In Baltimore you can already get five years for carrying a gun but Mayor Catherine Pugh wants a mandatory minimum—a citywide mandatory one-year jail sentence for anyone caught carrying a gun illegally within 100 yards of a school or another "place of public assembly," even if it's their first charge.
City Councilman Brandon Scott (2nd District), who chairs the Public Safety Committee, has made up his mind already.
"I'm against it," he tells a reporter just before the July 17 council meeting. "Mandatory minimums won't change the fact that gun arrests are down 14 percent this year."
The bill is about to be introduced at this council meeting, but it's been under debate for several days already. The Open Society Foundation, Leaders Of A Beautiful Struggle, and many others are with Scott on this, though not everyone on the council is decided either way.
Mandatory minimums are bad policy. Research on previous iterations of the policy show it's not a deterrent, and it contributes to over-incarceration. Judges don't like it either, as it overrides their discretion. The question for Baltimore's policymakers is, given Baltimore's extraordinary violence, could mandatory one-year minimum sentence for carrying a gun improve public safety despite being bad policy in general?
Duane "Shorty" Davis, the Baltimore activist, sits in the council chambers. He queries Councilman Leon Pinkett (7th District): "You a yes or a no?"
"I haven't seen the bill," Pinkett responds.
Later, during the meeting, City Council President Bernard C. "Jack" Young formally introduces it.
"This is about 185 murders in Baltimore," he begins, before someone corrects him: 187 as of now. "This is about carrying illegal guns in the city," Young continues. "The law already says you can't carry—"
Afterward Councilman Bill Henry (4th District) says he's undecided: "We have an increase in the number of what we call, for lack of a better term, 'good kids' who carry weapons so the bad guys don't pick on them."
Trauma. A city so dominated by its violent subculture that it becomes the common culture. Adapt or die. Rather do a year in jail than eternity in the cemetery.
"I'm waiting to hear a more detailed response from the State's Attorney on how she would use this additional tool," Henry says. He hastens to add: State's Attorney Marilyn Mosby would still have discretion to drop the gun charge in cases where she doesn't think a mandatory year in jail serves justice. This happens sometimes: an armed robbery conviction in which the gun charge is dropped. Juries do it too, as with the case of Keith Davis Jr., a man police shot in the spring of 2015 after chasing him into a garage following, police say, a cab robbery. A jury acquitted Davis of robbing a hack cabbie but convicted him of having the gun he allegedly robbed him with.
Justice has its own logic—or illogic.
"She could make the policy decision to say never drop [the gun charge] in the case of repeat violent offenders," Henry says. "If the State's Attorney would be up front we could put aside the philosophical discussion."
"The use of illegal handguns is the primary contributor to the countless lives lost senselessly on our streets," Mosby says in a July 14 press release—her only public statement on the matter despite many requests for clarification. "I am committed to holding criminals who wreak havoc in our city accountable for their actions and support all efforts intended to strengthen gun control."
The Baltimore Police Department and its union are far apart on many issues, but on this they are united: cops catch bad guys with guns, then prosecutors and judges set them free, or let them off easy.
"This is an important moment for the leaders of our City to act," Police Commissioner Kevin Davis says. "It's not a time for philosophical, hypothetical 'What If's.' I can only imagine how comfortable it must be to be a bystander, but tough moments call for decisive leadership. This is about those convicted of illegally possessing a handgun."
The department's spokespeople have been talking-up this point for months, claiming that 60 percent of those convicted of carrying an illegal gun in Baltimore see at least half of their sentence suspended.
After months of requests from City Paper and others, two weeks ago the department released its spreadsheet: 605 cases in which people have been arrested carrying a gun illegally between January 1, 2016 and July 9, 2017, and adjudicated guilty.
Among the 605 cases, 105 were people who had been arrested at least twice on gun charges in just those 18 months. Seven of them were arrested three times, police say. About a sixth served no jail time at all, save for maybe a night awaiting bail, the spreadsheet indicates.
But the spreadsheet shows other things as well: subtract all the suspended time from the base sentences, and divide that number by the number of cases, you find an average sentence of 2.54 years.
This is the average for guilty dispositions, of course. The data does not include all gun arrests, so it is unclear what percentage of people arrested for shootings actually face charges, and what percentage of them beat the charges. The rate of clearance (i.e. arrests) for non-fatal shootings in Baltimore is currently 39 percent, according to police. That's up from 30 percent last year.
Taken together, then, this data suggests that the average Baltimore shooter is very unlikely to face any consequence whatsoever. And so it's not really surprising that merely being caught with an operable firearm does not result in much consequence.
Police and mandatory-minimum proponents emphasize the violent repeat offenders—men who shoot and kill with impunity. They leave the impression that most gun cases involve these men, but that's not so.
Opponents of mandatory minimums emphasize the cases where good people are captured while more or less innocently carrying a gun for their own protection.
"The bottom line is, if I tomorrow decide to take my legally-owned gun downtown in my glove compartment, under this new law I'm getting jail time," says H. Robert Scherr, a former Baltimore City prosecutor who tried, and failed, to obtain a concealed carry permit more than a decade ago.
Maryland requires those applying for a gun carry permit to provide a "good and substantial reason" for needing a gun. If you're not an ex-cop, bar owner or political-string-puller, good luck. So that means, technically, just about anyone packing iron in Baltimore is doing so illegally.
But the cases you see in court aren't usually illegally-armed lawyers, either.
Instead, what often happens is this: cops pull over a car full of young men and find a gun. Among those in the car is at least one guy with several prior felonies. One guy will have no priors, or be a minor—that's who often takes the charge for his friend.
Consider this case, adjudicated in January as a reporter watched: Cops pulled over a couple on East Pratt Street with a broken license plate light in May of 2016. The driver, a 36-year-old man with four prior arrests for charges including drug dealing, deadly weapon and attempted murder—all of which were dropped—had a suspended driver's license. While police checked him out they saw the passenger, a 30-year-old woman with no prior criminal history, stuffing a 9mm semi-auto between the seat and the console.
Both were charged with illegal possession of a firearm. The charge carries a five-year maximum sentence.
In court, seven months later, prosecutors offered a deal: They would drop the man's case, making his eligible for expungement. The woman would plead guilty and receive 18 months probation before judgment, and register with the city's gun offender registry.
She took the deal.
City Paper asked Mosby's office how a mandatory minimum law might have changed the outcome in this case and others like it. The spokeswoman, Melba Saunders, referred to the statement the office released on July 14, quoted earlier.
Attorney Jerome Bivens represented the woman. In a court filing he asked the judge to consider an expungement after the sentence tolls, writing that she "is extremely remorseful and regrets her actions" and "is committed to self-improvement." He declined to talk about the case but said generally he opposes a mandatory minimum on constitutional grounds.
"Initially I thought, let's see what we can do to help the violence," Bivens says, speaking from his car on Harford Road. "Now think it's kind of like the travel ban…but like a local version. Right now I'm just leaving the county. If I got caught with a gun here it's a 30-day sentence. You're telling me if I get caught in the city it's a year? The whole idea is blatantly bizarre… I think they're just trying to make some political hay."
Bivens likens the proposal to "Jim Crow," and says that in his experience, a mandatory minimum would just put more pressure on defendants, and the police, who don't always handle the existing pressure very well.
"I've seen so many cases where they don't handle the gun correctly," Bivens says. "And they don't submit it for evidence correctly. For gunshot residue. For fingerprints, for god sake."
He says juries know all this, and with last week's body cam video revelations about potential evidence tampering in a drug case (to say nothing of the seven city Gun Task Force cops in federal jail on racketeering charges), "I don't think jurors are gonna believe anything these cops say now."
The woman's case is not in the police spreadsheet, perhaps because a probation before judgment does not meet the BPD's criteria for a guilty disposition. The department did not respond to City Paper's request for clarification.
Councilman Scott says he doesn't think cases like it augur for a mandatory sentence. "I hear you," he says, "but I just don't see it."
Scherr, the county lawyer and former prosecutor, says the case makes no legal sense. "If it's in plain view then they're both carrying it," he says. The law allows the judge to impose a sentence on anyone in the vehicle, but they often do not. "The problem in Baltimore is they can prove who did it, the guy's convicted, he gets probation."
That does happen, along with short "time served" sentences and so-called "package deals" where several criminal cases are disposed by one plea bargain. The people it happens to often lead complicated, violent lives.
Also consider Taiquan Moss. His case on the gun spreadsheet says he was sentenced to 13 days for being a minor in possession of a loaded gun—20 years old; the legal age for carrying a gun in Maryland is 21. It was his second criminal conviction as an adult. But it was not his first gun charge: he'd been acquitted of a gun charge less than 60 days before the second gun arrest.
That earlier gun case—indeed, the whole body of criminal cases involving Moss—is instructive. A father at age 20, working at Five Guys at $8.75 an hour, Moss's court record suggests he was also pitching heroin. Arrested twice with guns, once for assault, and shot once on his drug corner, the official picture depicts Moss as the kind of person Commissioner Davis cites all the time: a young Black man, both a victim and a perpetrator of violence. "It's a vulnerable group, and I've said this a number of times," he said in November of 2015, just about the time police arrested Moss with a gun.
A squad of police officers working as part of Operation Ceasefire spotted a Toyota with no front license plate. The plate was displayed in the rear window only. It was November 7, 2015, about 10:20 p.m. The cops were on a "weekend crime suppression detail …due to all of the recent shootings and homicides in the area," as the arresting officer reported. There were eight police in two unmarked patrol cars, cruising up Fulton Avenue on the 1600 block.
That's just about ground zero for violence in Baltimore, with 21 murders within a few block radius since 2006, the last one being Charles Frazier, 44, gunned-down on May 3 on the 1600 block of Fulton. There were about as many non-fatal shootings reported along that stretch of road.
The cops pulled over the car, and as they did so they saw the front seat passenger, Kenneth Ballard, "making sudden and jerky movements, dipping his shoulders up and down in the passenger seat," according to their report. The car was not stopping, so finally one of the cop cars pulled in front of it and cut it off.
By this time they had their eyes on Ballard, who they say they saw open the glove box, close it and then dip his body below the passenger seat. "Because of these suspicious and potentially dangerous movements the detectives screamed 'police don't move, hands, hands! Put your hands on your head!' to the driver and passenger for officer safety," the police report says.
There was further drama as Ballard leaned on his door as if "getting ready to open the door and flee," but the men stayed put. Then a detective shined his flashlight in the car, bent down and looked under the passenger seat. There was an Iver Johnson .32 hammerless revolver with five shots loaded.
Arrest, booking. Neither man told the cops anything substantive. Moss was under 21 and so ineligible to have a gun, plus "adjudicated delinquent in juvenile court." Ballard had two prior felony convictions, for dealing drugs and stealing a car, so he was also a "prohibited person."
A grand jury indicted. Both faced five years for having the gun, three years for having the gun in the car, and three years for having the gun on their person. Moss, who by this time already had prior arrests for drug dealing and assault, was held without bail.
Attorney Roland Brooks took up Moss's defense. He told the court that the stop was no good because the license plate screw holes were stripped. That's why the plate was in the window. Also, Moss had just picked up Ballard, he said, working as a hack cabbie. The two had never met and Moss had no idea his passenger was armed. He still didn't get bail.
Then on January 29, 2016, Brooks claimed the "search" for the gun was illegal. Neither man in the car had given consent, and the police had no search warrant.
On March 3, 2016, Circuit Court Judge Louis Becker granted an acquittal to both defendants. Two months later, on May 30, Moss was caught with a gun again.
In his statement of probable cause, Officer Andrew McCarty says he was in a "covert location" watching the 500 block of 43rd Street, with a video camera, a little after 7 p.m.. "I was in the block due to an incident where five individuals were shot earlier in the day," McCarty writes.
Among the victims that day: a 25-year-old man, a 30-year-old man, a 60-year-old woman, a 59-year-old man—and 20-year-old Taiquan Moss.
McCarty had video-taped and then arrested Moss on that same block just seven months earlier, on September 15, 2015, for dealing heroin out of his butt-crack ("Mr. Moss was very angry and disorderly and was making it difficult for officers to check the rear buttocks area where he was sticking his hand earlier," McCarty wrote). Moss got five years probation before judgment in that case.
Now, on May 30, 2016, Moss returned to the 500 block of 43rd Street, where he had been shot just four hours earlier, and as McCarty watched and taped, he started screaming at the people on the front porches.
"I noticed that he kept his vehicle running," McCarty wrote. "An argument then began between people on the porches and Mr. Moss. Some individuals began pushing Mr. Moss while yelling at him. I then observed a black handle to a hand gun sticking out of the right side of Mr. Moss's waistband. He began pulling on it with his right hand as if to draw the weapon. All of the individuals then backed far away from Mr. Moss as people began to yell and scream. I was then able to video record Mr. Moss as he continued to put his hand on the handle of the gun until he finally covered it with his shirt. The altercation then spilled over to the other side of the street where I was covert. Mr. Moss had the handle of the gun showing again, as he kept placing his hand on and off of it. Due to the exigent circumstances of the fight, I was unable to wait for my arrest team. I quickly exited my covert location and came from behind Mr. Moss."
Moss surrendered, according to McCarty's account: "You got me, you got me," he said.
The gun, a loaded .38, had been reported stolen. Moss was taken to Union Memorial to see about his wounds from the earlier shooting before he was booked. He was held without bail.
On November 22, 2016, Moss pled guilty to having the gun on his person. According to the online court record, the sentence was 13 days time served, but that is incorrect: he served 177 days.
The error does not really change the police department's conclusions: many convicted of gun crimes receive very short sentences. But it is unclear how many such errors are buried in the police spreadsheet. It is also unclear how many people, like Moss, got apparent "deals" on their gun charges, only to be slapped with a probation violation and made to serve long prison terms that would otherwise have been suspended.
Moss was arrested again in December and charged with dealing drugs (the case was dropped), in January for stealing a car (he was found guilty of theft, four years, all suspended). Also in January of this year a warrant was issued for violation of probation in his 2015 drug case, which carries a five-year sentence. He was charged again in July for having drugs in a place of confinement, and that case is pending. The available record is unclear exactly why he is held in the Baltimore City Detention Center now. His former lawyer, Roland Brooks, says he no longer represents him.
"If the judges are doing their jobs, and that's a big if, if the judges are doing their jobs, they have discretion to give the time," says Scherr. Politicians are talking about mandatory sentences "because they don't trust the judges to give the time they're supposed to give."