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Until Gov. Parris N. Glendening, every Maryland governor in modern times had accepted this responsibility. It recognizes that the best judges are fallible, and where there is convincing evidence of rehabilitation, lengthy incarceration can be enough punishment, even for homicide. Mr. Ehrlich deserves great credit for re-establishing this important role.
To be sure, the role is not one that governors eagerly embrace. It comes with political risks. But, until 1995, none had abdicated his responsibility.
Then in 1995, Governor Glendening directed the Parole Commission to stop considering for parole or commutation any life-sentenced prisoner convicted of murder or rape -- even though the sentencing judges in their cases had imposed sentences of life with, not without, parole -- and regardless of how many years that person had been in prison or how compelling the evidence was that he or she was rehabilitated.
Walter Arvinger, 55, is one of the prisoners whose life sentences Mr. Ehrlich commuted. He has been locked up 36 years, since Lyndon B. Johnson was president.
Mr. Arvinger was convicted of felony murder after only a half-day trial. I believe, and the evidence supports it, that he is innocent. He had never before been arrested or in trouble.
A lawyer who used to brag (accurately) about his lack of preparation represented Mr. Arvinger at trial. He charged $350. Mr. Arvinger got less than he paid for.
Mr. Arvinger's case is the cautionary tale every parent tells his or her children: Stay far away from trouble, even if you are not directly involved in it yourself.
One evening in October 1968, Mr. Arvinger, who was 19 at the time, was in a house with other young people whom he knew. After he left to go to a corner store, one of the youths, who was high on drugs, began talking about "yoking," or mugging, someone. The state's key witness at the trial, who was in the room during the yoking conversation, testified that Mr. Arvinger was not present and did not know that the others were planning a robbery.
Mr. Arvinger was at the store, a block away, when he saw the lead youth running across the street with a baseball bat in hand. The others followed. Mr. Arvinger went up the street after them to see what was going on. The youth with the bat hit a passer-by over the head, killing him.
Mr. Arvinger testified that when he arrived at the scene, he pulled the attacker off the victim. The state's witness testified that Mr. Arvinger did nothing to aid the attacker. Mr. Arvinger's mistake was to join the others after they ran from the scene. The state's witness said he took a few cents obtained from the robbery. Mr. Arvinger denied this. Even if true, it did not make him guilty of murder.
The judge assumed that because Mr. Arvinger had been with the others earlier, he was guilty of assisting in the robbery, and because the robbery produced a murder, he was guilty of murder. Guilt by association violates our most basic legal rules. But that assumption, combined with Mr. Arvinger's inability to retain competent counsel to challenge it, kept him in prison for two-thirds of his life.
Mr. Arvinger was in the wrong place at the wrong time in other ways.
In 1989, he was transferred to work release. He lived at night in prison and worked during the day for a construction company. On one weekend each month, for over three years, he stayed with his mother in the family home. All without incident.
In June 1993, another work-release prisoner killed his ex-girlfriend and then himself. Governor Glendening ordered all of the "lifers," including Mr. Arvinger, returned to maximum-security prisons.
In 1998, the Parole Commission disregarded Mr. Glendening's no-parole directive. It unanimously recommended that Mr. Arvinger be paroled. It told Mr. Glendening that Mr. Arvinger "was not the killer in this case" (indeed, the killer had been released from prison). It said Mr. Arvinger had been "infraction-free" for many years and had obtained his GED and "a certified welding certificate." It said the construction company that had employed him "will rehire if he is granted parole."
None of this mattered.
Until now.
Now, the Parole Commission is reviewing clemency requests and making recommendations to Governor Ehrlich. The Governor's Office of Legal Counsel, headed by a well-respected former prosecutor, is conducting its own thorough and independent investigation in every case.
In the end, as James Madison recognized, liberty depends upon checks and balances. The commutation power is the criminal justice system's check of last resort. Unfortunately, there is much to check.
The major decisions that send people to prison are discretionary, often impressionistic, exercises of human judgment. Whether and whom to prosecute. Whether to call a witness or make a particular argument. Whether to believe a witness or the defendant. Whether the state has proved its case beyond a reasonable doubt. And, if so, whether and how long to incarcerate the defendant.
Appellate courts can correct errors of law, but usually not errors of fact and, most often, not errors of judgment.
Whether you spend 36 years in prison also can depend on the skill and preparation of your lawyer, or the absence of either.
The commutation power recognizes the fallibility of both human judgment and performance. It rectifies errors that courts cannot or do not remedy. It is an essential part of any fair system of justice. And, thanks to Governor Ehrlich, it is once again part of Maryland's justice system.
Michael Millemann teaches at the University of Maryland School of Law. He and his students represent Mr. Arvinger.
Copyright © 2004, The Baltimore Sun
