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Op-ed

Advice for Baltimore’s incoming state’s attorney (and others) on how to handle low-level crime | GUEST COMMENTARY

Defense attorney Ivan Bates will be sworn in as Baltimore’s next top prosecutor in January. (Kevin Richardson / Baltimore Sun)

Anyone who lives or works in Baltimore is familiar with the “squeegee kids” who offer to clean car windshields for money at busy intersections. Some people, understandably, find the workers irritating, and their business model, which involves weaving through traffic, dangerous. And rare but well-publicized instances of squeegee workers becoming aggressive have led to a new effort to ban the practice in certain parts of the city.

Some have called for an enforcement against the squeegee workers of a Baltimore City ordinance that makes “aggressive solicitation” a misdemeanor punishable by up to 90 days in jail. Those charged with this minor crime have no right to a jury trial in Maryland, because the maximum statutory punishment is too low. This is also true for other low-level crimes, such as trespassing, malicious destruction of property, theft under $100 and driving without a license.

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Prosecutorial philosophies differ on how to handle such low-level crimes. Proponents of “broken windows policing” argue that enforcement of low-level crime laws is necessary to maintain order in communities. On the other end of the spectrum, some “progressive prosecutors” decline to charge individuals with certain low-level offenses, arguing that such prosecutions saddle nonviolent offenders with damaging convictions, swell incarceration rates and do nothing to address the underlying causes of crime. Others, like incoming Baltimore City State’s Attorney Ivan Bates, espouse what sounds like a middle ground: Enforce low-level crime, but do it to connect offenders with diversionary programs rather than to punish.

As a former public defender, I understand the pitfalls of this approach. An arrest triggers a bail review, and even those released pending trial may spend a night or several days in jail. Any period of incarceration can have grave collateral consequences, ranging from the loss of a job to the loss of child custody. These byproducts of incarceration may further destabilize an already vulnerable person’s life. And a night or weekend in jail certainly feels like punishment, especially when, as many of my clients held at Baltimore City Central Booking have told me, you’re sleeping on a cold floor.

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Even worse, there are many situations where someone charged with a low-level offense isn’t released at all. The Maryland bail statute states that a judge must deny bail if he or she believes the defendant will not appear for trial. The label of “flight risk” does not just apply to individuals actively evading the process — it applies to anyone with a history of missing court dates, often mentally ill people and those with substance use disorder. Someone may even be labeled a “flight risk” simply because they do not have a stable address.

I represented hundreds of individuals at bail hearings for low-level, nonviolent crimes. Many were held without bail. At a minimum, an individual held without bail on a misdemeanor offense waits 30 days before his trial. It may be months before he or she sees the inside of a courtroom, and pandemic-related court closures meant even longer delays. Indeed, I represented more than one person who, by the time I got their case, had spent more time in pretrial detention than the statutory maximum period of incarceration connected to their alleged crime.

It’s easy to say that increased prosecution of low-level crimes will connect those offenders to diversionary programs. It’s harder to take an honest look at the system we have and realize that any arrest, for any crime, can easily trigger a period of incarceration and severe collateral consequences. By the time the low-level offender goes to trial, he or she may have already been “punished” by any common sense understanding of the word. Of course, the distinction between pretrial detention and post-trial punishment means little to the person sitting in jail.

If politicians are serious about prosecuting low-level crimes not to punish, but to connect individuals to diversionary programs and services, they need to ensure that the connection happens at the time of arrest, not down the line at a trial date. In Baltimore, this means not only increased investment in pretrial services, but the creation of new programs that would substitute — not supplement — the criminal process for low-level crimes. More fundamentally, it means recognizing that prosecution is no substitute for substance abuse treatment, mental health interventions, and real economic opportunity. Anything less will simply churn more people through the courts and fail to create lasting change.

Samantha A. Miller (samiller@zuckerman.com) is an attorney with Zuckerman Spaeder LLP.


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