Baltimore and Boston’s Non-Prosecution Policies Now at Grave Risk

    Two of the most significant figures in the so-called “progressive prosecutor” movement now seem to be off the table as local top prosecutors. Despite very different circumstances in Baltimore and Boston, where they each presided over groundbreaking non-prosecution policies, these developments should concern anyone who wants to see drug use decriminalized.

    In Baltimore, the elected top prosecutor, State’s Attorney Marilyn Mosby, issued a broad non-prosecution policy for drug possession, drug paraphernalia and “prostitution” charges in March 2020, as the COVID-19 pandemic kicked in. She announced her intention to maintain the policy post-pandemic, and a 2021 Johns Hopkins University study found that it had averted many arrests without reducing public safety.

    But Mosby just got federally indicted on two perjury counts and two counts of making a false statement on a mortgage loan application. The charges are related to Mosby’s alleged claims of financial hardship during the COVID-19 pandemic, as well as allegedly fraudulent real estate dealings.

    Whether Mosby will resign, either willfully or by force, is not presently known. David Jaros, a University of Baltimore law professor, told a local news station that under Maryland law, Mosby “can be removed from her position if the attorney general files a petition and two thirds of the Senate vote to remove her.”

    In Boston meanwhile, Rachael Rollins, who until recently was Suffolk County’s district attorney, has now become the US attorney of Massachusetts instead, after the state Senate confirmed the Biden administration’s pick. As DA, Rollins had made progress on her campaign pledge to default to non-prosecution for 14 low-level misdemeanors.

    That switch meant that Governor Charlie Baker, a Republican whose administration was highly critical of Rollins’ policies, got to nominate a successor to hold the Suffolk County DA seat until the November 2022 election. He chose Kevin Hayden, a prosecutor with a more middle-of-the-road track record, as Rollins’ replacement.

    Several insiders suggested that Hayden himself does not know yet what he plans to do regarding Rollins’ declination policies.

    Despite a National Bureau of Economic Research study confirming that Rollins’ non-prosecution policies decreased justice involvement without increasing local crime rates, whether they will be continued by the new administration is an open question.

    Several insiders, speaking to Filter on condition of anonymity, suggested that Hayden himself does not know yet what he plans to do regarding Rollins’ declination policies. One suggested that Hayden plans to keep the policies in place, while cautioning that actions speak louder than words.

    On the other hand, Hayden may already be showing why he was Gov. Baker’s pick. Bobby Constantino, who served in the key role of Suffolk County director of innovation and strategy in the Rollins administration, tweeted on January 13: “For those who are wondering how the transition is going, they reassigned my office yesterday without so much as a warning, and despite several requests to meet with the new team, they are forcing me to resign before I can hand off the office’s research and tech portfolio.”

    Unlike in Massachusetts, Maryland top local prosecutors who for whatever reason don’t complete their terms are replaced by Circuit Court judges—who themselves are elected to 15-year terms. This has happened at least once before in Baltimore, back in the 1970s, when the Circuit Court bench elected Howard Cardin as state’s attorney in order to fill a vacancy.

    However, that appointment was controversial—the bench’s chief judge was Meyer Cardin, Howard’s father—and the new state’s attorney was defeated in the next election cycle.

    The timing of Mosby’s indictment makes things even more complicated, as the filing deadline for the June 2022 state’s attorney primary is only weeks away. No one has officially filed yet, though Mosby, as well as attorneys Ivan Bates and Roya Hanna, had expressed plans to do so.

    Her indictment does not legally stop Mosby from running, even if her prospects for winning would now be slim. But if she won and was then sentenced to prison due to a conviction, an interim state’s attorney would have to be selected by the judges.

    Alternatively, Mosby could resign, triggering the judges’ need to appoint a replacement immediately. It is unclear how long that process might take, and thus whether that person would be able to run in the primary with incumbency advantage.

    However, Jaros told Filter that if it came to that, he would be surprised if the judges appointed someone who would radically alter the non-prosecution status quo.

    “I think the more likely and smarter play by the judges would be to choose someone who is currently in the office who will serve as a caretaker of the office’s work as the election plays out,” the professor said, “rather than stepping in to anoint a successor who is not currently there.”

    If Mosby’s exit is confirmed alongside that of Rollins, it would be rather devastating to the progressive prosecutor movement nationally.

    Still, it is entirely possible that a change of guard, aided by the political ammunition the indictment provides, will ultimately mean a reversal of Mosby’s non-prosecution policies toward drugs and sex work.

    If Mosby’s exit is confirmed alongside that of Rollins, it would be rather devastating to the progressive prosecutor movement nationally, which is already in a tough spot. Progressive district attorneys in Los Angeles and San Francisco face recall battles this year, while the new state attorney general of Virginia, Jason Miyares, was elected after engaging in scorched-earth political warfare against progressive prosecutors. The safest progressive DA seat is undeniably Philadelphia DA Larry Krasner’s, since he won re-election in 2021 by a large margin against both primary and general election challengers. 


    Photograph of Baltimore by Nfutvol via Wikimedia Commons/Creative Commons 4.0

    • Rory is the founding attorney of Fleming Law LLC, an immigration law boutique in Philadelphia. He has worked for a variety of criminal justice and harm reduction nonprofits, including Law Enforcement Action Partnership and Harvard Law School’s Fair Punishment Project, and provided campaign services for over a dozen district attorney campaigns. His articles have appeared in the Atlantic, Slate and many other outlets.

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