"Releasing Older Prisoners Convicted of Violent Crimes: The Unger Story"

The title of this post is the title of this new article now available via SSRN and authored by Michael Millemann, Jennifer Chapman and Samuel Feder. Here is its abstract:

This article is a retrospective analysis of the significant Maryland decision, Unger v. State, which resulted in one of the most interesting and important unplanned criminal justice experiments in Maryland and national history.  On May 24, 2012, Maryland’s highest court released a decision that shocked the Maryland legal world and gave older life-sentenced Maryland prisoners their first real hope of release in decades.  In Unger v. State, the Maryland Court of Appeals made retroactive a 1980 decision that had invalidated a historic instruction that Maryland judges had given juries in criminal cases for over 150 years.  In that instruction, judges told the lay jurors that they, not the judge, were the ultimate judges of the law, and what the judge said was advisory only. 

A fair reading of the Unger decision was that all prisoners convicted before 1981 were entitled to new trials.  Subsequent decisions confirmed this reading.  Over six years, 200 of these older prisoners impacted by the Unger decision were released on probation.  This article examines the jury-determines-the-law instruction, the Unger decision, and the implementation of Unger, largely through the releases of older prisoners convicted of violent crimes.  In this article, we identify what we believe is important about the Unger story, not just in Maryland but also nationally, including the impact of race in criminal justice, the ability to release older prisoners with appropriate support, and how the lessons learned from the Unger decision can provide a model for reentry programs.