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Can prosecutors truly be progressive? | COMMENTARY

Marilyn Mosby, Baltimore City State's Attorney, speaks to the media about hiring a public defender as part of an effort to free elderly prisoners. December 7, 2020
Marilyn Mosby, Baltimore City State's Attorney, speaks to the media about hiring a public defender as part of an effort to free elderly prisoners. December 7, 2020 (Tim Prudente/Baltimore Sun)

Over the past several years, top prosecutors across the country — from Dan Satterberg in Washington state to Marilyn Mosby in Baltimore, Maryland — have been branded “progressive prosecutors” for their liberal policies, ranging from promoting lighter sentences to furthering racial equity in the justice system. The term “progressive prosecutor” is catchy, and it sounds needed, but is it more than a buzzword?

We haven’t yet seen much to celebrate. On the scale of harms from the justice system, these prosecutors are dialing it back from 10 to 9.5.

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For instance, where is all the new police accountability in Baltimore Ms. Mosby talks about? There is much more our city state’s attorney can do to hold her partners in law enforcement accountable. Ms. Mosby’s office investigates criminal allegations against Baltimore police officers, and maintains files detailing how the police were treated by her office (particularly in comparison to the community at large) and her reasons for not prosecuting. Ms. Mosby fought relentlessly to keep these files secret, arguing in court that there was no public benefit to the community in seeing her investigation methods and requiring massive fees for anyone to get access. A judge disagreed with her public benefit assessment, but allowed the exorbitant fees to stand based on federal guidance.

Similarly, Ms. Mosby maintains a master list of several hundred officers she says she is unable to use in trials because they have documented integrity issues that will injure the integrity of a case. Don’t we all want to know who they are? She’s protecting their identities. After a recent Circuit Court judgment allowing Ms. Mosby to keep this list private, Ms. Mosby issued a news release (inexplicably not available on her website) and then made a statement to the Judicial Proceedings Committee that she wished she could be more transparent, but the court had just denied her ability to disclose her records.

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What the court actually said was that Ms. Mosby herself fought to protect many names on her “no call” list with a privilege she chose to exert (called “attorney work product”), and the judge allowed her to exert it, if she wished.

These issues are still in court on appeal, but Ms. Mosby could resolve them herself today if she would opt for police transparency.

We also question her commitment to the presumption of innocence. Our partners at Baltimore Courtwatch have observed almost a year of bail review hearings (since COVID has been rampaging inside jail walls) and our State’s Attorney’s Office has argued to hold people in jail until their trial in about 78% of the cases they observed. A prosecutor’s primary focus is in punitive justice, and it starts here. Few places are as dehumanizing and dangerous as jail. And folks that are allowed release often face insurmountable bail payments or self-pay ankle monitor supervision — at a cost of over $300 a month for indigent defendants, who are, we remind you, presumed innocent. But most folks are found guilty anyway, right? Well, no. In our District Court in 2019, according to our analysis, cases that received a decision of “held without bond” prior to trial (aka held in jail), were ultimately fully dismissed 72.6% of the time.

Well, what about Ms. Mosby’s Conviction Integrity Unit? Surely those are progressive, right? Again, no. While we urge the continuing review of cases of folks in prison, we don’t think reviewing whether someone should actually be in prison to begin with is progressive. We just think that is a prosecutor’s job. And that purpose should not overshadow the fact that the unit simultaneously focuses on putting many more people back in prison on violation of probation cases. If Ms. Mosby would really like to take progressive action and change the justice system, we are here to talk. Until then, we hold a “progressive prosecutor” to be an oxymoron. Publicity-seeking prosecutors seems more accurate.

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Iman Freeman and Matt Zernhelt are the executive director and legal director of the Baltimore Action Legal Team (BALT). They can be reached at info@baltimoreactionlegal.org.

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