Two Sets of Rules in Mobtown

Baltimore's prosecutor announces more lenient treatment for alien criminals

Baltimore's prosecutor announces more lenient treatment for alien criminals

In a recent opinion piece I wrote for the Baltimore Sun, I discussed a recent decision by the Baltimore State’s Attorney’s Office to employ different standards when prosecuting certain criminals: a stricter standard the office will follow when it prosecutes citizens, and a more lenient standard that it will follow when dealing with aliens.

This decision is reflected in a memorandum issued on April 27, 2017 (and disclosed the next day by the Sun), in which Marilyn Mosby’s staff "instructed prosecutors to think twice before charging illegal immigrants with minor, non-violent crimes in response to stepped up immigration enforcement by the Trump administration."

This memorandum followed reports that the commissioner of the Baltimore Police Department (BPD) had earlier assured members of Baltimore's immigrant community that the BPD doesn't "care about your immigration status, we will not check your immigration status and we do not have a database to check your immigration status."

It should be understood that Maryland generally, and Baltimore in particular, has long had a certain ambivalence toward the federal government that sits on land that was carved out of the state in 1790.

Baltimoreans occasionally refer to their hometown as "Mobtown", in part because of its lawless past as a seaport, and in part because of the response of its citizens to the arrival of the Sixth Massachusetts Regiment at the President Street railroad station (not far from the Baltimore National Aquarium) on April 19, 1861, on their way to defend Washington just before the start of the civil war.

To continue south, the troops had to make a 12-block trek to catch a separate train at Camden Station, which sits today in front of the Orioles' ballpark — Camden Yards, so named because it sits where the old rail lines the troops had intended to use once lay. Baltimoreans, who at the time had Southern sympathies, set upon the Sixth Massachusetts, and "by the time the Massachusetts troops got to Camden Station, four soldiers were dead and 30 civilians had become casualties." Cannon at Fort McHenry (ironically, the home of the "Star-Spangled Banner") and elsewhere around town kept the city in check for the rest of the war.

Maryland itself is known as the "Free State", reflecting the fact that many leading state politicians (including then-Governor Albert C. Ritchie) openly opposed prohibition and defied the federal government's attempts to enforce it.

Since then, however, the city and state have largely moderated their views toward the central government in Washington. Through various twists of fate, Baltimore is the home of the Social Security Administration, and both House Minority Whip (and former Majority Leader) Steny Hoyer and House Minority Leader (and former Speaker) Nancy Pelosi are originally from Maryland; Pelosi is, in fact, the daughter and sister of respective mayors of Baltimore. In December, Baltimore Mayor Catherine Pugh was one of the first mayors to meet with newly elected President Donald Trump (during the annual Army-Navy football game in Baltimore), at which time she asked the President-Elect for more infrastructure funding.

In addition to this request, Mayor Pugh has also sought federal funding for housing and education, and most recently, has sought the FBI's assistance in tackling the city's high crime rate. As the Baltimore Business Journal reports:

Pugh said the high murder rate is unacceptable, and she's trying to explore all options to provide the city's police department with assistance. The city sent a formal request to the FBI this week for help, and Pugh said she expects a response by the end of next week.

The need for such assistance was most clearly demonstrated by the arrest of Terrell Plummer for a senseless shooting that went unsolved for more than two-and-one-half years.

McKenzie Elliott was three years old when she was shot to death by an apparent errant bullet on the front porch of the house next to hers in Baltimore’s Waverly neighborhood; she died hours later. Just days after the shooting, then-BPD Commissioner Anthony Batts vowed that an arrest would be made in the shooting within a week, and although a suspect was arrested, he was subsequently released.

The child’s killing became a rallying point for the city and its high crime rate.

Last week, U.S. Attorney (and recently confirmed U.S. Deputy Attorney General) Rod Rosenstein announced that Plummer was being charged federally in connection with the child’s killing. In making that announcement, Rosenstein noted the role that both BPD and federal agents had played in the arrest, a sentiment echoed by Mayor Pugh.

Press reports note that violence in Baltimore "has reached a crisis level, with the number of killings shattering a 20-year high this early in the year." In light of this crisis, and Baltimore’s admitted dependence on federal help to control the crime rate in the city, the position of the BPD and the State’s Attorney’s Office is baffling. On the one hand, the BPD and city are asking for federal law-enforcement help; on the other, the BPD and State’s Attorney have struck a staunch anti-enforcement pose as it relates to criminal aliens. As I noted in my opinion piece: "Unlike the funding under consideration in the federal case addressing the president’s executive order on sanctuary cities, the assistance requested by Mayor Pugh is purely prospective, and the president could simply say 'no' without legal ramifications."

The State’s Attorney’s Office’s memorandum will also likely exacerbate charges of discrimination in Baltimore. The U.S. Department of Justice has already alleged that the BPD "violated the Constitution and federal anti-discrimination laws by systemically engaging in a pattern of illegal stops, searches, arrests and use of excessive force, particularly against the city's African-American population." It is only logical that a defense attorney representing a citizen in a Baltimore City court, charged in "a minor, non-violent criminal case" of the sort described in the State's Attorney's memorandum, would allege that discriminatory practices had led to the defendant being charged. Even if this defense is unsuccessful, these claims it will further bog down an office that has already faced the departures of key staff and the loss of "dozens of courtroom prosecutors ... over the past two years."

Further, the positions of the BPD and State’s Attorney’s Office in handling cases involving aliens stand in contrast to one another. On the one hand, the BPD has stated that it doesn’t care about, and won’t check, the immigration status of those it arrests; on the other, Baltimore’s prosecutor "has instructed prosecutors to think twice before charging illegal immigrants with minor, non-violent crimes." This inconsistency has been recognized by the BPD, which has "said that just as they are not asking for proof of citizenship, they will not take that into account when investigating crime." As BPD spokesman T.J. Smith stated: "That would put us right back in the situation where we are making a judgment based on someone's immigration status. ... We’re not going to do that.”

Nor is the impetus for the State’s Attorney’s Office new policy really that clear. Although the office is taking this step "in response to stepped up immigration enforcement by the Trump administration", the current administration's policies are not markedly different from the policies that were purportedly followed for most of the Obama administration (at least up until the issuance of Homeland Security Secretary Jeh Johnson's November 20, 2014, memorandum on "Policies for the Apprehension, Detention and Removal of Undocumented Immigrants"), or from what the law has always required. "Stepped up immigration enforcement" is really just "immigration enforcement".

Finally, it should be noted that from the time of the Immigration Act of 1917 until the Immigration Act of 1990, "the immigration laws allowed sentencing judges to issue a Judicial Recommendation Against Deportation (JRAD)". As commentators noted, once a JRAD was made, it was "binding on the [former Immigration and Naturalization] Service, and a resident alien’s criminal conviction [could not] be used as a basis for deportation." The repeal of JRADs call into question whether Congress believes that state courts, let alone state prosecutors, should have a say in removal decisions.

In a city wracked by crime, the police and prosecutors should take any help that they can get – but not in Baltimore.