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Commentary Government & Politics

David Plymyer: Forget the Rhetoric. Focus on Transparency

Photo by Corgarashu/stock.adobe.com.

By David Plymyer

The writer is a former county attorney in Anne Arundel County. He can be reached at [email protected] or on Twitter: @dplymyer.

It is unfortunate that Maryland Gov. Larry Hogan touts his Judicial Transparency Act as a weapon against the war on violent crime in Maryland, with Baltimore the main battleground. It will be even more unfortunate if the Democrats use his misguided rhetoric as an excuse to continue giving the bill short shrift.

Hogan polarized discussion of the bill by portraying it as a law-and-order measure. But Democrats have been in control of the General Assembly for decades and are fully to blame for the general inadequacy of state laws governing access to public information, including information about the criminal justice system.

Hogan’s bill requires the Maryland State Commission on Criminal Sentencing Policy to produce an annual report listing each case involving violent crime, the sentence imposed and the sentencing judge. The report includes the reasons given by judges for any departures from state sentencing guidelines.

He introduced the bill in each of the past three sessions of the General Assembly, including last month’s special session. It never made it out of committee. He is going to try again this year.

Sentencing outcomes and patterns are important information that the public has the right to know. The bill is a good idea, and the governor should promote it for what it is: A measure to improve citizens’ access to information about their government.

Gov. Hogan implies that the Judicial Transparency Act will generate pressure on liberal judges to stop giving lenient sentences. Even though there is no empirical evidence supporting that proposition, his politically motivated pitch alienates people concerned that the criminal justice system already is inclined toward over-incarceration of offenders.

Weaponizing transparency of public information in service of a particular agenda is never a good idea. Laws requiring openness, transparency and public accountability are direct paths to the truth about government, bypassing misinformation and disinformation. They should not be judged on the basis that the truth pleases some people and displeases others.

The patronizing views of those who believe that the public cannot be trusted with the truth have been just as damaging as the governor’s rhetoric. Testimony and editorial commentary opposing the Judicial Transparency Act have included allegations that members of the public are incapable of understanding the nuances of criminal sentencing practices.

Information about the sentencing practices of individual judges already is collected but is not released to the public. The slowness of Maryland’s judiciary to embrace transparency reflects its general lack of enthusiasm for public accountability. In 1998, a select committee of judges and lawyers recommended that the state adopt a mandatory judicial evaluation program. No such program ever was adopted.

Retired Prince George’s County circuit court judge Steven Platt co-chaired the committee in 1998. In 2017, he said 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.”

He’s right. The public can handle the truth and judges can handle criticism. We must stop basing public policy on assumptions that they cannot.

Regressive stance of Democrats on access to public information

The “progressive” stance of the Democratic leadership of the General Assembly does not extend to good government legislation. Maryland infamously ranked 41st among the 50 states under the category “access to public information” in a 2015 study by The Center for Public Integrity.

The situation has not improved much.

In 2019, the state Public Information Act Ombudsman and Compliance Board did a comprehensive review of the Maryland Public Information Act at the request of the General Assembly. The review resulted in the “Equitable Access to Information Act” that proposed reforms to the MPIA.

The bill did not make it out of committee in 2020. It was passed in 2021, but only after its most important provision was eliminated. Failure by records custodians to comply with MPIA requests in a complete and timely fashion is a constant source of frustration for reporters and ordinary citizens alike.

The draft bill would have required custodians to keep records of responses to requests so that compliance could be monitored, a baby step toward actual enforcement of time requirements. The provision was amended out of the final bill.

After stymying the governor’s attempt to pass the Judicial Transparency Act in last year’s special session, House Speaker Adrienne A. Jones (D-Baltimore County) and House Judiciary Committee Chair Luke H. Clippinger (D-Baltimore City) announced the creation of a workgroup to study ways to increase judicial transparency.

No workgroup is necessary. The announcement was the sound of Democrats kicking the transparency can down the road once again.