Pubdate: Sun, 14 Aug 2016
Source: Baltimore Sun (MD)
Copyright: 2016 The Baltimore Sun Company
Author: Todd Oppenheim
Note: Todd Oppenheim is an assistant public defender in the Baltimore 
City Felony Trial unit.


When Baltimore State's Attorney Marilyn Mosby announced her decision 
to drop the remaining cases against the police officers charged in 
the death of Freddie Gray, she spoke of fighting for reform and 
equality in our justice system.

As a city public defender, I'd like to offer a few suggestions.

Continuing to pursue police misconduct is a given, particularly now 
that a Justice Department inquiry has found that the Baltimore Police 
Department "engages in a pattern or practice of conduct that violates 
the United States Constitution and laws" and in "conduct that raises 
serious concerns." But there are two other examples of injustice 
occurring in courts on a regular basis: the inequities of the cash 
bail system and the continuation of the war on drugs.

State prosecutors could play a major role in offering ultimate 
solutions to these issues by advocating for legislative changes, but 
even without new laws in place, they can also make a positive impact 
through the way they carry out their day-to-day duties.

At this point, arguing that inequities do not plague the cash bail 
system is akin to denying climate change.

Simply put, the bail amounts set by judges, based upon 
recommendations made by the state's attorney's office, trap people 
who cannot afford to pay behind bars as they await trial.

The Abell Foundation, a Maryland legislative task force, a Maryland 
governor's office commission, the Department of Justice and the White 
House Council of Economic Advisers (among numerous other 
organizations) all agree that cash bail must go and essentially be 
replaced with a risk assessment analysis method of "in or out" before trial.

Yet it persists, disproportionately harming the poor and, in 
Baltimore, African-Americans.

Recently, I represented three people charged with felonies during 
their initial bail review hearings; all of them were ordered held on 
bail before trial and posted bond (many of my clients don't). One of 
them later had his case reduced to a misdemeanor, and two others had 
their charges dropped, yet they are all still on the hook for those 
felony bail amounts.

Even the police officers whose cases were just dismissed are now 
swimming in bail debt, so imagine what happens to indigent people who 
cobble together funds and sign off on predatory payment plans to 
bondsmen just to get home.

The state should screen cases more carefully to come up with bail 
recommendations that don't prey on the poor. Too many cases are 
overcharged, which scares judges into setting high bails.

Plus, the idea of setting a bail presumes that a defendant will be 
released. Therefore, the state ought to consult with the defense as 
to what a defendant can afford; judges never ask. Instead, in court, 
the state often blows police reports out of proportion and requests 
exorbitant bails from judges while nothing improves.

Moreover, we should have declared an armistice in the drug war years 
ago. Whether it is undercover officers tricking small-time dealers 
into petty street sales or detectives spending countless hours 
observing activity to net larger arrests, we exhaust tremendous 
resources giving people nonviolent criminal records without a light 
visible at the end of the tunnel.

And those records last.

The default rule is that any type of conviction remains on one's 
record forever.

Short of a few "nuisance crimes" and now, possession of marijuana, 
nothing else can be removed without a long-shot remedy like a pardon.

Worse, a felony conviction can permanently ruin one's prospects for 
employment and affect housing and loan eligibility. Possessing a 
large amount of marijuana still qualifies for felony prosecution, as 
do many cases involving small amounts of drugs. Surprisingly, even 
those who participate in drug treatment court at the Circuit Court 
level must plead guilty to felonies.

And contrary to many prosecutors' beliefs, the fear of a felony 
charge does not deter future actions; just ask my clients.

The state has made efforts to divert first-time drug offenders over 
the past two years, but that's not enough.

Decriminalization is ideal, but until that's achieved, the state 
should stop prosecuting drug cases as felonies or settle them for 
lesser charges - something that's within their control.

Defendants should be set up to succeed, without a felony stain on their record.

We desperately need to improve the justice system as a whole.

But effective prosecution doesn't just mean sending bad guys to jail. 
The state also needs to join us at the table to make reform efforts 
realistic in areas like bail and drug cases.

Now is the time.
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MAP posted-by: Jay Bergstrom