The Myth that Undermines the Criminal Justice System

originally published August 5, 2008

How ironic that the day I received the recording of the Demetrius Smith bail review, The Baltimore Sun came out with an article headlined “Police: Bail gave a chance to kill.” (July 31)

For a second I thought they were talking about Smith, the drug dealer charged with first degree murder that a Baltimore judge allowed to go free last month. Scroll down below to read my article titled Judge Nathan Braverman to learn more.

But it was about another drug dealer, William Brown, who was set free on bail while pending his felony drug case, then free on probation, then free while pending a new charge he picked up while on probation. According to the allegations, he used all that freedom to murder or attempt to murder prostitutes.

Contrary to the headline, it wasn’t the police pointing the finger at the judge in the article, it was The Sun. Wouldn’t it be more helpful, though, if the The Sun would report on how the judges exercise their discretion before it is too late?

But here’s what really caught my eye about the article: the observation by the reporters that Brown “appeared in court records to be a run-of-the-mill drug dealer.”

If supervising the War Room taught me anything, it’s how the false notion that drug dealing is a “non-violent” crime permeates and infects the criminal justice system. The failure to recognize and act upon the danger that drug dealers pose is one of the greatest failures of the Baltimore courts.

I know that not every drug dealer is individually violent. Some are addicts, supporting a habit. Some are hungry. Some are unemployable. But the drug trade is a violent occupation, and at its core exist those who drive the murder rate and the shootings. These are the dangerous ones, and for the cynical who think (and don’t care) that they are only shooting each other up, guess again. They pull the innocent into the grave with them, and cast a pall over the neighborhoods they terrorize.

What the criminal justice system fails to do is to identify and distinguish those who are at the core of the violent drug culture from those who subsist off the edges. Most defendants in felony drug cases are treated as “run-of-the-mill” who need to re-offend multiple times before they get some token jail time. They have to kill before they open anyone‘s eyes. (See the case of Dajuan Carter under Baltimore’s Failed War Room, below.)

Apparently, a charge of murder didn’t even open the eyes of Judge Braverman, who gave Smith his freedom despite an alleged execution-style murder. Smith’s lawyer argued at his bail review that “there is nothing in my client’s background that’s a connection to violence.”

Hello, Smith was a convicted drug dealer with an additional conviction for misdemeanor assault and the malicious destruction of property. But Braverman agreed with the lawyer, citing “allegations that don’t fit [his] history.” The two of them may just as well have said, “Well, he hasn’t shot anybody before that we know of…”

I do need to say that most of Baltimore’s District Court judges would never have set bail for Smith, even if he had no record at all. There is some comfort in that. But for less serious charges, many of them will set bails that reflect their failure to discern the danger that drug-dealers pose, beyond the chemical danger of illegal drugs. In other words, they see the charges and offenders as non-violent.

For example, had Smith been charged with another drug distribution case instead of with murder, nearly all the judges would have let him post bail even if he was already pending another felony drug case. Although the law requires a bail commissioner to hold a defendant without bail in that situation judges can--and almost always do--set bail when they review the commissioner’s action.

But look at Smith’s arrest pattern. In addition to the convictions, he had two more assault arrests, an attempted distribution of drugs, and a trespass. The War Room saw this arrest pattern repeatedly, and it is not the pattern of a non-violent addict. Smith is more than likely deep into the violent culture. And “more than likely” is relevant for bail determinations.

Many judges refuse to hear about arrests when setting bail, even though nothing prohibits this. Judges, wake up! Arrest records are important tools for distinguishing between the dangerous and the less dangerous. (You listen when defense attorneys tell you their clients have zero arrests, don‘t you?)

Arrests give you important information, particularly the pattern of arrests, in making a decision on public safety. If a person charged with drug-dealing has an arrest record for shoplifting and panhandling, doesn’t that suggest non-violence? And if the arrests are for car theft graduating to assault and attempted murder, doesn’t that tell you something else? Don’t put a bag over your heads by throwing away useful information. Pretrial agents need to start giving you the whole picture, and you need to listen.

Judge Braverman obviously believed that Smith was one of those “run-of-the-mill” drug dealers who didn‘t pose a violent threat. In that he has a lot of company among judges, bail commissioners, pretrial agents, probation officers and even prosecutors. If they don’t start treating drug-dealing as a violent activity, and develop the means to distinguish between dealers, the criminal justice system will continue to recycle these offenders until they kill.

In my next article, I will discuss the main reason Judge Braverman used to justify Smith going free, and why he lacks the judgment to make the critical assessments necessary to protect the public safety.