Releasing Older Prisoners Convicted of Violent Crimes: The Unger Story

21 University of Maryland Law Journal of Race, Religion, Gender & Class 185 (2022)

U of Maryland Legal Studies Research Paper No. 2022-03

64 Pages Posted: 30 Mar 2022

See all articles by Michael A. Millemann

Michael A. Millemann

University of Maryland Francis King Carey School of Law

Jennifer Elisa Chapman (formerly Smith)

University of Maryland Francis King Carey School of Law; University of Maryland - Thurgood Marshall Law Library

Samuel Feder

Maryland Office of The Public Defender

Date Written: March 29, 2022

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.

Keywords: Life sentences, Maryland criminal law, clinical law, older prisoners, elderly prisoners, jury instructions, criminal justice

Suggested Citation

Millemann, Michael A. and Chapman, Jennifer Elisa and Chapman, Jennifer Elisa and Feder, Samuel, Releasing Older Prisoners Convicted of Violent Crimes: The Unger Story (March 29, 2022). 21 University of Maryland Law Journal of Race, Religion, Gender & Class 185 (2022), U of Maryland Legal Studies Research Paper No. 2022-03, Available at SSRN: https://ssrn.com/abstract=4069563

Michael A. Millemann (Contact Author)

University of Maryland Francis King Carey School of Law ( email )

500 West Baltimore Street
Baltimore, MD 21201-1786
United States

Jennifer Elisa Chapman

University of Maryland Francis King Carey School of Law ( email )

500 West Baltimore Street
Baltimore, MD 21201-1786
United States

University of Maryland - Thurgood Marshall Law Library ( email )

501 West Fayette Street
Baltimore, MD 21201
United States

Samuel Feder

Maryland Office of The Public Defender ( email )

6 St. Paul Street
Suite 1400
Baltimore, MD 21202
United States

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