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The Pandemic Prompted Marilyn Mosby to Stop Prosecuting Low-Level Crimes. Will Other D.A.s Follow?

Prosecutors across the country have begun declining low-level cases in an effort to reduce racial inequity and to slow the spread of the COVID-19 pandemic.

Photo illustration by Elizabeth Brown. Photo from Getty Images.

About a year ago, the Baltimore State’s Attorney’s office stopped prosecuting several low-level offenses—minor drug possession, prostitution, and minor traffic offenses—to reduce the flow of people in and out of local jails and slow the spread of COVID-19. In March, State’s Attorney Marilyn Mosby announced she was making the changes permanent.

The decision to stay the course, Mosby told The Appeal, was clear. Though her office dismissed more than 1,400 cases and 1,400 warrants for low-level offenses in the last year, less than one half of one percent of people who had a case dismissed or warrant thrown out were rearrested for another crime, according to a memo provided by Mosby’s office. Overall, the number of people in the city’s jail fell by roughly 18 percent and nearly 40 percent fewer people entered the criminal justice system.

“There never has been any public safety value in prosecuting these low-level offenses,” Mosby told The Appeal. “And yet, for decades we’ve been incarcerating poor, Black, and brown people for [them].”

Several prosecutors across the country took similar measures last year to reduce the spread of COVID-19, though Mosby appears to be the first to make them permanent. In March 2020, Brooklyn District Attorney Eric Gonzalez directed his office to suspend prosecutions of offenses like driving without a license and shoplifting. At the time, Gonzalez said it was in the “interests of public health and safety” to not prosecute cases that “don’t jeopardize public safety.” Around the same time, King County, Washington District Attorney Dan Satterberg instituted a two-week policy of only filing charges for some violent felonies and Cook County, Illinois State’s Attorney Kim Foxx stopped prosecuting minor drug possession cases.

Several prosecutors across the country took similar measures last year to reduce the spread of COVID-19, though Mosby appears to be the first to make them permanent.

Now Foxx’s office says its policy may be here to stay. The office initially stopped prosecuting these cases for the “health and safety of law enforcement, first responders, medical professionals, and staff at the Cook County Jail,” Risa Lanier, chief deputy state’s attorney for the county, wrote in an email. Right now, as a result of case backlogs and “strained resources,” the office is prioritizing cases involving violent crime. “Because of this we are evaluating whether this policy should remain in place permanently and what, if any, other changes should also be made,” Lanier wrote.

The Brooklyn DA’s office, on the other hand, has already started rolling some of these policies back, spokesman Oren Yaniz told The Appeal. The office is still screening cases in an attempt to balance public safety and public health, Yaniz said, but is not strictly declining as many cases as it did at the beginning of the pandemic. Yaniz said the office will be diverting and dismissing low-level cases after the person is connected to social services, as it did before the pandemic.

In Seattle, while the short-term policies Satterberg announced last year have now lapsed, his office is offering a one-time diversion program to dismiss between 100 and 150 cases in order to address some of the backlog created by court closures during the pandemic. Satterberg also set up a community diversion program late last year and said his office was dedicated to sending at least 1,000 felony cases and at least 1,200 misdemeanor cases annually through the program to avoid prosecution.

Since the beginning of the pandemic, nearly 400,000 people in state prisons have tested positive for COVID-19 and more than 2,500 people incarcerated in state prisons have died from the virus. Public health experts have warned that prisons, which allow for little room for social distancing and generally provide limited access to proper hygiene materials like soap and hand sanitizer, have been among the largest hot spots for COVID-19 outbreaks. Experts urged prisons to reduce their populations to try to mitigate the spread of the virus. 

In Baltimore, more than 900 incarcerated people and nearly 600 staff members at prisons and jails have tested positive for COVID-19. Three staff members and one incarcerated person have died from the virus, according to the Maryland Department of Public Safety and Correctional Services.

Mosby said her office worked with public health experts from Johns Hopkins University to come up with her declination policies. The pandemic, she said, “gave us the opportunity to be able to work with public health experts and to experiment and to say, ‘OK, let’s not prosecute these cases, understanding we don’t want to intensify the virus—and what will happen?’”

She also said that part of the reason she is making the policies permanent is to limit the interactions with communities of color and police in the face of the national uprising after former Minneapolis Police Officer Derek Chauvin, who is on trial for murder, killed George Floyd last year. And not long ago, similar anger arose in Baltimore and across the country after the death of Freddie Gray, who died while in police custody in 2015. Police, who forcefully apprehended Gray because he ran away from them, said they found him with an illegal knife. Officers placed him in the back of a transport vehicle—handcuffed, shackled at the feet, and without a seatbelt—and drove him around the city. By the time police finally stopped the vehicle, Gray’s spine was partially severed and he died a few days later. Mosby’s office charged six Baltimore police officers for Gray’s death. Three officers were found not guilty at trial and the charges against the other officers were ultimately dismissed.

In 2020, the Baltimore Police Department reported making nearly 800 arrests for personal possession of drugs. More than 440 of those arrests occurred during the first three months of the year. After implementation of Mosby’s policy, arrests fell substantially, and police recorded fewer than a third as many drug possession arrests through the first three months of 2021 as they did a year earlier.  

“Prosecutors have to recognize our power to shape the criminal justice system and realize when we criminalize these minor offenses we expose people to needless interaction with law enforcement,” she said. “For Black people that can lead to a death sentence.”

Researchers and advocates have argued for years that more attention needs to be paid to the misdemeanor system, which ensnares millions of people each year but generally gets less public attention than the felony system. Roughly 80 percent of all criminal cases—more than 13 million annually—are misdemeanors, Harvard Law Professor Alexandra Natapoff told The Appeal.

“We cannot reduce mass incarceration without reducing the misdemeanor net that sweeps the vast majority of people into the system in the first place,” she said. New declination policies, she added, “are extraordinarily important” to that effort. 

And there are indications that dropping low-level cases may actually increase public safety. In a study commissioned by Suffolk County DA Rachael Rollins, researchers from Rutgers University, Texas A&M University, and New York University reviewed more than 67,000 misdemeanor cases filed in the county between 2004 and 2018 and found that having a case dismissed decreased the likelihood that someone would be charged with another crime within two years.

Roughly 80 percent of all criminal cases—more than 13 million annually—are misdemeanors.

“It looks like now the emperor has no clothes,” Jody David Armour, professor of law at the University of Southern California, told The Appeal, referring to the study. The research, he said, “shows that broken-windows policing leads to more crime and not prosecuting low-level crimes leads to less crime.”

The broken-windows theory of policing suggests that minor crimes can snowball into more serious and violent crime when not addressed. It has led to the much criticized practice of “stop-and-frisk,” in which police stop and search people—often Black people—for contraband. In 2013, a federal district court found New York City’s stop-and-frisk program unconstitutional but broken windows-style policing has continued in some form, despite mounting evidence that it is ineffective. Notably, an NYPD officer killed Eric Garner in 2014 after stopping and attempting to arrest him for allegedly selling loose cigarettes, a broken-windows type offense. Researchers at Northeastern University found in 2019 that neighborhood disorder does not encourage more serious crime.

For some in law enforcement, the argument can still hold sway. Baltimore Police Commissioner Michael Harrison told the Washington Post that officers had initially been resistant to the change and that he was expecting crime to rise as a result of the shift in prosecutions. But Harrison acknowledged to the Post that crime did not rise in 2020 after officers stopped making arrests and Mosbsy’s office declined prosecutions.

A growing number of DAs have been using their authority to decline prosecuting certain misdemeanors, even before the pandemic. In 2018, Philadelphia District Attorney Larry Krasner directed his office to stop prosecuting people for prostitution, possession of marijuana, and possession of drug paraphernalia in marijuana cases. In early 2019, Rollins, the Suffolk County DA, implemented a policy to not prosecute, except under certain circumstances, 15 misdemeanor charges, including trespassing, shoplifting, and disorderly conduct. During his campaign in 2019, San Francisco District Attorney Chesa Boudin announced his administration would not prosecute “quality of life” offenses like sex work, public urination, public camping, and blocking a sidewalk.

Mosby says simply dropping the cases is not enough. There need to be support systems in place to address the underlying causes of substance use and homelessness, for example, she said. Her office is working with multiple mental health agencies and groups that support sex workers to identify people who’ve entered the criminal legal system and connect them with services like a mobile crisis response team, mental health support, and access to medical services like medical detox and HIV and sexually transmitted disease testing.

“The one thing we always have done is default and stigmatize and criminalize, and it hasn’t worked,” Mosby said. “Now is the time, in light of everything we’ve gone through in the past year and has been brought to the center about reimagining the criminal justice system, now is the time to do it.”

Correction: An earlier version of this article misstated Risa Lanier’s title. She is chief deputy state’s attorney for Cook County, not a spokesperson.