What Drugs, Sex Work and One Key Case Mean for the Baltimore DA Race

    In 2018, attorney Ivan Bates ran against incumbent Baltimore State’s Attorney Marilyn Mosby and performed terribly, receiving only 28 percent of the vote. Undeterred, he is now running again for June’s Democratic primary—with an eye on undoing Mosby’s policy, introduced amid the pandemic earlier this year, of not prosecuting simple drug possession and sex work charges.

    Bates has claimed, falsely, that Mosby’s non-prosecution of marijuana possession—a policy that is not radical in any way—is a threat to public safety. “What you have done is you have now created a marijuana turf war,” he told the Intercept, “with these guys killing each other for control of the black market.”

    Out of 741 people whose possession cases Mosby declined to prosecute, the number later rearrested on “serious” charges—violent crimes, sex crimes or drug distribution—was six.

    Bates believes that people charged with drug possession shouldn’t necessarily be prosecuted, but that “we need to steer them to drug treatment.” This oft-repeated political talking point belies the realities that most people found in possession of a state-banned substance do not have substance use disorder (SUD), and that compulsory treatment has never been shown to be effective—often causing, rather than reducing, harms.

    In Baltimore, nearly half of participants in court-ordered treatment programs are “terminated for non-compliance,” which means they are subsequently jailed anyway.

    State’s Attorney Mosby faces both Bates and her former employee Roya Hanna, who is also running to her right. But Mosby herself had a conservative record until recently. She campaigned as a typical “tough-on-crime” prosecutor, and has repeatedly demonstrated a penchant for overzealous sentencing. She gained widespread attention after she charged the six police officers who killed Freddie Gray, but the cases were a disaster, leading to acquittals and a trial court ruling that she committed prosecutorial misconduct.

    However, Mosby has also demonstrated growth, and not only by introducing her non-prosecution policy. Once a proponent of drug courts, she now recognizes that they do not work. The vast majority of US prosecutors have not similarly evolved.

    But many voters in the heavily Democratic city, especially progressives and anti-carceral organizers, might not consider whether Mosby is a net positive on drug criminalization to be the most important factor. What everyone does care about is the case of Keith Davis Jr.

    Ousting Mosby would likely only install an even more punitive alternative.

    Davis gained national attention this summer after he was shot by police, then charged by Mosby in an unrelated homicide case. Many nationally famous area activists believe he is innocent, and that Mosby has repeatedly charged him in order to save face with the Baltimore Police Department.

    There seems a very real chance that left-leaning voters might abandon Mosby over her actions in Davis’s case. But ousting her would likely only install a more punitive alternative, prosecuting marginalized residents for so-called crimes like possession and prostitution.

    A cautionary tale: In the 2019 Delaware County, Pennsylvania district attorney race, the potential innocence case of Leroy Evans became a similar political lightning rod. Jack Stollsteimer, who successfully ran as a moderate reformer against tough-on-crime incumbent Katayoun Copeland, promised that he would reopen Evans’s case. 

    Once his campaign was won, Stollsteimer seemed to forget that promise. Evans is still in prison, serving a de facto life sentence. This is despite another person confessing to the murder he was convicted of; the government has refused to test DNA evidence found on the scene.

    And while Stollsteimer is less harmful than Copeland, who once convinced a trial judge of the existence of a nonexistent school to justify harsher punishment for a man who sold a little cannabis, he has had his own fair share of issues.

    Stollsteimer cleared two white police officers who beat and tased a man for being publicly intoxicated. He also declined to prosecute officers who fatally shot an 8-year-old Black girl, in favor of charging two Black teenagers who were in the area.

    Adjudicating an elected prosecutor on potential injustice in a single case can result in electoral outcomes that actually drive up incarceration overall. Similarly, when a candidate delivers a campaign promise to address potential injustice in a single, high-profile case, it could be nothing more than cynical politics.



    Photograph of Marilyn Mosby via Wikimedia Commons/Creative Commons 2.0

    * The author briefly worked for Jack Stollsteimer’s campaign for Delaware County district attorney in late 2019.

    • 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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