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Criminal justice reform has made Marilyn Mosby a lightning rod in Baltimore, but the prosecutor’s progressive policies are based on research | COMMENTARY

June 7, 2021 -- Baltimore State's Attorney Marilyn Mosby, along with Mayor Brandon Scott, left, announce that hate crime charges have been brought against a Baltimore man accused of attacking Asian-American businesses earlier this year.
June 7, 2021 -- Baltimore State's Attorney Marilyn Mosby, along with Mayor Brandon Scott, left, announce that hate crime charges have been brought against a Baltimore man accused of attacking Asian-American businesses earlier this year. (Kevin Richardson/Baltimore Sun)

If a tree falls in West Baltimore, how long will it take to blame Marilyn Mosby? To watch much of the news in Baltimore City, someone might come to the conclusion that the driver of crime in our city is not income inequality, easy access to guns or lack of employment opportunities — it is Marilyn Mosby. Yet the reason Ms. Mosby has become such a lightning rod is that she is trying to accomplish something difficult that many voters have asked for: criminal justice reform. Sun columnist Dan Rodricks recently wrote that Baltimore City, under Ms. Mosby, is “doing what we long believed was needed” by reforming a broken justice system, but he notes that patience for success is in short supply in our hometown.

It is important to understand that Baltimore’s approach to focus resources on violent crime is not a unique strategy. Many jurisdictions, including Philadelphia, Boston, San Francisco, Los Angeles, Seattle and others, have severely curbed — or completely stopped — prosecuting offenses like drug possession and sex work. Just this month, Manhattan, one of the largest prosecuting offices in the country, elected a prosecutor who pledged not to prosecute drug possession or sex work. Recently, Oregon became the first state to decriminalize drug possession.

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The state’s attorney’s new directives are also guided by research. Ms. Mosby’s office provided data to researchers at Johns Hopkins University and asked them to analyze the implications of not prosecuting low-level offenses after 12 months. Hopkins researchers concluded that there was no link between low-level offenses and serious crime. That is to say: Just because a person urinates in the street does not mean he will pull a trigger. In a city with finite resources, the focus must be on reducing violence.

The other motivation was the huge backlog of court cases that the city faces as we emerge from the pandemic. Courts have been almost completely closed since March 2020, so prosecutors have to deal with thousands of pending cases. Against that backdrop, a decision to focus on cases causing the most harm in our communities was an eminently sensible one. Those pushing to keep things as they are should ask themselves: Would you rather the city prosecute someone who brazenly shoots six people in the middle of the day or someone caught drinking alcohol in public?

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Leaders should be guided by science and data. We cannot allow anecdotes to drive us. The recent Fells Point furor is a case in point. In a letter to city leaders, 30 business owners threatened to withhold taxes until Ms. Mosby reversed her new approach to focus on violent crime (among other issues). They claim that “a culture of lawlessness rarely remains confined to petty offenses and invariably leads to the kinds of violence and tragedy.” This non-factual assertion and misinformed perception is widely contradicted not only by the Hopkins research, but also by findings in Boston, where researchers discovered that not prosecuting low-level crime led to reductions in serious crime. Another study just published has shown that reductions in low-level arrests do not come at the cost of rising crime rates. In fact, research proves crime goes down when the coordinated focus is on violent criminals.

The request to return to arresting and prosecuting offenses such as “prostitution, public urination, and defecation” is also dangerous for public health. As The Sun reported on May 10, “The Baltimore City Booking and Intake Center has the most active [coronavirus] cases in the state, according to the state Department of Public Safety and Correctional Services.” In the context of a pandemic that is still claiming lives, arresting and prosecuting these minor offenses would be reckless.

Recently, we witnessed the sentencing of Derek Chauvin for the killing of George Floyd. Mr. Floyd was killed while he was detained by police for allegedly passing a counterfeit $20 note. In April of this year, Mario Gonzalez Arenales was killed by police after he was stopped for loitering and public intoxication. Eric Garner was killed over a loose cigarette. The lamentable list goes on. The city should be credited for re-imagining the justice system to avoid these instances where people in vulnerable situations, particularly people of color, are killed during arrests for minor offenses.

Many of the complaints about these policies relate not to the State’s Attorney’s Office but to the police response. A recent op-ed on these pages claimed that police are not making arrests and blamed the state’s attorney. But the office does still prosecute drug dealers, and during the pandemic, the office charged more than 1,000 felony drug distribution cases.

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The reality is that prosecutors do not control the police. Recall that although some may now claim that police can’t make arrests because of these new policies, the police actually pledged to keep making arrests when the decision was made by Ms. Mosby to stop prosecuting marijuana offenses in January 2019. The truth is that Police Commissioner Michael Harrison has a challenging job where he is reforming an often reticent police force. Officers have used many reasons to not perform their jobs in recent years, including the Freddie Gray prosecution, the consent decree and now this. Blaming new policies is just another smoke screen.

To be clear, the city is under a consent decree because of unconstitutional policing that dominated the 1990s and 2000s. As part of the consent decree, police are instructed to use arrest as a last resort for lesser offenses, and use alternatives to arrest, including citation. Open container and urinating/defecating are on the list, as well as other minor offenses. This is a policy approved by a federal judge so that Baltimore police abide by the constitution.

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Baltimore City needs to tackle violent crime, but it also needs to change the policies that have thus far failed to address violence. We have tried zero-tolerance policing where we arrested thousands of people — mostly Black people — unconstitutionally and led the nation on incarcerating people of color. We also had a period of zero policing, when police pulled back completely. The city is now embarking on a different path, with Mayor Brandon Scott, Commissioner Harrison and State’s Attorney Mosby working together and showing philosophical synergy on these issues. A wise man once said, “the arc of the moral universe is long but it bends toward justice.” Ms. Mosby has received misguided criticism, but she must stick with the research and not be deterred from pursuing the change that the city sorely needs.

Major Neill Franklin (neill@lawenforcementaction.org) is a retired, 34-year veteran of the Maryland State Police and the Baltimore Police Department and former executive director of the Law Enforcement Action Partnership, a group of police, judges and other law enforcement professionals who support smart-on-crime policies. This op-ed was provided to The Sun by the Baltimore State’s Attorney’s Office.

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