My (Possible) Op-Ed Piece in Sunday's Washington Post

With the legislative session in Maryland set to end and the one-year mark since the murder of Lindsay Marie Harvey on Monday, I submitted an op-ed piece on the diminution credits issue to the Washington Post, in the hopes that it will be published in this Sunday's edition, April 12. Presently, I do not know if this will happen. The limit on readers' op-ed pieces is 800 words, and even my condensed version exceeds that limit. Only time will tell.

In the meantime, I want to share with you now the unedited column I wrote in its entirety:

One year ago this evening, Lindsay Marie Harvey, a 25-year-old DNA analyst and college professor who had moved to Montgomery County from upstate New York four years earlier, ventured from her home at the Grove Park Apartments in Gaithersburg to spend a Saturday night out with some friends. Little did she know that she had precious few hours left to live.

Around this time, a convicted felon named Shawn Henderson was at the Grove Park complex, looking to score some quick cash. Drunk and armed with a .40-caliber handgun, he flashed the weapon to a group of people at the complex that night, asking them if they knew anyone he could rob. When they said they didn’t, Henderson later began scouring the complex's parking lot, searching for a victim. Sometime between 1 and 2 AM the following morning, Lindsay Harvey pulled in.

Some 12 hours later, a neighbor discovered Lindsay's body lying face down inside a trash bin enclosure located 90 feet from where her car was parked and less than a hundred yards from her apartment. Her purse had been overturned, and her wallet -- which had $40 in it -- was missing. She had been shot once in the back of the head.

After Henderson was arrested two days later and charged with robbing and shooting Lindsay, the shock and disbelief among Lindsay's friends and family over what seemed to be a random act of violence committed against her quickly turned to outrage when it was learned that Henderson had been in trouble with the law before, and by all accounts should have still been in prison the night that he killed Lindsay.

Eight years earlier, when he was a teenager, Henderson had been sentenced to 20 years in prison, with all but 12 years suspended, for his role in three violent robberies where he slashed two of the victim's throats and stabbed another in the neck. But some of loopholes in the Maryland sentencing guidelines enabled Henderson to regain his freedom after serving less than six of those 12 years.

Henderson's first break was a reconsideration hearing, which resulted in a Montgomery County judge giving him two-year reduction in his sentence. The second break, the one that put him back on the street, was his attainment of so-called "good time credits," or diminution credits. Through these credits, which inmates begin earning the moment they enter the prison system, Henderson was able to shave nearly four more years off his sentence.
In Maryland, violent offenders routinely earn up to 10 days per month off their sentences through diminution credits, and some violent inmates can even receive up to 20 days of credits a month, if they share their cells. They earn these credits through good conduct (up to five days a month), education (up to five days a month), various prison jobs (up to five days a month), and so-called "special projects" such as substance-abuse treatment, anger management, literacy and learning trades (up to 10 days a month).
Shawn Henderson was convicted of Lindsay Harvey's robbery and murder in February. His case has prompted renewed scrutiny over the way Maryland's criminal justice system handles its most violent offenders and calls for change.

Two bills currently before the Maryland General Assembly seek to limit the amount of diminution credits that violent offenders can receive so that they can earn no more than 15 percent of the time off their sentences through those credits. Similar systems in other states, including Virginia, have been tried and have succeeded in reducing the violent crime rate in those states, something that was pointed out last month out during both hearings on these bills by Maryland prosecutors and other law enforcement personnel.

But the bills have stalled, most notably because of a cost analysis of the legislation estimating that that the state would incur more than $200 million in expenses to keep violent offenders in jail longer and because the leadership in the both House and Senate committees that examine such legislation seems content to simply let these bills die in committee without being brought to a vote by the full Assembly.

The public defender's office in Maryland and others who oppose the diminution credit legislation have argued that the the purpose of prison is not to remove violent criminals from society for as long as possible but to give them options and incentives to behave and to educate reform and themselves.

"Eventually they're going to be released," reasoned Betsy Tolentino, representing the Office of the Public Defender in testifying before the Senate Judicial Proceedings Committee last month. "And I think the way to release them is at least with some treatment and some incentive to get that treatment so that there is less of a likelihood of reoffending."

But while Tolentino apparently sees Shawn Henderson's case as an unfortunate anomaly in a system that she claims rehabilitates violent criminals and reduces their risk of reoffending, the statistics in Maryland tell a much different story, to the tune of a 51 recidivism rate among violent offenders in a state that the US Census Bureau has ranked as the fifth most violent state in the nation.

Tolentino also fails to grasp that diminution credits are mandatorily applied towards an inmate's early release without any regard to whether the inmate has even been reformed to the point where the possible threat to the community and to public safety is minimal. A violent offender's release through diminution credits is binding under the law. It's a statutory release, not a discretionary one like parole.

It should be noted that, while he was in prison, Shawn Henderson earned some of his good time credit through classes he had taken towards getting a general education degree, but he never actually earned the degree itself. It is also worth noting that Henderson was rejected in his bid for early release through parole in 2004, but that didn’t matter because Henderson was already shaving years off his sentence through the diminution credits he was earning.

Shawn Henderson received his original 12-year prison sentence for his knife attacks in 2000. He was released on April 14, 2006. He murdered Lindsay Harvey on April 13, 2008, and is now facing life in prison without the possibility of parole for that crime. You do the math and, if you are a criminal defense lawyer, the soul searching to boot. Even the most ardent defenders of the rights of the accused must be left to wonder whether Henderson would have been have been better off in the long run had he just served his full sentence for the knife attacks.

Lindsay Harvey was a kind, gentle soul who represented just about everything that was right and good with this world and made education a priority in life. Shawn Henderson is a career criminal who seems to have viewed his education and vocational pursuits merely as a means to an end. The criminal justice system in Maryland allowed him to reap the benefits of those pursuits without ever truly knowing whether he could be trusted to stay out of trouble. And it cost Lindsay Harvey her life.

The diminution credit legislation that has been sponsored by Sen. Nancy King in the Senate and Del. Ben Kramer in the House has gained immense support from several judicial committee members, among them Sens. Jim Brochin, Nancy Jacobs, and Jennie Forehand, who represents the Gaithersburg neighborhood where Lindsay Harvey lived and was killed. Gaithersburg Mayor Sidney Katz, whose city was shaken enough by Lindsay Harvey's murder that it enthusiastically lent its support for the legislation, put it best when he said that if violent criminals are "not ready for freedom, [then] they're not ready for freedom. Another part of the system shouldn't kick in."

And then there's Debra Harvey, Lindsay Harvey's grieving mother, who, in her heartfelt testimony to both the House and Senate Judiciary Committees, posed this question: "Does the Maryland General Assembly wish to attract, support and protect talented, intelligent, productive citizens like Lindsay Harvey? Or do you wish to support violent criminals like Shawn Henderson?"

It's a fair question, to say the least. Do Brian Frosh and Joseph Vallario have the political will to allow the General Assemby to answer it?

Shawn Henderson may have been a complete stranger to Lindsay Harvey, but he was no stranger to the criminal justice system in Maryland. That system had him within its grasp, and it should have been able to keep him there through most, if not all, of his prison sentence. We can argue all we want over what incentives violent inmates should have have at their disposal or what effect that the dearth of those incentives might have had on Henderson's violent tendencies. What cannot be argued is that a more stringent system would have spared Lindsay Harvey's life.