CRIME, PUNISHMENT -- SHAPED BY ONE MAN

More than a dozen years after lawmakers across America -- fed up with
career criminals who cycled in and out of prison -- began enacting tough
laws requiring mandatory sentences, Maryland has its share of laws intended
to keep hardened criminals off the streets.

Just last year, state lawmakers approved a mandatory five-year term for
violent felons caught with an illegal handgun. It sounded strict. And it
sounded as if -- at least for those criminals -- punishment would be certain.

But in Maryland, a "mandatory" sentence need not be mandatory at all.

Those same lawmakers had already created a loophole that allowed judges to
review -- and reduce -- any mandatory sentence at the request of convicts.
The review process was created in 1999 at the behest of House Judiciary
Committee Chairman Joseph F. Vallario Jr. (D-Prince George's), who has made
his living as a defense lawyer since 1964.

Since taking the committee's helm in 1993, Vallario has gained almost
mythic status as the General Assembly's ultimate arbiter on crime and
punishment.

"He's the litmus test," said Montgomery County State's Attorney Douglas F.
Gansler (D). "We have our meetings, and that's what we talk about: What can
we get Vallario to go along with? It affects our ability to introduce laws
for law-abiding citizens."

Under Vallario's leadership, the Judiciary Committee snuffed a 1997 effort
to ensure that violent rapists spend at least a few years in prison. It
killed a bill last year that would have reined in the power of judges to
change sentences years after they are imposed. It voted last year to allow
the release of murderers and rapists serving life sentences whom the
governor has refused to parole. And it has for three years running, from
1997 to 1999, killed efforts to lower the legal limit that determines when
someone is driving drunk.

The battle over drunken driving laws resumed last month when the General
Assembly began its annual 90-day session. Lawmakers, threatened with the
loss of federal highway funds, are expected to lower the standard for
driving under the influence from 0.10 to a 0.08 blood alcohol content.
Without a similar federal incentive, an effort to close a loophole that
allows drivers to refuse a breathalyzer test with impunity might be in
jeopardy.

Even as Gov. Parris N. Glendening (D) and Lt. Gov. Kathleen Kennedy
Townsend (D) are for the first time making drunken driving legislation part
of their agenda, they worry that Vallario might thwart their efforts. He
has not taken a public position on the issue this year.

"Joe Vallario is a strong committee chair and has his opinion as to what is
going to be most effective. And he probably has different priorities,"
Townsend said in an interview.

Goals Clash The House Judiciary Committee includes some of the
legislature's most liberal members, and they often defend their actions in
the name of protecting the rights of the accused. They share a view held by
many judges who oppose mandatory sentences because they believe the
circumstances of each crime and defendant should been considered in
reaching an appropriate sentence. Such lawmakers dislike increasing
penalties for similar reasons: They have a philosophical bent to give
judges discretion, rather than to dictate narrow, severe sentences. And
they strongly believe in helping to rehabilitate people who commit crimes.

Some prosecutors hold a different view of Vallario's Judiciary Committee.
They say the committee frequently creates legal loopholes that give
distinct advantages to defense lawyers. And that committee members have
been reluctant to create new crimes, to toughen penalties or to force the
state's judges to answer for their actions.

In the past five years, the General Assembly has not enacted any major
legislation sought by the Maryland State's Attorneys Association, according
to Gansler and other state's attorneys. Last year, when they named their
lawmaker of the year, the prosecutors chose a Montgomery County Republican
senator who had killed her own bill -- the prosecutors' top-priority
measure -- after Vallario rewrote it to weaken penalties for existing
offenses instead of creating a new crime.

"The chair of any committee will set the tone," said Del. Sharon Grosfeld
(D-Montgomery), a Judiciary Committee member. "And the chair of our
committee is a defense attorney."

Prosecutors, drunken driving opponents, domestic violence activists and
other victims' advocates often grumble about two other lawyer-legislators
- -- Senate president Thomas V. Mike Miller Jr. (D-Prince George's) and Sen.
Walter M. Baker (D-Cecil), chairman of the Senate Judicial Proceedings
Committee -- saying the two powerful lawmakers are unfriendly or
indifferent to their causes. Baker has been known to warn bill sponsors not
to bring a parade of crime victims to public hearings, because their
lengthy and emotional testimony is a waste of time on measures familiar to
his committee.

But critics save their most strident criticism for Vallario. And some
public officials, frustrated by what they see as his stranglehold on the
administration of justice, are just as blunt.

"The House Judiciary Committee has been a graveyard for legislation to
increase the accountability in the system, to create more uniform sentences
and to shine more light on the process," said Sen. Christopher Van Hollen
Jr. (D-Montgomery), who was thwarted by Vallario's committee when he sought
to increase the minimum sentence for violent rapists from probation to 10
years in prison.

Vallario, who declined to be interviewed for this article, promised to
supply a written response when asked to discuss his role as Judiciary
chairman. But instead, he released a stack of documents that included
copies of bills, committee votes and lists of his legislative proposals,
including victims' rights bills, dating to 1983.

Vallario's influence extends far beyond the State House to shape the entire
criminal justice system. He sits on the commission that sets sentencing
policy for the state. He serves on the judicial panel that creates the
rules that judges and lawyers play by. His position as Judiciary chairman
lends weight when he lobbies the governor for judicial appointments. His
committee sets salary levels for prosecutors in each county. And he wields
substantial influence over the compensation paid to judges who rule on his
cases.

Vallario's relationship with the Maryland judiciary has helped to preserve
a criminal code that critics and legal scholars say is unnecessarily
complicated, too deferential to the power of judges and freighted with
practices long abandoned in states where lawmakers have made their courts
more open, fair and accountable to the public.

In a recent study published in the Northwestern University Law Review, Paul
H. Robinson, a law professor who served on the U.S. Sentencing Commission,
rated Maryland's criminal code among the five worst in the nation.

Because it relies heavily on judicial findings and a centuries-old pool of
shared knowledge known as the common law, Robinson said, the Maryland code
is "ambiguous and confusing" and almost impossible to understand without
legal training.

"I do not believe you could find a police officer in the state of Maryland
who could answer my questions about what the elements of a crime are or are
not," Robinson said.

The result is a system that "creates a tremendous amount of discretion and
unpredictability" and places enormous power in the hands of judges and
lawyers, Robinson said.

"It's very unpredictable whether people who deserve punishment are going to
get the punishment they deserve," Robinson said. "Who wants to live in that
kind of world? A world where everything is all sort of mushy and you never
quite know what the rules are?"

Mandatory Term Undone Last spring, Charles County police executed a search
warrant at James Carter's Nanjemoy home. In the bedroom, they found a
loaded .380-caliber handgun and 20 glassine bags of crack cocaine among the
clothes in Carter's dresser drawer.

Carter pleaded guilty to dealing drugs and illegally possessing a handgun.
In May, he accepted a sentence of 12 years in prison. The gun charge
carried a mandatory five years, requiring that he serve that time without
parole.

In November, however, Carter used the appeals process that Vallario's
committee created in the mandatory sentencing law. Carter went before a
panel of three judges that, without explanation, cut his sentence to five
years.

Ignoring the admonition of the Charles County judge who originally
sentenced Carter and denounced him as "a purveyor of poison," the three
judges -- Marjorie L. Clagett, of Calvert County, and E. Allen Shepherd and
Sheila R. Tillerson-Adams, of Prince George's -- also wiped out the
mandatory gun term.

Instead of a projected release date in March 2005, Carter will be eligible
for parole this June.

The ability to win a reduction of a mandatory sentence is the unlikely
outcome of a years-long effort intended to inject predictability into
Maryland's sentencing laws.

During the 1994 election, Glendening campaigned on the premise that the
sentences handed out in court should more closely resemble the sentences
criminals actually serve. During the 1996 General Assembly session,
Glendening's administration drafted legislation to bring "truth in
sentencing" to Maryland courts.

Championed by Townsend, Glendening's point person on criminal justice
issues, the measure created a task force on sentencing. Its primary goal
was to restore "credibility and effectiveness of the current sentencing and
correctional process [which] is diminished by common beliefs that prisoners
do not serve an adequate portion of their sentence." Its members included
judges, defense lawyers, prosecutors and key lawmakers, including Vallario.

In late 1998, the task force forwarded its recommendations to the General
Assembly. At Vallario's insistence, a single bill was drafted to accomplish
four goals:

First, the task force would become a permanent commission to measure
judicial compliance with the state's voluntary sentencing guidelines.
Second, judges would be required to file written explanations when they
departed from those guidelines. Third, judges would be required to explain
in open court how the time a criminal serves can be cut by parole.

The fourth item was added, specifically at Vallario's request, at one of
the task force's final meetings. It would change state law so felons
ordered to serve mandatory terms in prison would be eligible -- like other
criminals -- to have their sentences changed by a panel of three judges.

The provision drew objections from the start. Lawmakers had rejected it in
the past. Now, the task force chairman, Judge John F. McAuliffe, feared it
would bring down the entire bill.

Glendening's advisers recommended against its endorsement. In the Senate,
Van Hollen rewrote the provision to require that any decision to cut a
mandatory sentence must be unanimous among the three judges. He then joined
the administration and others in trying to strip the three-judge panel from
the bill.

As the session entered its frenetic final days, the matter went to a
six-person conference committee, of which Vallario was House leader. He let
it be known that he would let the sentencing task force die rather than
give up the three-judge panel.

"No question about it -- that was the single component of the sentencing
bill that Joe Vallario was interested in," said William Katcef, an Anne
Arundel County assistant state's attorney who lobbies on behalf of
prosecutors in Annapolis.

In the end, Vallario got what he wanted. Prosecutors were unhappy with the
new law.

In late April, Baltimore County State's Attorney Sandra O'Connor asked
Glendening to veto the measure, calling it part of "Vallario's personal
agenda of undermining the state's ability to seek and retain mandatory
sentences for its worst criminals."

But to Glendening, the sentencing task force was too important to lose. He
signed the bill into law on May 27.

So far, at least seven felons -- including Carter -- have had their
sentences reduced by three-judge panels. The court system keeps no records
on the practice and cannot say how many involved mandatory terms.

Creating a Crime In 1996, Raymond Charles Haney's speeding Mazda sports car
jumped the curb near a suburban Baltimore bus stop and plowed into a crowd.
Left dead: A 25-year-old woman. Her two young children. Her 4-year-old niece.

A grand jury indicted Haney, then 32, on charges of automobile
manslaughter. But Haney was not drunk, driving down the wrong side of the
road or otherwise acting in a "grossly negligent manner," as that charge
requires. In Maryland, unlike many states, killing people by accident is
not a crime.

So, Haney was convicted of only five misdemeanor traffic offenses: reckless
driving, negligent driving, speed greater than reasonable, failure to
control speed and failure to drive in a single lane.

He paid a $2,500 fine.

The case sparked an outcry, and lawmakers responded. Their most recent
offerings were House Bill 417 and Senate Bill 430, legislation proposed
last year to create a crime called homicide by aggressive driving that
would carry a maximum fine of $5,000 and the possibility of three years in
prison.

Prosecutors had hoped for something simple. The legislation they promoted
was a list of 17 traffic offenses -- from illegally passing a school bus to
running a stop sign. A driver who committed any two of those offenses and
caused an accident in which someone died could be charged with homicide by
aggressive driving.

The bill was supported by the Maryland State Police and the state Motor
Vehicle Administration. The Senate version of the bill, sponsored by Sen.
Jean W. Roesser (R-Montgomery), was just what they hoped for.

The House version was very different. It was drafted just as the Senate
version was, and 55 delegates -- from the most liberal to the most
conservative -- signed on. But when the Judiciary Committee got hold of the
bill, everything changed.

The committee inserted language defining aggressive driving as a "wanton
and willful disregard" for the safety of others. That language wasn't much
more precise than the current standard for manslaughter -- "grossly
negligent" -- which Maryland courts have defined narrowly to mean drunk.

That change created a new standard as vague as the old one, a standard that
prosecutors feared would give defense lawyers too much room to maneuver.
They could, for example, argue that a case of vehicular manslaughter while
intoxicated should be reduced from a felony to a misdemeanor charge. That
could lower the penalty from 10 years in prison to three.

In other words, instead of increasing penalties for aggressive drivers who
kill, the Judiciary Committee's bill could have lowered penalties for drunk
drivers who kill.

Grosfeld, the Montgomery County Democrat who sponsored the bill in the
House, said her colleagues were concerned that the original bill was too
broad; they could envision themselves driving in ways it described as
aggressive.

"They just felt the bill would catch everybody," she said.

On the final day of the General Assembly session, prosecutors launched an
attack to kill the legislation they had championed, faxing and calling
lawmakers. Grosfeld watched in vain as her efforts went down in flames.

"The bill would have done more harm than good because of amendments offered
in committee at the request of the chairman," Grosfeld said. "Certainly,
the chairman was working very closely on the redraft."

This year, there are no plans to try again. Proponents say Vallario's
committee would thwart them again.

Vallario's Career Vallario, 63, was first elected to the House of Delegates
in 1975 and became Judiciary chairman in 1993. He earned his law degree
from the now-defunct Mount Vernon School of Law in Baltimore and remains a
member of Painters Union Local 1773, a nod to his father's business.

He runs one of the most prolific law firms in Southern Maryland out of an
office in Suitland, a volume-oriented practice devoted to drunken driving
cases, criminal defense, personal injury claims and private investigation.
He is known in legal circles for such slogans as "Blow point-two-oh, go to
Joe," a reference to failing a police breathalyzer test.

As a lawmaker, Vallario has gained the support of the state's leading
victims' rights organization for his role in enacting laws providing
victims with the right to be notified about and to attend court proceedings.

Vallario's Judiciary Committee "is more liberal than it has ever been,"
said House Speaker Casper R. Taylor Jr. (D-Allegany), in part because it
counts 17 Democrats among its 22 members, including nine lawyers, four
members of the Legislative Black Caucus (two of whom are lawyers) and five
others who hail from the relatively progressive precincts of Baltimore and
Montgomery and Prince George's counties.

Judiciary Vice Chair Ann Marie Doory defended the committee's reluctance to
stiffen criminal penalties or to create new crimes.

"From time to time, everybody wants to make something a felony. They say
prosecutors won't prosecute if it's not a felony," said Doory (D-Baltimore).

"So we ask: How many convictions were there last year under current law?
They don't know. There's no rational basis for upping the penalty just to
make somebody feel good. We can't make every crime a felony."

On the critical details of criminal procedure, Vallario dominates the body,
committee members said.

"His preference leans more toward -- it's not even defendants' rights,"
Grosfeld said. "We're all concerned about the rights of defendants. [With
Vallario], it's more a matter of procedure."

Vallario personally handles scores of drunken driving charges a year,
preferring the quick, lucrative cases to the more serious and complicated
felony cases. His opposition to bills that would make it easier to convict
drunk drivers or to punish them more severely is well established.

Last year, Vallario might have opened a legal loophole for drunk drivers.
His HB 676 was presented to the General Assembly as a codification of
previous court decisions that defined the circumstances in which
prosecutors may present the results of a breath test or blood alcohol test
to a judge or jury.

Maryland law calls for the tests to be administered within two hours of
arrest. But appellate courts have ruled that a test taken later may be
admitted if accompanied by testimony explaining the reason for and the
effect of the delay.

Vallario's bill did the opposite, according to three prosecutors and a
defense lawyer who have examined the legislation. The law, which
unanimously passed both chambers and took effect last year, makes clear
that that "evidence of a test . . . is not admissible" in criminal cases
"if obtained contrary to the provisions" of the Courts and Judicial
Proceedings Article, which lays out the two-hour rule.

That means the key piece of evidence establishing a driver's drunkenness
could be thrown out, the lawyers said.

An attorney for the Judiciary Committee said the lawyers misread the law.
The intent of lawmakers was clearly to preserve the admissibility of the
test, the counsel said. And the counsel noted that a representative of the
prosecutors' association reviewed the bill several times without complaint.

Last March, Vallario waged another parliamentary battle, this time on
behalf of a bill that would have allowed murderers and rapists sentenced to
life in prison to be released without the signature of the governor, who
has refused to parole anyone sentenced to life. The bill would have made
nearly 300 felons immediately eligible for release.

At the time, Vallario defended the bill, a priority of the Legislative
Black Caucus. Before Glendening's edict, he said, many criminals accepted
life terms on the understanding that they would be considered for parole
after as little as eight years. Despite Vallario's efforts, the bill died
in the House on a 68 to 72 vote.

And in 1997, Vallario introduced legislation because he said he was upset
with the prosecutor in Charles County.

Leonard Collins Jr., the state's attorney in that county southeast of
Washington, felt that drug dealers were taking advantage of Maryland law to
shop for more lenient judges. That law allows some criminal suspects to
receive a new trial in Circuit Court if they are unhappy with the result of
their District Court trial.

Other county prosecutors had complained about the process, but Collins took
action, telling drug dealers they could either plead guilty in District
Court or demand a trial in Circuit Court. But he refused to try them twice.

Vallario's practice often takes him Charles County.

"It is my feeling that in District Court in the area where I practice at,
Southern Maryland, there is an abuse going on," Vallario told the Senate
Judicial Proceedings Committee. "And the abuse is either you plead guilty
or we're gonna take you to the Circuit Court. I think it's wrong."

He made that comment at a hearing on HB 420, which he introduced.

"This is a li'l ole bill that comes from down our way," Vallario told the
committee.

His bill changed state law so Circuit Courts no longer have jurisdiction
over misdemeanor drug cases. With the deference granted committee chairmen
in Annapolis, the bill passed both chambers unanimously.

"Whenever I get vain," Collins says now, "I remind myself I'm enforcing Joe
Vallario's laws."

Quashed in Committee Piles of proposals for judicial reform greeted the
Judiciary Committee last month when members returned to Annapolis for their
2001 legislative session. They included bills to limit the power of judges
to reduce criminal sentences; to change the legal definition of
intoxication from 0.10 blood alcohol to 0.08; and to ban open alcohol
containers in vehicles.

In years past, Vallario's committee has killed them all.

Taylor, the House Speaker, continues to appoint Vallario to lead Judiciary
because he is "a very qualified chairman with the credentials to
appropriately conduct a committee," Taylor said.

"Does he have his own biases? We all do," Taylor said. "But I have had
nobody in seven years complain to me about Joe Vallario."