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State’s Attorney Mosby defends decision to not prosecute some classes of crimes, says city preparing 911 call diversion system

Baltimore State’s Attorney Marilyn Mosby defended her decision not to prosecute certain misdemeanor crimes, including drug possession and prostitution, during a virtual hearing Wednesday, saying the city also is exploring how to automatically divert some of those 911 calls to behavioral health and support agencies.

Mosby told members of city council‘s Public Safety and Governmental Operations committee that her policies have not led to an increase in violent crime and that her office hasn’t stopped prosecuting related felonies, such as drug distribution and human trafficking.

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The city is on pace to surpass the 335 homicides recorded last year and also has registered more non-fatal shootings compared to the same time last year, Mosby noted, although violent crime overall is down from a year ago.

The state’s attorney decided last year to dismiss criminal cases for attempted drug distribution, paraphernalia possession, prostitution, trespassing, open containers and minor traffic offenses during the pandemic to reduce jail populations. In March, she said her office would institute the policy permanently.

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At Wednesday’s hearing, Mosby echoed much of what she said in March when she formally announced her office would be making the policy permanent, pointing to how the city saw an almost 20% drop in reported violent crime in 2020.

“I am not attributing the decline in crime to my policies. That has everything to do with the leadership and stability of the police department,” said Mosby, adding that the data suggest “that there is no public safety value (in prosecuting the offenses) and what we thought in theory is actually true.”

She also pointed to her desire to decrease the number of interactions Baltimore residents have with the police department, pointing to how initially minor infractions in police stops, like those involving Eric Garner and George Floyd, led to fatal results for Black people.

“My hope is that Baltimore will be a model for how police and prosecutors truly redefine the issue of public safety here in America,” she said.

While Mosby explained how her policy will help better allocate police and prosecutorial resources to focus on violent crime, some on the committee pressed her to better define her office’s position.

Councilman Eric Costello, who represents Baltimore’s District 11, asked Mosby to clarify her department’s position on drug distribution charges after Mosby said her office will continue to prosecute felony drug distribution charges, but not attempted drug distribution.

Using the example of comparing someone with three kilograms of illegal substances versus someone with three grams, Costello said he was confused as to how the office ultimately determines how to move forward with drug distribution charges.

“What I’m struggling with is where the line is drawn,” he said. “Can you help quantify that me?”

Mosby said that the quantity of drugs is not necessarily a determining factor in deciding to charge an individual and that other conditions, such as whether the person has equipment such as scales or baggies, also must be considered, citing that as the “articulated indicia of distribution standard.”

“If [police] believe it’s consistent with drug distribution, they should be able to speak to and articulate in a statement of probable cause and be able to testify as to why that amount of drugs is consistent with distribution.” she said. “Usually, if you have three kilos of anything, it’s coupled with something else, depending on the circumstances.”

But she also pushed back on the idea that, because she’s stopped prosecuting some drug offenses, her office is allowing for illegal substances to be sold in Baltimore without consequence.

“We are not allowing open air drug markets,” she said. “We are working with the police to go after drug dealers.”

She added that the office has been flexible in its new policy to meet the needs of the community, such as prosecuting some trespassing cases where an individual had trespassed multiple times on the same property.

Councilman Zeke Cohen, who represents the city’s District 1, asked what Mosby’s plan was to better connect residents to other city agencies over the lower level offenses that police are no longer charging.

Mosby said that officers still respond to those calls, but with an intent to refer the person to another agency, such as the nonprofit Baltimore Crisis Response in cases of substance abuse or alerting sex workers to organizations that can help.

In response to Cohen, she announced that the city is exploring how to create a system that would automatically divert those types of calls instead of having officers make the referrals themselves. She did not go into the specifics of how that diversion system would work.

The organization that runs Baltimore Crisis Response, Behavioral Health System Baltimore, has criticized the police department for a lack of integration of mental health professionals when officers respond to mental health calls.

While Baltimore Crisis Response has a team that can respond to behavioral health crises 24-hours a day, it operates separately from another crisis response team inside the police department that operates from 11 a.m. to 7 p.m.

Mosby said her team will be working alongside Baltimore Crisis Response and other support agencies to host a number of virtual meetings to explain her policies and how they will translate in practice when people call 911 for the minor offenses.

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