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Federal judge questions whether Mosby’s policy of not prosecuting some crimes interferes with goals of Baltimore’s consent decree

The judge overseeing the Baltimore Police’s federal consent decree raised concerns Thursday that State’s Attorney Marilyn Mosby’s decision not to prosecute certain lower-level crimes could interfere with some of the agreement’s goals.

U.S. District Court Judge James K. Bredar called into question Mosby’s policy of not prosecuting some crimes, such as drug possession and prostitution charges.

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“It seems to me that so much of what we’re trying to accomplish ... still depends on police officers being able to invoke the ultimate authority” of arrest, Bredar said. “We have to be realistic about the environment in which we’re working.”

Zy Richardson, a spokeswoman for the State’s Attorney’s Office, wrote in a statement Friday that the office’s policy allows for police to focus its resources on violent crime at a time when the department has faced staffing shortages.

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“As the judge overseeing the [consent] decree, he fully understands the pervasive stain that the unconstitutional failed zero-tolerance policing has had on Black communities where these minor offenses are discriminately enforced,” Richardson said.

The city entered into the decree with the U.S. Justice Department in 2017 after investigators found Baltimore police officers routinely violated residents’ constitutional rights during stops.

Mosby instituted the policy last year as she and other prosecutors searched for ways to stem the spread of the coronavirus by reducing the number of people in Maryland’s prisons and jails. She made the policy permanent earlier this year, pointing to the fact that the city saw an almost 20% drop in reported violent crime last year, although police have said at least some of the drop is connected to fewer people being on city’s streets during the pandemic.

The city’s homicide problems continued unabated last year, with 335 people being killed, the sixth straight year topping the 300 mark.

The state’s attorney has defended her policy, saying that “there is no public safety value” in prosecuting those offenses. She argues the city should focus on connecting people, especially those with drug dependency issues, with appropriate social services programs.

Bredar said he was not convinced that Mosby’s policy would lead to the desired outcome, positing that it could stop officers from responding to someone using drugs in public who refuses help and doesn’t respond to verbal commands.

The judge said that some low-level offenders could respond better to offers of social services if they knew incarceration was the alternative.

“In some instances, the public is better served when a minor offender is referred to a social services agency that is equipped to address root causes of his or her chronic infractions,” Bredar said. “That said, the success of less confrontational strategies will in some cases depend on an offender’s clear understanding that if he or she doesn’t yield to the officer’s less direct approach and stop the misbehavior, more serious consequences may well ensue.”

“The more enlightened and less confrontational strategy likely won’t succeed if there isn’t some perception that more traditional law enforcement action remains a possibility,” he continued.

Police Commissioner Michael Harrison said department officials meet weekly with the State’s Attorney’s Office to review cases that have been dismissed. He said the department has concerns over the impact of continuing to enforce those laws in a way that could lead to a “use of force over a very minor infraction.”

Deputy Commissioner Michael Sullivan said police continue to be trained on how to come into line with the new policy.

“We don’t want our folks out there making arrests that are not going to be prosecuted,” Sullivan said. “It has been a challenge. It’s a culture change for this agency.”

Bredar consistently pushed back, saying the policy could lead to officers ignoring someone who urinates in public or uses drugs.

“It just seems to me that the officer is put into a very difficult situation in that circumstance,” he said. “I don’t think this city has really reckoned with it yet.”

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