Straight out of the typical lock ‘em up playbook, Baltimore officials have unveiled a proposed illegal handgun possession law with a mandatory minimum sentence attached to it. As a resident (who's had a gun pulled on him) and a career public defender in the city, I appreciate their willingness to “think outside of the box,” but I urge the City Council to shelve this idea, which is a shortsighted attempt to curb violence through incarceration.
City Council President Jack Young and Police Commissioner Kevin Davis, among other city leaders, want a mandatory minimum jail term of one year for those folks found in Baltimore with an illegal firearm within 100 yards of a park, school, church, public building or place of public assembly. Mr. Davis and others had lobbied for a similar law at the state level, which already allows for a sentence of up to three years upon conviction (or more in certain circumstances). But the mandatory minimum measure failed in the legislature. The Baltimore provision appears to be an end run around state lawmakers.
Mr. Davis has openly criticized the court system and judges for going soft on gun offenders and handing out too many probations. The implication of this new law is that it will somehow reduce violence. But it’s more likely to damage our communities.
The problem is that gun cases often don’t have a “smoking gun” scenario. There is often one gun that leads to the arrest of many people because of confusion over possession. And these cases never involve the use of the gun; there are more severe laws covering that. At the simple possession level, you’re dealing with misdemeanors.
In these kinds of cases, in my experience, most defendants are young and/or first-time offenders — not the infamous “repeat violent offenders” we hear so much about. Combine weak fact patterns, questionable seizures by police officers, and defendants worthy of having their mitigating back stories considered and you need judges to be able to craft individual sentences. A mandatory minimum sentence leaves a judge no ability to reduce the term after a conviction from a plea or a trial.
I'm usually the first one to criticize the bench, but here we need to let them judge. I ran for a judgeship, and all I heard about was the bench's rigorous “vetting” process. So why aren't they capable now? If defense attorneys can't negotiate with prosecutors or judges, our default position is to demand a trial, particularly in felony gun cases with mandatory sentencing similar to that proposed here.
I've had juries return verdicts in under and hour on felony gun cases where mandatory sentencing prevented pretrial talks and forced a prosecutor's hand into court, despite a weak case. If we go down this road, the clogged dockets won’t improve. Even worse, with a year minimum, you could potentially have someone serve close to the entire jail term while awaiting trial if they can't make bail.
Advocacy groups like the ACLU, The Sentencing Project and Families Against Mandatory Minimums agree that minimum sentences don't promote public safety. If you actually catch a dangerous person, you take them off the street for a minute, but they'll be back -- and someone else fills their shoes in their absence. The violence remains in the streets unaddressed, and someone goes to jail where rehabilitation is unlikely. The general consensus, pointed out in a 2014 Heritage Foundation report, is that the fear of an effective justice system from arrest to trial operates as more of a deterrent than increased sentencing. True criminals have no fear of being caught, so they're not considering the final consequences. Thus, to think that they will somehow decide not to pick up a gun because of a new law is a stretch. Mandatory sentencing laws are easy, quick sells to the public, but, in the end, they don't work.
Perhaps the biggest problem with mandatory sentencing is the disproportionate way in which it has been — and will be — carried out on minority and poor populations, my clients. Baltimore is policed more heavily than any other jurisdiction in Maryland. We lead the state in arrests. According to the Department of Justice's 2016 report on the police department, blacks are three times more likely to be stopped by the police here, and 26 out of every 27 citizen stops yield no contraband after a search. In 2013 and 2104, 81 percent of Maryland inmates serving mandatory sentences for drug crimes were African-American. We are trending the same way with handgun offenses, the next horizon of mass incarceration.
This gun law offers the same false rationale of crime prevention used to justify mandatory minimums for drug crimes. We already have laws in place to deal with the truly bad guys, but often aren't effectively prosecuting them. Additionally, we have black-led city organizations on the streets dealing with violence issues that are proven effective, yet still under-resourced. Our focus should be on helping them, rather than implementing a quick fix that’s really anything but.
Todd Oppenheim is an attorney in the Baltimore City public defender's office. His email is email@example.com; Twitter: @Opp4Justice.