Baltimore “Hushes” Supreme Court from Ruling on Police Settlement “Gag Orders”

In 2017, the ACLU of Maryland filed a case on behalf of the independent news website The Baltimore Brew and 30 year-old Baltimore resident Ashley Overbey challenging gag orders used in police brutality settlements.[1]The Baltimore Police department penalized Overbey by half of her settlement because she commented on a Baltimore Sun article regarding the facts of her police brutality case, despite being barred from doing so.[2]ACLU asserted, and the Fourth Circuit Court of Appeals agreed in their decision on July 11, 2017 the city’s policy of muzzling people who receive cash settlements in police brutality cases is unconstitutional, because it violates the First Amendment’s guarantee to free speech and free press.[3]

The Baltimore City Mayor Young’s Administration will not petition the Supreme Court to review the Fourth Circuit Court of Appeals ruling that the non-disparagement agreements added to Baltimore Police Department’s settlements are unconstitutional.[4]The City argued (and still maintains) that restrictions and confidentiality agreements are necessary so both the city and its police force can avoid harmful publicity.[5]However, after the Fourth Circuit issued their decision, the city announced that this issue is essentially moot because the non-disparagement language of police brutality settlements was amended, and allows citizens to speak freely.[6]

The city never mentioned this revision during trial, and the ACLU argues it does not render the non-disparagement clause constitutional.[7] The language still prohibits “a claimant and his or her agents, representatives, and attorneys from ‘any attempt to defame and or disparage the Released parties”.[8]In other words, claimants are still barred from making a statement that could amount to “reputational loss to the City of Baltimore” and still punishes violators with fines.[9] The Mayor has also spoken out against a Baltimore City Council Bill introduced the week after the ACLU won their case.[10]If passed, non-disparagement agreements would be barred from police settlements,[11]but Young claims the bill challenges powers granted to the Mayor by the city charter.[12]

Since 2009, the city has spent $35 million to settle police brutality cases.[13] Ninety-five percent of those settlements include terms barring claimants from speaking to the press, and until recently, from speaking out or sharing their story on social media.[14] The not so new occurrence of police brutality has become an especially acute issue for Baltimore City in recent years, and the Fourth Circuit Court of Appeals decision is a glaring comment on Baltimore’s need for police reform.

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Cameron Stang is a second-year law student and Staff Editor with University of Baltimore Law Forum. Before attending classes in the evening, Cameron works as a Legal Marketing Editor for The Agora Companies focusing on FTC and SEC compliance and maintaining her clients’ protection under the Publisher’s exemption of the Invest Adviser’s Act of 1940. After graduation in May of 2022 with a concentration in Business Law and Copyright, Cameron intends to expand her role with The Agora Companies and work with local foundations who assist artists in protecting their work and strengthening their businesses.

Do you Smell like Reefer? “No Problem!” Now, A Marijuana Joint and Smell of Marijuana does not Rise to the Level of Probable Cause for Search of a Person Incident to a Lawful Arrest

Around 10:00 p.m. on May 26, 2016, officers noticed a “suspicious vehicle” in a parking lot with its windows down and nowhere near the business itself.[1] One officer testified that when he was “within a foot” of the vehicle, they smelled the odor of freshly burnt marijuana and the other officer said that the smell of marijuana was strong but did not specify how close he was when he could smell it.[2] Mr. Pacheco was sitting in the front seat and complied when the officer asked him to hand over the joint that was in the vehicle’s center console.[3] The officers then ordered Mr. Pacheco to exit the vehicle and conducted a search, where they found cocaine in his front left pocket.[4] Mr. Pacheco was issued a citation for possession of less than ten grams of marijuana and charged with possession of cocaine with intent to distribute.[5]

At trial, Mr. Pacheco moved to suppress the cocaine because the officers’ warrantless search of his person was illegal because they lacked probable cause to believe that he possessed more than ten grams of marijuana.[6] The State countered that the odor provided probable cause to search both the vehicle and Mr. Pacheco.[7] The circuit court held that the officers had probable cause to arrest Mr. Pacheco and conduct a search of his person incident thereto because of Mr. Pacheco’s possession of less than ten grams of marijuana.[8] Mr. Pacheco entered a conditional guilty plea, reserving his right to withdraw that plea upon a successful appeal on the court’s ruling of his motion to suppress.[9] The Court of Special Appeals relied predominately on pre-decriminalization cases and affirmed.[10]

However, the Court of Appeals of Maryland reversed the trial court’s ruling on the motion to suppress.[11] While the court found that the officers had probable cause to search Mr. Pacheco’s vehicle based on the presence of contraband, they did not have probable cause to search his person.[12] The court’s reasoning is that although Mr. Pacheco had a diminished expectation of privacy in his vehicle, he still enjoys a heightened expectation of privacy of his person. In the post-decriminalization era, Marylanders will no longer be subjected to searches of their person based on the possession of less than ten grams of marijuana, where there is not a fair probability that they possess a criminal amount of marijuana.[13] As such, its citizens no longer need to worry that the smell of marijuana alone will give an officer probable cause to search their persons.

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Thaddeus C. Sheehy, Jr. is a 3L at the University of Baltimore and will graduate in December 2019. Thaddeus is a second-year staff editor on Law Forum. Thaddeus is from Anne Arundel County and currently resides there. Thaddeus currently works at Medifast, Inc. located in Baltimore City.

Fly Like Paper and Get Spied On By Planes

On September 7, 2019 Antonio Whitfield was found shot to death becoming Baltimore City’s 239^th homicide victim this year.[1] The city is on pace to eclipse 300 homicides a year, for the fourth straight year going back to 2015.[2] The unprecedented violence has led to marches and outcry’s from communities and politicians to end the killing. One outcry is for the redeployment of a highly controversial “spy plane” program that the police launched in 2016 without every notifying the public.

The “spy plane” program was originally funded in 2016 by a grant from Texas philanthropist John Arnold.[3] This created an issue because the police department did not have to go to the City Council for funding, thereby not giving the council any notice.[4] That year, the “spy plane” flew for about 300 hours until the public found out and the program was immediately ended.[5] While it was in operation, it did help solve the murder of an elderly couple in the Walbrook community.[6] However, it was also used to track hit and run suspects and individuals suspected of illegal dumping.[7]

Persistent Surveillance System Planes is the company that developed the technology used in the spy planes to originally be used in Iraq to track individuals that planted roadside bombs.[8] Since then it has been used to curb cartel violence along the border and provide a tool to law enforcement in American cities.[9] The “spy planes” are actually Cessna aircraft with a series of cameras attached to its belly.[10] The aircraft is capable of flight up to 10 hours and surveil an area of about 30 square miles, roughly 1/3 of the city.[11] The plane circles around the circles around the city, recording everything below, and saving the recordings on hard drives external to the plane.[12]

When a crime occurs, analysts with Persistent can pull up the crime scene from the saved recordings and watch every vehicle and person leaving the area.[13] However, the cameras can not make out identifiable features on people or the makes and models of cars.[14] The logic behind the technology is to track people in the vicinity of the crime scene knowing one is the killer. Analysts can track a suspects’ travel from the crime scene until they reach a house, then analysts can use Google maps to coordinate the address.[15] Analysts can also coordinate with street level cameras in an attempt to find a clearer image of a suspected killer.[16]

The natural reaction of most people is to reject the proposed intrusive surveillance and rightfully so. The last thing we want is to live in an Orwellian nightmare and have our every move tracked by Big Brother. Society fears the potential slippery slope this technology possesses and do not want to create a Minority Report system. However, Persistent is well aware of the hesitations and has offered a legitimate compromise.[17] The company insists that every keystroke made by analysts is recorded and a documented history of how the technology is used can be produced.[18] They propose that a independent review board be created to monitor the program and for the program be limited to only investigating major crimes.[19]

Despite the new proposal from Persistent, Mayor Jack Young and Baltimore City Police Commissioner Jack Young have publicly stated that they have no intention of re-starting the program.[20] But is that necessarily the best choice? If Persistent is offering full transparency and funding would again come from Mr. Arnold, is it not worth trying again? Having a review board to ensure transparency and uphold citizens rights would limit the technology’s application from issuing jay walking citations and make sure it is being applied as advertised.

Baltimore City is in need of drastic efforts to combat persistent violent crime. Citizens are afraid to testify in fear of retaliation from criminal syndicates, which leads to murders remaining unsolved and killers free. A short-term trial period to see if the “spy plane” technology works and to ensure citizens privacy concerns are not abrogated might be the drastic step the city needs.

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Justin Ellis is a third year law student with an anticipated graduation date of December 2020. He has an interest in criminal law and public service, and hopes to become an Assistant State’s Attorney upon graduation. Prior to attending law school, Justin worked for a healthcare company in compliance and auditing. Justin is also a Marine Corps veteran.

How not to Become a Child Pornographer, a Cautionary Tale of Fickle Friends and Sexting

The Maryland Court of Appeals, in a 6-to-1 ruling, upheld the decision of the Court of Special Appeals in finding that Maryland’s child pornography laws apply when the child is both the subject of and disseminator of sexually explicit material via sexting.[1]  The case stems from an incident in which a teenager texted a video to two of her friends that depicted herself engaging in a sexual act with another teenager.[2]  After a falling out with one of the recipients, the video was shared throughout the school and then turned over to the school resource officer from the Charles County Sheriff’s Office.[3]

The incident took place during the 2016-2017 school year at Maurice J. McDonough High School in Charles County, Maryland.[4]  In October of the fall semester, the then sixteen-year-old female texted the sexually explicit video to both a sixteen-year-old female friend and a seventeen-year-old male friend.[5]   A falling out occurred in December of that year between the teenager girl and the seventeen-year-old boy at which point he turned the video over to the school resource officer.[6]  The State charged the girl as a juvenile with the three following counts: (1)  filming a minor engaged in sexual conduct in violation of CR § 11-207(a)(2); (2) distributing child pornography in violation of CR § 11-207(a)(4); and (3) showing an obscene item to a minor in violation of CR § 11-203(b)(1)(ii).[7]  The first count was dismissed for lack of evidence at a disposition hearing in May 2017, the girl was placed on electronic monitoring for a little less than a month and supervised probation by the Department of Juvenile Services.[8] 

The Court of Special Appeals of Maryland held that a minor engaging in consensual sexual activity is not except from CR § 11-207(a)(4), but that a digital file did not fall within the statutory meaning of the term “item” in  CR § 11-203(b)(1)(ii).[9]  When appealed in February 2018, the girl’s lawyer, Claudia Cortese, of the Maryland’s Office of the Public Defender, stated that the girl’s conduct was legal and voluntary and that by letting the decision stand, it would come down to charging the girl of being her own pornographer.[10]  In response to the filing, Maryland Assistant Attorney General Sarah Pritzlaff stated that the possible harm to the child could not be ignored and if the conviction were to be overturned, it would disregard the legislature’s interest in stopping child pornography and protecting minors.[11] 

In the decision from the Maryland Court of Appeals, the court addressed the sociocultural phenomenon of sexting and the prevalence and role that smart phones play in the lives of teenagers today.[12]  The court also acknowledges the unique challenge presented by the case, the dynamic of the State’s interest in preventing child pornography and the girls behavior that many of her peers are also engaged in.[13]  The court considered the language of the statute as it was written in its plain meaning and saw no distinction between whether the distribution was at the hands of a minor or an adult.[14]  In his dissent, Judge Michele D. Hotten found ambiguity in the reading of the legislation and felt it was the role of the court to resolve the ambiguity as it existed.[15]  Judge Hotten also emphasized that the legislative purpose of the anti-child pornography law is to stop the trafficking of child pornography and prevent the sexual exploitation and abuse of minors.[16]      

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Anna DeLeon is a third-year evening law student at University of Baltimore.  A perpetual student, Anna has a Master’s degree in Global Security Studies from Johns Hopkins University and Bachelor’s degrees in Psychology, Political Science, and Sociology and Anthropology from Towson University.  Anna currently works as a law clerk with the Office of the State’s Attorney for Baltimore City.  Her interests include criminal law, environmental law, and the intersection between national security and the environment.

To Airbnb or Not to Airbnb: Maryland Lawmakers Look to Close Loophole Allowing Airbnb Patrons to Evade Sales Taxes

State lawmakers are currently considering a law that would require Airbnb[1]to collect a six-percent sales tax for bookings made through its online platform.[2]Known as the “Airbnb bill,” the law would close a loophole that allows Airbnb hosts to forgo collecting Maryland’s sales tax on rentals made through the online platform.[3]If the law is passed, Airbnb would have to itemize the six-percent sales and use tax on its invoices, collect the taxes at the time of booking, and forward the proceeds to the State—just like traditional brick and mortar hotels.[4]While the Airbnb bill is described as a parity measure,[5]it may risk shortchanging resourceful hosts who rely on Airbnbs for income, and receding the State’s tourism revenue.

Technically, Maryland’s Airbnbs have always been required to collect the sales and use tax.[6]However, because Airbnbs are not governed by the same permit or registration requirements as traditional hotels, it is almost impossible for the State Comptroller to regulate collection of the taxes.[7]This is in large part due to Airbnbs privacy policies, which shield hosts’ personal information beyond their first names making them essentially unidentifiable.[8]Moreover, Airbnb does not compel its hosts’ compliance with State tax laws.[9]

Critics of the bill urge that the new law may stifle enterprising homeowners who only offer rentals as a way to generate supplemental income.[10]One Airbnb host that enforces Maryland’s six-percent sales tax points out that once guests realize she charges the tax they often cancel their reservation.[11]Proponents of the bill include large brick and mortar hotel chains and smaller bed and breakfast owners; they argue the bill strikes at fundamental fairness by leveling the playing field.[12]In 2018, hotels paid $125 million in taxes from rentals.[13]Despite operating in the same industry, many Airbnb rentals escaped taxation. Supporters also argue it would be an enormous revenue raiser. In 2018, Maryland Airbnb hosts raked in roughly $57 million of income,[14]which would have translated to approximately $3.4 million in tax revenue under the new law. While Maryland’s proposed legislation may add to State coffers, naysayers forecast declines in tourism and, thus, tangential revenue losses.[15]

In 2018, Maryland grossed $49.4 million from tourism-related taxes, an uptick from $46.7 million in 2017.[16]From 2016 to 2017, tourism revenue increased by about four percent.[17]Maryland’s tourism revenue seems to be in lockstep with Airbnb growth, revealing a direct correlation between both markets. A few factors explain this correlation. For one, it is possible that Airbnbs are filling hotel demand gaps, in turn allowing for more tourism. In Maryland, hotel demand outpaces supply by nearly two percent.[18]In addition to providing more lodging, an Airbnb is generally about twenty-five dollars cheaper per night than a hotel.[19]Next, Maryland’s goal of advancing its image as an attractive leisure destination for vacationers is complemented by Airbnb;[20]studies show that Airbnb’s key demographic is “leisure-oriented” travelers.[21]Given the link between these markets, a decline in Airbnb bookings may yield a reduction in tourism revenue as well.

Maryland’s recent Airbnb bill tracks other opportunistic States that have passed laws to regulate the booming business[22]of online hosting platforms.[23]To avoid alienating Airbnbs (and hosts) and reducing tourism revenue, legislators should consider amending the bill to incorporate a minimum-threshold tax. For example, if a host’s annual rental income falls below a designated percentage, the host would assess a lower tax rate. However, once a host’s annual rental income exceeds the designated percentage, the host would begin assessing the full six-percent tax for subsequent transactions. If passed, the new law will take effect on June 1, 2019— just in time for summer.[24]While Maryland lawmakers seem quick to cash-in on Airbnb check-ins, legislators should consider potential risks of undermining the bill’s own revenue and impartiality objectives.

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Todd Milligan is a third-year law student who joined Law Forum after transferring to UB and completing the write-on competition during the first two weeks of his first semester at UB. After graduation, Todd will sit for the Maryland Bar Exam in July 2019. In the fall of 2019, Todd will be attending Georgetown Law to obtain his LL.M. in Taxation. Todd aspires to become a U.S. Tax Court judge in the future.

Linkedin page: https://www.linkedin.com/in/tm2/

Baltimore City Sues Owners of Pimlico and Laurel Park in Effort to Prevent Movement of Preakness Stakes

On March 19, 2019, Baltimore City Mayor Catherine Pugh filed a lawsuit, on behalf of the city, against the owners of Pimlico Race Course and Laurel Park, the Stronach Group, in an effort to prevent them from moving the Preakness Stakes and from using state bonds to improve Laurel Park.[1]The city is also seeking to have ownership of Pimlico Race Course given to them through condemnation.[2]  The city’s concerns stem from the fact that the Stronach Group has not committed to keeping the Preakness Stakes at Pimlico past the year 2020, while continuing to seek funding to improve Laurel Park, allowing Pimlico to fall into disrepair.[3]

Under Maryland law, the Preakness Stakes can only be moved from Pimlico, “as a result of a disaster or emergency,” and the lawsuit alleges that the Stronach Group is attempting to subvert this law by moving the Preakness Stakes to a different racetrack without a disaster or emergency.[4]  The lawsuit also alleges that the Stronach Group is attempting to create their own disaster by underinvesting in Pimlico and continually improving Laurel Park.[5]  The city pointed to the fact that the majority of the state aid that the Stronach Group has received over the last few years has been invested in Laurel Park and not Pimlico.[6]  The city also claims that an undermaintained infrastructure at Pimlico would begin to fail, which would cause the crowds and horse racing to suffer.[7]  Baltimore claims that if the Preakness moves to Laurel Park it will harm the surrounding neighborhoods at Pimlico, which are poorer than the neighborhoods surrounding Laurel Park.[8]  Baltimore City would like to gain control of Pimlico in order to keep the Preakness Stakes there and to preserve the history of having the race there every year.[9]

In response to this lawsuit, the Stronach Group’s lawyers wrote a letter to City Solicitor Andre Davis asking for withdrawal of the lawsuit and stating that it is devoid of legal basis.[10]  They claim that the city does not have the authority to bring this lawsuit and that only the state may do so.[11]  If not withdrawn the Stronach Group will seek to have the lawsuit dismissed.[12]

Over the past few years there has been a growing discussion and push for the Preakness Stakes to be moved from Pimlico to Laurel Park.  Moving this race would have huge economic repercussions for the neighborhoods surrounding Pimlico and Baltimore City as a whole.[13]  If the Preakness Stakes are held in Laurel, there will be no need for the tourists and patrons to enter Baltimore City and a large portion of the revenue that the Preakness Stakes generates for the city will be lost.  Not only would moving the race to Laurel be devastating to the city economically, but it would be devastating historically as well. Pimlico has hosted the Preakness Stakes since its inception in 1873 and is one of Baltimore’s most time-honored traditions.  If Baltimore City is successful with this lawsuit it would not only allow them to keep the Preakness Stakes at Pimlico, but it could potentially lead to a large renovation of Pimlico in an effort to demonstrate that it can still be a viable location for the Preakness Stakes moving forward.  It could also have large repercussions for Laurel Park because the Stronach Group may not wish to continue its investment in the race track without the ability to move the Preakness Stakes there.

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Zachary Kluttz recently graduated from the University of Baltimore School of Law.

Recreational Use Soon to be Legal: Maryland Lawmakers Introduce New Marijuana Legislation

Lawmakers in Maryland have introduced new legislation which would legalize the recreational use of marijuana.[1]This decision follows the legalization of medical marijuana in Maryland and a nationwide movement which includes ten states and the District of Columbia who have already legalized recreational use of the substance.[2]Maryland is currently one of thirty-one states that have legalized either recreational or medical use of marijuana.[3]The nation’s view of and attitude towards marijuana is quickly changing as legislatures work to adapt their current marijuana laws and attempt to draft new legislation to meet the seemingly inevitable complete legalization of the “drug.”[4]House Speaker Michael Busch believes that legalization of recreational use of marijuana is “the future,” and plans to invest the tax revenue generated from marijuana sales into the state’s educational system.[5]

The proposed bill which would legalize the recreation use of marijuana was introduced to the Maryland House of Representatives by Delegate Eric Luedtke and to the Maryland Senate by Senator Will Smith Jr.[6]The bill would allow adults, ages twenty-one and older, to possess, consume, grow, and purchase cannabis.[7]Possession restricts would be established through the proposed legislation, allowing individuals to be in possession of one ounce of the flower form of cannabis and five grams of the concentrated form.[8]A Goucher College study, conducted in 2018, found that 62% of Marylanders “support the legalization of marijuana for recreational use.”[9]

In order to predict the impact of the recreational legalization of cannabis on Maryland, leaders from the General Assembly have asked for assistance from a “work group” to report investigate these impacts.[10]The work group will complete its investigation and report its findings before December 31, 2019, making it available for the legislative session to begin in 2020.[11]The group is placing specific emphasis on analyzing licensure, taxing the sales of cannabis, impacts on the criminal justice system, as well as any public health concerns.[12]As stated earlier, the recreational legalization of marijuana seems to be the inevitable future for both Maryland and the country as a whole. With educational systems that are struggling for state funding, especially in Baltimore City, marijuana could be a saving grace for its ability to generate tax revenue for the state. Jurisdictions within the State will have to be flexible with the new legislation in the application of the new laws in the criminal justice system, especially in law enforcement settings. The proposed legalization of recreational marijuana also comes on the heels of Marilyn Mosby, the State’s Attorney for Baltimore City, announcing that the jurisdiction would no longer prosecute marijuana possession cases.[13]Regardless of its challenges and minority opposition, the recreational legalization of marijuana seems to be a positive move for Maryland in an attempt to generate tax revenue for its educational systems and pressure from an inevitable wave of nationwide change.

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Taylor Koncen recently graduated from the University of Baltimore School of Law.  He was an Associate Editor on the University of Baltimore Law Forum.  His previous publication through the University of Baltimore Law Forum was a synopsis of the Court of Appeals decision in Green v. State.  Vol. 48, No. 2.  His interests outside of law school include playing and watching lacrosse and hockey.

Prescription for Hearsay

A criminal defendant, charged with possession of controlled dangerous substance is permitted to introduce evidence of a prescription at trial.[1]In order to be considered non-hearsay, the prescription must be used to establish a statutory defense and be accompanied by authentication.[2]The Court of Appeals of Maryland suggested that the authentication can come in the form of testimony from a prescribing physician, the physicians custodian of records, or the testimony of the defendant, among other things.[3]Ultimately it is still left up to the jury to determine the credibility of the evidence.[4]

In May 2014, the police officers executed a search warrant at the home of Defendant Steven Young.[5]Mr. Young was detained and Mirandized.[6]Mr. Young offered a statement to the police that there were controlled dangerous substances in the home.[7]Upon inspection the Police found, Heroin, Methadone, OxyContin, and Xanax.[8]Young was arrested and charged with possession of controlled dangerous substances and possession with intent to distribute controlled substances.[9]Young attempted to file a motion to suppress the evidence of the drugs asserting that he and his wife had valid prescriptions.[10]At trial, the State moved for a motion in limine looking to exclude the prescriptions as hearsay.[11]The trial court granted the motion and Young was convicted.[12]

On appeal, the Court of Special Appeals of Maryland affirmed in part and reversed in part.[13]The appellate court found that a valid prescription can provide a basis of a statutory defense to the charges of possession and possession with intent to distribute Methadone, Xanax and, OxyContin.[14]

On review, the Court of Appeals of Maryland, affirmed the lower court’s ruling.[15]The Court found that a valid prescription falls under a verbal act exception to the hearsay rule.[16]In finding this the Court expressed the importance of the prescription in establishing a statutory defense for possession and possession with intent to distribute.[17]In its opinion, the Court suggested several possible methods for authentication previously mentioned.[18]

This holding is important because it will allow in future criminal trials, the Defendant to offer a statutory defense for possession of controlled dangerous substances by showing that they have a prescription. This defense will obviously not extend to possession of illegal drugs such as heroin and cocaine. However, it can make a significant difference with medicinal marijuana becoming more prevalent in Maryland.

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Shawn Haught, Jr. is a 3L at the University of Baltimore and will graduate in May of 2019. Shawn is a second year staff editor on Law Forum. Shawn is from Anne Arundel County, Maryland and currently resides there. Shawncurrently works at Hassan, Hassan & Tuchman, P.A. a small personal injury law firm in Baltimore City. 

“Hey Siri, Should this Defendant be Awarded Bail?”: Artificial Intelligence in Modern Maryland Bail Considerations

As electronics continues to flourish with only the passage of time, we can expect that areas of our lives will begin to be unrecognizable when compared to the past.  From computers the size of classrooms, to having a computer, phone, camera, media player, and entertainment system in your pocket, several areas of emerging technology and innovation are intended to make our lives easier.  But what areas of our lives do we want to keep a “human touch”? The care of children? The medical field and bed-side manners? The government?  One unexpected, and potentially troubling, area where artificial technology is seeing implementation is the criminal justice system.

In line with a national trend, numerous counties in Maryland seem to be embracing artificial intelligence, or “AI”, in to bail determinations for individuals arrested and charged with a crime.[1]  Currently, a total of ten counties in Maryland have begun to calculate what have been called “risk scores” for defendants in criminal cases, which is intended to indicate the likelihood of reoffence or failure to appear for trial if the defendant were released on bail.[2] The factors that are included in the scoring of a defendant are their criminal history, their general demographic data, like gender and age, and information about the crime they are being charged with where bail is at issue.[3]When analyzing this data, certain indicators have a “point value” that increase or decrease the score for a defendant.[4]  For example, serious crimes like rape and murder have a value of 9 points, and female gender has a value of -1 point.[5]

Once these scores are calculated, they are compared to categories that have been pre-determined based on the score: a score of less than 6 are recommended for release without supervision, a score of 6 to 12 is suggested for pretrial release with supervision, and scores of 13 or more are recommended to stay in jail pending their trial.[6]   This recommendation is then presented to the judge, along with all other relevant issues, for the judge’s consideration in bail determinations.[7]  It is important to note that the AI’s report and recommendation is not the deciding factor and the judge still has discretion to rule for or against awarding bail.[8]

Unfortunately, there is an understandable fear that racial bias will creep in to the algorithm used by the AI, much like it has in other areas of criminal justice.[9]  Although race is not a factor that the AI considers, it does consider areas that are plagued with racial disparity to this day, like homeownership, employment, and criminal history.[10]  As such, there is worry that individuals of a minority race who are disproportionately impacted by racial bias in other areas of their life will suffer for those biases in the criminal justice system for bail determination.  Even more troubling, the only way to check that the tool is not impacted by any racial bias would require extensive testing, which would cost the state money, and enough of a pool of the population to check for significant differences in outcome based on race.[11]

On its face, the implementation of technology to give a completely objective determination based on real statistics is not a bad idea.  In effect, it would be the removal of any racial bias or prejudice, whether known or latent, that a judge may have in their bail determinations.  But the criminal justice system is never that easy. So long as there are areas of everyday life where racial disparity thrives without being checked, there will always be the possibility that those bias will be picked up, unintentionally, by the AI.  This is because the AI is not able to distinguish between legitimate and tainted data, and therefore may negatively impact defendants in bail determinations.

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Harry Snoots is a third-year law student at the University of Baltimore.  He serves as a Staff Editor with University of Baltimore Law Forum, Treasurer with the University of Baltimore Chapter of the American Constitution Society, and is a Student Attorney with the University of Baltimore Bronfein Family Law Clinic.  Before coming to law school, he attended Salisbury University and graduated in 2015 with a Bachelor’s Degree in Psychology and Philosophy.   During summer sessions, he works with Mid-Shore Pro Bono, a regional legal non-profit, as an intern and volunteer in Easton, MD. He is currently employed as a law clerk for FreeState Justice, Inc., a legal non-profit that seeks to serve the LGBTQ+ community in their unique legal issues.  His interests include family law and emerging topics of law for families and parents, including surrogacy, IVF, and parental rights for LGBTQ+ families and the associated rights.

His LinkedIn profile can be found here: www.linkedin.com/in/harry-snoots.

Will Baltimore Be Able to Continue Its Crusade Against Opioid Manufacturers?

In January of 2018, Baltimore City filed a lawsuit against two opioid manufacturers, McKesson Corp. and Purdue Pharma, as well as several Maryland-based distributors of drugs produced by these companies.[1]Baltimore City joined a long list of states and counties within Maryland who have filed lawsuits against these manufacturers.[2]Baltimore City claimed that the defendants were fraudulently glossing over the potential dangers of using their opioid based drugs in their marketing practices.[3]More specifically, the plaintiff alleges that the companies knew of the addictive and dangerous nature of the drugs they produce and market and downplayed the risks that these drugs pose to people’s health. This left the public unable to understand the addictive nature of the drugs and the effects they can have on their health.[4]The lawsuit further accuses the defendants of marketing their products in a way that encouraged the use of their products to treat chronic pain, and that the manufacturers have supplied a quantity of opioids that exceeds the needs of any legitimate market.[5]This lawsuit against opioid manufacturers is an effort to combat the rise in opioid related overdoses and deaths in Baltimore City and the surrounding counties.[6]However, the opioid manufacturers are fighting back.

In September 2018, and again on January 3, 2019, the pharmaceutical companies attempted to have the lawsuit dismissed.[7]In September, attorneys for the pharmaceutical companies argued that some of the city’s claims were preempted by federal law, that the actions of the manufacturers’ were not proven by the city to be the proximate cause of the injuries alleged in the lawsuit and that the manufacturers’ conduct did not present a public nuisance.[8]A ruling has not yet been issued on these motions to dismiss.[9]On January 3, 2019, the opioid manufacturers brought another set of motions based on their claims that pleading and causation issues exist with the lawsuit filed against them.[10]Baltimore City countered that the pleadings contained tremendous detail and that each manufacturer knows what it is being accused of.[11]They also claim that flooding the market with highly addictive opioid drugs like these leads to the foreseeable creation of a secondary market for the drugs and that it is foreseeable that the city will end up bearing the costs and burdens of combatting this market.[12]Again, the judge deferred his judgement on the motions to a later date.[13]

If this lawsuit is able to move forward it could greatly help Baltimore City and the surrounding counties. Opioid overdoses and deaths have been on the rise for the past several years, and it is becoming an epidemic. If manufacturers are limited in the quantities they are able to release, then this would cut down on the number of opioids available in the secondary market and through doctors. This in turn should help reduce the number of overdoses and deaths from opioids due to the sheer lack of availability. Baltimore City has been looking for a way to do this and this lawsuit could be exactly what they’ve been searching for. Holding opioid manufacturers accountable for the number of opioids they’re releasing to the public will hopefully cause them to be more restrictive. Again, this would lead to less availability of opioids and hopefully a decline in opioid related overdoses and deaths.