ALEC’s Turnaround and Hope for Reducing Criminal Punishments in Maryland.

*Andrew J. Loewen

I. Everyone Agrees the Criminal Justice System Needs Reform.

The American Legislative Exchange Council (ALEC)  wants to reform the criminal justice system.[1]  On the heels of numerous high-profile police killings and resultant uprisings in the past eight years,[2] prison abolitionists are also demanding changes to the criminal justice system.[3]  In Maryland, their interests may be briefly aligned in the current Task Force to Study Crime Classifications and Penalties (Task Force), through its work with the People’s Commission to Decriminalize Maryland (People’s Commission).[4]  Amidst calls to defund the police, recognizing how massive investments in a bureaucracy of punishment detracts from our general welfare,[5] the examination of Maryland’s criminal code has brought together some unlikely allies.[6]

II. Stakeholders Wielding Influence.

A champion of limited government,[7] ALEC came into the spotlight in the Tea Party era as the organization responsible for state “truth-in-sentencing” laws and for supporting the growth of private prisons.[8]  ALEC describes itself as an “organization whose mission is to increase individual liberty, prosperity and the well-being of all Americans by advancing and promoting the principles of limited government, free markets and federalism.”[9]

ALEC’s current stance on the problem of mass incarceration shows an apparent departure from its history advocating for strict punishments and the growth of private prisons.[10]  For example, in 1995 alone, twenty-five states passed ALEC-modeled “truth-in-sentencing” laws.[11]  These laws remove judicial discretion to provide leniency to defendants when warranted.[12]  Today, however, ALEC recognizes that mass incarceration reflects a policy failure.[13]  State Senator Michael J. Hough, ALEC’s Maryland chair since 2011,[14] supported Senate Bill 0149 in 2019, which  tracks ALEC’s model legislation.[15]  This bill, garnering overwhelming bipartisan support in the Maryland General Assembly, became the basis for the Task Force.[16]

Now active, the Task Force is working with the People’s Commission, thus demonstrating a progressive dedication to criminal justice reform independent of ALEC.[17]  One of the leading organizations of the People’s Commission is the Open Society Institute–Baltimore (OSI–Baltimore).[18]  OSI–Baltimore provides grants to community organizations dedicated to public welfare.[19]  OSI–Baltimore describes its mission as focusing “on the root causes of three intertwined problems in our city and state: drug addiction, an over-reliance on incarceration, and obstacles that impede youth in succeeding inside and out of the classroom.”[20]

Community groups have long recognized the destructive impacts of criminalization and mass incarceration, especially on Black communities and other communities of color.[21]  Whereas participants in the People’s Commission are organizations concerned with specific facets of public welfare, ALEC[22] usually concerns itself with state sovereignty and opposition to taxes.[23]  The Great Recession of 2007–09 galvanized states and groups like ALEC to reexamine carceral expenditures.[24]  With state revenues cratered by the economic contraction, states looked to reduce prison populations to save money.[25]  Thus, progressives, abolitionists, and now ALEC agree that overincarceration represents a waste of state resources.[26]  While the coalitions may generally have adverse interests, they agree that Maryland’s criminal code needs reform.[27]

III. The Work Ahead for the Task Force.

Today, the Task Force faces the enormous challenge of reforming Maryland’s penal code.[28]  Before the Task Force was established, bill supporters  pointed to some absurdities of Maryland law at a hearing in March 2019, for example: solicitation to commit murder is a misdemeanor while injuring a racehorse is a felony; there is a three-year penalty for falsifying documents for poultry inspection while there is no penalty for mandatory reporters who fail to report child abuse.[29]  The People’s Commission is the first effort of its kind since 1965, when Governor J. Millard Tawes appointed the Maryland Commission on Criminal Law.[30]  The Commission on Criminal Law worked seven years before recommending legislation that failed to pass.[31]  Unlike the 1965 commission, the Task Force was granted eighteen months to complete its report.[32]

As a minuscule example of the work at hand, the Task Force will consider the necessity of a mens rea element for all crimes.[33]  A potential requirement of a default mens rea (Latin for state of mind) could deter prosecutions of crimes done unwittingly, but it may also hinder criminal prosecutions against corporations.[34]  For example, “a person may not use a neonicotinoid pesticide” under the Maryland code, unless said person fits an exemption. [35]  This statute does not explicitly say whether the person must knowingly, intentionally or willfully use the pesticide, but a violation of the law constitutes a misdemeanor.[36]  Similarly, there is no express mental state to establish when a person has violated the statute prohibiting possession of controlled substances.[37]

The purpose of the Task Force is to review Maryland’s statutory scheme—including the criminal code and collateral consequences (e.g., loss of licensure, ineligibility for housing, education, and jobs, etc.)—and to make recommendations for change.[38]  The recommendations are to address the following: (1) whether violations should be reclassified as civil offenses, misdemeanors or felonies; (2) whether penalties should be altered; (3) whether the State would benefit from standard crime classifications, the codification of a default mental state as an element of criminal liability, and codification of affirmative defenses; (4) whether statutory change is necessary for criminal laws lacking an explicit mens rea; and (5) whether administrative agencies and local governments should be barred from enacting criminal penalties.[39]  With this broad mission, there is great potential for change.

IV. CONCLUSION

Consistent with ALEC’s goal of eliminating wasteful programs to ensure sound fiscal policy, the Task Force could go so far as to consider abolitionist proposals, such as supplanting incarceration with the already-abundant collateral consequences.[40]  Acknowledgement that the imposition of a civil disability—e.g., loss of license, inability to rent, work, receive aid, etc.—is itself punishment; this acknowledgement would help illustrate the uselessness of incarceration as a tool to repair the harm done by crimes.[41]  As expressed by John Adams’s translation of Cesare Beccaria, renowned as the father of criminology: “‘all punishments that go beyond’ necessity—or the requirements of public safety—are ‘inherently unjust.’”[42]  It remains to be seen how far the Task Force will continue into 2021, and whether its recommendations will be embraced by the legislature.  Looking forward, in any case, it is encouraging to see agreement across the spectrum that we spend too much time and money on punishing people.

*Andrew J. Loewen is a second-year day student at the University of Baltimore School of Law where he is a staff editor for Law Review. This fall, Andrew interned for the Honorable Joseph M. Getty on the Maryland Court of Appeals and was a teaching assistant for Professor Amy Dillard’s Introduction to Lawyering Skills course. Last summer Andrew interned at the Antitrust Division in the Maryland Office of the Attorney General. Prior to law school, Andrew was a workers’ compensation adjudicator (WCA2) in Olympia, Washington. Andrew is interested in corporate law and industrial democracy.


[1]           Criminal Justice, Am. Legis. Exchange Council, https://www.alec.org/task-force/criminal-justice-reform (last visited Dec. 14, 2020).

[2]           See Rafi Reznik, Retributive Abolitionism, 24 Berkeley J. Crim. L. 123, 134–35 (2019).

[3]           Mariame Kaba, Opinion: Yes, We Mean Literally Abolish the Police, N.Y. Times (June 12, 2020), https://www.nytimes.com/2020/06/12/opinion/sunday/floyd-abolish-defund-police.html

[4]           Task Force to Study Crime Classification & Penalties, Md. Manual On-Line [hereinafter Task Force], https://msa.maryland.gov/msa/mdmanual/26excom/html/10crimclass.html (last visited Dec. 14, 2020); The People’s Commission to Decriminalize Maryland, https://www.decrimmaryland.org (last visited Dec. 14, 2020).

[5]           See, e.g.,Reznik, supra note 2, at 139 (“Decarceration, according to [the Movement for Black Lives], encompasses efforts to reduce the harms caused by imprisonment as well as the redirecting of resources to improving welfare and security within communities (‘invest-divest’).”); see generally Alec Karakatsanis, The Punishment Bureaucracy: How to Think About “Criminal Justice Reform,128 Yale L.J. F. 848 (2019).

[6]           See Carl Takei, From Mass Incarceration to Mass Control, and Back Again: How Bipartisan Criminal Justice Reform May Lead to a For-Profit Nightmare, 20 U. Pa. J.L. & Soc. Change 125, 126–27 (2017).

[7]           See Am. Legis. Exchange Council, Strategic Plan 2016-2018 8, https://www.alec.org/app/uploads/2016/06/ALEC-Strat-Plan-Final-051616.pdf (May 16, 2016).

[8]           See Nancy Scola, Exposing ALEC: How Conservative-Backed State Laws are All Connected, The Atlantic (Apr. 14, 2012), https://www.theatlantic.com/politics/archive/2012/04/exposing-alec-how-conservative-backed-state-laws-are-all-connected/255869/.

[9]           Am. Legis. Exchange Council, supra note 7, at 8.

[10]         See Sharon Dolovich, State Punishment and Private Prisons, 55 Duke L.J. 437, 526–530 (2005).

[11]         Mike Elk & Bob Sloan, The Hidden History of ALEC and Prison Labor, The Nation (Aug. 1, 2011), https://www.thenation.com/article/archive/hidden-history-alec-and-prison-labor/.

[12]         See Joseph A. Colquitt, Alabama Legal Issues: Can Alabama Handle the Truth (in Sentencing)?, 60 Ala. L. Rev. 425, 430 (2009).

[13]         Criminal Justice, supra note 1 (“This failing system costs federal, state, and local governments approximately $85 billion, yet does not deliver adequate public safety results for taxpayers, victims, and individuals.”).

[14]         Michael J. Hough, Md. Manual On-Line, https://msa.maryland.gov/msa/mdmanual/05sen/html/msa15442.html (last visited Dec. 14, 2020).

[15]         Compare SB0149, http://mgaleg.maryland.gov/2019RS/bills/sb/sb0149T.pdf, with ALEC, An Act to Establish the Criminal Code Recodification Commission, https://www.alec.org/model-policy/an-act-to-establish-the-criminal-code-recodification-commission.

[16]              Task Force, supra note 4.

[17]         Participating Organizations, The People’s Comm’n to Decriminalize Md., https://www.decrimmaryland.org/participating-organizations (last visited Dec. 14, 2020).

[18]         Id.

[19]         OSI-Baltimore to Support 23 Organizations Working to Protect Maryland’s Most Vulnerable Populations, Open Soc’y Inst.–Balt. (Aug. 31, 2020), https://www.osibaltimore.org/2020/08/osi-baltimore-to-support-23-organizations-working-to-protect-marylands-most-vulnerable-populations/.

[20]         Our Mission and Values, Open Soc’y Inst.–Balt., https://www.osibaltimore.org/about/mission-and-values/ (last visited Dec. 14, 2020).

[21]         See, e.g., Takei, supra note 6, at 157 (explaining how organizations support goals of liberating “Black and Brown communities from the oppressive control of police and the criminal justice system.”); Bridget Lowrie, Stop Asking Which Came First, the Jail or the Criminal – Start Reinvesting in Justice in Maryland, 47 U. Balt. L.F. 99, 99 (2017).

[22]         The author did not find documentation showing ALEC is a participant in the Task Force.

[23]         See Am. Legis. Exchange Council, supra note 7, at 11.

[24]         See Sharon Dolovich, Exclusion and Control in the Carceral State, 16 Berkeley J. Crim. L. 259, 334–35 (2011).

[25]         See id.

[26]         See, e.g., Richard A. Bierschbach & Stephanos Bibas, Rationing Criminal Justice, 116 Mich. L. Rev. 187, 188 (2017); Takei, supra note 6, at 171 (“For fiscal conservatives, the chief goal of decarceration is to reduce the costs to the government associated with incarceration.”); Karakatsanis, supra note 5, at 898 (“Resource choices can be seen not just within police investigation priorities, but also in the money budgeted for other programs, such as housing, drug treatment, mental health care, probation, prisons, and education.”).

[27]         See Takei, supra note 6, at 126–27.

[28]         See infra notes 30–32 and accompanying text.

[29]         Task Force to Study Crime Classification & Penalties: Hearing on SB0149 Before the H. Comm. on the Judiciary, 2019 Leg., 423d Sess. (Md. 2019), http://mgaleg.maryland.gov/mgawebsite/Committees/Media/false?cmte=jud&ys=2019RS&clip=JUD_3_26_2019_meeting_1&url=http%3A%2F%2Fmgahouse.maryland.gov%2Fmga%2Fplay%2Fee95e4d3-3d7f-4be4-9089-c3a0f87f2cd5%2F%3Fcatalog%2F03e481c7-8a42-4438-a7da-93ff74bdaa4c%26playfrom%3D1168000.

[30]         Walker v. State, 363 Md. 253, 259 (2001).

[31]         See A. Dean Stocksdale, Criminal Law – Maryland Adopts the Model Penal Code’s Substantial Step Test for Criminal Attempt, 16 U. Balt. L. Rev. 379, 385 (1987).

[32]         Task Force, supra note 4.

[33]         H.R. 542, 2019 Leg., Reg. Sess., § 1(f)(4)(iii)(2) (Md. 2019).

[34]         See Takei, supra note 6, at 169 (“The Koch brothers and the Heritage Foundation frequently claim that companies and businesspeople are ‘overcriminalized’ and need protection from white-collar regulatory offenses with loose mens rea requirements. As a result, some have accused conservatives of using criminal justice reform as a ‘Trojan Horse’ to advance corporate interests and weaken environmental regulations.”)

[35]         Md. Code Ann., Agric. § 5-2A-02 (LexisNexis 2020).

[36]         Id. at § 12-101.

[37]         Md. Code Ann., Crim. Law § 5-601(a) (LexisNexis 2020).

[38]         See H.R. 542, 2019 Leg., Reg. Sess. (Md. 2019).

[39]         Id. § 1(f)(4)(i)-(v).

[40]         See Reznik, supra note 2, at 123.

[41]         See id. at 124.

[42]         John D. Bessler, The Italian Enlightenment and the American Revolution: Cesare Beccaria’s Forgotten Influence on American Law, 37 Hamline J. Pub. L. & Pol’y 1, 145.  John Adams’s English copy of Beccaria’s On Crimes and Punishments included the quote: “Every Act of Authority, of one Man over another for which there is not an absolute Necessity, is tyrannical.”  Id.  Adams then wrote in his diary his own Italian translation: “Le pene che oltrepassano la necessità di conservare il deposito della Salute publica, sono ingiuste di lor natura.”  Id.

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