Two judges have blocked an opportunity to correct a racial disparity that has disproportionately burdened African Americans with criminal records by denying Baltimore State’s Attorney Marilyn Mosby’s request to throw out nearly 5,000 marijuana possession cases.
The decisions were a blow to Ms. Mosby’s strategy, which has only been tried by a handful of other prosecutors around the country. Ms. Mosby hasn’t said yet what her next step will be. We hope the decisions by Circuit Judge W. Michel Pierson and District Judge Kathleen Sweeney won’t completely thwart efforts by her and advocacy groups, such as the American Civil Liberties Union and the Maryland Office of the Public Defender, to continue seeking a reprieve for those residents who can’t find jobs and face other societal hurdles because of minor marijuana charges.
Something needs to be done to correct past prosecutions that have disrupted the lives of mostly African Americans but have done nothing to stop crime and violence. The injustice is particularly acute as others are now profiting off the medical marijuana business in Maryland and in other states that have legalized the drug for recreational use. Maryland decriminalized possession of up to 10 grams of marijuana in 2014. Why must thousands suffer the consequences of convictions for something we no longer consider a crime?.
The state’s attorney office could appeal both decisions or file a motion for reconsideration. But the burden of proof may be too difficult in the court system. Instead, lawmakers in Annapolis should seriously take up the issue.
Most of the response by both judges amounted to a scolding of the states attorney’s office for offering no detail about the cases other than, as described by Ms. Sweeney, “an 83-page list of names.” There was nothing to show proof of “collateral consequences” for the 3,778 people with convictions in district court and 1,000 with convictions in circuit court, the judges said. Mr. Pierson concluded the collateral damages argued by the states attorney’s office were too “theoretical and broad.” The office was also dinged for providing no basic details such as the date of the trial and the sentence that was imposed, and the judges said the request was a conflict because Ms. Mosby is bound by oath to defend the state and defense attorneys typically bring these kinds of cases.
We fail to see what’s wrong with a state’s attorney pursuing justice. Nationwide, African-Americans are four times more likely than whites to be arrested for possessing marijuana despite using at the same rate as whites. Ms. Mosby has said in Baltimore they are six more times likely to be incarcerated.
Ms. Mosby’s office could provide the data about each individual case, though it would be a cumbersome process and there would be no guarantee it would be enough proof for the judges. But there are other avenues Ms. Mosby and her allies could pursue.
The Maryland General Assembly, as the judges point out in their opinions, partly addressed this issue in 2017 by amending criminal procedure to allow those with possession convictions to expunge their records after four years. In 2015, it allowed for expungement for acts no longer considered a crime (referring to the decriminalization of less than 10 grams). Expungements have jumped from 7,700 annually in Baltimore to more than 19,000 annually, Ms. Sweeney wrote. While we appreciate this legislation and the difference it made in some people’s lives, we don’t think it goes far enough.
An attempt to drive the issue further was stymied in the most recent General Assembly session, in part because not all state prosecutors were on board. A bill driven by the Gun Trace Task Force corruption scandal in Baltimore would have allowed prosecutors to vacate certain convictions, but a provision related to marijuana was taken out. Baltimore Chief Deputy State’s Attorney Michael Schatzow said prosecutors think they could still vacate marijuana cases under the legislation, but it is unclear if Gov. Larry Hogan is going to sign the bill.
Mr. Hogan should sign it, and state lawmakers should introduce and pass something stronger next legislative session that addresses marijuana convictions specifically. They could also pass legislation for automatic expungement of cases to take out the burdensome process. Expungement is not a real solution because people must file a petition and pay a $30 fee. Many people don’t know they are eligible to have their cases erased or where to get the documents support an expungement. Expungement cases also aren’t completely vacated. Maryland courts destroy the records, but federal jurisdictions and out-of-state courts could still have access to the information.
Judge Sweeney also throws a shot at Ms. Mosby for once asking police to enhance enforcement in West Baltimore because of complaints about drug dealing in the area. “Now, this same State’s Attorney claims that drug enforcement in Baltimore City, presumably her own efforts, have had a disparate impact on African-Americans,” Judge Sweeney wrote.We point out that Ms. Mosby’s blanket order involves possession and not distribution. She has said nothing about letting dealers off the hook.
Ms. Mosby was among a growing number of city prosecutors — including those in Philadelphia, Manhattan and Portsmouth and Norfolk,Va. — who took the bold move to erase such convictions as the country moves toward a new consensus on marijuana. Thus far, most have received little push back from judges. An exception is Norfolk, where at least four judges have denied requests by Commonwealth's Attorney Greg Underwood to dismiss marijuana possession charges that are appealed to Circuit Court, according to the Virginian-Pilot newspaper. (Mr. Underwood’s office doesn't handle misdemeanor marijuana cases in the lower courts.) He told the newspaper he will now ask the state Supreme Court to force local judges to decriminalize the drug in Norfolk.
It is disappointing that the courts created an obstacle for giving people a reprieve for marijuana convictions, but there is still a way.