Discourse, not displays, on justice

February 24, 2000|By Douglas L. Colbert

MAYOR MARTIN O'Malley's recent intemperate and below-the-belt attack against the Maryland judiciary in Annapolis signals his impatience to implement full-scale zero tolerance enforcement in Baltimore.

While the mayor puts the final pieces into place, too few people are asking whether Baltimore is ready for the consequences of New York-style policing.

Having lived and practiced criminal law in New York City during Mayor Rudolph Giuliani's tenure, and being familiar with his New Orleans replica, I know the package Mayor O'Malley is offering Baltimore. In exchange for giving police the green light to target "quality of life," low-level offenses, and to engage in a policy of sweep arrests, street stops and identification checks of "suspicious-looking" people, the mayor promises to eliminate Baltimore's open-air drug markets, reduce homicides and create safer communities.

A fair tradeoff? Maybe. But considering the risks of increased racial polarization and overwhelming Baltimore's criminal justice system just as it is beginning to see the benefits of recent managed care, I am amazed that public discourse and critique has been muted. Everyone seems to be scrambling to climb on the mayor's bandwagon.

Except the judges, who apparently were not moving quickly enough for the mayor. Mr. O'Malley's finger-pointing was reminiscent of Mr. Giuliani's regular outbursts at anyone who dared not march in lockstep with his political program of targeting people of color for prosecution of minor offenses.

The mayor's tirade played well before Annapolis legislators. But it must have surprised Baltimore's Criminal Justice Coordinating Council, which only two days earlier had heard the mayor's eloquent pledge of cooperation.

Popular scapegoat

Blaming the judiciary is popular in many quarters, but it alienates a necessary partner in reforming the system. It also challenges our commitment to separation of powers. After all, the judiciary is the primary curb against official abuses and does not serve at the pleasure of any elected official. Judges must defend their independence vigorously.

Interestingly, the judiciary and the system's main players had responded positively when the mayor proposed resolving one-half of arrests within the first 24 hours. Few quarreled with the mayor's central proposition that more attention must be given to the front end of the criminal process, where people entering are charged mostly with minor, nonviolent crimes. They understand these cases clog a system that should devote its limited resources to more serious crimes.

The mayor also appreciates that legal representation at the bail stage is necessary and often means the difference between a person's liberty or incarceration while awaiting trial. He knows that early representation saves taxpayers money, opens scarce jail bed space and avoids building expensive detention centers.

Mayor O'Malley seeks to model New York City's system, where the defense and prosecuting attorneys dispose of more than 50 percent of arrests at the bail stage. How? By prosecutors dismissing bad arrests and refusing to press inconsequential charges. By public defenders' zealous representation. By judges imposing fair sentences for lesser offenses. It remains to be seen whether Baltimore's prosecutors, public defenders and judges will do the same. Or whether they can work at record-breaking speed to deal with the anticipated 70 percent increase in police misdemeanor arrests. One New York judge recently processed 240 cases in one court session, a record in the city's assembly-line system.

Some caveats

Baltimore should be concerned about following this example of modern efficiency. First, many innocent people will plead guilty solely to regain their immediate liberty. The threat of an unaffordable bail will persuade many to admit guilt rather than spend a month in jail before trial.

Second, the consequence of pleading guilty in Baltimore is serious. In New York, pleas on minor charges do not carry the stigma of a criminal conviction. Pleading guilty to Maryland "quality of life" crimes will brand the next generation with criminal records that limit employment opportunities and disqualify many from public housing, jury duty and voting.

Mayor O'Malley's New York City police consultants likely minimized the escalation of racial tensions and hostility that is sure to threaten the peace in Baltimore. New York City's parents of color know that their children were the most likely to be stopped, questioned, and detained -- not the children in well-to-do, predominantly white neighborhoods.

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