Justice reform should include bail system and drug prosecution

Op-ed: Maryland should overhaul bail system and drug prosecution as part of justice reform.

When Baltimore State's Attorney Marilyn Mosby announced her decision to drop the remaining cases against the police officers charged in the death of Freddie Gray, she spoke of fighting for reform and equality in our justice system. As a city public defender, I'd like to offer a few suggestions.

Continuing to pursue police misconduct is a given, particularly now that a Justice Department inquiry has found that the Baltimore Police Department "engages in a pattern or practice of conduct that violates the United States Constitution and laws" and in "conduct that raises serious concerns." But there are two other examples of injustice occurring in courts on a regular basis: the inequities of the cash bail system and the continuation of the war on drugs. State prosecutors could play a major role in offering ultimate solutions to these issues by advocating for legislative changes, but even without new laws in place, they can also make a positive impact through the way they carry out their day-to-day duties.

At this point, arguing that inequities do not plague the cash bail system is akin to denying climate change. Simply put, the bail amounts set by judges, based upon recommendations made by the state's attorney's office, trap people who cannot afford to pay behind bars as they await trial. The Abell Foundation, a Maryland legislative task force, a Maryland governor's office commission, the Department of Justice and the White House Council of Economic Advisers (among numerous other organizations) all agree that cash bail must go and essentially be replaced with a risk assessment analysis method of "in or out" before trial. Yet it persists, disproportionately harming the poor and, in Baltimore, African Americans.

Recently, I represented three people charged with felonies during their initial bail review hearings; all of them were ordered held on bail before trial and posted bond (many of my clients don't). One of them later had his case reduced to a misdemeanor, and two others had their charges dropped, yet they are all still on the hook for those felony bail amounts. Even the police officers whose cases were just dismissed are now swimming in bail debt, so imagine what happens to indigent people who cobble together funds and sign off on predatory payment plans to bondsmen just to get home.

The state should screen cases more carefully to come up with bail recommendations that don't prey on the poor. Too many cases are overcharged, which scares judges into setting high bails. Plus, the idea of setting a bail presumes that a defendant will be released. Therefore, the state ought to consult with the defense as to what a defendant can afford; judges never ask. Instead, in court, the state often blows police reports out of proportion and requests exorbitant bails from judges while nothing improves.

Moreover, we should have declared an armistice in the drug war years ago. Whether it is undercover officers tricking small-time dealers into petty street sales or detectives spending countless hours observing activity to net larger arrests, we exhaust tremendous resources giving people non-violent criminal records without a light visible at the end of the tunnel. And those records last.

The default rule is that any type of conviction remains on one's record forever. Short of a few "nuisance crimes" and now, possession of marijuana, nothing else can be removed without a long shot remedy like a pardon. Worse, a felony conviction can permanently ruin one's prospects for employment and affect housing and loan eligibility. Possessing a large amount of marijuana still qualifies for felony prosecution, as do many cases involving small amounts of drugs. Surprisingly, even those who participate in drug treatment court at the circuit court level must plead guilty to felonies. And contrary to many prosecutors' beliefs, the fear of a felony charge does not deter future actions; just ask my clients.

The state has made efforts to divert first-time drug offenders over the past two years, but that's not enough. Decriminalization is ideal, but until that's achieved, the state should stop prosecuting drug cases as felonies or settle them for lesser charges — something that's within their control. Defendants should be set up to succeed, without a felony stain on their record.

We desperately need to improve the justice system as a whole. But effective prosecution doesn't just mean sending bad guys to jail. The state also needs to join us at the table to make reform efforts realistic in areas like bail and drug cases. Now is the time.

Todd Oppenheim is an assistant public defender in the Baltimore City Felony Trial unit. His email is toppenheim@opd.state.md.us; Twitter: @Opp4Justice.

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