Brentin Mock is a staff writer at CityLab. He was previously the justice editor at Grist.
When Baltimore State’s Attorney Marilyn Mosby announced yesterday that she will no longer prosecute weed-related charges, she joined a growing list of local district attorneys and prosecutors around the country who’ve already been blazing that path. “Progressive prosecutors” in St. Louis, Philadelphia, Chicago, Houston, Manhattan, Brooklyn, Albany, Jersey City, Kansas City, and Norfolk, Virginia have all pledged to either downgrade the criminality of cannabis drug offenses or they have committed, like Mosby, to cease trying them altogether.
Such measures have been heralded in the modern era of criminal justice reform where its widely acknowledged that weed prosecution has been a critical factor in expanding the mass incarceration crisis, with stark racial disparities to boot. These prosecutors have also been pleading the case that drug enforcement for such benign controlled substances is sucking up resources that could better be used for pursuing more serious crimes.
“No one who is serious about public safety can honestly say that spending resources to jail people for marijuana use is a smart way to use our limited time and money,” said Mosby in announcing her new drug prosecution policies.
While criminal justice reform advocates may be applauding Mosby’s decision to no longer litigate weed, there is an emerging school of thought that argues that perhaps decisions like these shouldn’t be left to prosecutors in the first place. The December 2018 Harvard Law Review article, “The Paradox of ‘Progressive Prosecution’” states that while there are benefits to the kind of discretionary leniency that prosecutors of Mosby’s ilk are employing, the real problem is that prosecutors have too much discretion in determining who and what can be criminalized.
“Prosecutors should have less power,” reads the Harvard Law Review article. “Rather than limit a prosecutor’s ability to exercise discretion over how she processes someone through an inherently oppressive system, consider ways to limit the instances in which she is even able to do that.”
Meaning, it’s insufficient that Mosby has decided not to try these weed cases, especially since whoever Baltimore elects as its next state’s attorney after her could easily overturn that decision. A more concrete solution would be a law that completely decriminalizes cannabis, or a law that more tightly regulates what drugs prosecutors can and can’t prosecute. Ultimately, what true justice would look like, the Harvard Law Review argues, are policies that adequately compensate and repair those communities that have been historically devastated by prosecutors’ heavy-handed drug enforcement.
Baltimore has been a poster-child for uneven law enforcement policies, and there is ample evidence that the city’s poorest, most African-American communities have been unfairly targeted. In fact, class didn’t have that much to do with it: The Baltimore Fishbowl found last year that, “Far more people were arrested for cannabis possession in areas with large black populations, even when controlling for income”—and that was in the years after Maryland decriminalized weed possession for less than 10 grams.
Mosby’s own state’s attorney office found the same racial disparities in a white paper it published this month:
Moreover, data from the Baltimore City Health Department’s Baltimore City 2017 Neighborhood Health Profile, shows that in Baltimore’s Western district (comprised of several historic neighborhoods such as Sandtown-Winchester, Penn-North, and Druid Hill) – where approximately 95% of the residents are Black – the median household income is $24,374 compared to the city’s overall median income of $41,819. In addition, the unemployment rate in this district is 20% as compared to a 13% city rate overall, and the poverty rate is 50% as compared to a 28% rate citywide. Despite these numbers, or maybe because of them, the BPD disproportionately issued over approximately 42% of its 2017 marijuana citations to Black people in this District.
Maryland’s decriminalization of small quantities of weed in 2014 meant giving citations to those caught possessing cannabis instead of arresting them. However, the majority of those cited have been black people in Baltimore, according to Mosby’s white paper, with the number of citations rising for this race group every year: 39 out of 45 citations were handed to African Americans in 2015, 187 out of 199 to African Americans in 2016, and 410 out of 431 to African Americans in 2017.
As Baltimore’s head prosecutor, Mosby was directly culpable in these outcomes. A few weeks before Baltimore police killed Freddie Gray, Mosby directed her office’s Crime Strategies Unit to target the exact intersection where the police first encountered Gray for “enhanced prosecutorial attention,” particularly for drug activity, reports The Baltimore Sun. That intersection, identified by Mosby as a location for high drug activity, is in the same West Baltimore district that her office’s study identified as having high rates of poverty and black residents.
Mosby’s new stance on weed drug prosecutions appears to be a reparative measure, to correct for the kinds of decisions that led to these tragic outcomes and disparities (which, of course, did not begin under Mosby). In fact, she is also hoping to vacate thousands of weed drug convictions dating back to 2011 and says she plans to propose legislation that would give prosecutors more powers to vacate these kinds of convictions. The Harvard Law Review, however, calls for a curtailing of prosecutorial powers and argues for broader reparations solutions for black communities destroyed by drug war policies. Reads the article:
Resources should be diverted from criminal legal institutions and invested in communities. In addition to providing reparations to victims of prosecutorial abuse, we need to defund the very offices that have done a remarkable job at pulling poor black and brown individuals into the system. We should resist requests from progressive prosecutors to give their offices more money to be progressive, and instead invest in “combatting reasons why people commit crime, like systemic inequality, poverty, education, and health.” In so doing, we can dramatically decrease and ideally eliminate reliance on prosecutors.
This squares with what Lawrence Grandpre, research director of the Baltimore-based Leaders of a Beautiful Struggle, called for in his article “The Community Restoration Fund—A Policy Road Map to Reparations for the ‘War on Weed.’” In the article, Grandpre acknowledges other cities and states where cannabis has been legalized that have installed racial equity provisions in their criteria for who can be licensed to grow and sell weed. (While Maryland has approved the sale of cannabis for medical use, it has yet to include a racial equity clause in its policies). However, those racial equity policies are “not a panacea,” writes Grandpre. A more just way of handling new legal cannabis laws is to prioritize communities that have been historically targeted by inequitable drug enforcement policies for equitable distribution of cannabis tax resources and revenue.
“With episodic charity based interventions, demolition of vacant homes and gentrification as preferred policy solutions, state and local leaders have assumed a ‘blame the victim’ mentality when it comes to the communities targeted by the War on Drugs,” writes Grandpre. “To challenge the paradigm, we must adopt policy solutions that center the expertise of folks most impacted by the War on Marijuana.”
Right now, drug policy solutions are mostly centered around the district attorney’s option to declassify or decriminalize certain drug laws. That kind of prosecutorial opt-out on drug cases could help decrease racial disparities in the criminal justice system—but, at the end of the day, it’s still just an option. Political winds could carry in a new crop of district attorneys who adhere more to the classic “tough on crime” agenda that has characterized criminal drug prosecution for decades. Prosecutors who are deemed progressive today could, themselves, go conservative tomorrow if they felt it would help their re-election chances—what political scientists call the “electoral proximity effect.”
University of Memphis political science research Emily Fulmer wrote about how this effect is implicated in inequitable law enforcement across Tennessee for the news site MLK50.com. In that state, she found that districts that voted for Donald Trump for president also elected more punitive prosecutors.
According to Fulmer’s analysis, all the dots on the graph above should fall on the same line, with the same level of punishment administered for each crime no matter where people live and who they voted for. The problem lies in the discretionary power of the prosecutor.
“Nationally, and right here in Tennessee, district attorneys operate with nearly limitless discretion, almost entirely sheltered from public scrutiny because we know very little about them and what they do,” writes Fulmer.
The Harvard Law Review puts forth a blunt solution: “Doing better means confronting a regime controlled by dictators: not by asking them to be nice, but by demanding an entirely different form of government.”