Early in the pandemic, as courts drastically cut operations, Mosby stopped prosecuting nine low-level offenses—including drug possession, prostitution, and trespassing—so her prosecutors could focus on serious crimes.
Then in March, Mosby appeared to be the first state prosecutor in the country to make the no-prosecution policy permanent.
She said her policy had cut numbers of both arrests and incarceration without endangering public safety, often citing a Johns Hopkins University study to support her view.
Her model, along with the Johns Hopkins study, has been used by other state prosecutors to push similar changes in their jurisdictions.
For example, Georgia’s Dekalb County chief prosecutor, Sherry Boston, told The Epoch Times that she was considering following Mosby’s footsteps to make a similar policy permanent.
But Mosby’s cost-and-benefit analysis of the no-prosecution policy ignored a number of costs, which might have public safety consequences, according to public policy researcher Sean Kennedy, who focuses on data-informed research of crime policy.
Kennedy, a visiting fellow at Maryland Public Policy Institute, said the crime statistics cited by Mosby and Johns Hopkins aren’t as self-evident as they appear. He said that even before Mosby’s no-prosecution policy, Baltimore police officers weren’t rounding up drug users and prostitutes anyway.
Baltimore is Maryland’s largest—and most violent—city. Due to understaffing, Baltimore officers had been stretched to cover patrols and many were smart enough to focus their limited energy on the most violent offenders, Kennedy said.
Officers often only use on-the-book low-level crimes as a leverage to get people to stop what they are doing, or get them to seek help, he said.
“A junkie is shooting up on someone’s lawn in front of children, so the cops come up and say, ‘Get the hell out of here, or we are going to arrest you.’ And the junkie moves on.”
Now, as Mosby doesn’t prosecute these crimes at all, drug users are less likely to move on, Kennedy said.
Meanwhile, Baltimore’s drug overdose deaths rose to 485 in 2021 from 434 in first half of 2020, according to Maryland Department of Health data.
Even in cases in which officers arrested low-level offenders and got them into the criminal justice system, prosecutors seldom sought jail sentences, according to Kurt Nachtman, a former Baltimore prosecutor.
Like police officers, prosecutors often used the potential prosecution as a leverage to get people help through specialty treatment courts and outside therapeutic services.
For instance, at Baltimore’s drug treatment courts, participants get substance abuse and other support services for at least 18 months to recover from addiction and become productive citizens again.
“When you don’t get them into the criminal justice system—when there is no threat of any potential prosecution—there is little incentive for them to seek treatment,” Nachtman said.
“It is very hard for people who are engaged in drug use to quit on their own, because it is a disease, right?”
In his seven years as a Baltimore prosecutor, Nachtman observed some common traits of repeat violent offenders, one being that they usually started with small crimes.
“If you get someone engaged in the system early on with a low-level offense, you could potentially save him from getting engaged later on for more serious charges,” he said.
Sometimes, these low-level crimes were also used as a tool to get the worst offenders.
Nachtman said police officers and detectives often knew the big-time drug dealers, or trigger pullers, in a certain neighborhood, but many times couldn’t arrest them for lack of evidence.
However, if police caught them doing small crimes, they could arrest them for prosecutors to launch a full-fledged prosecution.
For example, while it’s hard to catch a drug dealer in the act of distributing drugs, police might catch him in possession of drugs.
“If you say, I’m not prosecuting drug possession cases, you take the tool out of the arsenal for law enforcement to target those types of individuals,” Nachtman said.
At other times, police could arrest underlings on low-level crimes, and later prosecutors could get them to testify against their bosses using potential prosecution as a leverage, according to Kennedy.
“You need leverage to get addicts, and prostitutes, to testify against dangerous drug dealers, and sex traffickers,” Kennedy said.
When Mosby announced in March that her pandemic no-prosecution policy was permanent, she said Baltimore’s violent crime was down 20 percent since the new policy took effect.
Kennedy questioned that assertion.
According to FBI’s crime reporting standard, there are four violent crimes: murder and nonnegligent manslaughter, forcible rape, robbery, and aggravated assault (including shootings).
The last two crimes make up 80 percent to 90 percent of Baltimore’s violent felonies in an average year, which means even a modest shift in these two crimes could lead to a large swing in the overall rate, Kennedy said.
For example, the decrease in robberies alone contributed to 83 percent of the decline in Baltimore’s overall violent crimes since Mosby’s policy took effect, according to Kennedy’s analysis.
And that decline wasn’t due to Mosby’s policy, Kennedy said.
During the pandemic lockdowns, far fewer people were out on the streets and thus, robbers had far fewer targets to hit, he said.
As for murders and rapes, both are up since 2020.
By Nov. 27, 2021, Baltimore had 310 homicides, up from 300 for the same period in 2020. The city had 284 rapes, up from 269 in 2020, according to Baltimore Police Department data.
In the Johns Hopkins University study, researchers found fewer than 1 percent of 741 people let go on drug and prostitution offenses later committed serious crimes. The study didn’t examine if they reoffended with low-level crimes.
Also, researchers found a large drop in the number of 911 calls complaining about drug or prostitution offenses.
Based on the above two metrics, the report suggests Mosby’s new policy reduces arrests without jeopardizing public safety.
The report also pointed out these were only preliminary findings and causality couldn’t yet be established.
Kennedy said: “If you knew that the police wouldn’t respond—or if they did respond, they did nothing—would you call 911? So less complaints do not mean less crimes.”