Maryland Misdemeanor Law

What Maryland calls "misdemeanors" is very different from what other states do.

|The Volokh Conspiracy |

I've had little to say about the recent Judge Kavanaugh controversy, because I have no real knowledge to add on the subject. But something came up, quite tangentially, that I could usefully learn something about, so I want to briefly mention it.

Maryland police wrote yesterday that in 1982, assault and attempted rape were misdemeanors under Maryland law, and therefore subject to a one-year statute of limitations (though it seems to me that assault with intent to rape was even then a felony). This statute of limitations appears to be one of several reasons why the local police would be reluctant to get involved in this matter. (Others are that Dr. Ford hasn't actually brought a complaint to them, and that even absent a statute of limitations trying to find proof beyond a reasonable doubt, which is what the criminal law process requires, in an attempted rape case from 35 years ago can be a hopeless proposition.)

Some might ask: How could a crime as serious as attempted rape be treated as a mere misdemeanor? Was Maryland law at the time so dismissive of sex crimes? (Of course, this is entirely apart from the question whether Judge Kavanaugh actually commited this crime, which he of course categorically denies.)

I think the answer is that "misdemeanor" in Maryland doesn't what it means to the rest of us—despite the label, the crime of attempted rape was treated as very serious. Here's how I understand Maryland law on this.

[1.] Maryland, unlike most other states, still has "common-law crimes"—crimes defined entirely by the courts, which the legislature has never turned into statutory crimes. In the early Republic, this was the norm in all states, but starting with the mid-1800s most states codified all their crimes. Not so with Maryland.

Indeed, to this day even murder is a common-law crime in Maryland; so is attempt in general, except for a few attempts that are statutorily defined as felonies. Attempt to commit sexual offenses was made a statutory felony in 1996, but before then it was a misdemeanor simply because attempts in general were misdemeanors.

[2.] Perhaps because of this lack of codification, "the distinction between felony and misdemeanor [in Maryland] is a hodgepodge, following neither rhyme nor reason," as the Maryland high court said in 1979. It has also labeled the distinction "very unusual," in a way that can cause huge confusion for the police.

In particular, while in most of the rest of the country misdemeanors are defined by their comparatively light punishments (usually a year or less in jail), in Maryland misdemeanors can lead to long prison terms, up to life in prison (as in this 1982 attempted rape case). The same is true of misdemeanor attempt; as a 1984 Maryland high court case put it,

Attempt is a common-law misdemeanor, which, prior to 1976, had no statutorily prescribed sentence limit; the sentence for attempt was solely within the discretion of the trial judge. In 1976, however, the legislature enacted § 644A of Article 27, which limited the sentence for attempt to the maximum sentence for the completed crime.

Maryland misdemeanors, then, aren't (and weren't) necessarily minor crimes, or crimes with a minor maximum penalty; certainly attempts to commit serious felonies aren't minor crimes. But they do (and did) carry with them different procedural rules, including the statute of limitations, which is the point that the police department letter mentioned.

[3.] So when you hear news stories about a crime being a "misdemeanor," or otherwise using legal terminology, keep in mind that many of these legal terms vary in meaning from state to state, and in some states depart from the norm (and thus from their common modern meaning). That a state treats a crime as a misdemeanor often means that it's a minor crime—but not in all states, and in particular not in Maryland.

Again, none of this bears on what did or didn't happen, and on who did or didn't do what to whom. But it does help explain what many might, on first hearing of it, view as a very strange feature of Maryland law.

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  1. So this joins Delaware’s age of consent being 7, in the realm of wildly incorrect surmises that persist because they are too good to check.

    1. Well, my understanding is that the age of consent in Delaware was indeed seven well into the middle of the 20th century, though it is now is 16 when the other party is under 30, and 18 when the other party is 30 or over.

  2. Does this interesting tidbit have any relation to the constitutional reference to high crimes and misdemeanors?

    1. Not directly; there’s been a good deal written about what that phrase (used to describe the criteria for impeachment) means, but the general assumption is that we’d need to see what it meant under English law in 1787, as understood by the Framing generation in America.

      1. From an originalist point of view “misdemeanor” would include those crimes understood as misdemeanors at the time of the drafting.That would by extension include whether or not there was a statute of limitations. Assuming the Maryand understanding is consistent with what a modern congress would do is a very open questions.

        I wonder what “High Crimes” meant in 1787.

        1. Same thing it does now- whatever a house majority thinks it means.

          1. I agree, it’s a political question not a legal one and there’s no requirement that a public official facing a vote of impeachment even be alleged to have committed any sort of crime in order to be impeached.

  3. I’ve had little to say about the recent Judge Kavanaugh controversy, because I have no real knowledge to add on the subject.

    Do you know whether Judge Kavanaugh received pornographic, misogynistic, or otherwise inappropriate e-mails from Judge Kozinski?

    Were any e-mails that were sent to you (and, likely, other clerks and friends) by Judge Kozinski also sent to Judge Kavanaugh?

    Did Judge Kavanaugh respond to or participate in any inappropriate messages?

    Did Judge Kavanaugh object to any such messages?

    Do you have or can you get e-mail records that would illuminate those points?

    Do you believe Judge Kavanaugh’s testimony that he did not recall receiving such e-mails to be credible?

    Was Judge Kavanaugh aware of boorish and improper conduct toward women by Judge Kozinski?

    Were you aware of such conduct by Judge Kozinski?

    Would an assertion by Judge Kavanaugh that he was not aware of such conduct be credible?

    Did Judge Kavanaugh express objection to Judge Kozinski’s misconduct?

    Did Judge Kavanaugh do anything to attempt to stop the improper conduct by Judge Kozinski?

    1. I am disappointed that Prof. Volokh, a former Kozinski clerk, has apparently declined to say whether he can answer any of these pertinent questions, which have become a matter of supreme public interest, and if he can, what the answers may be.

  4. So now we’re assuming that Kavanaugh is guilty and the only reason he can’t be charged is bad Maryland laws? I get that Reason doesn’t want Kavanaugh confirmed, but, come on.

    1. I am most certainly not assuming any such thing. Indeed, I expressly noted that what I wrote is “entirely apart from the question whether Judge Kavanaugh actually commited this crime, which he of course categorically denies,” and that “none of this bears on what did or didn’t happen, and on who did or didn’t do what to whom.”

      But people are saying some things about Maryland law that might be misleading absent more legal context — which is why I’m trying to provide that context.

  5. Thank you Professor Volokh.

    I wasn’t aware that Maryland uses the misdemeanor designation somewhat unusually. Having now been made aware of that general reality, something I discovered a couple of years ago makes more sense.

    Maryland makes it a misdemeanor punishable by up to 5 years in prison to willfully fail to file a required sales and use tax return (e.g. if you order something from out of state on which the vendor doesn’t collect sales tax). I thought it odd that something considered a misdemeanor would carry a maximum penalty of 5 years.

    1. Indeed, that fits the same pattern. I should note that Pennsylvania also classifies some crimes punishable by up to 5 years in prison as misdemeanors, though to my knowledge the overwhelming majority of other states don’t.

      1. I’d always heard that a crime punishable by one year or more was a felony by (common law) definition.

        Meh.

    2. Holy crap. How often do they prosecute? This seems like something that could be used to punish the disfavored.

      1. This seems like something that could be used to punish the disfavored.

        I should imagine the willfulness requirement would at least toss some pebbles in the road.

  6. Doesn’t matter, its just another soundbite for feminists to use about how muh patriarchy back in the day did not care about women when in fact the opposite is true and crimes against women have been seen and judged particularly harshly throughout history relative to other crimes. I’m vividly reminded of a byzantine illustration where the Varangian guard rewards a woman who killed one of their own number for an attempted rape.

    1. True, but the (or a) feminist view was that the harshness of those penalties came from the view that women were men’s property and thus you were harming his property. Yes, harsh penalties for mistreating women were further evidence of the mistreatment of women. See, for example, the famous Kate Millett’s writings on this.

  7. When the alleged witnesses deny any knowledge of the event, I don’t think it matters what they call it.

  8. Doesn’t “common law” violate due process these days? How can someone, especially from a different jurisdiction, be clear on what the law is, if it isn’t even written down?

    1. I hadn’t thought about it that way – of course, all the *written* laws we have are so voluminous I’m not sure everyone has the chance to look them up before taking a potentially dicey action.

      1. You could spend your entire life reading the codes of law in the federal and state libraries and they would change before you finished.

        Reading the black letter of the law on the yellowed pages of the law books would be a huge waste of time.

        For example: some laws on the books were not enforced because they are known to be unconstitutional but were put on the books to be used against criminal defendants lacking legal standing to challenge them in court. (The Florida gun permit law 1902-1941 for example. Watson v. Stone, 148 Fla. 516, 524, 4 So.2d 700, 703 (1941))

        As useless as some people want to hold them, an opinion from the state attorney general is a better idea of how the law is viewed and enforced than anything you will find reading the code books.

        Disclaimer: IANAL and my legal opinion is worth every penny I charge for it.

    2. I appreciate your argument, but the general American rule (at least when it comes to procedural rules) is “old process is due process.” See Medina v. California (1992). Certainly if something was around at the time of the Framing and for many generations after, the Court is quite reluctant to say that the Constitution forbids it. That hasn’t always been adhered to, and, again, the matter is somewhat different for substantive due process rights (see, e.g., Lawrence v. Texas and Obergefell). But it’s the dominant approach, and likely to be applied here.

      1. I would suggest that a good argument could be made, in the vein of “criminal laws being void for vagueness” along the lines of those finding the Armed Career Criminal Act’s “definition” of violent felony unconstitutional. What is the prototypical reasonable person to think/do when not knowing what exactly is the “law” defining a crime (or specifying a punishment)?

        On the “weird procedures in the original 13” topic, please check out this article on page 1 of today’s Boston paper (from the Spotlight team), re where otherwise good criminal cases go to die, in dark and in secret: https:// apps.bostonglobe.com/spotlight/secret-courts/
        I had to split the link between “//” and “apps.” because “Your comment contains a word that is too long (50 characters).”

        1. NB: Prof. Volokh is cited in the Globe article linked-to above.

  9. Yes, one must always keep this in mind. This causes a lot of confusion when it comes to gun laws in MD. Under federal law, a crime is disqualifying (for a gun purchase) if its punishable by more than a year. Under Maryland law, there are lots of “misdemeanors” punishable by more than a year – but its difficult to know what the maximum really is without some expertise. If there is no statutory maximum listed, is it prohibiting under federal law? The answer (in MD) is generally yes because the common law maximum is more than a year.

    1. There are cases of people failing background checks for just that reason. Sailors in a bar fight, $20 fine and a walk on an assault charge, 50 years later fail a background check.

    2. Under federal law, a criminal conviction is disqualifying for gun possession if it is for a “crime punishable by imprisonment for a term exceeding one year,” which is a defined term. 18 U.S.C. 921(a)(20). Under that definition, the federal prohibition does not apply to crimes classified under state law as misdemeanors and punishable by imprisonment for two years or less.

  10. I’m a little surprised that Maryland hasn’t rationalized its criminal law. It wouldn’t be too hard to redefine “misdemeanor” in accordance with common usage. And if as stated the current definition is a source of confusion for the police, that would seem to be a good reason to clean things up.

    1. I’ll bet the laws of states that were among the original colonies (Maryland settled by Catholics, Pennsylvania settled by Quakers, Massachusetts settled by witch hangers) have some interesting quirks compared to the state laws of former territories admitted to the Union as states after the codifying of uniform laws.

      Any one in any jurisdiction who does not hire a local attorney, familiar with the local state, county, municipal laws and codes, familiar with how the local prosecutors, grand juries, judges, juries, and appellate courts interpret those laws, any who expects law to be uniform and rational, is out of touch with reality. Law is more like ordered chaos. Louisiana state law is based on the Napoleonic codes of France.

      1. “Louisiana state law is based on the Napoleonic codes of France.”

        Not really. Some of their law is based on a draft of the Napoleonic Code, some is a holdover from the Spanish code they adopted before that, and they partially received the common law.

      2. Louisiana civil law is based on European civil law prior to the Napoleonic Codes. Louisiana criminal law is based on American common law. Louisiana procedural law and administrative law are largely the same as in other states and are derived basically from US federal law.

  11. “So when you hear news stories about a crime being a “misdemeanor,” or otherwise using legal terminology, keep in mind that many of these legal terms vary in meaning from state to state, and in some states depart from the norm (and thus from their common modern meaning).”

    This cannot be correct. Words have a shared public meaning; I am repeated told so by contributors of this blog. Did words suddenly vary in meaning in the 19th or 20th century? As a thought experiment, if a constitution were created tomorrow and the the word misdemeanor was in it, what would an Originalist scholar in the year 2250 identify as the “public meaning” of the term when it was enacted. Once this public meaning is identified, you have the current meaning of the word and all other so-called “meanings” are refuted.

    1. I’m not sure I quite see the problem. Today, the “public meaning” of “misdemeanor” throughout the country generally refers to an offense with a relatively mild punishment; if the Constitution were amended today, it’s a fair bet that legislators in the 3/4 of the states that had to ratify it (as well as the requisite 2/3 of each House of Congress) would understand it that way. That a few states depart from this meaning wouldn’t really affect that consensus, it seems to me.

      But when we’re talking about what the actual law is in one of those states, we may need to look to the local legal meaning rather than to the general American public meaning.

    2. Words meanings drift with the years.

      I done a bit of re-thinking after re-reading James Franklin’s The Science of Conjecture: Evidence and Probability Before Pascal (JHU, 2001). The original uses of violent are as interesting as the original standards of proof, confession, and torture. Then, confession was a half-proof only, but could be completed by torture. Torture had a range of degrees, modern interrogation perhaps being then regarded as torture light.

      N. N.Taleb recommends ‘The Science of Conjecture’.

  12. Thank you for this interesting and useful comment, Prof. V.

  13. No reasonable prosecutor would take this case given that, among other shortcomings, Christine Blasey-Ford can’t positively identify the jurisdiction in which the alleged incident occurred. She said she left her country club?which is one mile from the District’s border with Maryland?and went a short distance to the location of the alleged assault which she doesn’t specifically remember.

    1. That’s definitely another interesting twist in this spaghetti bowl, but I’m not sure it does much by itself. Just kicking around a bit, McDonald v. State, 61 Md. App. 461, 469 (1985) found jurisdiction in what seems like a comparable situation:

      It is fundamental that jurisdiction resides solely in the courts of the state where the crime is committed. Huntington v. Attrill, 146 U.S. 657, 13 S.Ct. 224, 36 L.Ed. 1123 (1892), Urciolo v. State, 272 Md. 607, 325 A.2d 878 (1974), Bowen v. State, supra; 1 Wharton’s Criminal Law ? 14 (Torcia 14th ed. 1978); R. Leflar, American Conflicts Law ? 111 (3d ed. 1977); 21 Am.Jur.2d, Criminal Law, ? 343. It is equally well settled, however, that the situs of the commission of a crime may be established by circumstantial evidence. Breeding v. State, 220 Md. 193, 151 A.2d 743 (1959).

    2. Continued:

      In the instant case, the evidence supports an inference that Ms. Magee’s beating by the appellant took place in Montgomery County, Maryland. There was evidence adduced at trial to show that the appellant and Ms. Magee were seen leaving the Flaming Pit Restaurant in Gaithersburg, Maryland at approximately 9:30 p.m. Further, Glenna Magee testified that she observed the appellant carry Ms. Magee into their Germantown, Maryland home at 2:00 a.m. the following morning. The appellant, on the other hand, cannot point to even a scintilla of evidence which would indicate that the crime was committed outside of Maryland. Rather he speculates that the location of the Flaming Pit Restaurant is such that in the period of time during which the whereabouts of the appellant and Ms. Magee could not be shown, they could have traveled into several other states as well as the District of Columbia.

      It is incumbent upon the appellant to do more than make a bare allegation that the crime might have occurred outside of Maryland in order to sufficiently generate the issue of lack of jurisdiction. Carroll v. State, 19 Md. App. 179, 310 A.2d 161 (1973), Adair v. U.S., 391 A.2d 288 (D.C.App. 1978); State v. McDowney, 49 N.J. 471, 231 A.2d 359 (1967).

      1. In that case there was evidence a crime occurred so there was motivation to investigate.

      2. Flawed standard. The onus is on the government to prove every aspect of its case beyond a reasonable doubt, including jurisdiction. I don’t know how Maryland apparently went the opposite direction.

  14. “I’ve had little to say about the recent Judge Kavanaugh controversy, because I have no real knowledge to add on the subject.” — Eugene Volokh

    That has not stopped the rest of the planet (with no real knowledge on the subject either) from going on and on, manning barricades, raising flags, casting insults and aspersions, and mounting hills to die on.

  15. This essay and thread are why I read EV and VC. Thank you Eugene Volokh.

  16. “I’ve had little to say about the recent Judge Kavanaugh controversy, because I have no real knowledge to add on the subject.”

    Thanks for that. I’m so sick of every legal commenter finding the clicks irresistible and just shotgunning hot Kavanaugh takes and/or calls for reason and/or calls to alarm. It’s important stuff, but few are adding anything I can’t get from op-eds, of which there is no shortage. No need to waste a law degree explaining how credible or incredible you find the testimony or debunking spurious Twitterlaw arguments or whatever.

  17. There is similar public confusion with the ominous term “federal crime”. Contrary to the belief of many lay folks, and probably lots of lawyers who slept through Constitutional Law, there is nothing inherently more serious about a “federal crime” compared to “state crime” (just different sovereigns). Failing to come to a compete stop and a stop sign while on a bike, in a national park, is a federal crime.*

    * I was charged with this very federal crime in 1991. The prosecutor dropped the charge after I refused to waive my right to have the case decided by an Article III judge. Nothing personal, Magistrate Judges, but I felt that my case required the independence from public and political influences that only an Article III judge enjoys.

    1. Yeah but if you’re convicted of a federal crime you have to convince the President to pardon you or commute your sentence, for a state crime you only have to convince the governor.

      1. That seems like quite a long shot either way.

    2. Yeah but if you’re convicted of a federal crime you have to convince the President to pardon you or commute your sentence, for a state crime you only have to convince the governor.

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