Releasing Older Prisoners Convicted of Violent Crimes: The
Unger Story
Michael A. Millemann
Jennifer Elisa Chapman
Samuel P. Feder
University of Maryland Francis King Carey School of Law
Legal Studies Research Paper
No. 2022–03

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MILLEMANN, CHAPMAN, & FEDER

RELEASING OLDER PRISONERS CONVICTED OF
VIOLENT CRIMES:
THE UNGER STORY
MICHAEL MILLEMANN, JENNIFER ELISA CHAPMAN & SAMUEL P.
FEDER*
INTRODUCTION
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.1 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.2 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. 3 A fair
reading of the Unger decision was that all prisoners convicted before
1981 were entitled to new trials. The court explicitly confirmed this
through two subsequent decisions, the last in 2016, in which the State
asked the court first to reverse Unger, and then to significantly limit it.4
The court rejected these arguments.
The result of these four years of litigation was that all of those
prisoners convicted before 1981 were indeed entitled to new trials.
There were 237 people in what we refer to as the “Unger group,” 236
men and one woman.5 In 2012, on average, they were sixty-four years
© 2021 Michael Millemann, Jennifer Elisa Chapman & Samuel P. Feder
*Michael Millemann is the Jacob A. France Professor of Law at the University of Maryland
Francis King Carey School of Law. Jennifer Elisa Chapman is the Ryan H. Easley Research
Fellow at the University of Maryland Francis King Carey School of Law. Sam Feder is an
assistant public defender in the Appellate Division of the Maryland Office of Public Defender.
We deeply appreciate the wonderful research assistance of two terrific law students: Rosemary
Ardman and Brynne Peluso.
1 Unger v. State, 48 A.3d 242 (Md. 2012). For a full discussion of this opinion, see infra Part
IV.
2 Stevenson v. State, 423 A.2d 558 (Md. 1980).
3 Unger, 48 A.3d at 244. The provision making juries the “judges of law as well as of fact” was
added to the Maryland Constitution in 1851. ALFRED S. NILES, MARYLAND CONSTITUTIONAL
LAW 340 (1915).
4 State v. Adams-Bey, 144 A.3d 1200 (Md. 2016); State v. Waine, 122 A.3d 294, 296 (Md.
2015).
5 UNGER PROJECT DATA, 2012-2021 (2021) (on file with authors) (all data are up to date as of
May 2021 and were compiled by Becky Feldman, former Deputy Public Defender of the
Maryland Office of the Public Defender) [hereinafter UNGER PROJECT DATA].

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old and had been incarcerated thirty-five years.6 Eighty-four percent
were convicted of murder and thirteen percent were convicted for rape.7
There were also “an average of three [related] convictions per” person,
“also for crimes of violence,” for which judges imposed separate
concurrent or consecutive sentences.8
What followed the Unger decision was one of the most
interesting and important unplanned criminal justice experiments in
Maryland and national history. Over six years, 200 of these older
prisoners were released on probation. The great majority were serving
life with parole sentences.9 The vast majority of the released prisoners,
97%, have been successful, defined by not being re-incarcerated.10
These recidivist data are especially important for two reasons. First, the
200 who were released had not been approved individually by a parole
authority as “safe” to release. Rather, they were 84% of all state
prisoners in Maryland convicted by juries of murder, rape, and other
violent crimes before 1981, some of whom the parole commission had
recommended for parole, some it had not.11 In addition, they had all
been convicted of violent crimes. These facts, which may be the most
important parts of the remarkable Unger story, have significant
implications for criminal justice and corrections policy, as we argue in
Part VI.12

6

Id. When Unger was decided in 2012, those in the Unger group were in their 50s, 60s, 70s,
and 80s, and had been incarcerated on average over thirty-five years. Michael Millemann,
Rebecca Bowman-Rivas & Elizabeth Smith, Digging them Out Alive, 25 CLINICAL L. REV. 365,
365-67 (2019). The oldest of the 237 was Charles Edret Ford. He was eighty-four when he was
released in 2016. See infra notes 105-107 and accompanying text.
7 OPEN SOCIETY INSTITUTE OF BALTIMORE, BUILDING ON THE UNGER EXPERIENCE: A COST BENEFIT ANALYSIS OF RELEASING AGING PRISONERS 4 (2019).
8 Id.
9 UNGER PROJECT DATA, supra note 5.
10 Id.
11 As of May 14, 2021, the claims of the 237 members of the Unger group had the following
resolutions: Of the 200 released from prison, 149 were released due to post-conviction
settlements; 50 won new trials, pled guilty, and were released on parole and/or probation
through plea bargains; and one was retried and acquitted. Of the 37 not released, 9 died before
they were able to litigate or negotiate their claims; 9 were released to detainers for other
convictions or sentences; 6 were retried, pled guilty, or were reconvicted, and received new life
sentences with no part suspended; one was retried and sentenced to life with all but 100 years
suspended; and 11 agreed to plead guilty and serve additional but fixed periods of incarceration
(some are now released). UNGER PROJECT DATA, supra note 5. Merle Unger, whose lawsuit
established the right to a new trial, was one of the individuals reconvicted and sentenced to life
with no part suspended. See Yvonne Wenger & Ian Duncan, Killer at Center of Prisoner Release
Case
Convicted
Again,
BALT.
SUN
(July
11,
2013),
http://www.baltimoresun.com/news/maryland/crime/bs-md-unger-cases-20130711-story.html.
12 See infra Part VI.

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All three authors worked on the litigation that implemented the
Unger decision, representing or helping to represent members of the
Unger group. We did this through the University of Maryland Carey
School of Law, Millemann as a lawyer and clinical teacher, and Feder
and Chapman as law students.13 Our work through the law school’s
Unger clinic was part of a larger interdisciplinary, multi-partner
collaboration to implement Unger, which we call the Unger Project.14
It has been over nine years since the Unger decision. This article
is a retrospective analysis of 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.
In Part I, we describe the jury-determines-the-law instruction,
which we call the “advisory-only instruction,” and use an actual case
study to show how it worked in practice and to demonstrate how it
nullified the Rule of Law.15
In Part II, we use another case study, the famous colonial trial in
New York of John Peter Zenger for seditious libel, to demonstrate why
in the early history of this country the jury right to determine the law
was a fundamental protection of liberty, especially free speech.16
In Part III, we argue that by the time of the Unger group’s trials,
primarily in the 1960s and 1970s,17 the jury’s right to determine the law
had become a serious threat to a fair trial, not a protection of defendants’
rights.18 We focus on the large role that we believe race played in the
convictions and continued incarcerations of the members of the Unger
13

In 2013, Feder was a law student in the original Unger clinic in 2013. In 2015, Chapman was
a student in a first-year Criminal Law/Legal Theory and Practice course in which students
worked on the Unger cases. In total, on the law side, there were two upper-level Unger clinics,
two summer clinics, and eight advanced clinical placements in which the students acted as
teaching assistants and “senior counsel” in cases. On the social work side there were six yearlong field placements and related courses. We simplify this by calling these courses and
placements “the Unger clinic.” Three clinical law professors, over fifty law students, a clinical
social work supervisor, two forensic social work fellows, and over forty social work students
participated in these courses and practices. The three law professors were Michael Millemann,
Jerome Deise, and A.J. Bellido de Luna, then managing Attorney of the Clinical Law Program.
The three social workers were Rebecca Bowman-Rivas, Elizabeth Smith, and Angela Aloi.
14 See a description of this Project infra Part V.
15 See infra Part I.
16 See infra Part II.
17 At least one in the Unger group was convicted in the 1950s, see infra notes 105-107 and
accompanying text, and some were convicted in 1980 before the Maryland Court of Appeals
prohibited the advisory-only instruction in future trials on December 17, 1980. Stevenson v.
State, 423 A.2d 558, 565 (Md. 1980).
18 See infra Part III.

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group. We argue that in these decades of politically cultivated race
divisiveness, the advisory-only instruction gave jurors a legitimate way
to rationalize, at least to themselves, arbitrary decisions to convict
defendants, including decisions influenced by racism. This
combination, we argue, not only denied the Unger group members fair
trials but also likely produced a number of wrongful convictions.
In Part IV, we describe the over three decades of litigation that
led up to the Unger decision,19 and offer our views about the factors that
made Maryland one of the last two states to finally reject or severely
limit the advisory-only instruction.20
In Part V, we describe the evolution of the responses to the
Unger releases.21 Initially, the responses of many prosecutors and some
in the media were negative, even angry, with pledges by a number of
prosecutors to oppose any releases and by others to ask the Maryland
Court of Appeals to reverse the Unger decision, which the State did in
2014.22 With the successes of those released over time, however, the
public, the media, and many prosecutors came to accept Unger.23 We
argue that, like many older, long-incarcerated prisoners, most in the
Unger group had worked hard in prison to improve themselves and to
prepare themselves to live peacefully and productively in society.24
They also developed a strong community where they and their families
supported one another and in which the mantra was, and is, “failure is
not an option.” There was a major social work component of the Unger
Project as well that provided critically important support services to
those in the Unger group, from prison through release. That is, the Unger
Project created a model reentry program.

19

See infra Part IV.
The other is Indiana, in which an advisory-only instruction is still in effect in limited form.
See infra notes 87 & 176.
21 See infra Part V.
22 See, e.g., Duncan & Wenger, Thirteen Murderers Released After Court Ruling, BALT. SUN
(July 10, 2013), http://www.baltimoresun.com/news/maryland/crime/bs-md-murder-releases20130710-story.html (stating on the front page: “Thirteen inmates convicted of murder have
been released from prison”); Alison Knezevich, Six More Convicted in Killings Released Under
Court
Decision,
BALT.
SUN
(July
25,
2013),
http://www.baltimoresun.com/news/maryland/crime/bs-md-ci-prisoners-freed-20130725story.html (stating on the front page: “6 more convicts freed after ruling”).
23 See, e.g., Jason Fagone, Meet the Ungers, HUFFINGTON POST (May 2016),
https://highline.huffingtonpost.com/articles/en/meet-the-ungers/.
24 Elderly people who are released from prison have low rates of recidivism, a dynamic known
as “aging out” of crime. Molly Connor, From First Steps to Second Chances: Addressing Mass
Incarceration in State Prisons, 95 NOTRE DAME L. REV. 1699, 1710 (2020); Mirko Bagaric,
Marissa Florio & Brienna Bagaric, A Principled Approach to Separating the Fusion Between
Nursing Homes and Prisons, 44 PEPP. L. REV. 957, 998-1003 (2017).
20

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In Part VI, we examine the post-Unger assessments by others,
such as researchers, commentators, and social justice organizations, of
the significance of the Unger group’s success and add our own
assessments.25 We argue that the success of the Unger group provides
both a strong argument against, and a roadmap to challenge, overincarceration, especially of geriatric prisoners. It provides a strong basis
to reject the widely held assumption that prison release programs and
strategies should not include prisoners who were convicted of violent
crimes. It offers a model of a good reentry program, which includes peer
counseling by released prisoners. It also generally undermines public
safety arguments for life-without-parole and no-parole laws, among
other contemporary criminal justice practices and policies. We point out
another way in which we believe the Unger Project has had a beneficial
effect. Very recently, Maryland has become a national leader in
developing “second look” initiatives, which allow older, longincarcerated prisoners to seek resentencing hearings, and there are
similar initiatives in many states. We believe the successes of the Unger
group have given policymakers confidence in these second look
initiatives and reasons to adopt them, and that the Unger Project
provides those who seek to help prisoners under these initiatives a
helpful model of interdisciplinary advocacy.
In Part VII, as teachers and former students, we look at the legal
education dimension of the Unger Project and ask: “What did the law
students learn?”26 We did not try to answer this question ourselves, but
rather asked students in the first Unger clinical courses in 2013 how
they would answer this question. They share their retrospective
assessments of this collaborative and interdisciplinary experience and
what they learned from it.
The place we choose to start is with an actual case.
PART I: THE ADVISORY-ONLY INSTRUCTION NULLIFIED THE RULE OF
LAW: A CASE EXAMPLE
In 1976, Bobby was a slight, fifteen-year-old boy. He was in the
ninth grade, testing at the fourth-grade level, and living with his
grandparents. On the evening of October 26, he shot and killed his
grandfather as he walked in the front door from work.27

25

See infra Part VI.
See infra Part VII.
27 Trial Transcript, State v. Martin, Caroline County, (1977) (No. 1040) [hereinafter Trial Tr.].

26

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Bobby’s murder trial in Caroline County, on the Eastern Shore
of Maryland, took two days, from jury selection through closing
arguments.28 Before closing arguments, the judge told the jury this:
These instructions are advisory only, for under our State
Constitution you and you alone are the sole judges of the
law. [In determining what the Maryland law is,] you may
consider what the judge has to say on the subject, what
the attorneys for both sides have to say, and what you,
yourselves, of your own knowledge know the law to be.
In other words, you should apply your common sense to
what you may already know the law to be . . . in cases
such as this, and to what the counsel and the Court tell
you the law is. And in that manner find what you
conscientiously believe the law to be and apply it to what
you find the facts in this case to be, and then render your
verdict accordingly.29
The essential fact was that the grandfather was a serial abuser.
He beat his daughter (Bobby’s mother), his wife (Bobby’s
grandmother), and Bobby. He usually got his guns and rifles out while
doing it.30 The grandmother testified at trial that the grandfather, her
husband, “used to hit Bobby all the time, but Bobby never hit back, and
would never say a word. He would just stand there and take it.”31
Bobby’s defense was self-defense. The grandfather mistakenly
thought Bobby had stolen his ring. On the morning of October 26, the
grandfather left a note for Bobby on his way to work. The note said:
“Bobby put my Ring Back or Ill [sic] Kill you.”32 Bobby believed it,
with good reason, especially from the perspective of a ninth grader
testing as a fourth grader.
The prosecutor asked the judge to instruct the jury that to
establish self-defense the victim must have made an overt act,
threatening death or serious bodily harm, immediately before the
defendant killed him. The judge rejected this instruction because it was

28 Id. at 1-365. The trial began on April 25, 1977, at 10 a.m. and ended on the evening of April
26, 1977.
29 Id. at 309-10.
30 Id. at 213-16, 218.
31 Id. at 218.
32 Id. at 109, 113, 174-75, 224-25.

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not Maryland law.33 He allowed the prosecutor, however, to argue the
rejected legal point to the jury.
Recall, the judge had told the jurors that, in determining the law,
“you may consider . . . what the attorneys for both sides have to say,”
and the judge had added they “may read and argue the law to you.”34
The prosecutor did just that, asking the jury to adopt the overt act rule
that the trial judge had rejected, reading from various out-of-state
judicial opinions, including from Pennsylvania and California, and
quoting from Wharton’s Criminal Law, a treatise.35
The prosecutor asked the jury, as the judge of the law, to impose
this “common sense” requirement, echoing the judge’s instruction that
the jurors should “apply [their] common sense to what the counsel and
the Court tell you the law is.”36
This was very damaging because there was no evidence that just
before he was shot, the grandfather had made an overt act that threatened
Bobby’s life, although there was lots of evidence that Bobby believed,
reasonably, that his grandfather likely was going to kill him.37
Bobby is Black. The jury likely was all, or disproportionately,
white.38 Out sixty-eight minutes, it convicted Bobby of first-degree
murder.39 At sentencing, the judge cited the Bible, and speaking to
Bobby, said: “Your father left your mother when you were about two
years old,” “your mother died in an insane asylum,” and the forensic
facility that did your competency evaluation found that “you were
mentally competent” but “of dull to normal intelligence.”40 Then, as the
fifteen-year-old boy cried, the judge sentenced him to life
imprisonment.41
Bobby was referred to Maryland Law School’s Clinical Law
Program thirty-six years later, in 2013. He was then fifty-one years old.
He now had an extraordinary opportunity to finally get out of prison
based on the Unger decision.
33

See, e.g., Guerriero v. State, 132 A.2d 466, 467 (Md. 1957); Gunther v. State, 179 A.2d 880,
882 (Md. 1962).
34 Trial Tr., supra note 27, at 310.
35 Id. at 335-42.
36 Id. at 310, 327.
37 Id. at 109, 113, 174-75, 224-27.
38 Bobby’s case, like all the Unger cases, was tried prior to the U.S. Supreme Court’s ruling in
Batson v. Kentucky that prosecutors could not use peremptory challenges to strike jurors on the
basis of race. See infra Part III.C; see also Batson v. Kentucky, 476 U.S. 79 (1986); Millemann
et al., supra note 6, at 422-23.
39 Trial Tr., supra note 27, at 361.
40 Sentencing Transcript at 5, State v. Martin, Caroline County (1977) (No. 1040).
41 Id. at 14.

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PART II: THE JURY’S HISTORIC RIGHT TO DETERMINE THE LAW
INITIALLY PROTECTED DEFENDANT’S RIGHTS
The advisory-only instruction was compelled by Article 23 of
the Maryland Declaration of Rights, first adopted in 1851.42 It was,
however, part of Maryland’s practice much earlier.43 Until 1981, in one
form or another, all judges in Maryland, in every criminal case tried by
a jury, gave it. There was no uniform instruction.44
Article 23 provides: “In the trial of all criminal cases, the Jury
shall be the Judges of the Law, as well as of fact, except that the Court
may pass upon the sufficiency of the evidence to sustain a conviction.”45
There were similar rules and constitutional provisions in fifteen other
states in the nineteenth century, with nine in state constitutions.46
To find the source of the jury’s right to determine the law, one
has to go back to common law England,47 but we go back only to
colonial America. Then, the jury’s power to decide the law in criminal
cases was a strong protection for liberty, including the freedom of
speech. One of the classic examples of this protection was the 1735
prosecution of John Peter Zenger in New York.48 Zenger was the
publisher of the New York Weekly Journal, an opposition newspaper,
42

NILES, supra note 3, at 340.
Slansky v. State, 63 A.2d 599, 603 (1949) (citing 2 Debates and Proceedings of Md. Reform
Convention, 766-68 (1851); MD. CONST. art. 10, § 5 (1851)) (“Under the Maryland Constitution
of 1776 there was lack of uniformity in procedure with respect to instructions to juries in
criminal cases. In some parts of the State it was the practice of the judges to decline to give
instructions to the jury in criminal cases under any circumstances; in other parts of the State it
was the practice of the judges to give advisory instructions when requested to do so. It was
regarded as entirely a matter of discretion with the judge, there being no positive duty requiring
him to pursue the one course or the other. In order to make the procedure uniform throughout
the State, the members of the Convention which framed the second Constitution inserted the
provision that ‘in the trial of all criminal cases the jury shall be the judges of law as well as
fact.’”).
44 Id.
45 MD. CONST., Declaration of Rights, art. 23.
46 See, e.g., J.E.R. Stephens, The Growth of Trial by Jury in England, 10 HARV. L. REV. 150
(1896); Mark DeWolfe Howe, Juries as Judges of Criminal Law, 52 HARV. L. REV. 582 (1939);
Jonathan Bressler, Reconstruction and the Transformation of Jury Nullification, 78 U. CHI. L.
REV. 1133, 1157-58 (2011); see also Phillip B. Scott, Jury Nullification: An Historical
Perspective on a Modern Debate, 91 W. VA. L. REV. 389 (1989).
47 Mathew P. Harrington, The Law-Finding Function of the American Jury, 1999 WIS. L. REV.
377, 378, 385 (1999).
48 Crown
v.
John
Peter
Zenger,
1735,
HIST.
SOC’Y
N.Y.
CTS.,
https://history.nycourts.gov/case/crown-v-zenger/ (last visited July 16, 2021); John R. Vile,
John
Peter
Zenger,
FIRST
AMEND.
ENCYC.,
https://www.mtsu.edu/firstamendment/article/1235/john-peterzenger#:~:text=The%20governor%20of%20New%20York,Hamilton%2C%20a.%20jury%20a
cquitted%20Zenger (last visited Oct. 29, 2021).
43

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pro-colonist and anti-royal, which had published a series of anonymous
attacks against British Royal Governor, William Cosby.49 Zenger had
been jailed under horrendous conditions for ten months.50 The crime
charged, seditious libel, dated back to the powerful and widely despised
royal council known as the Star Chamber.51
King George II had appointed Cosby.52 As one commentator
observed, colonial governors usually were “members of aristocratic
families whose personal morals, or whose incompetence, were such that
it was impossible to employ the[m] nearer home.”53 This certainly was
true of Cosby. He was arrogant and corrupt; among his misdeeds were
election-rigging and bribery.54
At stake was whether any freedom of the press and of speech
would be allowed in New York. At trial, defense counsel, Andrew
Hamilton, observed: “the extraordinary appearance of people of all
conditions” in the courtroom.55 This gave him “reason to think that those
in the administration have by this prosecution something more in view,”
and “the people think they have a great deal more at stake, than I
apprehended.”56
Judges served at the pleasure of the colonial governors. In 1733,
Cosby removed Chief Judge Lewis Morris of the State Supreme Court
for dissenting in a case decided in Cosby’s favor.57 The Governor
appointed a fellow royalist, James Delancey, as the new Chief Judge; he
was presiding, with a second judge, at Zenger’s trial.58
Delancey was both prosecutor and judge. Prior to Zenger’s
arrest, he had tried unsuccessfully to have Zenger indicted, but three
grand juries refused to return an indictment. Delancey then instructed
Attorney General Richard Bradley to bring charges against Zenger on
49 Douglas O. Linder, Key Figures in the Trial of John Peter Zenger, FAMOUS TRIALS (May 11,
2021, 11:48 AM), https://famous-trials.com/zenger/96-keyfigures. See Crown v. John Peter
Zenger, 1735, supra note 48; Vile, supra note 48.
50 Crown v. John Peter Zenger, 1735, supra note 48; Vile, supra note 48. See, e.g., Harry Elmer
Barnes, Historical Origin of the Prison System in America, 12 J. CRIM. L. & CRIMINOLOGY 35,
37-41 (1921).
51 Eugene F. Miller, Introductory Note to 1736: Brief Narrative of the Trial of Peter Zenger,
ONLINE LIBR. LIBERTY (May 11, 2021, 4:27 PM), https://oll.libertyfund.org/page/1736-briefnarrative-of-the-trial-of-peter-zenger.
52 Id.
53 Linder, supra note 49.
54 Crown v. John Peter Zenger, 1735, supra note 48; Vile, supra note 48.
55 Douglas O. Linder, The Trial of John Peter Zenger: An Account, FAMOUS TRIALS (May 11,
2021, 12:50 PM), https://www.famous-trials.com/zenger/87-home.
56 Id.
57 Id.; Crown v. John Peter Zenger, 1735, supra note 48.
58 Linder, supra note 49.

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Bradley’s own authority, by filing “an information” (the charging
document).59
Before trial, Delancey struck the two original defense lawyers
from the roster of attorneys, and replaced them with a court-appointed
lawyer.60 Although this lawyer began the trial, at a dramatic moment,
he stepped aside, replaced by Andrew Hamilton.61 Hamilton then
demonstrated why he was one of the great lawyers of the day. By the
end of the trial, he had reduced the judge to a frustrated and angry
observer as he argued the case, including the law, directly to the jury.
The Attorney General argued that truth was a not a defense;
rather, the only issue was whether Zenger had published the articles.
“Indeed,” he said, “the law says their being true is an aggravation of the
crime.”62 He contended that nothing could be said in defense of Zenger,
who had charged: “His Excellency our Governor, who is the King’s
immediate representative and the supreme magistrate of this province,”
with “depriving the people of their rights and liberties, and taking away
trials by juries, and, in short, putting an end to the law itself.”63
Hamilton conceded that Zenger had printed and published the
articles, but answered that to be libelous, words had to be “false,
scandalous, and seditious,” or else there is no crime.64 “[J]ust
complaints” by “men who suffer under a bad administration,” he said,
are not libelous.65
Both lawyers argued English law, but Hamilton also criticized
as “strange doctrine” the argument that “everything” which was law in
England should be “law here.”66
Chief Judge Delancey made it clear that he agreed with the
Attorney General that as a matter of law words need not be false to be

59 Id. (explaining that an “information” was a procedure that permitted the government to
bypass a grand jury).
60 Miller, supra note 51.
61 Id.
62 JAMES ALEXANDER , A BRIEF NARRATIVE OF THE CASE AND TRIAL OF JOHN PETER ZENGER,
PRINTER OF THE NEW YORK WEEKLY JOURNAL (Stanley N. Katz ed., Belknap Press of Harvard
University 1963) (1736), reprinted in 1 THE ANNALS OF AMERICA, 1493-1754: DISCOVERING
A NEW WORLD 400 (Mortimer J. Adler & Charles Van Doren eds., 1968). The Attorney
General cited numerous English legal authorities in support of his position. This included a
treatise by Sir Edward Coke, the eminent authority on English common law. Id
63 Id. at 401.
64 Id. at 400.
65 Id. at 401.
66 Id. at 402. Hamilton linked the authorities that the Attorney General cited to England’s
notorious Star Chamber, saying he had hoped that “those dreadful judgments,” and the “law
[they] established,” were “long ago laid aside” and would not be “a precedent to us.” Id.

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libelous.67 “The law is clear, that you cannot justify a libel [with the
truth];” he cited Coke’s Institutes and, accordingly, he ruled Zenger was
“not to be permitted to prove the facts in the papers.”68 He then issued a
warning: “Mr. Hamilton, the Court have delivered their opinion, and we
expect you will use us with good manners.”69 Lest the message be
missed, the Chief Judge added, “you are not to be permitted to argue
against the opinion of the Court.”70
Hamilton responded: “With submission, I have seen the practice
in very great courts, and never heard it deemed unmannerly to—”,
before the Chief Judge cut him off, saying: “After the Court have
declared their opinion, it is not good manners to insist upon a point in
which you are overruled.”71
Hamilton became wonderfully unmannerly. He said, turning to
the jury, “Then, gentlemen of the jury, it is to you we must now appeal
for witnesses to the truth of the facts we have offered and are denied the
liberty to prove.”72 He repeated to the jury his argument that to be
libelous the jury had to find the words were false.
The Chief Judge interrupted him at this point, one might assume
angrily, saying the jury was to find whether “Zenger printed and
published those papers, and leave it to the Court to judge whether they
are libelous.”73 As with a “special verdict,” the Chief Judge said, the
jury would “leave the matter of law to the Court.” 74
Hamilton responded that “the jury may do so,” but “they may do
otherwise” as well.75 Without objection from the court, he said: “I know
they have the right beyond all dispute to determine both the law and the
fact, and where they do not doubt of the law, they ought to do so.”76
The Chief Judge then observed:
The great pains Mr. Hamilton has taken to show how
little regard juries are to pay to the opinion of the judges.
I shall therefore only observe to you that as the facts or
words in the information are confessed, the only thing
67

Linder, supra note 49.
ALEXANDER, supra note 62, at 407.
69 Id.
70 Id.
71 Id.
72 Id.
73 Linder, supra note 49.
74 ALEXANDER, supra note 62, at 410.
75 Linder, supra note 49.
76 ALEXANDER, supra note 62, at 410 (emphasis added).
68

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that can come in question before you is whether the
words as set forth in the information make a libel. And
that is a matter of law, no doubt, and which you may
leave to the Court.77
The jury did not leave it to the judge; they deliberated and in a
“small time” returned a not guilty verdict.78 The courtroom audience
erupted in cheers that it sustained over the contempt threats of Chief
Judge Delancey.79 Today, the case is a landmark in the protection of free
speech rights. This was a development imposed by a jury over the
objections of the presiding Chief Judge.
The need to control Tory judges was only one reason that juries
in criminal cases in our country’s early experience had the right to
determine the law. Judges were not lawyers, and when they were, there
was overriding “trust in the public’s sense of justice.”80 Juries were
viewed as “an obstacle to oppressive government” and, therefore,
“unquestionably ha[d] jurisdiction of both fact and law.”81 Despite
“incorporation” provisions, it was not clear what laws applied, and in
any event, there was a resistance to English law, especially the law of
the Star Chamber.82 There was a deep belief in natural law, as well, and
a deep commitment to the “sanctity of individual conscience.”83 In
1771, John Adams wrote in his diary:
Is it not an absurdity to suppose that the law would oblige
[jurors] to find a verdict according to the direction of the
court, against their own opinion, judgment, and
conscience[?] . . . It is not only [the juror’s] right, but his
duty . . . to find the verdict according to his own best
understanding, judgment, and conscience, tho[ugh] in
direct opposition to the direction of the court.84
77

Id. at 416.
Id.; Linder, supra note 49.
79 Linder, supra note 49.
80 For example, “A farmer justice of the New Hampshire Supreme Court instructed a jury to
use common sense rather than the common law, saying that ‘[a] clear head and an honest heart
are [worth] more than all the law of the lawyers.’” Albert W. Alschuler & Andrew G. Deiss,
A Brief History of Criminal Jury in the United States, 61 U. CHI. L. REV. 867, 906 (1994).
81 THE FEDERALIST NO. 81 (Alexander Hamilton); DENNIS HALE, THE JURY IN AMERICA:
TRIUMPH AND DECLINE 114 (2016).
82 Millemann et al., supra note 6, at 379 & n.65.
83 Id.
84 John Adams, Diary Notes on the Right of Juries, in 1 LEGAL PAPERS OF JOHN ADAMS 228,
230 (L. Kinvin Wroth & Hiller B. Zobel eds., 1965). For a scanned version of the diary, see
78

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This explains why nine states by constitutional provision or
statute, and six states by common law rule, adopted jury-judge-of-thelaw provisions and rules.85 In the nineteenth and early twentieth
centuries, many courts rejected these provisions because the reasons for
them had ceased to exist.
By the end of the eighteenth-century there was a United
States
government,
a
Federal
Constitution,
democratically elected federal and state legislatures, and
an American rule of law. There were no Tory judges, and
the judges, even those who were elected, had
considerable independence. In response to these
dramatic changes, federal and state courts throughout the
nineteenth century rejected the legal right of juries to
determine the law.86
The courts cited many, in retrospect obvious, reasons for their
decisions: juries deciding the law violated the separation of powers;
legislatures make laws, and courts sometimes announce common law
rules; the jury right gutted the judicial role; and it left legal decisions
invisible and unreviewable. Generally, it violated the Rule of Law and

John Adams, 1771. Feby. 12, in PAPER BOOK NO. 16, 1771-1772, 1, 7-8, (1772)
https://www.masshist.org/digitaladams/archive/doc?id=D16.
85 Millemann et al., supra note 6, at 379; Bressler, supra note 46, at 1157-58. See Slansky v.
State, 63 A.2d 599, 601-02 (Md. 1949) (“In some of the New England Colonies it was fully
understood that the judges held office not for the purpose of deciding causes, for the jury decided
all questions of both law and fact, but merely to preserve order and see that the parties were
treated fairly before the jury. This procedure received patriotic justification as increasingly
oppressive measures were taken by the royal officials; however, the fact that many of the judges
had not studied law was probably an additional explanation for the procedure.”); see also Howe,
supra note 46, at 582, 584, 614-15; Scott, supra note 46, at 416-17.
86 Millemann et al., supra note 6, at 379. Justice Story, then a Circuit Court trial judge, stated
to a jury in 1835 that it was “the most sacred constitutional right of every party accused of a
crime that the jury should respond as to the facts, and the court as to the law . . . . This is the
right of every citizen; and it is his only protection.” United States v. Battiste, 24 F. Cas. 1042,
1043 (C.C.D. Mass. 1835) (No. 14,545). The Supreme Court agreed with this in 1895, when it
held that a judge’s instructions to the jury were binding in federal criminal cases. Sparf v. United
States, 156 U.S. 51, 64 (1895). Though the issue had not been “concluded by any direct decision
of this court,” the Court reasoned, quoting Justice Curtis, that the “power and corresponding
duty of the court, authoritatively to declare the law, is one of the highest safeguards of the
citizen.” Id. at 64, 107 (quoting United States v. Morris, 26 F. Cas. 1323, 1336 (C.C.D. Mass.
1851) (No. 15,815)).

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was unfair to both the defendant and society.87 Nevertheless, until 1980,
Maryland was one of the last two holdouts, as we describe in Part IV.88
PART III: THE JURY’S RIGHT TO DETERMINE THE LAW WAS A WAY FOR
JURORS TO GIVE EFFECT TO THEIR RACISM AND ANGER AT CRIME IN
THE 1960S AND 1970S
The occasional scholar argues that the advisory-only instruction
continues to protect the rights of defendants.89 While these arguments
may work in trials of sympathetic defendants charged with crimes that
are inconsistent with developing norms—for example, simple
possession of marijuana by an adult—they fail entirely in the context of
the murder and rape trials of largely Black defendants in Maryland in
the 1960s and 1970s.90 There was no social norm that supported the
conduct underlying these crimes, but rather strong, and usually angry,
public reactions to them.91
We focus on the possible interplay of the advisory-only
instruction and the pervasive racism and politically inspired anger at
crime that existed in Maryland in the 1960s and 1970s. As we will
explain, we believe these factors, often in combination, likely affected
87 Hamilton v. People, 29 Mich. 173, 191 (1874)(“[I]f the court is to have no voice in laying
down these rules, it is obvious that there can be no security whatever, either that the innocent
may not be condemned, or that society will have any defence against the guilty . . . . Parties
charged with crime need the protection of the law against unjust convictions, quite as often as
the public needs it against groundless acquittals. Neither can be safe without having the rules of
law defined and preserved, and beyond the mere discretion of any one.”). See, e.g., State v.
Gannon, 52 A. 727 (Conn. 1902) (holding that the judge’s instructions are binding and
summarizing similar decisions in New Hampshire); Pierce v, State, 13 N.H. 536, 554 (1843);
Commonwealth v. Anthes, 71 Mass. (5 Gray) 185, 198 (1857); State v. Smith, 6 R.I. 33, 34
(1859). In addition to Maryland, there are two states that today have the jury decides the law
role in their constitutions: Georgia and Indiana. GA. CONST. art. I, § 1, ¶ XI(a); IND. CONST. art.
1, § 19. However, Georgia’s provision has been interpreted to limit the jury’s law finding power
since 1871. See Anderson v. Georgia, 42 Ga. 9, 32-33 (1871) (stating that the jury is bound by
judge’s instructions and is limited to applying law to facts); Anderson v. State, 5 N.E. 711, 712
(Ind. 1886) (explaining that Indiana courts have not given juries full power to decide the law
since 1886).
88 See infra Part IV.
89 See, e.g., Marcus Alexander Gadson, State Constitutional Provisions Allowing Juries to
Interpret the Law Are Not as Crazy as They Sound, 93 ST. JOHNS L. REV. 1, 2 (2019).
90 See supra Part I; see also infra Section III.A.
91 In the Unger cases, all of the rape cases involved violence; there were no nuanced issues
of consent. The murders often were parts of robberies; there were no cases in which, for
example, an old, long married and loving husband or wife helped their partner end their life
because of a painful, terminal disease. There may have been some defendants who were
acquitted of more nuanced homicide and sexual assault charges who benefitted from the
advisory-only instruction, but there were no facts in the Unger cases that would support such
a conclusion.

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the outcomes of some trials and the continued incarcerations of many of
the 237 members of the Unger group. For them, this was not “past
discrimination” because it occurred in the 1960s or 1970s, but instead a
discrimination they felt every day for decades until they were released.
James Baldwin said:
History, as nearly no one seems to know, is not merely
something to be read. And it does not refer merely, or
even principally, to the past. On the contrary, the great
force of history comes from the fact that we carry it
within us, are unconsciously controlled by it in many
ways, and history is literally present in all that we do.92
The angry racism of the 1960s and 1970s was “present in all
that” many members of the Unger group did, and what happened to
them, for decades. 93
Of the 236 men and one woman in the Unger group, 84% for
whom race is known were Black.94 This is grossly disproportionate to
the relative percentages of Black people and whites charged with
homicide in the 1960s and 1970s, when the members of the Unger group
were arrested and convicted.95 For example, in 1965 the FBI’s Uniform
Crime Report reported data on arrests in the United States. There were
4,558 homicide arrests of white individuals compared to 4,245 homicide
arrests of Black persons.96 This suggests that there should have been
slightly more whites than Black people in the Unger group.
The gross disproportionality, we believe, is the result of three
interrelated factors: (1) the pervasive racism in Maryland during this
period;97 (2) discrimination in the criminal justice system, from
charging decisions to pre-trial dispositions (including through plea

James Baldwin, The White Man’s Guilt, EBONY, Aug. 1965, at 47, 47 (emphasis in original).
Id.
94
Millemann et al., supra note 6, at 369, 422.
95 See, e.g., Darnell F. Hawkins, Black and White Homicide Differentials: Alternatives to an
Inadequate Theory, in RACE, CRIME, AND JUSTICE: A READER, 1, 245 (Shaun L. Gabbidon &
Helen Taylor Greene eds., 2005) (discussing historical homicide offending rates by race). See
generally KATHERINE J. ROSICH, AM. SOCIO. ASS’N, RACE, ETHNICITY, AND THE CRIMINAL
JUSTICE
SYSTEM
(2007),
https://www.asanet.org/sites/default/files/savvy/images/press/docs/pdf/ASARaceCrime.pdf
(reviewing research on racial disparities and discrimination in the criminal justice system).
Some of the Unger group were convicted in 1980 before the Maryland Court of Appeals
prohibited the advisory-only instruction.
96 FBI UNIFORM CRIME REPORT 117 (1965).
97 See infra Section III.A.
92

93

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bargaining) through jury selection at trials;98 and (3) the invitation by
judges to these juries to create their own legal rules.99 We address these
factors in this order.
A. There Was Pervasive Racism in Maryland
Before we describe this racism, we will say more about our
thesis that the advisory-only instruction invited, or least allowed, jurors
to express their racism in their decisions. Research on the impact of jury
instructions has found that jurors who did not receive jury instructions,
or who received a strong nullification instruction, were substantially
more likely to rate Black defendants as guilty compared to jurors who
received instructions.100 Although the advisory-only instruction did not
explicitly invite jurors to nullify the law, it directed them to determine
it, and had the same effect as explicitly inviting the jurors to disregard
established law.
Second, research on capital trials found that jurors who had a
low comprehension of the instructions were more likely to sentence
Black defendants to death.101 The advisory-only instruction, at a
minimum, would have been confusing to most jurors and hard for even
a person of average cognitive function to comprehend.
Finally, research about employment decision-making has found
that white individuals exhibit greater racial bias when making choices
in an ambiguous context.102 Today’s racism, due to evolved social
norms, can be more subtle than that of the past and tends to manifest
“when the individual expressing the prejudicial attitudes or
discriminatory behaviors perceives the situation as ambiguous enough

98

See infra Section III.B.
See infra Part IV.
100 See, e.g., Jeffrey E. Pfeifer & James R.P. Ogloff, Ambiguity and Guilt Determinations: A
Modern Racism Perspective, 21 J. APPLIED SOC. PSYCH. 1713 (1991); Jeffrey E. Pfeifer &
Daniel J. Bernstein, Expressions of Modern Racism in Judgements of Others: The Role of Task
and Target Specificity on Attributions of Guilt, 31 SOC. BEHAV. & PERSONALITY 749 (2003);
E.L. Hill & J.E. Pfeifer, Nullification Instructions and Juror Guilt Ratings: An Examination of
Modern Racism, 16 CONTEMP. SOC. PSYCH. 6 (1992); Neil A. Rector, Michael R. Bagby & R.
Nicholson, Effect of Prejudice and Judicial Ambiguity on Defendant Guilt Ratings, 133 J. SOC.
PSYCH. 651 (1993).
101 Mona Lynch & Craig Haney, Discrimination and Instructional Comprehension: Guided
Discretion, Racial Bias, and the Death Penalty, 24 L. & HUM. BEHAV. 337, 356 (2000); Suzanne
Mannes, Elizabeth E. Foster & Shana L. Maier, Jury Instructions: How Timing, Type, and
Defendant Race Impact Capital Sentencing Decisions, 14 APPLIED PSYCH. CRIM. J. 154, 158,
168 (2018).
102 John F. Dovidio & Samuel L. Gaertner, Aversive Racism and Selection Decisions:1989 and
1999, 11 PSYCH. SCI. 315, 318 (2000).
99

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to allow for the expression.”103 This form of bias has been termed
“aversive racism” and “may lead otherwise seemingly fair and impartial
persons to manifest racial hostility when the norms against such bias
become ambiguous or conflicting.”104 Again, the total context of the
advisory-only instruction, followed by the other “regular” instructions,
would have been ambiguous at best.
For all these reasons the general societal racism of the 1960s and
1970s likely influenced the decisions of many jurors. There were many
examples of such racism in Maryland before and during this time period.
The oldest of the 237 in the Unger group was Charles Edret
Ford.105 He was a Black man who had been convicted of murder by a
jury in Charles County, Maryland in 1952. When Ford was released on
March 23, 2016, he was eighty-four years old and had maintained his
innocence.106 At a post-Unger hearing on his behalf, Ford’s lawyer said:
When Mr. Ford went to prison I was in first grade. He
was judged by an all-white jury. His attorney was not a
trial lawyer. He had alibi witnesses who weren’t called.
The two witnesses who did testify contradicted each
other. The only reason they gave him a life sentence is
because it was a black on black crime. If it had been
black on white, he would have gotten the death penalty.
This was the South. To say he had a fair trial, it simply
is not true.107
Maryland’s status as a “Southern” or “Northern” state is a
continuing debate and highlights the state’s varied geographic,
demographic, and political makeup.108 By referring to Maryland’s
103

Pfeifer & Bernstein, supra note 100, at 751.
Lynch & Haney, supra note 101, at 340. See also Elizabeth Ingriselli, Mitigating Jurors’
Racial Biases: The Effects of Content and Timing on Jury Instructions, 124 YALE L.J. 1690,
1696, 1738 (2015).
105
Joseph Norris, Man Free at Last After 64 Years in Prison, THE BAYNET.COM (Mar. 24,
2016), http://www.thebaynet.com/articles/0316/manfreeatlastafter64yearsinprison.html.
106 Millemann et al., supra note 6, at 384 n.91.
107 Id. at 384-85 n.91.
108 Frederick N. Rasmussen, Are we Northern? Southern? Yes., BALT. SUN (Mar. 28, 2010),
https://www.baltimoresun.com/maryland/bs-xpm-2010-03-28-bal-md-backstory28mar28story.html; Patrick Ottenhoff, Where Does the South Begin?, ATLANTIC (Jan. 28, 2011),
https://www.theatlantic.com/national/archive/2011/01/where-does-the-south-begin/70052/. A
Facebook group, called “Maryland is a Southern State,” stresses Maryland’s southern status,
including posts with images of Confederate monuments and flags. Wayne Doerflein, Maryland
is a Southern State, FACEBOOK, https://www.facebook.com/groups/MarylandisSouthern/ (last
visited July 16, 2021).
104

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southern status, Ford’s attorney recognized the role race played in
Maryland criminal justice in the 1960s and 1970s. There was significant
evidence of racism in Maryland during this period.
i.

George Wallace and the 1964 Presidential Primary

In 1964, Alabama governor George Wallace, whose mantra was
“segregation now, segregation tomorrow, segregation forever,” ran in
the Maryland Presidential Primary against a stand-in for President
Lyndon Johnson, Senator Daniel Brewster of Maryland.109 At the time,
the 1964 Civil Rights bill was pending in Congress and being subjected
to a Southern-led filibuster.110 Throughout his presidential campaign,
Wallace repeated his opposition to that bill. An article in the Baltimore
Sun described one of his Maryland campaign rallies:
Wallace shook his fist in the air as he spoke. “I stand here
in the great Border State of Maryland and I speak for
every white Marylander who believes in the right to
associate with whomever you please. I call on every
white Marylander to join me in opposing President
Johnson’s civil rights bill and send Lyndon Johnson a
message he’ll never forget.”111
Wallace’s “visceral connection to his crowds” was apparent at
this rally, and, as in many other speeches, he tapped into the “modern
politics of fear in America,” a fear tightly connected to race.112
Wallace won 42.73% of the vote in Maryland, winning the
majority-white precincts.113 It was his best showing in a presidential
primary, better than in Wisconsin, where he won 34% of the votes, and
Indiana, where he won 30% of the votes.114 The only thing that stopped
him from winning the Maryland primary was the Black vote,115 as he
109 Charles Whiteford, Brewster Beats Wallace; Alabamian Gets 42% of Vote; Tydings is
Winning, BALT. SUN (May 20, 1964), at 1; Robert D. Loevy, Campaigns and Elections: George
Wallace for President, in ON THE FORWARD EDGE: AMERICAN GOVERNMENT AND THE CIVIL
RIGHTS ACT OF 1964, Ch. 11 (2005). Some accounts of the election give Wallace’s percentage
of votes as 42%; other accounts give his percentage as 43% depending on if the account rounds
up or down from the decimal percentage (42.73%).
110 Loevy, supra note 109, at 207.
111 Id. at 208.
112 JON MEACHAM, THE SOUL OF AMERICA: THE BATTLE FOR OUR BETTER ANGELS 219 (2018).
113
Loevy, supra note 109, at 208.
114 Id.
115 See id. at 220. Then, Black people were twenty percent of the Maryland population. U.S.
CENSUS BUREAU, STATISTICAL ABSTRACT OF THE UNITED STATES 36 (101st ed. 1980).

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pointed out after the primary, stating: “If it hadn’t been for the black
bloc vote, I’d have won it all. I got a majority of the white vote.”116
Speaking to reporters before leaving Maryland, Wallace said: “You
people of Maryland have done a great service to the nation.”117 This
sentiment was echoed by other political leaders, including Senator
Richard B. Russell of Georgia, who “interpreted the results as evidence
of increasing sentiment against the civil rights bill.”118 Wallace echoed
Russell’s sentiments, stating: “You have shown there is a new trend
against the use of federal force” to compel integration and racial
justice.119 Though Wallace failed to win the Democratic nomination, his
strong showing in Maryland demonstrates the appeal of his
segregationist sentiments in the state.
Wallace also tapped into fears that Black people were
contributing to growing crime and that courts, prominently the U.S.
Supreme Court, were not holding criminals accountable. He referred to
Supreme Court justices as “black-robed despots” who would enforce the
Civil Rights Bill—“a tyranny more brutal than that imposed by the
British monarchy”—but would not hold criminals accountable.120
Wallace did not draw distinctions between violent criminal activity and
non-violent civil rights demonstrations.121
ii.

The Events in Baltimore After the Assassination of Dr.
Martin Luther King, Jr.

The public anger at crime and racial tensions was heightened by
the events in Baltimore after the assassination of Dr. Martin Luther
King, Jr. in 1968. One commentary summarized what happened, as in
many other urban areas, after the assassination.

116

Loevy, supra note 109, at 220.
Maryland Primary Vote Surprises Even Wallace But Winner Denies Effect On Rights Bill,
DESERT SUN, May 20, 1964, at 1.
118 Id. Wallace ran well in Baltimore City as well as in the rest of the state. In the 1960s and
early 1970s, the majority of the population of Baltimore was white, with a significant white
working-class base and a growing Black population. KENNETH D. DURR, BEHIND THE
BACKLASH: WHITE WORKING-CLASS POLITICS IN BALTIMORE, 1940-1980 197 (2003). See
generally HAROLD A. MCDOUGALL, BLACK BALTIMORE: A NEW THEORY OF COMMUNITY
(1993).
119 Maryland Primary Vote Surprises Even Wallace, supra note 117.
120 George C. Wallace, The Civil Rights Movement: Fraud, Sham, and Hoax (July 4, 1964)
(transcript available at A Segregationist’s View of the Civil Rights Movement, 1964, PBS:
AM. EXPERIENCE, https://www.pbs.org/wgbh/americanexperience/features/lbj-wallspeech/ (last
visited Oct. 29, 2021)).
121 Id.
117

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For two weeks in April 1968, beginning in the dark hours
following the assassination of Martin Luther King Jr., the
city of Baltimore was devastated by a series of civil
disturbances that left six dead, dozens injured and
hundreds of properties, both private and public, burned,
shattered and in ruins. The events, which culminated in
the deployment of thousands of armed National Guard
troops across the city on the orders of Governor Spiro
Agnew and the addition of regular Army troops by
President Lyndon Johnson, riveted the attention of the
nation, which already was reeling from similar riots in
other cities across the country.122
Though spurred by the assassination of Martin Luther King, Jr.,
the deeply segregated nature of Baltimore and the economic struggles
of Black people living in the city also contributed to the civil unrest.
Baltimore reflected what the Kerner Report found: “Segregation and
poverty have created in the racial ghetto a destructive environment
totally unknown to most white Americans.”123
The racist reaction of then-Maryland Governor Spiro Agnew to
the Baltimore uprisings was the first step in his becoming Vice
President. In 2015, reflecting on the events of 1968, the Baltimore Sun
wrote:
Agnew quickly called out the National Guard and then
pointed fingers at Baltimore’s mayor, Tommy
D’Alessandro, and his staff, accusing them of willfully
ignoring signs of impending violence in the city. A
D’Alessandro assistant told Theo Lippmann of The
Baltimore Sun, “Agnew told us he didn’t think Martin
Luther King was a good American, anyway!”
Agnew saved his real public vitriol, however, for
Baltimore’s Black political leadership. Calling them to a
122 UNIV. OF BALT., BALTIMORE ‘68: RIOTS AND REBIRTH, http://archives.ubalt.edu/bsr/. See
also Charles Holden, Zach Messitte & Jerald Podair, Channeling Spiro Agnew in the Baltimore
Riots, BALT. SUN (May 9, 2015), https://www.baltimoresun.com/opinion/bs-ed-freddie-grayagnew-20150509-story.html.
123 NAT’L ADVISORY COMM’N ON CIVIL DISORDER, REPORT ON THE CAUSES, EVENTS, AND
AFTERMATH OF THE CIVIL DISORDERS OF 1967 1 (1967), https://www.ojp.gov/ncjrs/virtuallibrary/abstracts/national-advisory-commission-civil-disorders-report. The Report is known as
the Kerner Report, after Illinois Governor Otto Kerner, who chaired the National Advisory
Commission on Civil Disorders. Id. at vi.

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special meeting at the state office building in Baltimore,
he excoriated the group for its failure to take
responsibility for the violence and a “perverted concept
of race loyalty.”124
Although the Black community was outraged, there was national
support for Agnew’s reactions, particularly among Republicans. This
caught the eye of the staff of presidential candidate Richard Nixon, who
was refining his “law and order” campaign.125
Pat Buchanan, then an eager, young staff aide to
presidential candidate Richard Nixon, clipped the text of
the speech and saved it for his boss. By May, The
Washington Post put Agnew, then just eight years
removed from finishing fifth in a five-way race for
Baltimore County Circuit Court Judge, as a legitimate
VP contender. Three months later Richard Nixon named
Spiro Agnew his running mate.
Agnew’s handling of the Baltimore riots brought him on
to the national stage and helped define political
buzzwords like: “law and order,” “Southern strategy,”
and “silent majority” to the body politic.126
Though Agnew was not a prominent figure in the Republican
party when Nixon selected him as his running mate, his profile quickly
rose during the campaign and as Vice President. He became a stronger
proponent of law and order and “gave voice to the anxieties of the
amorphous sociological entity, Middle America, on such issues as
crime, race, radical demonstrators and the communications media.”127
iii.

The 1968 Presidential Campaign

In 1966, an aide to President Lyndon B. Johnson encapsulated
Democratic losses in the 1966 midterm elections, stating:
124

Holden, et al., supra note 122.
Id.
126 Id.
127 Robert Mitchell, ‘Nattering Nabobs of Negativism’: The Improbable Rise of Spiro Agnew,
WASH.
POST
(Aug.
8,
2018),
https://www.washingtonpost.com/news/retropolis/wp/2018/08/08/nattering-nabobs-ofnegativism-the-improbable-rise-of-spiro-t-agnew/.
125

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The single issue that appeared to be critical . . . was that
of race rioting and the pace of Negro advances in our
society . . . . This is one problem that will not go away,
and which will cause even more difficult problems in the
next two years.128
The 1968 presidential campaign of Richard Nixon and Spiro
Agnew played to the fears of white voters—the “silent majority”—who
were alarmed by race riots and the social advancements of Black people,
as well as antiwar demonstrations at the 1968 Democratic
Convention.129 Nixon stated that “[t]he wave of crime is not going to be
the wave of the future in the America. We shall reestablish freedom in
America.”130 The “law and order” driven campaign was also a response
to George Wallace’s strong showing as a third-party presidential
candidate.131 Stoking racial fears and strategically selecting Agnew—
who could appeal to “urban Northern ethics and white southerners”—
as a running mate, was seen as a way to counter Wallace’s appeal,
especially in the south.132
The centerpiece of Nixon’s successful presidential campaign
was the exploitation of the white majority’s fears regarding Black
militants, rioting, and urban crime in general. Under the banner of law
and order, Nixon succeeded in tapping into the discontent among white
voters.133 Nixon chose Agnew as a running mate at least partly because
of his tough stand on “law and order” and the associated issues of civil
rights.134 For example, during the Baltimore City riots, Governor
Agnew met with Black leaders and criticized them for not condemning

128 Jeremy D. Mayer, Nixon Rides the Backlash to Victory: Racial Politics in the 1968
Presidential Campaign, 64 HISTORIAN 351, 351 (2002) (quoting Marvin Watson to Johnson, 12
January 1967, box 77, Confidential Files, Lyndon Johnson Library, Austin, Texas).
129
Terrence McArdle, The ‘Law and Order’ Campaign that Won Richard Nixon the White
House
50
Years
Ago,
WASH.
POST
(Nov.
5,
2018),
https://www.washingtonpost.com/history/2018/11/05/law-order-campaign-that-won-richardnixon-white-house-years-ago/.
130 Austin Sarat, Trump’s Law-and-Order Campaign Relies on a Historic American Tradition
of Racist and Anti-Immigrant Politics, CONVERSATION (Sept. 8, 2020, 8:18 AM),
https://theconversation.com/trumps-law-and-order-campaign-relies-on-a-historic-americantradition-of-racist-and-anti-immigrant-politics-145366.
131 McArdle, supra note 129.
132 Mayer, supra note 128, at 357-58.
133 Id.
134 Id.

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a local leader of the Student Non-Violent Coordinating Committee
(SNCC) and other Black leaders, whom he called “black racists.”135
Political calls for “law and order” did not start with Nixon,136
but his campaign utilized many of the racial undertones of the phrase to
stoke fears—fears that infected the juries that convicted many in the
Unger group.
B. Racism in the Criminal Justice System Is a National Problem
Because this article is about the advisory-only instruction and
the Unger group, we will focus on the racism in selecting jurors in
Maryland in the 1960s and 1970s and the secondary effects of race in
keeping the Unger group in prison.137 However, we take a slight detour
here to discuss the national problem of race and criminal justice and
argue that much of what we say about the Unger group and race applies
nationally.
The Unger group’s experiences are part of a long history of
racism in the U.S. criminal justice system. Today, Black people
comprise about 13% of the total U.S. population but make up
approximately 33% of the U.S. prison population.138 Although the
imprisonment rate of Black people and all other races has fallen in the
last fifteen years, “[t]he racial and ethnic makeup of U.S. prisons
continues to look substantially different from the demographics of the
country as a whole.”139
Analysis of policing data and behavioral science research
“identify a statistically significant relationship showing that Black
people and Latinos are perceived and treated differently than

135 Holden, et al., supra note 122. See also Spiro Agnew, Md. Governor, Opening Statement
by Governor Spiro T. Agnew at Conference with Civil Rights and Community Leaders in
Baltimore,
Maryland
(Apr.
11,
1968)
(transcript
available
at https://msa.maryland.gov/megafile/msa/speccol/sc2200/sc2221/000012/000041/pdf/speech.
pdf).
136 See, e.g., Mayer, supra note 128, at 351; Sarat, supra note 130.
137 See infra Section III.C & III.D.
138 Quick Facts: United States Population Estimates, U.S. CENSUS BUREAU (July 1, 2019),
https://www.census.gov/quickfacts/fact/table/US/PST045219;
John
Gramlich,
Black
Imprisonment Rate in the U.S. has Fallen by a Third Since 2006, PEW RSCH. CTR. (May 6, 2020),
https://www.pewresearch.org/fact-tank/2020/05/06/share-of-black-white-hispanic-americansin-prison-2018-vs-2006/.
139 Gramlich, supra note 138. For example, white adults constitute about 63% of the total U.S.
population, but only about 30% of the U.S. prison population. Id.; Quick Facts: United States
Population Estimates, supra note 138.

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Whites . . . .”140 Prosecutors play a significant role in pre-trial
dispositions. In 1940, U.S. Supreme Court Justice Robert H. Jackson
observed that the prosecutor has “immense power” and “at his best is
one of the most beneficent forces in our society, [but] when he acts from
malice or other base motives, he is one of the worst.”141
Prosecutors have broad discretion to decide whether a person is
charged with a crime and, if so, what charges will be filed. Justice
Powell in Wayte v. United States, recognized that:
[i]n our criminal justice system, the Government retains
“broad discretion” as to whom to prosecute . . . This
broad discretion rests largely on the recognition that the
decision to prosecute is particularly ill-suited to judicial
review. Such factors as the strength of the case, the
prosecution’s
general
deterrence
value,
the
Government’s enforcement priorities, and the case’s
relationship to the Government’s overall enforcement
plan are not readily susceptible to the kind of analysis the
courts are competent to undertake. Judicial supervision
in this area, moreover, entails systemic costs of particular
concern. Examining the basis of a prosecution delays the
criminal proceeding, threatens to chill law enforcement
by subjecting the prosecutor’s motives and decisionmaking to outside inquiry, and may undermine
prosecutorial
effectiveness
by
revealing
the
Government’s enforcement policy. All these are
substantial concerns that make the courts properly
hesitant to examine the decision whether to prosecute.142
Prosecutorial discretion supports judicial economy and
efficiency and assists prosecutors in negotiating plea agreements, yet
prosecutorial discretion also provides opportunities for prosecutorial
misconduct.143 There is evidence that bias, whether conscious or
140

Samuel R. Sommers & Satia A. Marotta, Racial Disparities in Legal Outcomes: On
Policing, Charging Decisions, and Criminal Trial Proceedings, 1 POL’Y INSIGHTS FROM BEHAV.
& BRAIN SCIS. 103, 105 (2014).
141 Robert H. Jackson, The Federal Prosecutor, 31 AM. INST. CRIM. L. & CRIMINOLOGY 3, 3
(1940).
142 470 U.S. 598, 607-08 (1985) (internal citations omitted).
143 David Lynch, The Impropriety of Plea Agreements: A Tale of Two Counties, 19 L. & SOC.
INQUIRY 115, 131 (1994). In 1994, former prosecutor and public defender David Lynch
lamented that plea bargaining had “turned our criminal courts into centers of hustling, more

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unconscious, influences prosecutorial decisions about plea bargaining
and sentencing requests, and generally, creates inconsistencies in the
criminal justice system.144 The biased exercise of prosecutorial
discretion is most striking in death penalty cases. Approximately 58%
of individuals on death row are people of color, and approximately 75%
of victims in death penalty cases are white “even though only half of
murder victims are white.”145
More research has been done on the impact of race in death
penalty cases, but the research that has looked at the impact of race on
other charging decisions points to similar problems. For example, recent
analysis of felony murder cases in Cook County, Illinois found “that
enforcement of the felony murder rule is staunchly more affective of
Black people both in proportion and raw count.”146 Specifically, “74.8%
of initiated cases have black defendants [], and only 7.8% have white
defendants . . . .”147 Though this analysis focused on only one Illinois
county, the findings support earlier research that found “the felony
murder rule quantitatively emphasizes racial inequality, to the severe
detriment of Black people.”148 For example, in Pennsylvania, 70% of
the over 1,000 people convicted of felony murder and serving life
sentences without parole are Black.149 A 2018 analysis of data from the
Wisconsin Circuit Court found:

worthy of an open-air market than a courthouse, and far distanced from the ideal versions of the
rule or practice of law.” Id. For individuals already facing a criminal justice system biased
against them, plea bargains can feel like their best option. See id. at 131-32.
144 See, e.g., Tracey L. McCain, The Interplay of Editorial and Prosecutorial Discretion in the
Perpetuation of Racism in the Criminal Justice System, 25 COLUM. J.L. & SOC. PROBS. 601, 618
(1992).
145 NGOZI NDULUE, DEATH PENALTY INFO. CTR., ENDURING JUSTICE: THE PERSISTENCE OF
RACIAL DISCRIMINATION IN THE U.S. DEATH PENALTY 28-29 (Sept. 2020),
https://documents.deathpenaltyinfo.org/pdf/Enduring-Injustice-Race-and-the-Death-Penalty2020.pdf. See generally David C. Baldus et al., Racial Discrimination and the Death Penalty in
the Post-Furman Era: An Empirical and Legal Overview with Recent Findings from
Philadelphia, 83 CORNELL L. REV. 1638 (1998) (examining the impacts of racial discrimination
in death penalty cases through empirical research).
146 Kat Albrecht, Data Transparency & the Disparate Impact of the Felony Murder Rule, DUKE
CTR. FOR FIREARMS L. BLOG (Aug. 11, 2020), https://firearmslaw.duke.edu/2020/08/datatransparency-the-disparate-impact-of-the-felony-murder-rule/. See also Molly Greene, States
Should Abolish “Felony Murder” Laws, APPEAL (Mar. 30, 2021), https://theappeal.org/thepoint/states-should-abolish-felony-murder-laws/ (citing to Duke’s Center for Firearms study
finding “that in Cook County, Illinois, 81.3% of people sentenced under the felony murder rule
are Black”).
147
Albrecht, supra note 146.
148 Id.
149 Shobha L. Mahadev & Steven Drizin, Felony Murder, Explained, APPEAL (Mar. 4, 2021),
https://theappeal.org/the-lab/explainers/felony-murder-explained/.

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[w]hite defendants are twenty-five percent more likely
than black defendants to have their most serious initial
charge dropped or reduced to a less severe charge . . .
[and] white defendants initially charged with
misdemeanors are approximately seventy-five percent
more likely than black defendants to be convicted for
crimes carrying no possible incarceration, or not to be
convicted at all.150
There is no reason to believe that the disproportionately white
prosecutors in Maryland in the 1960s and 1970s were immune from
racism and every reason to believe it influenced their charging
decisions, including in the Unger group’s cases.
C. There Was Clear Race Discrimination in the Selection of Jurors in
Criminal Trials in Maryland in the 1960s and 1970s, When Almost All
in the Unger Group Were Tried and Convicted
In the 1960s and early 1970s, in Baltimore City and throughout
Maryland, most Black people either were not summoned for jury duty
or, if they were summoned, were removed from jury panels by
prosecutors exercising peremptory challenges when defendants were
Black people. Until 1969, Baltimore City had a “key man” system in
which the seventeen judges on the circuit court asked friends (known as
“key men”) to nominate jurors for criminal trials.151 Jury selection
procedures were revised in 1969 to draw potential jurors from selected
registered voters rather than “key men” nominations.152 The new
procedures increased representation of Black people on Baltimore City
juries. But, even after the “key man” system ended, Black people in
Baltimore City, as well as throughout Maryland and the United States,
150 Carlos Berdejó, Criminalizing Race: Racial Disparities in Plea-Bargaining, 59 B.C. L. REV.
1187, 1191 (2018).
151
Douglas L. Colbert, Challenging the Challenge: Thirteenth Amendment as a Prohibition
Against the Racial Use of Peremptory Challenges, 76 CORNELL L. REV. 1, 114–15 n.562 (1990).
All circuit court judges were white until 1967. See Archives of Maryland Historical List,
Supreme Bench of Baltimore City and Baltimore City Circuit Court, 1867- , MD. ST. ARCHIVES,
https://msa.maryland.gov/msa/speccol/sc2600/sc2685/html/supbench.html; Judge Harry A.
Cole, BALT. SUN (Feb. 24, 2007), https://www.baltimoresun.com/features/bal-blackhistorycole-story.html.
152 Colbert, supra note 151, at 114 n.562 (“In 1969, Baltimore revised its jury procedures, and
selected registered voters to serve as jurors instead of personally selecting ‘key-men.’ The
difference increased black jury representation from 30% to 46.7% in the years 1969 to 1974.”
(citing JON M. VAN DYKE, JURY SELECTION PROCEDURES: OUR UNCERTAIN COMMITMENT TO
REPRESENTATIVE PANELS 33-34 (1977)).

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were frequently stricken from juries through prosecutors’ use of
peremptory challenges in trials involving Black defendants.153 It was not
until 1986 that the U.S. Supreme Court held, in Batson v. Kentucky, that
prosecutors could not use peremptory challenges to strike minorities
from a jury.154 The trial of every member of the Unger group was before
Batson was decided. 155
This is highly detrimental discrimination. Diversity in juries
improves the decision-making process.156 Social science research has
begun to demonstrate “that decision making varies by jury racial
composition, as the greater the proportion of Whites on a jury, the
harsher that jury tends to be toward non-White defendants.”157 One
study on the impact of diversity on jury decisions found that white
participants “made fewer inaccurate statements when in diverse versus
all-White groups.158 This study suggests “that White jurors processed
the trial information more systematically when they expected to
deliberate with a heterogeneous group.”159
In this study, a 2006 mock-jury experiment, Sommers found that
racially heterogenous groups “deliberated longer and considered a wider
range of information than did homogeneous groups.”160 This was not
just due to the individual perspectives of Black participants: “White
participants were largely responsible for the influence of racial
composition, as they raised more case facts, made fewer factual errors,
and were more amenable to discussion of race-related issues when they
were members of a diverse group.”161 From this, Sommers concluded:
“White jurors processed the trial information more systematically when
they expected to deliberate with a heterogeneous group. Such a
conclusion is consistent with previous findings that motivations to avoid
153

Id. at 117.
476 U.S. 79, 99 (1986).
155 Id. See also Colbert, supra note 151, at 114 n.562 (noting the revised jury selection
procedures “increased black jury representation from 30% to 46.7% in the years 1969 to 1974.”
(citation omitted)). Legal challenges to the exclusion of racial minorities from juries in
Maryland generally failed throughout the 1960s and 1970s. See, e.g., Brooks v. State, 240 A.2d
114 (Md. Ct. Spec. App. 1968) (stating that only 14 of 400 prospective jurors were Black, but
this disparity—along with other evidence of race-based exclusion—was insufficient to establish
a prima facie case of purposeful discrimination).
156 See, e.g., Samuel R. Sommers, On Racial Diversity and Group Decision Making: Identifying
Multiple Effects of Racial Composition on Jury Deliberations, 90 J. PERSONALITY & SOC.
PSYCH. 597 (2006); Margaret Bull Kovera, Racial Disparities in the Criminal Justice System:
Prevalence, Causes, and a Search for Solutions, 75 J. SOC. ISSUES 1139 (2019).
157 Sommers, supra note 156, at 598.
158 Id. at 606.
159 Id. at 606-07.
160 Id. at 606.
161 Id.
154

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prejudice lead Whites to a more systematic and thorough processing of
information conveyed by or about Black individuals.”162
The deliberation and communication processes within juries are
also affected by the racial makeup, and “the points of view raised by
Black participants in diverse groups, especially with regard to
discussion of race-related issues,” are very important.163 Overall,
research has found that “[i]n many circumstances, racially diverse
groups may be more thorough and competent than homogeneous
ones.”164
In sum, diverse juries are less likely to convict Black defendants
and have more thorough case discussions than all-white juries.165 Allwhite, or disproportionately white, juries convicted those in the Unger
group during times when political rhetoric was sowing race-based fear
in whites. Judges told these juries that “you and you alone are the sole
judges of the law.”166 This invited them to give effect to their bias and
fear.
D. A Race-Based Presidential Ad Campaign in 1988 Affected the
Decisions of Maryland Governors to Effectively End Parole for LifeSentenced Prisoners in Maryland, Including Those in the Unger
Group
All of the 237 Unger prisoners were sentenced to life with the
possibility of parole, but none had been paroled even though the
Maryland Parole Commission had recommended many for parole, some
up to three or four times.167 When the members of the Unger group were
sentenced to life imprisonment, everyone involved—the judge,
prosecutor, and defense counsel—expected that if the defendant
exhibited good behavior in prison, he or she would be paroled in fifteen

162

Id. at 607 (citation omitted).
Id. at 606.
164
Id. at 608.
165 See, e.g., id.; Samuel R. Sommers, Race and the Decision Making of Juries, 12 L. &
CRIMINOLOGICAL PSYCH. 171 (2007).
166 Trial Tr., supra note 27, at 335-42 (emphasis added).
167 See generally WALTER LOMAX & SONIA KUMAR, STILL BLOCKING THE EXIT (2015),
https://www.aclu-md.org/en/publications/still-blocking-exit (examining Maryland’s parole
system regarding individuals serving life sentences). Until 2021, Maryland governors had to
approve the parole of some life-sentenced prisoners or disapprove the parole of the others. MD.
CODE ANN., CORR. SERVS. § 7-301(d)(4) (LexisNexis 2013); Ovetta Wiggins & Rebecca Tan,
Maryland Revokes Governor’s Authority to Overturn Parole Decisions Involving People
Serving Life Terms, WASH. POST (Dec. 7, 2021), https://www.washingtonpost.com/dc-mdva/2021/12/07/maryland-parole-governor-criminal-justice-prison/.
163

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to twenty years.168 That was the established practice, and the established
pathway to parole was through work release or furlough programs.169
In the 1988 presidential campaign, supporters of George H.W.
Bush produced two “Willie Horton” campaign ads that attacked
Michael Dukakis, the Democratic candidate, for being soft on crime and
leading to Horton’s crimes.170 Horton was a Black man who had been
convicted of murder in Massachusetts and had run away from a workrelease center in Massachusetts in 1987 when Dukakis was governor.
He then traveled to a Maryland suburb of Washington, D.C., where he
raped a white woman twice and brutally assaulted her fiancé.171 The TV
ads were among the most racially divisive in modern political history.
They appealed to white fear and the worst Black stereotypes.
Five years later, a life-sentenced prisoner in Maryland on work
release killed a woman and himself.172 The state immediately closed
down the work-release centers throughout the state and transferred all
the inmates back to medium-security prisons.173 Many in the Unger
group were on work release and doing well: taking a bus to work every
day; getting good job reviews; and after eighteen months to two years
in work release, going home on weekend leaves. They were proving
they were no threat to society.
After being returned to maximum security prisons, all but a
handful of the Unger group would have died in prison but for the Unger
decision. That is because two Democratic governors, who undoubtedly
understood the political significance of the Willie Horton story,
functionally ended parole for the parole-eligible Unger group members.
See Darren M. Allen, Killer Asks for Lighter Sentence: Parole Seeker Cites “Oz” for Hope,
BALT. SUN, June 16, 1993, at 1B (quoting then-Chairman of the Maryland Parole Commission,
Paul Davis, during his testimony for the sentencing of convicted murderer Abras Q. Morrison,
“the lifers now on parole served an average of 20.6 years before being released . . . ”).
169 Beth Schwartzapfel & Bill Keller, Willie Horton Revisited, MARSHALL PROJECT (May 13,
2015, 6:37PM), https://www.themarshallproject.org/2015/05/13/willie-horton-revisited.
170 Willie Horton (National Security PAC 1988),
http://www.livingroomcandidate.org/commercials/1988/willie-horton; Revolving Door (BushQuayle ’88, Oct. 3, 1988), http://www.livingroomcandidate.org/commercials/1988/revolvingdoor.
171 See Editorial, George Bush and Willie Horton, N.Y. TIMES, Nov. 4, 1988, at A34;
Schwartzapfel & Keller, supra note 169.
172 Michael James, 134 Lifers Taken from Prerelease System: Midnight Move to Higher
Security
Follows
Murder,
Escapes,
BALT.
SUN
(June
4,
1993),
http://articles.baltimoresun.com/1993-06-04/news/1993155079_1_lifers-prerelease-preparinginmates.
173 Id.; Byron L. Warnken, Life Should Not Mean Life Without Parole (Part III), PROFESSOR
BYRON L. WARNKEN’S BLOG (Mar. 29, 2011), http://professorwarnken.com/2011/03/29/lifewithout-parol/; ASHLEY NELLIS, THE SENTENCING PROJECT, LIFE GOES ON: THE HISTORIC RISE
IN LIFE SENTENCES IN AMERICA 14 (2013).
168

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In 1995, one of those governors, Governor Paris Glendening, publicly
announced that “life means life,” and thereafter rejected all of the
recommendations by his Parole Commission that lifers be paroled.174
Governor Martin O’Malley, the other democratic governor, continued
this no-parole policy during his two terms.175 This was the reason there
were so many in the Unger group.
Racism and the legacy of racism continued to plague the Unger
group.

174 Kate Shatzkin, Glendening Acts to End Parole for Inmates with Life Sentences: Those on
Work Release Summoned Back to Prison, BALT. SUN, Sept. 29, 1995, at 2B. In 2018, former
Governor Glendening said that he regretted his no-parole policy. He described the policy as
“completely wrong” and “a serious mistake” and expressed support for legislation to end the
government’s power over parole for lifers. Rachel Chason & Ovetta Wiggins, Glendening,
Former Md. Governor, Says He Was Wrong to Deny ‘Lifers’ Early Release, WASH. POST (Mar.
7, 2018), https://www.washingtonpost.com/local/md-politics/glendening-former-md-governorsays-he-was-wrong-to-deny-lifers-early-release/2018/03/07/a9e681bc-2211-11e8-94daebf9d112159c_story.html; Parris N. Glendening, I Made a Serious Mistake as Maryland
Governor.
We
Need
Parole
Reform.,
WASH. POST
(Mar.
1,
2021),
https://www.washingtonpost.com/opinions/2021/03/01/i-made-serious-mistake-marylandgovernor-we-need-parole-reform/. After stalling in the legislature for several years, a bill to
remove the governor from the parole process, SB202, passed during the 2021 Maryland General
Assembly Session. Hannah Gaskill, Legislature Votes to Remove the Governor From the Parole
Process,
M D.
MATTERS
(Apr.
13,
2021),
https://www.marylandmatters.org/2021/04/13/legislature-votes-to-remove-governor-from-theparole-process/. Governor Hogan subsequently vetoed the bill, and the legislature overrode the
Governor’s veto in December 2021. Steve Thompson, Slew of Hogan Vetoes Includes Bills on
Parole, Procurements, Immigrant Protections, WASH. POST (May 28, 2021),
https://www.washingtonpost.com/local/md-politics/hogan-veto-parole-immigrantsmaryland/2021/05/28/93cf315e-bef7-11eb-83e3-0ca705a96ba4_story.html; Ovetta Wiggins &
Rebecca Tan, Maryland Revokes Governor’s Authority to Overturn Parole Decisions Involving
People Serving Life Terms, WASH. POST (Dec. 7, 2021), https://www.washingtonpost.com/dcmd-va/2021/12/07/maryland-parole-governor-criminal-justice-prison/.
175 Justin Fenton, O’Malley Increases Pardons, But Remains Stingy Overall, BALT. SUN (Dec.
18,
2014),
https://www.baltimoresun.com/politics/bs-md-omalley-pardons-20141213story.html. From 1989 to 2017, Maryland governors permitted the parole (excluding medical
parole) of only three lifers out of a population of approximately 2,500. Two of those paroled
were recently released by current Governor Larry Hogan; prior to his administration, Maryland
went over twenty years without approving a lifer for parole. See Editorial, Get Governors Out
of
Parole
Decisions,
BALT.
SUN
(Feb.
20,
2017),
http://www.baltimoresun.com/news/opinion/editorial/bs-ed-parole-20170220-story.html;
Declaration of David Blumberg, Chairman of the Maryland Parole Commission, Md.
Restorative Just. Initiative v. Hogan, Civ. Action No. ELH-16-1021 (D. Md. 2016). Some
additional lifers have been released early through commutations that reduced life sentences to a
term of years, but even this form of relief is very rare. Id. See also Alison Knezevich, Number
of U.S. Prisoners Serving Life Sentences Has Quadrupled, BALT. SUN (Jan. 31, 2017),
http://www.baltimoresun.com/news/maryland/crime/bs-md-sentencing-report-20170131story.html.

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PART IV: THE MARYLAND LITIGATION CHALLENGING THE ADVISORYONLY INSTRUCTION SPANNED THREE DECADES
Maryland was one of the last two states to prohibit or severely
limit the jury’s role in determining the law.176 There were earlier critics
of this, however. During the 1940s and 1950s, judges in Maryland,
including two Chief Judges of the Maryland Court of Appeals, criticized
the jury’s role in determining the law in extra-judicial statements, often
in blunt and colorful language. One, in 1943, called it “[a] constitutional
thorn from the flesh of Maryland’s body of Criminal Law . . . .”177 In
1947, a second said it is “[o]ur unique and indefensible procedure.”178
In 1955, a third deemed it “‘a blight upon the administration of justice
in Maryland’ and declared it to be ‘archaic, outmoded, and
atrocious.’”179
So why did they and other judges uphold this patently
unconstitutional provision when on the bench? We believe it was an
uncritical allegiance to history and precedent, a minimalistic conception
of the judicial role, and a dying conception of states’ rights in
Federalism.
What changed? As the Warren Court in the 1950s and 1960s
constitutionalized criminal procedure, it became the big train on the
track. Anyone who looked could see the imminent collision. These
fundamental constitutional rights, including the presumption of
innocence and the requirement of proof beyond a reasonable doubt,
were not just good advice; they were the law.180
In late 1980, the Maryland Court of Appeals in Stevenson v.
State addressed the apparent tension between the federal constitutional
rights recognized by the Warren Court and the language of Maryland’s
Article 23.181 In an unpersuasive application of past opinions, the
majority said that Maryland courts had always interpreted Article 23 to
Wyley v. Warden, 372 F.2d 742, 747 (4th Cir. 1967) (“[A]mong the fifty states, Maryland
and Indiana today stand alone in their adherence to [the right of juries in criminal cases to
determine the law]. Even Indiana has substantially attenuated its provision by judicial
modification.”) (citations omitted).
177 Samuel K. Dennis, Maryland’s Antique Constitutional Thorn, 92 U. PA. L. REV. 34, 34
(1943).
178 Wyley, 372 F.2d at 747 (quoting William L. Henderson, The Jury as Judges of Law and Fact
in Maryland, 52 MD. S.B.A. 184, 199 (1947)).
179 Id. (quoting Stedman Prescott, Juries as Judges of Law: Should the Practice Continue?, 60
MD. S.B.A. 246, 257 (1955)).
180 See, e.g., In re Winship, 397 U.S. 358, 365 (1970) (holding that the Due Process Clause
protects the accused against conviction except upon proof beyond a reasonable doubt of every
fact necessary to constitute the crime charged).
181 423 A.2d 558, 559 (Md. 1980).
176

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dramatically limit the jury’s law-determination role. Under this
interpretation of Article 23, the jury’s law-determination role was
limited to deciding what an element of a crime was if it was reasonably
in dispute. The law on all other issues, including constitutional rights,
was binding and fixed; the jury was not free to interpret it as they saw
fit.182 This interpretation of Article 23 so narrowed it as to effectively
nullify it.183 There is rarely a dispute over the elements of an offense,
and there is no reported decision since 1980 in which a jury has decided
such a legal dispute.184
The Stevenson majority stated that the propriety of jury
instructions was not before it, and that it was only resolving the
constitutionality and scope of Article 23.185 However, it opined that jury
instructions should reflect the limited scope of Article 23, as the Court
was now interpreting it, and make clear to jurors that instructions on
federal constitutional rights were binding.186 In other words, juries
should be instructed that a judge’s instructions on the law are binding,
except in cases where the elements of a crime happen to be in dispute.187
The next year, in Montgomery v. State,188 the Court formally held that
jury instructions should reflect the limited scope of Article 23 as it had
been defined in Stevenson. Thus, the only acceptable advisory
instructions would be on a good-faith dispute about the elements of a
crime. Other legal instructions, including those about federal
constitutional rights, would be binding. Montgomery reiterated
Stevenson’s holding that such instructions were consistent with longsettled Maryland law on the scope of Article 23.189

182

Id. at 565.
Hunt v. State, 252 A.3d 946, 959 n.20 (Md. 2021) (“Attempting to avoid a perceived conflict
with the Federal constitutional provision, the Stevenson I court adopted a novel interpretation of
Article 23 which rendered it a dead letter effectively.”). See also Gerard N. Magliocca, The
Philosopher’s Stone: Dualist Democracy and the Jury, 69 U. COLO. L. REV. 175, 181 n.33
(1998) (explaining that the right of juries to determine the law had been “eviscerated by state
court decisions” in Maryland).
184
See Stevenson, 423 A.2d at 565 (reviewing Stevenson and a post-Stevenson decision, the
Court of Special Appeals said in Allnutt v. State, 478 A.2d 321, 325 (Md. Ct. Spec. App. 1984):
“Instances of dispute of the law of the crime are an endangered species rapidly approaching
extinction. Once an appellate court has ruled on the "law of the crime," the matter then becomes
settled law, and thereafter the jury is no longer the judge of the law with respect to that particular
matter. Consequently, disputes of the law of the crime will decrease in number with each
successive appellate ruling.”).
185 Stevenson, 423 A.2d at 559.
186 Id. at 565.
187 Id.
188 437 A.2d 654 (1981).
189 Id. at 657-58.
183

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There were many problems with Stevenson’s interpretation of
Article 23. Most importantly, the unqualified text of Article 23 flatly
contradicted it. Stevenson acknowledged this tension, noting Article
23’s “facial breadth” and that the article “does not mean precisely what
it seems to say.”190 The court added that “the word ‘law’ as it is used in
Article 23 is not as all-encompassing as it otherwise may be when used
in some other context.”191
Stevenson’s interpretation also was a great surprise to the bench
and bar in 1980. In implementing the Unger decision, Maryland Carey
Law School’s clinical law faculty and students read sixty-two
transcripts of pre-1980 trials.192 In none did either counsel request this
limiting instruction. No court ever gave it. No defense lawyer (or
prosecutor) ever objected to the uniformly given, unqualified
instruction.
Indeed, the Stevenson court’s interpretation contradicted the
Court of Appeals’ own Rule, in effect before and at the time of
Stevenson. That rule read, with no qualifications: “The [trial] court shall
in every case in which instructions are given to the jury [this was in all
cases], instruct the jury that they are the judges of the law and that the
court’s instructions are advisory only.”193
Dissenting in Stevenson, Judge Eldridge pointed out all these
flaws in the majority’s opinion. He began, however, by disagreeing that
the majority’s limiting interpretation, if one accepted it, saved Article
23.194 In his view, allowing the jury to make the legal decision about
disputed elements of a crime was as unconstitutional as allowing the
jury to decide any other rule of law. He said that “the violation of a due
process right does not become justifiable by limiting the circumstances
under which the violation will be upheld.”195
More basically, he disagreed that the court had ever so limited
Article 23: “In the seven years I have been a judge of this Court,
reviewing hundreds of criminal cases, I have never come across a jury
instruction comporting with this Court’s present view of Article 23.
190

Stevenson, 423 A.2d at 563 (quoting Brady v. Maryland, 373 U.S. 83, 89 (1963)).
Id. at 566.
192 Information provided by Millemann, who co-taught all of the Unger clinical courses.
193 Stevenson, 423 A.2d at 575 n.3; MD. R. 756b (revised 1977). Rule 756b stated: “The court
shall in every case in which instructions are given to the jury, instruct the jury that they are the
judges of the law and that the court’s instructions are advisory only.” In 1977, the rule was
revised and renumbered as MD. R. 757b, which included a virtually identical provision. In 1984,
the rule was once again revised and restructured as Rule 4-325, which omitted the advisory-only
provision. MD. R. 4-325.
194 Stevenson, 423 A.2d at 570 (Eldridge, J., dissenting).
195 Id.
191

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Experienced Maryland criminal trial lawyers have never encountered
such an instruction.”196 He pointed out that Article 23 flatly states, in
unambiguous language, that in “all criminal cases the Jury shall be the
Judges of the Law,” and that “the instruction given in this case, the
instruction required by this Court’s Rule 757, and the standard
instruction given in virtually all Maryland criminal jury trials, is based
upon the language of Article 23 as if that provision meant precisely what
it says.”197 He concluded that “the defendant should be awarded a new
trial.”198
So why did the Stevenson majority interpret Article 23 in such a
tortured way? One realpolitik possibility is that the potential practical
consequences of directly addressing the constitutional issue drove the
court’s decision. In the cases of all Maryland prisoners convicted by
juries, the jurors had received advisory instructions based on Article 23.
The court’s dilemma was how to invalidate Article 23, which was in
clear tension with Warren Court precedent, without announcing a new
rule that would apply retroactively and require hundreds of new trials.
By holding in Stevenson that its interpretation was established law based
on long-standing precedent, the court avoided that dilemma. There was
no new rule to apply retroactively. Ostensibly, all defense lawyers
should have known about this purportedly well-established
interpretation of Article 23. By failing to object to the unqualified jury
instruction, which was based on Article 23, the lawyers had thus waived
any challenge by their convicted clients to the unqualified instruction.
This was the effect of Stevenson and Montgomery.
The result was that the prisoners who had this instruction in their
trials were not getting new trials. The instruction could not be given in
the future, but the door was shut on the past. The members of the Unger
group had suffered a double injury. They were denied fair trials when
their juries were told that they were the ultimate judges of the law. Then,
in Stevenson, they were unfairly denied the right to challenge their
illegal convictions.
Following Stevenson, and until the Unger decision in 2012, and
including State v. Adams,199 Maryland’s courts held that prisoners who
tried to challenge their advisory instructions had waived these
challenges because their trial lawyers should have objected to the

196
197
198
199

Id. at 576-77.
Id. at 577.
Id.
958 A.2d 295 (2008).

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advisory-only instruction and had failed to do so.200 Unger was a 4-2
decision written by then-retired Judge Eldridge, the dissenting judge in
Stevenson, sitting by special designation.201 The majority opinion
unsurprisingly read like Judge Eldridge’s dissent in Stevenson. The
Unger court reversed Stevenson, holding that Stevenson had announced
a new interpretation of Article 23 and thus had established a new state
constitutional standard.202 It rejected the Stevenson court’s reasoning
that prior Maryland cases supported its narrow interpretation of Article
23, which led inexorably to the holdings in Montgomery and Adams that
attorneys should have known to request jury instructions that reflected
the Article’s limited scope.203 As a result, defense counsel in preStevenson cases who failed to assert the Stevenson court’s novel
interpretation had not waived challenges to advisory-only instructions.
The Unger court said: “Those portions of the Court’s Stevenson,
Montgomery, and Adams opinions, holding that the interpretation of
Article 23 in Stevenson was not a new State constitutional standard,
were erroneous and are overruled . . . [t]his Court has not hesitated to
overrule prior decisions which are clearly wrong.”204 The practical
import of this holding was that Stevenson now applied retroactively.205
In response to the Unger decision, several organizations created
the Unger Project. The Unger Project partners included: the Maryland
Office of the Public Defender (OPD); the Maryland Restorative Justice
Initiative and its Executive Director, Walter Lomax; the Unger Project
Advisory Committee;206 private and pro bono lawyers;207 the Open
Society Foundation that provided multi-year funding for two social
workers and reentry support; and the University of Maryland Carey
200

Id. at 310-11. In State v. Adams the Maryland Court of Appeals held that because Stevenson
merely recognized the (ostensibly) limited scope of Article 23, which was (ostensibly) based on
long-standing Maryland law, defense counsel should have foreseen that any broad advisory jury
instruction was erroneous prior to 1980. Id. at 315-16. The Adams court acknowledged that
“[t]here is some facial justification for Adams’s argument that, prior to Stevenson, there
appeared to be some level of misconception afield among some contingent of the Bench and
Bar regarding the proper role of the jury in criminal cases.” Id. at 321. However, it pointed to
Stevenson’s holding that Article 23 had always been of limited scope, as well as a smattering of
earlier challenges to Article 23 and related advisory instructions, in holding that Adams’
attorneys should have known to raise the issue earlier. Id. at 305, 310-11, 315-16.
201 Unger v. State, 48 A.3d 242, 244 (Md. 2012).
202 Id. at 258.
203 Id. at 258-59.
204 Id. at 261-62.
205 Id. at 261.
206 The Advisory Committee consisted of representatives of programs that had roles in
providing reentry services for the Unger clients and was chaired by Walter Lomax. See infra
note 218 and accompanying text.
207 Private and pro bono lawyers were recruited by the Clinical Law Program and the OPD.

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School of Law Clinical Law Program. The latter included both teaching
lawyers and law students and teaching social workers and social work
students. As they were released, many of the members of the Unger
group and their families joined the Project.
Over the next five years, the Project partners represented the 237
members of the Unger group, helped to plan for their releases, fought
off the state’s efforts to reverse or strictly limit Unger, and created and
implemented model reentry plans for the 200 who were released.
PART V: THE UNGER PROJECT, THOSE RELEASED, AND THEIR FAMILIES
CREATED A MODEL REENTRY PROGRAM THAT INCLUDES A VIBRANT
COMMUNITY
The Maryland Court of Appeals released its Unger decision on
May 24, 2012.208 Many prosecutors disagreed that it required new trials
for the 237 prisoners. Some trial judges agreed with these prosecutors
and denied the prisoners’ initial motions to reopen their post-conviction
proceedings so they could assert their Unger claims. These prosecutors
also pledged to ask the Court of Appeals to reverse or strictly limit the
Unger decision, which the state did in two cases.209 From 2012 through
2016, the Unger Project responded to these challenges, and the Court of
Appeals rejected all of the State’s arguments in the two cases.210
However, during these four years, some prosecutors, especially
in Baltimore City, were implementing, not resisting, the Unger decision
by negotiating the releases on probation of selected prisoners.211 They
understood that the vast majority of these older people posed no threat
to public safety, and that re-prosecuting them would waste scarce
resources better used to prosecute contemporary crimes, especially the
large number of murders in Baltimore City.212 Eventually, with the
Court of Appeals’ rejections of the State’s efforts to reverse or limit the
Unger decision, the other prosecutors agreed to negotiate releases as

208

48 A.3d 242.
State v. Waine, 122 A.3d 294, 298-99 (Md. 2015); State v. Adams-Bey, 144 A.3d 1200,
1208-09 (Md. 2016).
210 Waine, 122 A.3d at 298-300; Adams-Bey, 144 A.3d at 1208-11.
211 Millemann et al., supra note 6, at 382.
212 See, e.g., Baltimore Homicide Rate is on a Record High, Deadlier than Detroit and Chicago,
USA TODAY (Sept. 25, 2018), https://www.usatoday.com/story/news/2018/09/25/baltimorehomicide-murder-rate-fbi-statistics-death-crime-killings/1426739002/ (describing the recordbreaking homicide rate in Baltimore City for a decade).
209

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well.213 The members of the Unger group were released in small groups
or individually starting in spring 2013 and continuing for five years.
While the Unger decision did not generate a public response, the
initial releases in Baltimore City one year later in the spring and early
summer of 2013 did, with front page headlines and news stories about
releases of “murderers.”214 There were also to be understandably
sympathetic articles about the survivors of the victims.215
Unger Project leaders feared that one “bad case,” a released
prisoner who committed a violent crime, would sink the whole Project.
Maryland prosecutors are elected, and their willingness to negotiate
releases and the willingness of trial judges to accept them depended
implicitly, if not explicitly, on the good conduct of those released. A bad
case or significant numbers of failures also might have given some
judges on the Maryland Court of Appeals second thoughts about the
wisdom of the Unger decision. The Project leaders had in mind the
“Willie Horton” experience where one bad case had affected a
presidential election.216 This made the social work component of the
Unger Project, the reentry plans and services the social workers and
students developed and provided, essential.
There was also a strong sense of community responsibility
among most of the members of the Unger group. As they came out of
prison, many of those released said they understood they had
responsibilities to those still inside and could not fail, not only for
themselves and their families but also for these other prisoners. Over
time, they created a vibrant, supportive community of those released and
their families.
In this community, like many, there are group dinners, bowling
trips, and barbeques in local parks, support for friends at funerals, visits
to those who are hospitalized, and support for those still inside. They
answer late night phone calls of frustration and doubt; they share
hardships and triumphs, and they hold each other accountable to their
new freedom. Some speak, write, and rally in support of proposed
criminal justice reforms, and a number were present in court at

213 In the end, prosecutors retried only eight of the Unger cases and obtained new convictions
in seven. There was an acquittal in one. Some of the reasons for settling cases, rather than
retrying them, were the weaknesses of the cases. Even with the use of the trial transcripts, it was
today’s rules of criminal procedure that applied in the retrials, not the original rules that favored
the State. In addition, the juries sitting in the retrials would not be all, or disproportionately,
white. Millemann et al., supra note 6, at 383.
214 See, e.g., Knezevich, supra note 22; Duncan & Wenger, supra note 22.
215 See, e.g., Knezevich, supra note 22; Duncan & Wenger, supra note 22.
216 See supra note 171 and accompanying text.

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settlement hearings to support those coming home. This community has
a motto: “Failure is not an option.”217
An important leader of this Unger community was, and is,
Walter Lomax, the Executive Director of the Maryland Restorative
Justice Initiative. He spent thirty-nine years in prison for a crime he did
not commit; he was eventually released and exonerated.218 He knew
many members of the Unger group in prison, where he was also an
important leader. Like many of the Unger group, Lomax is Black. His
trial was in 1968, and thus his judge gave his all-white jury the advisoryonly instruction,219 which may have contributed to his wrongful
conviction. The jury convicted Lomax in the face of strong evidence
that he could not physically have committed the crime.220 Lomax led
regular meetings of those released and their families, which initially the
social workers and social work students in the law school’s clinic helped
to organize and to staff.
The Unger community had an important intangible: a
widespread expectation of success. This was a new expectation for
many of those released. This sense of shared responsibility was captured
in a Huffington Post article about “The Ungers” in 2016.221 A reporter
for the Huffington Post who interviewed several of those released quotes
one of the early leaders of this Unger community: “‘You don’t mess up,
so you don’t mess up the chances of the guy behind you comin’ out,’
Kareem Hasan told me. ‘That’s one of the things we stress when we get
everybody together. That’s why we try to grab them right when they
come out the door.’”222 The reporter further explained:
The [Unger release] experiment is young and tenuous.
The state of Maryland is looking to prevent future
releases and recently filed the latest in a series of legal
217

Millemann et al., supra note 6, at 421.
Walter Lomax, CENTURION, https://centurion.org/cases/walter-lomax/ (last visited June 30,
2021). Conducting its own investigation, the Conviction Integrity Unit of the Baltimore City
State’s Attorney’s Office uncovered extensive exculpatory evidence never provided to the
defense, and agreed to the entry of an Order of Actual Innocence. See Order of Judge Charles
Peters granting Petition for Writ of Actual Innocence, Lomax v. State, No. 1754-56 (1968
Docket) (Md. Cir. Ct. Apr. 2, 2014); Maryland State’s Answer to that Petition, Lomax v. State,
No. 1754-56 (1968 Docket) (Md. Cir. Ct. Apr. 2, 2014). For an overview of Mr. Lomax’s story,
see Walter Lomax, CENTURION, https://centurion.org/cases/walter-lomax/ (last visited June 30,
2021).
219 Michael Millemann, Elliot Rauh & Robert Bowie Jr., Teaching Professional Responsibility
Through Theater, 17 HASTINGS RACE & POVERTY L.J 399, 415 (2020).
220 Id. at 413, n.69.
221 Fagone, supra note 23.
222 Id.
218

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challenges to Unger v. State in appellate courts. If a
single member of the Unger family fails in a big way—
and even advocates recognize there’s a risk of that—
everyone could be affected. The guilt would be a lot to
bear . . . .
[O]f the 143 Ungers who have been released, not a single
one has been convicted of anything more serious than a
traffic offense. There has only been one probation
violation, a technical infraction that resulted in a stern
talking-to. Zero of the Ungers have violated parole. Zero
have been sent back to prison.223
The Unger Project presented data about this extraordinary
success in the briefs and arguments before courts, including in the two
post-Unger cases decided in favor of the Unger litigants by the
Maryland Court of Appeals.224 They also provided this information to
the public generally through the media. Eventually, due to the successes
of the Project, the perceptions of trial judges, prosecutors, and the public
shifted. They came to accept the Unger decision and the Project’s
purposes. Media accounts, both locally and nationally, also shifted from
front-page stories of “murderers” being released to positive accounts of
the Unger group’s success.225
In the end, 84% of the 237 in the Unger group were released
with only a 3% re-incarceration rate.226 As noted in the Introduction,
this is especially impressive because these 200 people were not “cherrypicked,” i.e., limited to only those who had demonstrated clearly in
prison that they were ready for release and who had been approved by
the prison system or the Parole Commission. Rather, they were 84% of
all state prisoners in Maryland convicted by juries of violent crimes
before 1981.227
We emphasize that the social workers and social work students,
both in the Unger clinic and the OPD, were critically important partners
in the Unger Project. They provided essential services to the Unger

223

Id.
State v. Waine, 122 A.3d 294 (Md. 2015); State v. Adams-Bey, 144 A.3d 1200 (Md.
2016).
225
Millemann et al., supra note 6, at 397.
226 UNGER PROJECT DATA, supra note 5.
227 Id. For the complete accounting of the 237 members of the Unger group as of May 14, 2021,
see supra note 11.
224

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group members from prison, through their litigation, and after their
releases. One group that evaluated the Unger Project said:
We need to emphasize the importance of reentry: The
success of the Unger group has been the direct result of
an ambitious reentry effort. The University of Maryland
began its reentry approach while the Unger group was
still inside the facility and followed through with
individualized treatment and services in the
community.228
Rebecca Bowman-Rivas, the Manager of the Clinical Law
Program’s Law and Social Work Services Program, headed the social
work team. It also was comprised of social work students and forensic
social work fellows and worked closely with the OPD social workers
and students. Each client was assigned to a student and one of the
forensic social work fellows, both of whom Bowman-Rivas
supervised.229
The social work team provided two essential services to clients.
First, in support of the legal advocacy, it developed the release plans
that the legal team used to try to persuade prosecutors and judges to
agree to settlements.230 To develop the release plans, the students
interviewed clients and gathered records. Then they talked to
institutional staff, including social work and medical staff; family
members; and community medical, mental health, housing, and other
service providers; as well as administrators of reentry programs.
Second, in cases where the clinic was successful in obtaining
clients’ releases, the social work team helped them to reenter the free
world. That involved helping to implement the release plans and
providing a multitude of other services. The members of the Unger
group, who had been incarcerated for decades, included many who

228

The Ungers, 5 Years and Counting: A Case Study in Safely Reducing Long Prison Terms
and
Saving
Taxpayer
Dollars,
JUST.
POL’Y
INST.
3
(2018),
https://abell.org/sites/default/files/files/JPI_The%20Ungers%205%20Years%20and%20Count
ing_Nov_2018.pdf. See Millemann et al., supra note 6, at Section III.C.-IV.C. for a complete
description of the social workers’ and students’ work.
229 Ms. Bowman-Rivas also taught a classroom component of the year-long placements.
230 Judges and prosecutors made it clear that these release plans were a prerequisite to
settlements. Millemann et al., supra note 6, at 395. Simply put, the clinic would not have
obtained relief for clients without them.

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entered prison as juveniles. All of the members faced a dizzying array
of challenges in adjusting to life in the community.231
The returning citizens were almost all poor and
disproportionately Black, returning to communities that often lacked
access to resources and where many residents faced serious challenges.
In an ideal world, the State would provide the services that the Unger
Project provided to those whom it was releasing. However, in the real
world, that burden fell on the social work team. 232
Together the released prisoners and their families, and the social
workers and students, created an innovative and comprehensive reentry
program that stands as a model for the release of older prisoners. In one
important way, it stands on its head the typical parole condition imposed
on paroled prisoners that they do not associate with other ex-felons.233
In the Unger Project, it was the ex-felons who often were the most
231

The social work team helped them meet those challenges, which included obtaining
government documents like state identification and Social Security Cards and applying for cash
assistance, food stamps, Medicaid or Medicare benefits, transportation assistance, prescribed
medications, and required medical care. The social work team also helped some clients—many
of whom were excluded from public housing due to their criminal records—find a stable place
to live and helped other clients to obtain necessary drug and alcohol treatment and mental health
services. The link between criminality and untreated mental illness and addiction, and the
enhanced likelihood of recidivism by released prisoners who suffer from those issues, is well
established in academic literature. E. Lea Johnston, Reconceptualizing Criminal Justice Reform
for Offenders with Serious Mental Illness, 71 FLA. L. REV. 515, 518 (2019); Jason Matejkowski
& Michael Ostermann, Serious Mental Illness, Criminal Risk, Parole Supervision, and
Recidivism: Testing of Conditional Effects, 39 L. & HUM. BEHAV. 75, 76 (2015); Mirko Bagaric
& Sandeep Gopalan, A Sober Assessment of the Link Between Substance Abuse and Crime Eliminating Drug and Alcohol Use from the Sentencing Calculus, 56 SANTA CLARA L. REV. 243,
295 (2016). Certainly, the link is implicitly understood by prosecutors and judges who have
experience in the sentencing of repeat offenders, and who are reluctant to grant release to
someone who will go on to endanger the community (and create a public perception that that
judge or prosecutor is soft on crime). Finally, the social work team helped clients deal with the
emotional and psychological upheaval of adjusting from life in prison to life in the outside
world. That often included belatedly dealing with the deaths or absence of friends and family.
See generally Millemann et al., supra note 6.
232 Government services offered to prisoners reentering society are generally meager and
insufficient for the significant needs faced by the formerly incarcerated. The gap between what
former prisoners need and what the state provides is either addressed by other actors (such as
private citizens) or not addressed at all. See, e.g., Reuben Jonathan Miller & Amanda Alexander,
The Price of Carceral Citizenship: Punishment, Surveillance, and Social Welfare Policy in an
Age of Carceral Expansion, 21 MICH. J. RACE & L. 291, 304 (2016); Michael Manganelli,
Recidivism in Former Mentally Ill Prisoners Connected to Lower Funded Mental Health
Programs in Prisons, 29 ANNALS HEALTH L. ADVANCE DIRECTIVE 163, 164 (2020); Crystal S.
Yang, Does Public Assistance Reduce Recidivism?, 107 AM. ECON. REV. 551, 551, 554 (2017).
233 Standard supervised release conditions include the following instruction: “You must not
communicate or interact with someone you know is engaged in criminal activity. If you know
someone has been convicted of a felony, you must not knowingly communicate or interact with
that person without first getting the permission of the probation officer.” ADMIN. OFF. OF THE
U.S. CTS., OVERVIEW OF PROBATION AND SUPERVISED RELEASE CONDITIONS 32 (2016).

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important counselors and advisers to those released and the strongest
advocates for their lawful conduct. They helped to create and sustain the
ethic of shared responsibility that animated the group.
PART VI. THE UNGER GROUP’S SUCCESS HAS NATIONAL SIGNIFICANCE
One assessment of the Unger Project said it “provides a blueprint
for safely and smartly reducing length of stay, mitigating the harmful
impacts of mass incarceration, and saving taxpayer money.”234 It
concluded that the Unger Project “offers powerful lessons for
policymakers and stakeholders interested in tackling mass
incarceration.”235 In addition to demonstrating the great value of a
reentry program for older prisoners and creating such a model program,
there are several other lessons from the Unger Project experiences. They
include the following four lessons.
Lesson one: As a 2018 Justice Policy Institute report found,
“[w]e can safely release people who have committed a serious, violent
offense,” especially if they have been incarcerated for a significant
period of time and are older, as the members of the Unger group were.236
The recidivist rate, generally, for older, longer-incarcerated released
prisoners is very low, especially when they receive reentry support.237
The percentages of prisoners serving longer sentences are on the rise, so
this is an important lesson for today and the future.238
234

THE UNGERS, 5 YEARS AND COUNTING, supra note 228, at 8.
Id. at 3.
236 Id.
237 Many studies show that elderly people released from prison have a far lower rate of
recidivism than the general population, and the few who do recidivate are unlikely to commit a
violent crime. See, e.g., Caroline M. Upton, A Cell for A Home: Addressing the Crisis of
Booming Elder Inmate Populations in State Prisons, 22 ELDER L.J. 289, 300-01 (2014); Johnny
Thach, Note, Not Far Enough: The Rising Elderly Prison Population and Criminal Justice and
Prison Reform Following the First Step Act of 2018, 26 CARDOZO J. EQUAL RTS. & SOC. JUST.
631, 687 (2020). That includes prisoners who had been convicted of, and were serving sentences
for, violent crimes. J.J. Prescott, Benjamin Pyle & Sonja B. Starr, Understanding Violent-Crime
Recidivism, 95 NOTRE DAME L. REV. 1643, 1675-76, 1688 (2020); Michael O’Hear, Early
Release for Prisoners Convicted of Violent Crimes: Can Anyone Escape the IncapacitationRetribution Catch-22?, 52 CONN. L. REV. 653, 665-66, 671-72 (2020); Bagaric et al., supra note
24, at 1000. Finally, the relationship between aging and reduced rates of recidivism is linear:
the older a person is when they are released from prison, the less likely they are to commit new
crimes. Bagaric et al., supra note 24, at 1002; Jalila Jefferson-Bullock, Quelling the Silver
Tsunami: Compassionate Release of Elderly Offenders, 79 OHIO ST. L.J. 937, 974-75 (2018).
238 E.g., THE UNGERS, 5 YEARS AND COUNTING, supra note 228 (“The population share of
individuals serving 25 or more years in Maryland prisons has increased 211 percent between
2000 and 2012 and 66 percent for those serving 20–25 years. People who have served at least
20 years in prison now account for more than 7 percent of the population, or 1,577 individuals.
235

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Lesson two: There are many prisoners who can be safely
released in the fast-growing population of geriatric prisoners,239 and
there are good economic reasons to do this. The aging prison population
contributes to the overall rise in annual prison costs, but these costs do
little to increase public safety.240 A recent economic analysis of the
Unger Project confirmed the cost savings of releasing older prisoners,
finding “[r]eleasing the Unger group resulted in a projected savings of
$185 million for Maryland taxpayers.”241 The economic analysis also
projected that the savings from releasing older prisoners could be over
a billion dollars a decade and stated:
The story of the Unger group makes it clear that the
prison population that accounts for most of the
correctional health care budget can be safely reduced.
Millions of dollars can be saved, and the resources can
be invested in effective reentry supports similar to the
program implemented by the University of Maryland to
assure that any individual leaving the system after
decades in prison can successfully and safely return to
the community.242

About one in six people in a Maryland prison had served at least a decade in 2012 (3,857
individuals). This was a 23 percent (3,128 individuals) increase since 2000.”).
239 Id. at 3.
240 See, e.g., Cyrus Ahalt et al., Paying the Price: The Pressing Need for Quality, Cost and
Outcomes Data to Improve Correctional Healthcare for Older Prisoners, 61 J. AM. GERIATRICS
SOC’Y 2013, 2013-14 (2013); JUSTICE POLICY INSTITUTE, supra note 228, at 3, 6-7 (“Across the
country, the increasing size of the aging prison population has been in the making for decades.
In 1995, there were 32,600 incarcerated individuals over 55 years old; by 2010 that number had
increased 283 percent to 124,900. With the United States’ continued commitment to long
sentences, it is estimated that by 2030 that number will have increased by 220 percent to more
than 400,000 geriatrics incarcerated.”).
241 JUSTICE POLICY INSTITUTE, supra note 238, at 18. Analysis by Dr. James Austin of JFA
Associates found: “At the time of release, the average age of the Unger cohort was 64 years old.
According to the Centers for Disease Control and Prevention, the life expectancy for the Unger
group would be 81 years old, which would mean an additional 18 years in prison had they not
been released. According to Maryland’s Department of Public Safety and Correctional Services
(DPSCS), the per diem cost of incarceration is approximately $46,000 per year, which includes
a $7,956 allocation for medical and mental health services. However, including the additional
resources the aging population demands, the cost of imprisoning the Unger group is even higher.
Based on estimates that 34 percent of the total health care related costs in the United States is
accounted for by individuals 65 and over, and assuming the percentage of health care costs to
the general public is the same for the Unger population, the variable health care share for the
Unger group is $18,361 per year. This increases the annual cost to incarcerate an Unger group
member to $53,832.” Id. at 17-18.
242 Id. at 18, 20.

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We are not saying all older prisoners should be released, only
that there are a lot of data, including from the Unger Project,
demonstrating that many older prisoners can be safely released, and it is
cost-effective to do so.243
Lesson three: States should reconsider life without parole laws
and the elimination of parole. Maryland and many other states have
eliminated or severely restricted parole and other prisoner release
programs in the last two decades.244 What was said about the Maryland
parole system based on the Unger Project experiences applies in many
other states:
Maryland can significantly reduce the size of its prison
population, and the impact on its budget, without
negatively affecting public safety by rethinking parole
strategies, particularly for those people who have served
long prison terms. The current approach to parole is too
heavily focused on the offense. Too often, the state fails
to appropriately take into consideration a research-based
assessment of the risk of reoffending when making
release decisions.245
Lesson four: There are good reasons, based in equity, fairness,
and economics, to adopt “second look” resentencing laws and policies
that give older prisoners a second chance to demonstrate there is no
public safety reason to keep them in prison.246 Very recently, two
policymakers in Maryland adopted a second look law, rule, and
initiative.

Id. at 18. (“[A] previous analysis of people 55 years old or older released from Maryland
prisons in 2013 found that only 1 in 5 individuals returned to prison and only 7 percent came
back for a new crime. If we apply this 80 percent success rate to assume that 4 in 5 geriatric
individuals still in Maryland prisons could be released safely, taxpayers would save an estimated
$120 million in the first year, and more than a billion in a decade.”). There are contrary data as
well: “Recent research indicates that 43 percent of the returning geriatric population will be
arrested again within nine years of release.” Id. at 24.
244 See Beth Schwartzapfel, Life Without Parole, THE MARSHALL PROJECT (July 10, 2015),
https://www.themarshallproject.org/2015/07/10/life-without-parole; MD. CODE ANN., CORR.
SERV. § 7-305 (West 2017) (outlining several factors which must be considered prior to an
inmate’s release).
245 Id.
246 A number of states and Congress have adopted some form of “second look” laws, which
generally allow courts to revise sentences of older prisoners. See infra notes 212-220, 224, and
accompanying text.
243

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First, at its 2021 session, the Maryland General Assembly
passed the Juvenile Restoration Act (JRA), effective October 1, 2021.247
It allows individuals who were under the age of eighteen at the time of
the offense and who were sentenced to twenty years or more to petition
the court for a modification of sentence after serving twenty years.248
The JRA requires the court to hold a hearing on the motion and to make
findings regarding an individual’s suitability to rejoin the community
after considering factors such as the nature of the crime, age at the time
of the offense, home and community environment, victim impact, and
evidence of maturation and rehabilitation.249
Second, the Baltimore City State’s Attorney’s Office created its
own second look program through a new Sentencing Review Unit.250 It
did so in partial response to the COVID-19 pandemic, but it will almost
certainly continue after the pandemic is over.251 The State’s Attorney’s
Office also offered racial justice and mass incarceration justifications
for the new program.252
Former deputy public defender Becky Feldman leads the Unit,
and it reviews cases of certain selected incarcerated people to determine
whether the office will support their releases from prisons. 253 The focus
is on prisoners who have a documented serious medical condition,
according to Centers for Disease Control and Prevention (CDC)
guidance, that places them at a higher risk of serious illness or death if
they contract COVID-19, and who either are over the age of sixty and
have spent more than twenty-five years in prison on a life sentence or
have spent more than twenty-five years in prison on a life sentence for
a crime committed as a juvenile (age seventeen and under).254 They
must also have demonstrated change, remorse, and rehabilitation.255
Maryland’s new second-look initiatives are part of the recent
“national movement to permit trial courts in criminal cases to retain the
power to revise long prison sentences imposed on [identified]

247
S.B. 494, 2021 Gen. Assemb. Reg. Sess. (Md. 2021), (codified as amended at M D. CODE
ANN., CRIM. PROC. §§ 6-235, 8-110 (West 2021)).
248 Id.
249 Id.
250 Sentencing Review Unit, BALT. CITY STATE’S ATT’Y, OFF.,
https://www.stattorney.org/office/bureaus-units/sentencing-review (last visited Oct. 31, 2021).
251 Sentencing Review Unit Frequently Asked Questions, BALT. CITY STATE’S ATT’Y, OFF.,
https://www.stattorney.org/images/SRU_-_Factsheet_224.pdf (last visited Oct. 31, 2021).
252 Id.
253 Id.
254 Sentencing Review Unit, supra note 250.
255 Id.

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persons.”256 Two of the most important parts of the Unger Project are
the support it provides nationally for such laws and policies and the
action blueprint that it provides for advocates representing clients under
these laws and policies.
Many states have adopted some form of second look initiatives.
They include new changes in laws that: make certain prisoners eligible
to apply to parole or review boards or to governors (through
commutation) for release after serving identified periods of
incarceration; grant authority to prosecutors to establish second look
projects and to file resentencing petitions in courts on behalf of selected
prisoners, or to file a resentencing petition in courts at any time after the
sentence is imposed; give rights to certain prisoners to petition courts
directly for resentencing hearings; grant courts revisory powers over
sentences during the durations of the sentences; create discretionary
release provisions for certain prisoners sentenced to life without parole;
and grant broad authority to a number of decision makers and tribunals
to consider the releases of longer-incarcerated prisoners who were
convicted as juveniles.257
The successes of the Unger Project have given Maryland
policymakers confidence in these initiatives and reasons to adopt them,
and should do the same for national policymakers, and provide an
advocacy model for those seeking to use second look laws and policies
on behalf of prisoners.258
256 207TH REPORT OF THE STANDING COMMITTEE ON RULES OF PRACTICE AND PROCEDURE 3
(Apr. 8, 2021), https://mdcourts.gov/media/announcement/2021-04/207th-report-standingcommittee-rules-practice-and-procedure.
257 See Second Look Sentencing Explained, FAMILIES AGAINST MANDATORY MINIMUMS
(FAMM), https://famm.org/wp-content/uploads/Second-Look-Infographic.pdf (last visited
Oct. 31, 2021); Second Chance Legislation in the States, FAMILIES AGAINST MANDATORY
MINIMUMS (FAMM) (June 8, 2021), https://docs.google.com/spreadsheets/d/13aFuNUNGaphzq-GsAd8E54veaZhU_nWkmh2gxy-iCs.
258 In September 2021, the Maryland Court of Appeals rejected a proposal by the Maryland
Rules Committee that would have added additional revisory powers over a sentence imposed
for a criminal conviction under certain circumstances. Rules Order, Md. Ct. App. (Sept. 20,
2021), https://mdcourts.gov/sites/default/files/rules/order/ro207supplement3.pdf; STANDING
COMM. ON RULES & PROC., 207TH REPORT (2021). The Committee described these
circumstances and explained why it recommended these changes to the court: “One of the
functions assigned to the Rules Committee is to “keep abreast of emerging trends and new
developments in the law that may affect practice and procedure in the Maryland Courts.” In
doing so, the Committee has become aware of a national movement to permit trial courts in
criminal cases to retain the power to revise long prison sentences imposed on persons (1) who
were juveniles, or under 25, when they committed the crime(s) for which the sentence was
imposed, or (2) who have served a significant part of the sentence and reached a certain age
(60, 65, 70). With respect to the younger criminal, this movement is based on medical
evidence, accepted by the United States Supreme Court and the Court of Appeals, that the

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PART VII: FORMER LAW STUDENTS OF THE UNGER CLINIC REFLECT ON
THEIR EXPERIENCES
For the Maryland-Carey Law School faculty and students, the
Unger clinic had integrated public service and educational goals. With
respect to the latter, the faculty designed the clinic to give “students
professional relationships with two or more [clients], and the multiple
vantage points that come with this; a strong sense of personal
responsibility by having ‘your own’ client or clients; and a significant
part in a major law implementation and reform project.”259 The faculty
thought this would be “a realistic introduction to actual practice; and
[would help students to develop] a deep sense of self-fulfillment, which
can be transformative.”260 The latter would come, the faculty hoped,
when the students came to understand that “they were competent to help
someone who really needed it, and second that they really liked this
helping role.”261
Keeping with the retrospective theme of this article, we decided
to ask the former students in the original 2013 Unger clinic to tell us
what they learned from their experiences eight years ago. To assure
frank responses and as much objectivity as possible, Feder, a former
student in the original Unger clinic, conducted the interviews; not
human brain is not fully developed until the age of 25 and that younger people have “a lack of
maturity and an underdeveloped sense of responsibility leading to recklessness, impulsivity,
and heedless risk-taking” and “lack the ability to extricate themselves from horrific, crimeproducing settings.” With respect to the ageing prison population, it is based on the
conclusions of criminologists that the continued incarceration of many prisoners in their
sixties, seventies, or eighties often serves no rational or public safety purpose.”
Id. at 2-6.
The Committee said that the proposed changes would allow trial courts “to consider whether
. . . long sentences, which may have been entirely appropriate when imposed, continue to
serve a useful societal purpose [or], indeed, may be antithetical to sound judicial policy.” Id. at
4. The Committee’s proposal “defines the members of the two target populations who may file
a petition or motion for relief,” as: “[I]nmates who have been sentenced to terms of 15 years or
more and who (1) committed the last offense for which the sentence or any part of the
sentence was imposed before reaching the age of 25 and has served the greater of 15 years or
sixty percent of the sentence, or (2) has served at least 15 years of the sentence and has
reached the age of 60.” Id. at 4-5. The Committee added that under its proposal, the relief a
court could grant after a hearing would be “modifying, reducing, or vacating the unexpired
term of the sentence, or suspending all or part of the unexpired term and placing the defendant
on probation.” Id. at 5. Additionally, the proposed rule changes were “not intended to displace
or be in competition with the Executive Branch parole system” because “[p]aroles do not
affect the sentence that was imposed but merely permit the defendant to serve part of that
sentence outside the prison walls . . . . [T]he sentence itself remains within the control of the
court that imposed it.” Id. at 6.
259 Millemann et al., supra note 6, at 394.
260 Id.
261 Id.

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Millemann, who co-designed and co-taught the clinic.262 Before we
discuss the results of the interviews, we first describe the law students’
roles and responsibilities in the Unger clinic.
A. The Law Students’ Role and Responsibilities in the Unger Clinic
The Unger clinic’s scope of representation was substantial but
limited. The faculty and students investigated and prepared Unger
motions and helped to negotiate settlement agreements with the State, if
possible.263 There were settlements in twenty-one of the clinic’s cases,
resulting in twenty releases. Cases that could not be settled, and which
required further litigation (e.g., contested motion hearings, retrials, or
appeals) were returned to OPD.
Most students were assigned two cases, with several students
volunteering to handle three cases.264 Students were divided into teams
comprised of four law students and one social work student. Law
students primarily worked on their own cases, but helped other team
members with their cases as needed. Their responsibilities were as
follows:
1. To write letters of introduction to clients.
2. To schedule and conduct interviews with clients, all of whom
were incarcerated. During visits, the students explained, and the clients
executed, retainer agreements.
3. To obtain and copy clients’ prison records. These included
materials like applications for parole, rulings by the parole commission,
prison disciplinary records, and documentation of rehabilitative
activities (such as classes, treatment programs, and prison jobs).
262 Generally, the interview topics included how they experienced the clinic as students, how
the clinic affected their subsequent careers and their views of the criminal justice system, and
how their views of the clinic and the criminal justice system have changed since graduating and
working for the past seven or eight years. They were promised anonymity to encourage free and
open discussions. Feder has assigned each former student a number and refers to them by those
numbers in what follows.
263 The prisoners made the Unger argument in motions to reopen their post-conviction petitions.
If the trial court agreed, it granted that motion and reopened the proceedings. In the standard
terms of the settlement agreements, the parties agreed that the prisoners’ convictions would
remain in effect, and they would be re-sentenced to life in prison with all but time served
suspended. This resulted in their immediate release from prison. The person was placed on
probation for one to five years. If, after a hearing, a probationer was found to have violated
probation, the judge could impose any of the suspended sentence, up to and including life
imprisonment. After judges ordered new trials, the terms of the plea agreements were similar.
In another form of settlement agreement, the petitioner agreed to a fixed term rather than the
life sentence, making him eligible for immediate parole or a “flat-time” release in a limited
number of years. See Millemann et al., supra note 6, at 370 n.14.
264 Information provided by Millemann, who co-taught all of the Unger clinical courses.

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Students also obtained records about their clients’ crimes and
backgrounds prior to entering prison, such as presentence
investigations.
4. To locate trial transcripts and post-conviction records. This
was often a challenging task, as the documents were decades-old, and
in many cases, the Maryland Circuit Court clerk offices as part of a
records retention/destruction policy had destroyed them. In all but a few
cases, students obtained transcripts and other records from a variety of
sources, including clients, their family members, law libraries, the
Office of the Attorney General, and the Maryland State Archives, which
thankfully had preserved many of them.265
5. To draft their clients’ post-conviction motions based on the
Unger decision and a review of all documents, and to file motions, after
faculty approval. Working off a template, students identified the
theories of the prosecution and defense at trial; stated the key facts;
summarized the often protracted procedural history; compared the
advisory-law instruction in their cases to that given in Unger; tried to
preempt anticipated counterarguments, especially “harmless error”
arguments;266 and compiled appendices, including transcript excerpts
and appellate and post-conviction pleadings, orders, and opinions.
6. To prepare memoranda for State prosecutors to try to persuade
them to agree to a favorable settlement. These memoranda relied
heavily on release plans developed by the social work team.
7. To advise clients on their options, including the strengths and
weaknesses of their cases and the advantages and disadvantages of
settling or litigating further. Given the uncertain scope of Unger until
2016,267 and the delay and chance of losing in further litigation,268
265

Millemann et al., supra note 6, at 388 n.107 (discussing the few transcripts the students
could not locate).
266 In 2015, the Maryland Court of Appeals decided State v. Waine and rejected the State’s
request that the court reverse Unger or impose a “harmless error” limitation on it. 122 A.3d 294,
301 (Md. 2015). Instead, it held that the Unger error was “structural” and thus not subject to
harmless error review. Id. A year later, in 2016, the Court of Appeals decided State v. AdamsBey and rejected the State’s argument that trial courts had discretion to refuse to reopen Unger
prisoners’ post-conviction proceedings and thereby to deny them any procedural means to assert
their Unger rights. 144 A.3d 1200, 1206-11 (Md. 2016).
267 See Waine, 122 A.3d 294; Adams-Bey, 144 A.3d 1200. In both these cases, the State
argued that the Court of Appeals should reverse Unger or significantly limit it with harmless
error and procedural restrictions. The Court of Appeals reaffirmed Unger in Waine in 2015
and, in 2016, in Adams-Bey the Court of Appeals made it clear that trial judges did not have
the discretion to refuse to reopen post-conviction proceedings of those asserting Unger
claims. Waine, 122 A.3d 294, 298-300; Adams-Bey, 144 A.3d 1200, 1211-12.
268 There were good reasons to settle. Until Waine and Adams-Bey were decided, Circuit Courts
could deny prisoners’ petitions to reopen post-conviction proceedings. And even if a prisoner

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students encouraged clients – who were elderly and often faced serious
health problems – to take reasonable settlement offers when they were
available.
The clinic faculty provided extensive instruction, supervision,
and feedback on each of the above tasks.269 They also reviewed all
transcripts and other documents with the students, and reviewed, edited,
and signed off on pleadings and settlement proposals. The faculty, in
consultation with the students, made the critical strategic decisions, such
as encouraging clients to settle.
B. What the Former Law Students Say They Learned in the Clinic
i.

Appreciating Interdisciplinary and Collaborative Work

Karl Popper, a philosopher of science, wrote about the
importance of collaborative, interdisciplinary educational relationships:
“We are not students of some subject matter, but students of problems.
And problems may cut right across the borders of any subject matter or
discipline.”270 Law students—as well as law faculty and practitioners—
are “students of problems,” problems that cross all disciplines.271
The students in the Unger clinic saw first-hand that collaboration
was essential to meet the essential needs of the Unger clients. The
collaborative, interdisciplinary nature of the clinic taught students the
value of the holistic approach to representing clients who had problems
that “cut right across the borders of any subject matter or discipline.”272
In the interviews for this article, many of the former law students
praised the collaboration with the social work team and the

won his motion, the State may well have appealed. Finally, even if a prisoner won his motion
and/or any ensuing appeal, the State may have sought to retry the case. This process could take
years, and some prisoners lost. See, e.g., Bonnett v. State, No. 0193, 2016 Md. App. LEXIS 265
(Md. Ct. Spec. App. June 10, 2016); Cohen v. State, No. 1471, 2015 Md. App. LEXIS 801 (Md.
Ct. Spec. App. Nov. 23, 2015); Williams v. State, No. 2265, 2015 Md. App. LEXIS 1046 (Md.
Ct. Spec. App. Nov. 23, 2015); Nolan-El v. State, No. 0605, 2015 Md. App. LEXIS 400 (Md.
Ct. Spec. App. Aug. 31, 2015).
269 This included classes with assigned readings, lectures, and discussions on applicable law
(including Maryland’s highly complex post-conviction process), trainings and mock sessions
on interviewing clients, weekly team meetings, and routine meetings and communications
between students and professors that addressed discrete issues and concerns as they arose.
270
KARL R. POPPER, CONJECTURES AND REFUTATIONS: THE GROWTH OF SCIENTIFIC
KNOWLEDGE 88 (1963).
271 POPPER, supra note 270, at 88.
272 Id.

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interdisciplinary nature of the clinic.273 One praised “the holistic aspect
of her representation;” she appreciated that it was not just confined to
“representing clients in their criminal case.”274 Another former student
added, “I really enjoyed the cross-pollination with the School of Social
Work. Real credit is due to the social workers.”275 Two others said that
they appreciated the opportunity to work with social workers as
“partners.”276
ii.

A Transformational Experience and Process of SelfDiscovery

A number of former students reported that the Unger clinic was
very important in their development as lawyers or, for those students
who did not go on to practice law, in their chosen professions. Some
said that it led them to unexpected roles in public interest law and public
policy.277 The clinic also taught students valuable professional skills and
taught many, including those who had gone directly to law school from
college, how to navigate a workplace.

273

Scholars have encouraged collaboration between social work students and law students.
Such collaboration, in the right setting, can result in better education and more effective
representation of clinic clients. See, e.g., Susan McGraugh, Carrie Hagan & Lauren Choate,
Shifting the Lens: A Primer for Incorporating Social Work Theory and Practice to Improve
Outcomes for Clients with Mental Health Issues and Law Students Who Represent Them, 3
MENTAL HEALTH L. & POL’Y J. 471, 502-03 (2014); Sara R. Benson, Beyond Protective Orders:
Interdisciplinary Domestic Violence Clinics Facilitate Social Change, 14 CARDOZO J.L. &
GENDER 1, 6-8 (2007).
274 Interview with Student No. 2, Clinical L. Student, Univ. of Md. Francis King Carey Sch. of
L. (Jan. 23, 2021). “Holistic” defense is a model of public defense. It can be contrasted with the
more typical model of public defense, in which a client is represented by an individual attorney
whose sole mission is achieving the best possible outcome in a client’s criminal case (e.g.,
dismissal of charges, acquittal, etc.). In contrast, in offices with a holistic defense model, each
client is represented by a team, which includes criminal defense lawyers, social workers, and
specialists in areas like housing, immigration, and substance abuse. The holistic model seeks to
address a client’s needs beyond the courtroom. See generally JAMES M. ANDERSON, MAYA
BUENAVENTURA & PAUL HEATON, RAND CORPORATION, HOLISTIC REPRESENTATION: AN
INNOVATIVE APPROACH TO DEFENDING POOR CLIENTS CAN REDUCE INCARCERATION AND SAVE
TAXPAYER DOLLARS – WITHOUT HARM TO PUBLIC SAFETY 1 (2019),
https://www.rand.org/pubs/research_briefs/RB10050.html.
275 Interview with Student No. 13, Clinical L. Student, Univ. of Md. Francis King Carey Sch.
of L. (July 13, 2021).
276 Interview with Student No. 3, Clinical L. Student, Univ. of Md. Francis King Carey Sch. of
L. (Jan. 23, 2021); Interview with Student No. 11, Clinical L. Student, Univ. of Md. Francis
King Carey Sch. of L. (Mar. 1, 2021).
277 The legal profession recognizes that even lawyers who work exclusively in private, forprofit work have an obligation to engage in—and benefit from engaging in—some pro bono
work, and the Unger clinic helped to introduce students to this. MODEL RULES OF PRO. CONDUCT
r. 6.1, cmt. 1 (AM. BAR ASS’N 1983).

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The clinic experience encouraged students to do public interest
work either full-time or as an integrated part of private practice.278 A
former student, who now works in healthcare law, reported that
“working in the Unger clinic changed the trajectory of my career. I was
sold on working in corporate law when I entered law school, but after
working with these clients, I realized how important it was to help the
community.”279
Another said that although she “had not been considering a
career in criminal law” before the clinic, the clinic made her realize she
had a “passion” for it. She became a public defender in Brooklyn.280
Another said: “I didn’t go to law school to become a public defender. I
was going to be a rich, fancy lawyer with big windows . . . the
clinic . . . was the reason I went into public defense.281
Still another student became a Judge Advocate General because
the clinic “opened his eyes to how much he enjoyed the work” and
transformed how he thought of criminal defendants and the criminal
justice system. He became far more sympathetic to incarcerated people
and developed an “abolitionist” perspective. 282
One former student said that his time in the clinic led him to do
substantial pro bono work alongside his private practice: “[t]o see the
impact that my representation had firsthand, including getting to see my
client’s emotional reunion with his family on the day he was released,

278 Commentators have argued that along with teaching students practical legal skills, law
school clinics should work toward social justice goals (e.g., reducing the sentences of indigent
prisoners, protecting the environment from pollution, etc.). Commentators have also asserted
that clinics should teach the pursuit of social justice as a value. Spencer Rand, Social Justice as
a Professional Duty: Effectively Meeting Law Student Demand for Social Justice by Teaching
Social Justice as a Professional Competency, 87 U. CIN. L. REV. 77, 81, 95-96 (2018); Jennifer
Rosen Valverde, Preparing Tomorrow’s Lawyers to Tackle Twenty-First Century Health and
Social Justice Issues, 95 DENV. L. REV. 539, 542-43 (2018); Marcy L. Karin & Robin R. Runge,
Toward Integrated Law Clinics That Train Social Change Advocates, 17 CLINICAL L. REV. 563,
564-65 (2011). But see Julie D. Lawton, Teaching Social Justice in Law Schools: Whose
Morality Is It?, 50 IND. L. REV. 813, 818 (2017) (“‘[m]andatory pro bono, while reflective of
my personal ideals, is an encroachment upon law students’ personal morality and an attempt to
impose social justice service upon students based upon the moral and ethical lens of
professors.”).
279 Interview with Student No. 7, Clinical L. Student, Univ. of Md. Francis King Carey Sch.
of L. (Feb. 2, 2021).
280 Interview with Student No. 1, Clinical L. Student, Univ. of Md. Francis King Carey Sch. of
L. (Jan. 20, 2021).
281 Interview with Student No. 14, Clinical L. Student, Univ. of Md. Francis King Carey Sch.
of L. (July 14, 2021).
282 Interview with Student No. 3, supra note 276. For a discussion of abolitionist perspective,
see Bill Keller, What Do Abolitionists Really Want?, MARSHALL PROJECT (June 13, 2019),
https://www.themarshall project.org/2019/06/13/ what-do-abolitionists-really-want.

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was very powerful.”283 He added, “I work at a big firm and do trusts and
estates and commercial litigation. But because of my time in the Unger
clinic, I’ve continued to do a lot of pro bono work on criminal appeals
and post-convictions.”284
Another former student said that his time in the clinic had led
him to do criminal pro bono work, including death penalty work,
alongside his day-to-day work at a high-end law firm: “The clinic was
my first exposure to that area, and it put me on the path of wanting to
do more work like that.”285
Another, who is now writing her dissertation in public policy,
said that “seeing what clients went through in the clinic did impact my
research interests—it encouraged me to focus on equity in policy
outcomes, and how law is used to implement policy in unequal
ways.”286
Finally, a former student commented that:
While I am not a litigator or even a traditional lawyer, I
consistently remember the lessons I learned during
clinic. I work in emergency management policy . . . I
often consider and apply the lessons I learned about the
criminal justice system and the inequalities in it as I
assist emergency management personnel.287
283

Interview with Student No. 12, Clinical L. Student, Univ. of Md. Francis King Carey Sch.
of L. (July 13, 2021).
284 Id.
285 Interview with Student No. 13, supra note 275.
286 Interview with Student No. 6, Clinical L. Student, Univ. of Md. Francis King Carey Sch. of
L. (Feb. 3, 2021).
287 Interview with Student No. 10, Clinical L. Student, Univ. of Md. Francis King Carey Sch.
of L. (Feb. 26, 2021). One noted that “participating in the clinic really helped me develop a
persuasive writing style. Using client stories persuasively and as part of advocacy is a useful
skill in civil law, which is where I’ve practiced since graduating.” Interview with Student No.
2, supra note 274. Another commented that “the clinic taught me the importance of listening as
a skill, and of building a rapport with clients, witnesses, etc.” Interview with Student No. 4,
Clinical L. Student, Univ. of Md. Francis King Carey Sch. of L. (Jan 25, 2021). Another added
that his time with the clinic taught him “how to interact with clients with different backgrounds
from you, how to manage expectations, and how to help them navigate a system that is often
unfair. Those are invaluable skills that stay with you as you represent clients in the real world.”
Interview with Student No. 12, supra note 283. One former student said that she had struggled
badly in her first year of law school, but that in the clinic, “I . . . became extremely organized
because I had to. In order to keep up with the tasks, communication with the clients, materials
associated with each client, etc . . . . I became more structured.” Interview with Student No. 7,
supra note 279. Finally, another student said that “[d]oing the legwork to obtain” old court files
and prison records “taught me some practical lessons about dealing with clerks, what to look

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Learning from the Clients: Challenging Stereotypes and
Assumptions

Many of the former students reported that getting to know their
clients changed their preconceived views about incarcerated people,
including those convicted of very serious crimes.288 It bears repeating
that every clinic client had been convicted of rape or murder, along with
other violent crimes. Although some clients appeared to be factually
innocent, or were relatively less culpable (e.g., they had a strong selfdefense claim), others had committed brutal crimes with no apparent
mitigating factors.289 Many students came into the clinic without having
previously met, let alone worked closely with, an incarcerated person,
particularly one convicted of a very serious crime. The clinic experience
changed their views on criminal sentencing and rehabilitation.
One former student said, “I entered the clinic with preconceived
notions about incarcerated people . . . . Getting to know my clients and
working with them closely really changed my perspective.”290 Another
commented:
I grew up in a sheltered suburb. I’d never been inside a
prison, never mind a maximum-security prison, let alone
going by myself to interview someone convicted of
murder. Most of what I knew was built on stereotypes
for, and where to look.” Interview with Student No. 8, Clinical L. Student, Univ. of Md. Francis
King Carey Sch. of L. (Jan. 26, 2021).
288 Although most former students reported that their clinic experiences changed their
preconceived notions about the criminal justice system and incarcerated people, others reported
that what they saw did not surprise them. These students already had opinions about the criminal
justice system or personal experiences with it and incarcerated persons or both, and the clinic
experience reinforced them. One student said, “I already knew that the system was terrible and
disproportionately impacted poor people and people of color.” Interview with Student No. 1,
supra note 280. Another student, who had prior internships at public defender offices and had
participated in an innocence clinic before transferring from another law school, was not
surprised to see how unfair the system was to clients, or that “people who have committed
terrible crimes are often kind, reasonable people, and a pleasure to work with.” Interview with
Student No. 11, supra note 276.
289 We add an important caveat: transcripts of trials where clients had poor representation were
particularly unlikely to shed light on any mitigating evidence; if defenses were not developed at
trial, and mitigating evidence was not presented at sentencing, a trial transcript might show a
client in the worst, and an inaccurate, light. See, e.g., Lisa Kern Griffin, Criminal Adjudication,
Error Correction, and Hindsight Blind Spots, 73 WASH. & LEE L. REV. 165, 196 (2016); Beth
Caldwell, Appealing to Empathy: Counsel’s Obligation to Present Mitigating Evidence for
Juveniles in Adult Court, 64 ME. L. REV. 391, 402-03 (2012).
290 Interview with Student No. 2, supra note 274.

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and Hollywood clichés. Representing my client
acquainted me that these are real human beings.291
Another commented, “I grew up thinking there are good people
and bad people, and bad people do bad things and go to jail. In the clinic,
I learned that good people sometimes do bad things, and that people are
capable of redemption.”292 Another former student said:
It completely changed how I view convicted criminals
. . . . It was hard to believe that these kindly old men were
convicted of murder. I came to see how time changes
people and the boys who committed these heinous acts
were simply not the same people 40 years later.”293
iv.

Shock Value: Introductions to the Real World

A common experience that former students reported was shock.
This came in two forms: first, the shock students experienced when
starting the clinic and getting acquainted with the criminal justice
system for the first time, especially the version of the system that existed
in Maryland prior to 1981. Second, former students looking back at the
clinic eight years later reported that their time in the clinic may have
given them an unrealistic view of what the practice of law, including
criminal defense, was like in “the real world.”
Those who reported being shocked by what they saw while in
the clinic included those who were shocked by the advisory-only
instruction at issue in Unger, which contradicted everything the students
learned about in classes like Criminal Law and Criminal Procedure.
Two former students called the instruction “insane,” with one
commenting, “I couldn’t believe that that instruction was actually given
to jurors.”294 One of them said, “I was excited to deal with the
instruction as an abstract legal issue, just because it was so bizarre.”295
Another former student, who had prior experience interning at
public defender offices, also commented on some of the shockingly
poor representation that clinic clients received at trial in the 1960s and
1970s. Along the same lines, another commented that he was shocked
291
292
293
294
295

Interview with Student No. 12, supra note 283.
Interview with Student No. 14, supra note 281.
Interview with Student No. 3, supra note 276.
Interview with Student No. 1, supra note 280.
Interview with Student No. 13, supra note 275.

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and saddened by his client’s surprise at receiving attentive, engaged
representation. He stated:
One shocking thing was a client’s gratitude for my work,
which seemed to be largely based on his low
expectations and bad experiences with prior counsel. The
client was grateful that I followed through on promises
I’d made, and that I said we have ‘our’ hearing coming
up, rather than ‘your’ hearing. He wasn’t used to that
level of investment from an attorney.296
Another former student remarked that when he read his clients’
transcripts, he was shocked by “the openly racist tinge to how some of
the cases were handled. It’s not like we’re past that now, or that the
criminal justice system isn’t affected by racism. But it was shocking to
see how open and apparent it was in the transcripts.”297 Another
expressed shock at:
[t]he inhuman way that the system grinds up those who
don’t have access to the means of justice. A lot of clients
had their files destroyed or lost—not through malice, but
through
the
complete
carelessness
of
the
bureaucracy . . [i]f not for the clinic, our clients would
have had no recourse. It revealed a dramatic gulf
between the haves and the have nots.298
Another also brought up the destruction of clients’ records, calling
it “Kafka-esque.”299 Another common refrain was that former students
only realized what an exceptional opportunity the Unger clinic had been
after they had gained experience as attorneys. That included attorneys
who represent criminal defendants, but who have had to adjust to far
less support and success than they experienced when they were with the
clinic. As one said, “naively, I thought the sort of representation the
clinic engaged in was typical in criminal cases—thorough, holistic
representation with a successful outcome.”300 Another said that “as a
296 Interview with Student No. 5, Clinical L. Student, Univ. of Md. Francis King Carey Sch. of
L. (Jan. 25, 2021).
297 Interview with Student No. 4, supra note 287. See supra Part III for a description of race
and its likely impact on the trials of the members of the Unger group.
298 Interview with Student No. 12, supra note 283.
299 Interview with Student No. 13, supra note 275.
300 Interview with Student No. 2, supra note 274.

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defense attorney, I now appreciate what a unique opportunity Unger
presented to obtain real relief for a large number of clients . . .”301
v.

Discovering Other Motivations to Do Good Work

Criminal defense attorneys are taught that to be effective
advocates, they must be able to call upon different motivations in
different cases. For example, if an attorney is motivated only by
sympathy for clients, how can they effectively represent a particularly
unsympathetic client? If an attorney is motivated only by dislike for the
system, how they can they be effective in a case where the system is
being relatively fair and humane? And if an attorney is motivated solely
by a broad concern for civil rights and racial justice, how can they
effectively represent a client in a case where those concerns are not at
issue? The answer is that defense attorneys must be able to draw on
multiple separate motivations, which may vary from case to case, so
they can represent all their clients zealously and effectively.302
The clinic students seemed to intuitively develop a similar
approach, and to call upon various motivations when necessary. Some
students were not emotionally moved by their client’s plight—either
because their client was unsympathetic, the student was not inclined to
sympathize with people convicted of very serious crimes, or some
combination thereof.303 Some students were also not particularly
Interview with Student No. 3, supra note 276. Another student commented, “as an appellate
public defender, I’ve gotten very used to losing. Freeing that many clients serving life sentences
was incredible. Working in a resource-starved, often dysfunctional environment, I also really
appreciate the high level of supervision and the social worker resources that were available in
the clinic.” Interview with Student No. 11, supra note 276. A third student, also now a public
defender, said: “I only realized what a big deal the clinic was looking back . . . The Unger clinic
was an once-in-a-lifetime opportunity to walk clients out of prison after they had served so much
time . . . seeing how criminal practice typically works makes the clinic all the more striking in
retrospect.” Interview with Student No. 5, supra note 296.
302 See generally Charles J. Ogletree, Jr., Beyond Justifications: Seeking Motivations to Sustain
Public Defenders, 106 HARV. L. REV. 1239 (1993) (examining how drawing on multiple
motivations, such as empathy and a desire to change the system, can help prevent burnout in
defense attorneys).
303 Examples of this included one former student who described meeting with a client who “was
genuinely frightening. That was quite a contrast to the other clients we interacted with . . . it was
comforting to know there was a correctional officer in the room.” Interview with Student No. 6,
supra note 286. Another described a case that “shocked” her. In the “majority” of cases she saw,
she thought clients’ factual guilt was in doubt or, at least, their conduct was not especially
egregious (for example, they played a relatively minor role in a robbery that resulted in death
and were convicted of felony murder. See, e.g., Watkins v. State, 744 A.2d 1, 6-7 (Md. 2000)).
In those cases, “it was easy to see why our clients deserved early release.” In contrast, the client’s
conduct in one case, a home invasion rape that took place near her hometown, was “disturbing”
and “hit close to home.” Interview with Student No. 7, supra note 279.
301

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reformist or opposed to severe criminal penalties in general. In
summary, not every student had the same perspectives as the students
who had come to deeply sympathize with Unger clients and to question
the carceral system. However, these students were not necessarily less
effective advocates. Rather, they found other motivations to represent
their clients zealously.
As stated by one former student who subsequently handled both
defense and prosecution as a Judge Advocate General:
A big part of the clinic, to me, is respect for the system.
And the system had not worked here . . . a lot of the
clients were factually guilty. I wasn’t focused on that—
the important thing is that the process worked correctly,
and it had not in these trials.304
Another was motivated not by the pursuit of social justice, or
sympathy for clients, so much as ensuring the fair application of the law.
He reported, “you can’t decide to not uphold justice because you think
that it’s helping a ‘bad person.’”305 He added that “there were some
clients whose facts of their case were pretty appalling. However, the
bottom line was that their trials were unconstitutional, and any
emotional judgments needed to be put aside.”306
vi.

Learning to Manage Stress

Former students reported various reactions to learning they
would be representing real clients in life-sentence cases. Some students
initially felt overwhelmed and worried. For many, this was their first
experience in the practice of law, and one of their first professional
experiences of any kind. And certainly, for the vast majority of students,
it was their first experience having a central role in representation that
might determine whether or not their client would die in prison.
Former student reactions included that “the work was stressful
because of imposter syndrome—I was 22 years old and found myself
representing clients serving life sentences..”307 Another said, “it was
stressful because this was the first time we had had any kind of real
world experience, both with having any client experience (and then
304

Interview with Student No. 4, supra note 287.
Interview with Student No. 9, Clinical L. Student, Univ. of Md. Francis King Carey Sch. of
L. (Jan. 27, 2021).
306 Id.
307 Interview with Student No. 6, supra note 286.
305

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visiting them in jail) and having any real life courtroom experience.”308
Another commented, “[f]or a law student who hadn’t represented clients
before, it was nerve racking to be doing that in any setting, particularly
one representing convicted murderers.”309 Still another underscored that
for many students, high-stakes criminal law was an unexpected
challenge, “I attended law school with a focus on environmental law and
policy; this clinic was way out of my comfort zone.”310 She added that
her reaction when finding out what the work would entail was “terror
with a dash of excitement. The idea that the work I was doing would
directly affect whether my client remained behind bars for the rest of his
life or have the chance to live free was overwhelming.”311 Another said:
I was thrust into this scenario with so much
responsibility . . . the workload was heavy, but the real
stress was having someone’s fate resting on your
shoulders. That was a very different kind of stress from
a practice oral argument, or writing a law school exam
. . . There’s more at stake than getting a good grade or
furthering your career.312
Finally, another former student noted that the stress he felt
representing real clients was heightened by how closely he worked with
them, and how well he got to know them on an individual basis. “It
pushes you to work harder when there’s a real client on the case. . .
there’s also a larger sense of stress when there is that personal
connection. Because we got to know our clients so well, the stakes felt
higher.”313
Along with the potential consequences of their work, some
former students were initially intimidated by the workload. One
commented, “the sheer amount of work we were presented with initially
was overwhelming.”314 Another said her experience was, at times,
“overwhelming and stressful. We were so busy, we basically lived in
the clinic.”315 One emphasized the large amount of “physical and
logistical work,” such as “going to courthouses and asking for records.”
308
309
310
311
312
313
314
315

Interview with Student No. 7, supra note 279.
Interview with Student No. 9, supra note 305.
Interview with Student No. 10, supra note 287.
Id.
Interview with Student No. 12, supra note 283.
Interview with Student No. 13, supra note 275.
Interview with Student No. 7, supra note 279.
Interview with Student No. 14, supra note 281.

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He added, “it’s such a different kind of work than law students usually
do. Like in actual practice, the cases were often more about the facts
than the law. After all, the templates were already drafted. Our focus
was the investigative work, which can be a huge part of being a
lawyer.”316
On the other hand, some reported feeling excited by the prospect
of doing important work on behalf of a real client.317 They said that the
weighty, real-world responsibilities of the clinic helped them work with
a motivation and clarity they lacked in purely theoretical, doctrinal
classes. That included former students who had also reported feeling
stressed and intimidated by their responsibilities and what was at stake;
those emotions often existed side by side. As one reported, “I was
excited to have a client whose case I could have a tangible impact on.
Unlike what I’d experienced in law school beforehand, it wasn’t just
theoretical.”318 Another student remarked:
It was an exciting opportunity to work on something that
really mattered and learn a lot while doing it . . . the
workload was heavy, but if anything, representing a real
client made the workload seem OK because at least you
knew that the work was related to a real person.319
Articulating a common theme, another former student
commented that “along with stress, the high stakes were motivating.”320
Another said that “I was ridiculously excited that my work could result
in helping someone gain his freedom.”321

316

Interview with Student No. 13, supra note 275.
A critical pedagogical benefit of clinics is that they expose law students to the nuance and
complexity of working with real clients in real cases, and help students build the practical skills
essential to effective lawyering. See, e.g., Kathleen G. Noonan & Sarah Davis, Law in Action:
Learning Health Law Through Experience with Stakeholders at the Patient and System Levels,
9 IND. HEALTH L. REV. 557, 563 (2012); Margaret Martin Barry et al., Experience the Future:
Papers from the Second National Symposium on Experiential Education in Law, 7 ELON L. REV.
1, 27 (2015). Scholars have referred to the “twin goals of clinical education: social justice and
student learning.” Anna E. Carpenter, The Project Model of Clinical Education: Eight
Principles to Maximize Student Learning and Social Justice Impact, 20 CLINICAL L. REV. 39,
44 (2013). See, e.g., Esther Canty-Barnes, Serving the Needs of Disabled Children: A Look at
the Special Education Clinic at Rutgers Law School-Newark, N.J. LAW. MAG., June 2003, at 7172.
318 Interview with Student No. 4, supra note 287.
319 Interview with Student No. 9, supra note 305.
320 Interview with Student No. 3, supra note 276.
321 Interview with Student No.10, supra note 287.
317

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All—including those who initially reported feeling stressed or
overwhelmed by the clinic’s responsibilities—reported that they felt
empowered by the close supervision they received from experienced
clinical professors.322 Former students commented, “the support
provided by the professors helped ensure that I felt capable and up to
the task,”323 and “I felt really well prepared and supervised.”324 Another
added that because the stakes were so high for her clients, “I was very
grateful to have supervisors looking over my work and fixing my
mistakes.”325 When asked if the nature of the work or the workload was
stressful, another responded, “not really—[the professors] were so
supportive, and they were available whenever I encountered any kinds
of difficulties.”326
vii.

Providing a Basis to Critique the Criminal Justice
System

Along with challenging students’ preconceived notions about
incarcerated people, the clinic experience gave students an enriched
perspective of the criminal justice system and caused many to become
critical of it.327 One former student said:
I think I was already on the pro-defense ‘team,’ but it had
been for more abstract reasons, like the Constitutional
right to counsel and to having your day in court. After
the clinic, my concerns about the criminal justice system

322
Scholars have discussed the psychological challenges that clinic students face in
representing real clients, particularly in high-stakes cases, and have offered recommendations
on how clinic faculty might help them navigate those challenges. See, e.g., Ronald Tyler, The
First Thing We Do, Let’s Heal All the Law Students: Incorporating Self-Care into A Criminal
Defense Clinic, 21 BERKELEY J. CRIM. L. 1, 1, 4, 13, 18, 20, 21 (2016); William Berman, When
Will They Ever Learn? Learning and Teaching from Mistakes in the Clinical Context, 13
CLINICAL L. REV. 115, 128-134 (2006).
323 Interview with Student No. 6, supra note 286.
324 Interview with Student No. 2, supra note 274.
325 Interview with Student No. 14, supra note 281.
326 Interview with Student No. 4, supra note 287.
327 Scholars have argued that one benefit of clinical education is that representing real clients
in real cases can offer a more complete, nuanced, and critical view of a legal system that many
law students have only encountered in the abstract. See, e.g., Hugh M. Mundy, It’s Not Just for
Death Cases Anymore: How Capital Mitigation Investigation Can Enhance Experiential
Learning and Improve Advocacy in Law School Non-Capital Criminal Defense Clinics, 50 CAL.
W.L. REV. 31, 66 (2013); Emily Hughes, Taking First-Year Students to Court: Disorienting
Moments As Catalysts for Change, 28 WASH. U.J.L. & POL’Y 11, 11-12, 17, 20 (2008).

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became more personal. I had seen that there are good
people who get swept up in it.328
Another, who went on to become a public defender,
commented, “I didn’t have any understanding of the criminal justice
system before my time in the clinic. Being part of it changed everything
for me, including that I started to come to grips with my own
privilege.”329
Still another added, “the clinic caused a total shift in how I
viewed incarceration—I had supported life sentences in lieu of death
sentences. But working closely with clients helped me appreciate what
decades of prison really mean, the import of those sorts of sentences. It
was a radicalizing experience.”330
CONCLUSION
In this article, we describe a project, spurred by a court decision,
that has resulted in the releases of 200 older, long-incarcerated prisoners
in Maryland who had been convicted of violent crimes. We describe the
bizarre (in today’s world) jury instruction that undermined the fairness
of the trials of this group conducted decades ago. We note that until
1981 in Maryland, the Maryland Constitution required trial judges to
tell the jurors that they, the jurors, were the ultimate judges of the law
and that everything the judge said about the law was advisory only. We
use one case study to present the instruction and the ways in which it
nullified the Rule of Law, and another case study to explain the colonial
origins of this jury instruction.
We describe how at the times of these trials, people in Maryland,
including jurors, were inflamed by racial divisions and anger at crime.
We argue that the advisory-only instruction, which likely generally
emboldened jurors, gave jurors motivated by racism and anger a way to
give effect to those beliefs and feelings.
We describe the prolonged litigation that led up to the Maryland
Court of Appeals’ decision in Unger v. State,331 which appeared to
require new trials for 237 older, long-incarcerated prisoners, and the
four years of litigation after the Unger decision that confirmed this.

328
329
330
331

Interview with Student No. 13, supra note 275.
Interview with Student No.14, supra note 281.
Interview with Student No. 3, supra note 276.
48 A.3d 242 (Md. 2012).

Electronic copy available at: https://ssrn.com/abstract=4069563

MILLEMANN, CHAPMAN, & FEDER

2021]

THE UNGER STORY

247

We describe how the Unger Project, a multi-partner,
interdisciplinary effort, implemented the Unger decision and obtained
the releases of 200 prisoners in the Unger group. We note the very low
re-incarceration rate for these released prisoners, about three percent,
and explain why we believe they have been so successful. We argue that
an extraordinary reentry program designed and staffed by social
workers and social work students, and the creation of a supportive
community by those released and their families, have been two factors
in this success.
We identify what we think are the major lessons of the Unger
Project, including ones that challenge over incarceration generally and
the long-term incarceration of older prisoners specifically, and
challenge as well the prevalent assumption that prisoners convicted of
violent crimes should be excluded from release programs.
We observe the ways in which the Unger story may be useful in
the future. We focus on the growing number of second-look laws,
policies, and initiatives that are intended to give long-incarcerated, older
prisoners, like those in the Unger group, opportunities for resentencing
hearings. We argue that the successes of those released in Maryland as
a result of the Unger decision should encourage other policy makers to
support these second-look initiatives, and that the Unger Project
provides a model of interdisciplinary, collaborative advocacy for those
who seek to help prisoners under them.
We end by explaining the significant role the Maryland-Carey
Law School Clinical Law Program played in the Unger Project and
share the views of former students about what they learned in this clinic.
This article encapsulates what we learned through the Unger Project and
demonstrates how the Project can be a model for creating and supporting
thoughtful criminal justice reforms locally and nationally.

Electronic copy available at: https://ssrn.com/abstract=4069563