in Maryland is relatively small, about 100 people a year, according to the Justice Policy Institute, a national advocacy group. But public defenders say the system encourages prosecutors to push thousands more defendants into plea bargains to avoid lengthier sentences.

"Do we want to continue to build more prisons, or deal with the root cause of these crimes and get people into treatment?" Anderson asked a Senate committee last month.

Maryland's prison system has tripled since 1980, when it had 7,731 inmates, according to the Office of the Public Defender. Today, 49 percent of all prisoners are arrested again within three years, corrections officials say, although the state does not calculate the rate for drug offenders. Few receive treatment in prison. The prison population has notched down by 1,300 inmates since 2003, and correction officials are trying to figure out why, said Mark Vernarelli, a spokesman for the state's corrections department.

Advocates for treatment and repealing fixed sentences say one reason for the drop could be the 2004 measure.

The law had the support of a broad coalition of lawmakers and criminal justice officials. But judges and public defenders have complained that funding has not kept pace with the demand for long- term inpatient beds, which are widely viewed as the most effective form of treatment.

Just $3 million of the state's $130 million budget for drug treatment was available for the program in fiscal 2005, and Maryland pays for about 150 long-term beds for this population, judges and state officials say. A panel of judges complained to the House Judiciary Committee in January that offenders faced lengthy waits to get into treatment.

"We're up in Annapolis banging on the door for more treatment dollars," said Michael McGuinness, director of Second Genesis, a Silver Spring-based treatment center with inpatient and outpatient services.

The state budget for the next fiscal year includes $5 million in new money for treatment, some of which will be used for long-term-care beds, said Peter F. Luongo, director of the Maryland Alcohol and Drug Abuse Administration.

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