Editorial Advisory Board: Keep the executive branch separate from the Judiciary

​Gov. Larry Hogan, frustrated with the spiraling violence in Baltimore city, has called publicly for a meeting with the criminal justice enforcement community, including the city's judges. While it is a truism that judges have a critical role in seeing that justice is lawfully meted out, they are, and should remain, at arm's length from the executive authority as represented by the governor for the state and mayor and state's attorney for the city.

Hogan's call for a meeting is a grave mistake and should be met with a flat "Heck no, we won't go" from the judges. The reason for the judges to refuse to participate in such a meeting is the constitutionally created separation of powers between the three branches of government: the executive branch, the legislative branch and the judicial branch. Separation of the branches is the bedrock of a strong constitutional government. It creates checks and balances through the separation.

Of course, the judicial and the executive branches have dealings with each other, necessarily so: the governor appoints judges, some subject to the approval of the legislative branch; and the governor proposes budgets for the Judiciary, subject, as well, to General Assembly approval. Similarly, the criminal laws are on the books because the governor and legislature act to put them there. But that is far different from their enforcement, and that is the line that would be improperly crossed if the judges show up for this meeting.

In the enforcement of the criminal laws, the Judiciary is the neutral arbiter, protecting the interest of the state and city and the interest of the accused. The Judiciary does not send out the police or determine the targets or priorities of enforcement. And that, fundamentally, is what is at issue and what the city and state are grappling with. The corruption and incompetence that have contributed to making Baltimore a national example of crime run rampant cannot be solved by judges, and telling judges that they have to send more people to jail for longer terms is no strategy and, at best, scapegoating.

The governor's statement to the press appeared to show an ongoing lack of understanding that many of the criminal sentences he complains of result from deals that do not involve the judges; deals between the prosecutors and defense lawyers can come about for many reasons including case load, bad arrests, questionable evidence and reluctant witnesses, and, yes, cops who are unable to testify because of their bad conduct.

If Hogan wants to be critical of the judges sitting in Baltimore city, he should seek the advice of the chief judge of the Court of Appeals, who occupies the position as head of the co-equal branch of state government. The chief judge, Mary Ellen Barbera, can explain to the governor life in the Baltimore city courts and the role of a judge when presented with a criminal case.

Hogan's expressing in public his frustration with the Judiciary is both wrong and damaging. But we have said that before. That and his new effort to rope judges into law enforcement fundamentally misunderstands their role and is damaging to the public's appreciation of what it means to have an independent and impartial Judiciary.


James B. Astrachan, Chair

James K. Archibald

John Bainbridge Jr.

Wesley D. Blakeslee

Martha Ertman

Arthur F. Fergenson

David Jaros

Ericka King

Stephen Meehan

C. William Michaels

Norman Smith

H. Mark Stichel

Ferrier R. Stillman

The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views;. members of the Board attempt to develop consensus on issues of importance to the Bench/ Bar and public. When their minds meet, unsigned opinions will result. When they differ; majority views and signed rebuttals will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.

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By Authority: Baltimore City Sitting Judges Committee, Mark J.A. Jaskulski, Treasurer   |   © 2021. All Rights Reserved.