Faced with one of the worst crime surges in Baltimore’s history, city lawmakers are grappling with proposals that would impose a one-year mandatory sentence for unlawfully possessing a firearm within 100 yards of certain public places, such as parks, schools and houses of worship. With more than 200 murders already this year, frustration among leaders in Baltimore is palpable, but their focus is misdirected. State law already prescribes harsher mandatory minimum penalties for most gun cases, and those have done little to end the horrific bloodshed our city has endured these past couple of years.
Public data extracted from the Maryland Judiciary Case Search, an online database of state court cases, yielded 3,733 Baltimore City Circuit Court gun-related cases filed by prosecutors between January 2015 and June 2017. In three out of four gun crimes — 2,852 of 3,733 cases — prosecutors already wielded a five-year mandatory minimum because of the defendant’s record or the nature of the charges; in other words, only a quarter of the gun cases do not already contain charges that carry a mandatory penalty. There is perhaps no better proof that mandatory penalties are not a panacea for crime than the fact that statutory minimums already exist, yet gun violence continues to soar.
The latest version of the City Council bill developed to address the carnage adds a mandatory one-year penalty for second offenses or situations in which the gun is tied to another crime. This risks diverting energy and resources from prosecuting ruthless gangs and unrepentant killers — violent repeat offenders — who require our undivided attention by shifting some of the focus to defendants with less serious conviction records, if any at all. It’s a strategy that’s also more likely to target younger, black citizens. In fact, of the 881 gun defendants in the data set whose cases do not already trigger a mandatory penalty, 96 percent are African-American; 63 percent were under 25 years old, 9 percent were minors, and none had felony convictions.
These are not the serial offenders believed to be driving the murder crisis unfolding in Baltimore today. To concentrate on them in the name of public safety threatens to consign more young black men to the revolving door of poverty and prison. At a time when Baltimore needs to heal divides and rebuild trust in its communities, proposals that echo the failed policies of the past are painful to hear. For many, mandatory minimums are synonymous with institutional and structural racism, 100-to-1 crack-cocaine sentencing disparities, racial profiling and the misguided, interminable war on drugs. Gun violence is decimating our neighborhoods, and public outrage is long past due. But reflexively recycling the regressive strategies of the 1980s will not make us safer and only risks further erosion of public trust.
It is also inaccurate to claim, as some have, that judges are mainly responsible for gun defendants prematurely returning to the streets. Take a look at the just over 2,000 gun cases resolved since 2015 in which a five-year mandatory minimum sentence applied — some for felony firearm possession, some connected to drug trafficking and some used in violent crimes from robbery to murder. Nearly 40 percent of them were dropped by prosecutors or placed on the inactive “stet” docket; of the more than 270 that went to trial, almost two-thirds of them ended in an acquittal on all counts. According to this analysis, the outcomes were nearly as disappointing for the 700-plus resolved gun cases carrying no mandatory penalty: The State’s Attorney’s Office dropped or stetted 26 percent of those cases; only nine resulted in a conviction at trial.
The fact is the Baltimore City State’s Attorney’s Office already has ample tools under Maryland law to address both first-time, as well as repeat, gun offenders, but they often don’t get to use them. Overall, since 2015, prosecutors dropped or stetted 35 percent of all gun crimes an average of six months after they decided to indict them, and lost another 65 percent of those they took to trial. The judiciary cannot be blamed for cases that are dropped or lost at trial. And criticizing judges — who, by oath and office, generally cannot respond — is a dangerous national trend we should not fuel.
There certainly are instances where a sentence dictated by the legislature matches the appropriate sentence in an individual case. But sometimes a one-year prison sentence for illegal gun possession is too high, and categorically barring a judge from giving a first-time offender a second chance is unwise. Conversely, sometimes a one-year sentence is too low: In 2012, for example, a circuit court judge in Baltimore City appropriately sentenced a defendant convicted of gun possession charges to eight years in prison (the maximum available in that case), even though he had only one prior conviction for simple drug possession and no mandatories applied. This was after the city prosecutor who handled the case filed a detailed sentencing memorandum and presented substantial evidence of the defendant’s likely participation in two prior homicides.
That is hard work, and prosecutorial resources are scarce. So mandatory penalties offer an inviting shortcut. Perhaps this is why senior officials from the Baltimore City State’s Attorney’s Office for the past two years have testified forcefully before the General Assembly in favor of statewide mandatory minimum laws. In its advocacy for a 2016 state bill that would have imposed a mandatory minimum sentence for illegal gun possession for everyone, including those with no criminal record (the same as the original City Council bill), prosecutors lamented that Baltimore faced a “new normal” of 300-plus murders a year, explained that the “profile of the offender” in Baltimore City tended to be young men between 16 and 21, and stated that with respect to handgun violations “the pendulum ha[d] swung too far” toward an “emphasis on treatment.”
These kinds of arguments have been marshaled in support of mandatory minimums before. Over the past 40 years, however, at untold costs to communities of color, we have learned that mandatory minimums are not the answer. In 2017, that is not a lesson we should have to learn again.
Thiru Vignarajah was deputy attorney general of Maryland and previously served as a federal and city prosecutor in Baltimore City. His email is firstname.lastname@example.org; Twitter: @tvignarajah.