The Lie that Won't Die

originally published September 18, 2008

There it is again, that lie. The one that State’s Attorney Patricia C. Jessamy and her spokesperson, Margaret T. Burns fostered back in 2005 to undermine their bitter political enemy, Mayor Martin O’Malley.

This time Ron Smith resurrected it in his Baltimore Sun column of September 10. After criticizing Jessamy and Burns for misrepresenting the facts of Zach Sowers’ murder last spring, he then (ironically) repeated their untruth of 2005. In discussing the issue of jury attitudes in Baltimore, Smith wrote:

The perception of prejudice against blacks was heightened by the mass arrests ordered during the O’Malley years to boost crime statistics. Tens of thousands of black Baltimoreans were swept up, only to be released with no charges because, in most cases, they had committed no crimes. [Italics supplied.]

Tens of thousands of innocent people arrested? Sensational charge! The proof? The number of times Jessamy’s prosecutors refused to charge cases, though Smith fails to tell us the exact number and the time frame. How many tens of thousands? In a year? Two years? Three? An accusation of such magnitude needs context.

The biggest problem with the charge, though, is that Jessamy never kept statistics on what commonly came to be called "illegal arrests." She and Burns deliberately never explained that prosecutors do not make a judgment on the legality of arrests when they decline to charge cases. Rather, they decide whether they can prove the case in court beyond a reasonable doubt. That’s a far cry from what police need to arrest, which is probable cause, a more-likely-than-not standard.

Many, many arrests are legal but cannot meet the beyond-reasonable-doubt standard. For example, when police arrest individuals for trespassing or breaking into city-owned vacant houses prosecutors refuse to charge these cases because the city doesn’t send anybody to court to prove its ownership.

That doesn’t mean there aren’t illegal arrests. I’ve seen plenty. But it does mean that the statistics on cases dropped without charges cannot be used as the measuring stick. Not only do those statistics include legal arrests that can’t meet the higher standard of proof, Jessamy also chooses not to charge many minor crimes to save resources, not because the cases can’t be proved.

In 2005, when arrests shot up under Police Commissioner Leonard Hamm, Burns bombarded everyone—the media, politicians, the NAACP the ACLU, and so forth--with statistics on cases that prosecutors declined to charge. She purposely encouraged the perception that these largely represented illegal arrests. Once she was so bold (or careless) as to call them "illegal arrests" when talking to me, prompting this e-mail exchange:

Croyder: …I note that RWOC [released without charge] does not equal "illegal" arrests, as you referred to them today in our discussion. We have no statistics for how many arrests are without probable cause, the standard for illegality.

Burns: …I apologize for mis-stating the RWOC cases, generally it is the media or others that refers to them as "illegal arrests". Our office policy i s to refer to them as RWOC or Release Without Charge.

Her policy, actually, was to publicly call those cases "legally insufficient" and allow the public to make the jump to illegality. .

The controversy grew big and ugly. According to the Sun, citizens booed O’Malley and Hamm at a public meeting on January 4, 2006, while Jessamy promised that she was not going to let the city "trample on the Constitution." Meanwhile, defense attorney Warren Brown provided the Daily Record with her real motivation when he said that Jessamy was using him to fight with O’Malley. "They feed me information anytime it appears it will be used at the police department and that’s right from the top, from the front office." They fed Brown and everyone else.

The ACLU sued the city for its "pattern of illegal arrests," a lawsuit that is still pending and no doubt costing taxpayers a bundle. The State of Maryland passed a law expunging arrests that don’t result in charges from criminal records, largely based on the perception that the arrests were illegal. That law has some unfortunate consequences and should have been drafted differently, but everyone was in an uproar.

I don’t defend the arrest practices of 2005. I remarked to one colleague at the time, "The police seem to be arresting everything that moves," to which he responded, "And doesn’t move." But we should distinguish public policy (good or bad) from illegality, and we must document illegality properly, not with statistics that don’t prove the case. If they did, why aren’t we outraged that one-fifth of Baltimore’s arrests, those that currently result in "released without charge," are illegal? Are they no longer a concern with O’Malley out of the city? Is this just about politics?

And now the lie—that "released without charge" equals "illegal arrest"—is being used to blame O’Malley for the conclusions of the Abell Foundation’s report on the disparities in jury convictions between Baltimore and its surrounding counties. Smith’s column seems to have borrowed heavily from David Simon, executive producer of HBO’s The Wire, who published an article in The Guardian on September 6. Simon accused O’Malley of single-handedly destroying the jury pool in Baltimore by rounding up innocent black people to boost his crime statistics, thus destroying their faith in the system.

Problem is, Baltimore prosecutors had trouble convicting well before O’Malley came on the scene. In fact, urban prosecutors throughout the country have faced similar issues with largely black juries. Do I need to say O.J. Simpson? How about Rodney King, for the experience blacks have had with police and white juries?

These cases of the 1990s brought into full public view the reality of ordinary cases in anonymous courtrooms in American cities everywhere. As the Washington Post’s Michael Wilbon put it on his sports show PTI, blacks and whites "just see the world differently." One group experienced the police as an instrument of oppression that enforced separate and unequal America, resulting in a deeply ingrained cultural attitude. And they still experience the law as selectively used against them. The other group, lacking such experience, perceives the police and the justice system with different eyes.

We have quite enough work ahead of us to narrow the gap in the perception—and the reality--of police and the courts. Deceptive statistics and misleading hyperbole only inflame emotions and further widen that gap.

I have little doubt that the arrests of 2005 validated and exacerbated the black community’s existing view of the criminal justice system. But O’Malley didn’t create that view. To lay the jury issue on the back of one man, like Simon did, well, even a county jury wouldn’t convict on that charge.