The pandemic, in the midst of its many horrors, has temporarily slowed the number of arrests across some U.S. cities. With pressure from advocates and incarcerated organizers, District Attorney Eric Gonzalez in Brooklyn, Prosecuting Attorney Dan Satterberg in Seattle, State’s Attorney Kim Foxx in Cook County, Illinois, and City State Attorney Marilyn Mosby in Baltimore pledged to curb or stop prosecuting “low level” crimes in attempts to minimize the spread of COVID-19. By 2018, newly reelected Philadelphia District Attorney Larry Krasner had already directed his office to stop prosecuting sex work, marijuana possession and marijuana drug paraphernalia.
Most of these prosecutors have strictly tied their commitments to the duration of the pandemic. However, in March 2021, the Baltimore City State Attorney’s Office (SAO) announced that it will permanently instate its COVID-19 policy. Moving forward, the office said it will decline to prosecute crimes categorized as nonviolent, including Controlled Dangerous Substance (CDS, or drug) possession, attempted distribution of CDS, paraphernalia possession, sex work, trespassing, minor traffic offenses, open container, rogue and vagabond, and urinating/defecating in public.
“The policies enacted over the past year have resulted in a decrease in arrests, no adverse impact on the crime rate, and address the systemic inequity of mass incarceration,” Mosby’s office wrote in a press release. Within a year, the incarcerated population dropped by 18 percent and there was a 39 percent decrease in people entering the carceral system in Baltimore City, according to the release. In a comparison between March 13, 2020 and March 13, 2021, violent crime was down by 20 percent, and property crime was down by 36 percent in the city. The Baltimore Police Department press office told Truthout that its officers made 14,043 arrests in 2020, a 43 percent decline from 24,826 in 2019.
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It is unclear whether the sharp decline in incarceration rates was a function of Mosby’s policies, or the natural result of COVID-19 related shutdowns. Across the country, from mid-March to mid-April, jail populations decreased by a quarter. In 527 counties, jail populations decreased and stabilized in May, while 270 others crept back up to pre-pandemic levels and 454 never decreased substantially.
Nevertheless, the announcement was welcomed by several local organizations, including the NAACP and the Baltimore Crisis Response, Inc., an organization that provides mental health services throughout the city.
Others welcome the news, while remaining skeptical that the policies, in practice, are sufficiently reining in police power over marginalized communities. Brandon Soderberg, longtime Baltimore-based journalist and author of I Got A Monster: The Rise and Fall of America’s Most Corrupt Police Squad falls into this category.
“This policy on the ground — in court — is far more complicated and limited than it seems,” he told Truthout. “The ‘war on drugs’ is not over in Baltimore.”
Despite originally announcing that her office would decline to prosecute attempted distribution of drugs, Mosby’s strategic policy and planning director told The Baltimore Sun that the office will still charge “drug sellers,” who are caught with evidence such as baggies, scales, packaging materials or large amounts of drugs. On June 24, the Baltimore Police department tweeted that, in collaboration with the SAO, it arrested and indicted at least five members of a “drug trafficking organization.”
Since Mosby’s COVID-19 policy went into effect on March 18, 2020, there were 30 instances in which “possession with intent to distribute” or “attempted distribution” of a controlled substance was charged and not dropped, according to Zach Zwagil, a data analyst with Open Justice Baltimore. An additional two charges involving marijuana are still being prosecuted.
Even if an individual’s charges are eventually dropped, people who are arrested for distribution or possession of drugs still face serious hardships.
Of 527 bail review hearings involving “attempted distribution” and “intent to distribute” as the most serious charge since March 18, 2020, 398 resulted in held-without-bail rulings, according to Zwagil, meaning a defendant can’t leave jail until their case is resolved, which can take months or years. Within the same time frame, 32 of 35 hearings involving possession or attempted possession as the most serious charge resulted in held-without-bail rulings. In July 2020, The Appeal reported drug possession with the intent to distribute as one of the three most common charges for people denied bond.
“Try to tell someone who say, spent a month or so in jail on charges that were dropped that they should still see Mosby as progressive,” said Soderberg.
Bilphena Yahwon, a local organizer, similarly told Truthout that prosecutorial policies must be closely assessed from the courtroom. “A lot of people don’t see how a prosecutor’s policies and a prosecutor’s integrity and a prosecutor’s actual work is seen in the courtrooms — not in the press — but when you actually go into the courtroom, to see how it is functioning, you actually get a grasp of what a prosecutor is about.”
On the ground reporting from Baltimore Courtwatch — a group that documents daily hearings in court — exposes the fine print. On June 25, the group reported that a person’s case was dismissed after they were held in jail for a year. One of the involved officers was facing felony charges, yet the SAO pursued the case, according to Courtwatch. On June 26, the group reported that an individual had been held for more than six months on drug only charges. Assistant State’s Attorney Tyler Morrison recommended they be held without bail and Judge Jones agreed. Another individual was held without bail on drug only charges for over 14 months before being released on recognizance in June 26.
Baltimore Courtwatch also reports that the odor of marijuana is often used as a pretext for stop-and-search. Then, if police find an illegal weapon during the search, the individual is arrested and typically held without bail. Such stops can be lethal for Black people in Baltimore. Infamously, in 2015 Baltimore City Police forcefully stopped and arrested Freddie Gray, later claiming he had an illegal switchblade. Police partially severed his spine and he died a week later.
“I would love to celebrate a prosecutor that is actually moving away from the carceral system, but that’s not so,” Yahwon said. “And we know that it’s impossible for prosecutors to actually not participate in the carceral system.”
Courts are structured to dole out punishment and reinforce dominant hierarchies, not solve underlying problems. And prosecutors, with only one tool in their toolbox — punishment — have a tendency to become increasingly punitive over time, wrote lawyer-researchers Seema Gajwani and Max G. Lesser. Gajwani, who was hired to help advance juvenile justice reform under Attorney General Karl Racine for the District of Columbia, watched this happen. “While hiring progressive prosecutors may slow the rate of punishment at the beginning,” they wrote “it will not change the trajectory.” Timothy Silard, chief of policy to the San Francisco district attorney from 1996-2008 told Gajwani and Lesser that no amount of training could counter this increasingly punitive trend.
Even if prosecutors declined to pursue all “nonviolent” cases, the ongoing realities of policing and arrest would persist.
“Violent Crime” Framing Drives Mass Incarceration
Freddie Gray, despite not harming anyone, would have been considered a “violent” defendant, had he survived. In the public imagination, violent crimes constitute sexual assault, domestic violence and murder. In reality, the label is fairly arbitrary. Possessing a gun without a permit is considered violent. Wiggling in handcuffs can be charged as assault on a police officer in Washington, D.C., a violent offense.
So-called “progressive prosecutors,” such as Mosby, Foxx and Krasner often reify the “violent” and “nonviolent” dichotomy by arguing that police resources should be directed toward aggressively pursuing “violent” crime instead of charges like drug possession. Yet this framing is weaponized against communities who experience state-sanctioned violence daily.
“The state has the job of deciding what they consider a violent crime versus what they don’t,” Yahwon said. “This word of ‘violent’ crime, I always want to break down because there are so many violent crimes that are being done against Baltimore citizens [by the state], specifically poor Black ones.”
The case of Keith Davis Jr. is a tragic and poignant example. In 2015, Keith Davis Jr. was shot by Baltimore police officers after they said he attempted to rob a cab driver — a claim the driver disputed in court. Three of the officers’ 44 shots struck Davis, leaving his sinuses severely damaged. During trial, based on the Baltimore Police Department claim that a gun was recovered nearby, he was convicted of possessing a gun with a felony conviction. Davis’s lawyers argued that the gun was planted. (Baltimore Police Department Gun Trace Task Force was later federally indicted for stealing money, and dealing and planting drugs.) Days later, Mosby’s office charged him with the murder of Kevin Jones, who was killed near the scene where Davis was shot by police. The SAO failed to convict Davis during three separate trials. On the fourth try — a rare occurrence — he was convicted of second-degree murder. Baltimore Circuit Judge Sylvester Cox recently granted Davis a fifth trial based on new documents Davis’s attorney filed 14 months ago.
The state did not consider firing 44 shots at Davis a violent crime, Yahwon, who organizes with the Free Keith Davis Jr. campaign, pointed out. “So now the question becomes, ‘Exactly what violent crimes are we prosecuting?’” she said. “Here we have four officers, one of them being Catherine Filippou, who was investigated by the FBI for using her badge to aid a drug trafficking ring, who has committed a violent crime, such as this one. And yet, Marilyn Mosby got to decide that she would not prosecute them. So once again, what discrepancies are we using when we say violent crime?”
Maintaining this dichotomy to appear progressive, Yahwon says, is an example of prosecutors co-opting radical messaging to ultimately maintain the carceral system. Roughly half of the country’s prison population — nearly 1 million people — are incarcerated for crimes categorized as violent. Following racist “tough on crime” policies of the ‘80s and ‘90s, according to the Prison Policy Institute, the number of people with life sentences increased five-fold, from 34,000 in 1984 to 162,000 in 2016. Life imprisonment is comparatively rare to nonexistent in most European countries. And if the U.S. released everyone convicted of crimes categorized as non-violent tomorrow, it would still have an incarceration rate greater than most countries in the world.
The rhetoric is laying the foundations for supplanting the “War on Drugs” with a “War on Guns,” which is more palatable for progressives.
“The language and the logic of how Mosby claims to reduce homicides as an elected official, continues to be through talking up policing and incarceration,” said Soderberg. “And so, she’s trying to split the difference between being progressive on what she considers nonviolent crimes. But when it comes to anything that might suggest violence — including gun possession which is not ‘violent’ — she is very carceral.”
The trend is national. In October 2020, the U.S. attorney announced that the DOJ would ramp up its prosecutions of firearms-related crimes, particularly against people arrested with a gun who have a prior criminal record. Biden has upheld this policy. According to the Philadelphia district attorney’s office data portal, firearm possession arrests have ballooned from 387 in 2015 to 709 in 2020 — a five-year record.
A report by Johns Hopkins Center for Gun Policy and Research found that the confiscation of illegal guns through racist “stop-and-search” methods did not reduce rates of gun violence in Baltimore. The report did find that “highly focused enforcement of gun laws” and “focused-deterrence initiatives,” a strategy whereby police and members of the community work together to identify, surveil and sometimes offer social services to populations considered likely to commit violent crimes, reduced gun violence in some cases. The Prison Policy Initiative, a data-driven nonprofit investigating mass criminalization, doesn’t recommend such tactics, however, citing a report that found it associated with an increase in “intensive punitive enforcement efforts such as surveillance, investigations, arrests and intensified prosecutions.” Many abolitionists agree, arguing that police — as white supremacist and violent institutions — are the problem, not part of the solution and their involvement perpetuates cycles of trauma, violence and poverty in the long-term.
The carceral system is “built on genocide and colonialism, anti-Blackness and white supremacy,” said Yahwon. “Infiltrating it ain’t gon’ change it.” Approaches to “change the system from within,” such as the progressive prosecutor movement, can in fact sometimes thwart the aims of abolition, which is both a project of dismantlement and a creative process. “We have to build new structures, new things have to exist that are not connected to the old things that we had before,” Yahwon said. “When we infiltrate, we’re preventing the ability of the destruction of the old things to occur…. How can you dismantle something that you’re in?”