A photo of a Baltimore police car.
A Baltimore police vehicle in front of a mural of Freddie Gray in 2016. The city's police are still making arrests for cannabis possession, even though prosecutors won't file charges. Steve Ruark/AP

The city’s prosecutors won’t charge people for marijuana possession, but police are still making arrests. Result: a hazy cannabis stalemate.

Back in January, Baltimore City State’s Attorney Marilyn Mosby announced that her office would stop prosecuting cannabis possession, regardless of the quantity or the arrestee’s criminal history. In her announcement, Mosby cited the “disproportionate impact that the war on drugs has had on communities of color,” and declared, “There is no public safety value in prosecuting marijuana possession.”

The announcement, coming from the city’s well-known top prosecutor, made national news. But Baltimore’s police still haven’t bought into the change: They say they’ll continue cuffing and bringing people in for having more than 10 grams of weed, even if prosecutors will drop the charges.

It’s a stalemate that’s created a “catch-and-release” situation, with police continuing to arrest people for pot, only to be almost immediately freed by prosecutors. And neither side seems happy about it.

“The prosecutor and the commissioner, the police department, they need to come together, they need to converge and be on the same page,” says Walker Gladden, youth coordinator for the Rose Street Community Center in East Baltimore.

Gladden is sitting with Clayton Guyton, the community center’s founder and director, in the front room of their offices, a rowhouse in the middle of a one-way street pocked with boarded-up homes in the city’s Madison-Eastend neighborhood. Guyton—known locally as “Mr. C”—has pushed to keep his community free of drug-related violence and resulting conflicts with police since co-founding the center in 1995. The center works with at-risk youth and provides transitional housing, mental health counseling, and other social services to residents.

After years on the front lines of managing the impact of the war on drugs on this community, Guyton and Gladden welcome any progress in the national movement to decriminalize cannabis. But they’re also worried that confusion about the rules around weed could present an entrapment risk for residents who believe they can now smoke openly in public. Then police show up. “They start making some arrests and now we’re dealing with that catch-and-release all over again,” Gladden says.

Guyton knows of two young men separately arrested for possession within the last month. Both were jailed, only to be released within 24 hours. “They are still in confusion mode—why did they lock me up and then turn around and release me?” Guyton says. “It does something to them … It makes them angry, confused. They just talk about how stupid it is.”

Mosby’s move added Baltimore to a growing list of cities where prosecutors are dropping cannabis offenses en masse and moving to purge thousands of conviction and charges. From New York to Philadelphia to Houston to St. Louis and elsewhere, these efforts share a common goal: Reduce enforcement of drug laws proven to largely target African Americans, and free up resources for prosecutors and cops to focus on more serious crimes.

In most cities, district and state’s attorneys are pursuing these reforms with the cooperation—albeit sometimes grudging—of police and city leaders. Even if they lack enthusiastic endorsements from police, they’re already working with officials and police departments that have instructed officers to hand out tickets or criminal summonses in lieu of arrests for possession (often of around an ounce).

But not in Baltimore. Here, police have pledged to keep following the letter of the law, which states that possessing anywhere from 10 grams to 50 pounds of cannabis is a misdemeanor statewide—and using cannabis arrests as a means to an end. “Arresting people for marijuana possession is an infrequently used, but sometimes important, law enforcement tool as we focus on violent crime and violent criminals in Baltimore,” BPD’s chief spokesman Matt Jablow said in an emailed statement.

Baltimore Mayor Catherine Pugh isn’t on board with the policy, either: She’s said that she supports the principle behind Mosby’s move, but that “those who deal illegal substances fuel criminality in our neighborhoods which leads to violence.” Pugh called on prosecutors and police to craft a singular approach to possession, but has been silent on advocates’ subsequent calls to push BPD to cease arrests.

All this is happening in a city whose struggles with corruption and violent crime have made it the focus of growing national attention. The city also has a new police commissioner, former New Orleans police superintendent Michael Harrison. He recently told city council members he’s met with Mosby about their conflicting policies and insisted that the BPD has been de-prioritizing possession arrests since decriminalization of up to 10 grams took effect in 2014. (Arrest data, however, shows hundreds are still being arrested annually, almost all of them black, and the same pattern goes for citations.)

“Our policies align with the law, and the law didn’t change,” Harrison told council members. And, he argued, even if possession is nonviolent in nature, “it doesn’t always mean that a person caught with simple possession of marijuana is a nonviolent offender.”

Like other prosecutors charting the cannabis-decriminalization course, including Philadelphia’s Larry Krasner and St. Louis’s Kim Gardner, Mosby has drawn varied criticism for the policy. Defense attorneys have argued that without BPD buy-in, the pledge amounts to “virtue signaling” by Mosby, whose prosecutors can elevate cases to possession with intent to distribute—a crime they’re still pursuing—at their discretion. Vacating and expunging the cases has already proven to be challenging for her office, given that many of them included charges other than possession. Dropping them could have unintended repercussions, as for someone who violated probation because of a weed arrest.

More broadly, Mosby’s policy risks exacerbating the rift that has grown between her and BPD since her high-profile decision to charge six officers in the killing of Freddie Gray, the 25-year-old man who died in police custody in April 2015. Three of those officers were acquitted; charges were dropped for the rest. (Mosby’s office did not respond to requests for comment from CityLab.)

One critic of the policy is former Baltimore police officer Peter Moskos, an associate professor at John Jay College of Criminal Justice. He believes that possession arrests can be a useful entry point for police to investigate other crimes—something he learned as a patrol cop from 1999 to 2001. “If there was a drug dealer who wouldn’t leave the corner, I would legally frisk him, find weed often. But he wasn’t actually selling—it was just for personal consumption. That was often the line: ‘It’s just for me.’” Yeah, I know, but I’m still arresting you for it because you’re a drug dealer and you didn’t do what I said. And that was a legal and, I think, short-term effective way of policing.”

Douglas Berman, a professor at Ohio State University’s Moritz College of Law who’s studied and advocated for drug sentencing reform, says both sides in this stalemate are likely trying to please the rank and file. “For the prosecutors that work for Mosby, this may be a way to empower them, or at least free them up to work on other matters that they think are much more important,” he says. “It may be exactly the flip for the police force. The rank-and-file police may think it’s important to be able to do further investigation based on some suspicion of marijuana activity.”

At a recent community talk, Mosby said prosecutors at Baltimore’s jail are now releasing people brought in on possession charges, usually without a night spent behind bars. But Guyton and Gladden note that even without court appearances or pre-trial detention, an arrest still carries consequences. A parolee or person on probation could face jail time if they’re re-arrested, or lose their jobs if they miss work. Baltimore defense attorney Tony Garcia says his client, a North Carolina man arrested with 16 pounds of weed in early February, was held without bail on distribution charges for 30 days before prosecutors downgraded and dropped his case. The man lost his job while he was detained, Garcia said.

Mosby’s office later said in a statement, “After further review and investigation, our prosecutors determined that the facts did not extend beyond mere possession.”

Other cities have also struggled to implement similar reforms seamlessly, Berman notes. In Philadelphia and New York, cannabis arrests have declined, but were still in the hundreds last year and overwhelmingly involved black people. In Houston, uniquely, police initially couldn’t locate boxes where they were instructed to deposit confiscated cannabis, an option intended to save them time normally spent logging it as evidence. “To make a real difference in the community and on the street” with such policy changes “requires constant work, constant monitoring, constant vigilance,” Berman says.

Miriam Krinsky, founder of the criminal justice reform nonprofit Fair and Just Prosecution, says it’s “an empty act” for cops to arrest people knowing prosecutors won’t charge them. And it could backfire for police aiming to leverage an arrest for a larger investigation by “eroding community trust,” says Krinsky, a former federal prosecutor who prosecuted drug crimes in the Mid-Atlantic region in the 1980s. “If communities don’t trust what law enforcement is doing, and don’t believe what they’re doing is right, we can’t effectively keep them safe because they’ll stop cooperating and viewing as legitimate our system of justice.”

Guyton and Gladden are still awaiting a compromise between prosecutors and police and asking for clarity. In the meantime, they’ve proposed a novel stopgap measure: community-run, police-monitored “weed-smoking zones.

Their idea: Neighborhood groups would designate areas for adults to consume cannabis without risking arrest or run-ins with police, and also avoid exposing children or neighbors to unwanted smoke. The neighborhood would appoint residents to supervise, and police would stop by and ensure it’s being used as promised—that is, for consumption, not for dealing or other criminal activity. “It’s a way to move the drugs in the city to a more controlled area,” Guyton said, as well as a “postponement method, if you will, until the state’s attorney and the [police] commissioner can come together.”

Guyton and Gladden attempted to demonstrate that idea in early February. While residents and media turned out for the demo-protest, police, unsurprisingly, weren’t fans, and suppressed it with a contingent of officers placed across the street.

Guyton says cops should have the tools necessary to investigate drug dealing and violent crime, without arresting users. “That catch-and-release has got to stop,” he says. “We want that game to end.”

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