Reeling from a Murder Spike, Baltimore Grasps at a Gun Bill

Originally published in CityLab on September 22, 2017.
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Across the country—from Louisiana to Iowa to Massachusetts—so-called “mandatory minimum” sentencing is increasingly out of favor. These are laws that require certain penalties for people convicted of specific drug or firearm offenses. A powerful bipartisan consensus has emerged around the idea that mandatory minimums are ineffective (and expensive) deterrents, as well as racially discriminatory and unlikely to reduce recidivism.

In part, the bill’s success reflects the pressure that the city’s legislators are under to do something—anything—to curb the violence. As the Brennan Center for Justice has reported, violent crime is at historic lows nationally, but no such decline can be found in Baltimore: As of this writing, 253 people have been murdered since January. In 2015, Baltimore’s violent crime rate was more than four times the national average, and its murder rate was more than 11 times the national average. Right now, Baltimore’s murder toll exceeds that of New York City, which has about ten times the population. 

“I by no means think this is a comprehensive solution to gun violence,” says city councilman John Bullock, widely seen as the deciding vote. He recognized the public’s concern with mandatory minimum sentencing, which is why he introduced the amendments to weaken it from its original form. Councilman Eric Costello, who voted for the bill and has said the amended version is “not as strong” as he would have liked, declined a request for comment; Council President Jack Young, who also backed both versions, did not return requests for comment.

Critics of the bill are frustrated with the city council’s rationale to pass a measure that has no evidence to support it.

“The easiest thing for elected officials to do is pass a new criminal law, make sentences longer, add mandatory minimums,” says Molly Gill, vice president of policy for Families Against Mandatory Minimums. “That may give them a feeling of accomplishment, but it’s not going to solve these very complicated problems of why we have violence, gun crimes, and murders.”

Mark Kleiman, an NYU public policy professor and an expert on drug and criminal justice issues, calls the $1,000 fine “gibberish.” Quoting the infamous politician syllogism, he says, “We must do something, this is something, therefore we must do it.”

Among those who testified against the mandatory minimum bill this past summer was Dayvon Love, director of public policy for the Baltimore nonprofit Leaders of a Beautiful Struggle. He points to the support from the Greater Baltimore Committee, a business advocacy group, as key to the bill’s success. “I suspect they are trying to attract more wealthy, white people to invest and come to Baltimore, and the murder rate is merely an impediment to them doing business,” Love says. “They could care less if this bill would have the possibility of destroying the lives of black people who become more prone to violent activity because they were sucked into the criminal justice system.”

Illegal gun possession is highly correlated with the future risk of committing a murder, and Daniel Webster, director of the Johns Hopkins Center for Gun Policy and Research, does think illegal gun possession is a serious crime and is a major contributor to Baltimore’s homicide rate. Ultimately, though, he did not support the measure passed by the city council, principally because he says there’s no evidence that it would be effective. “It’s rather surprising that there is no solid research that answers the question of what happens if you adopt a mandatory minimum for illegal gun possession,” he says. Most existing research has focused on drug-related arrests.

Webster thinks the city does need to have better consequences for illegal gun possession, but that the consequences should be driven by better arrest and prosecution, rather than at the tail end of the sentencing process. In Baltimore only about 40 percent of arrests for illegal gun possession end up in a conviction or guilty plea. A Baltimore Sun analysis found that about one-quarter of cases are dropped even before defendants go to trial. And though the Baltimore Police Department has improved its homicide clearance rate in 2017 compared to recent years, Webster notes that the past two years have led to many unsolved murders and nonfatal shootings. “When shooters are not locked up, they are emboldened and ripe for being shot themselves,” he testified recently in Annapolis.

Proponents of mandatory-minimum sentencing have taken to placing blame on Baltimore city judges. “At the end of the day, we don’t impose sentences and don’t implement bails,” State’s Attorney Mosby said last year. “We can make a recommendation. But it’s not on us.” In an op-ed that counseled against “reflexively recycling the regressive strategies of the 1980s,” former deputy attorney general of Maryland Thiru Vignarajah noted that leaders who blame the courts are essentially echoing tactics deployed by President Donald Trump, who has repeatedly tried to discredit the judiciary, even threatening judges at times.

Yet this month in Baltimore, the city council voted 8-7 in favor of establishing a new mandatory minimum penalty for individuals caught carrying an illegal gun. The proposed legislation originally would have imposed a one-year jail sentence on first-time offenders caught carrying a gun within 100 yards of places like churches, schools, and parks. After public protest, the bill was weakened to add just a $1,000 fine to existing state law, which already imposes a one-year minimum sentence on second-time offenders. The legislation (in both its original and final form) was backed by the city’s police commissioner, Kevin Davis, along with Mayor Catherine Pugh and Baltimore State’s Attorney Marilyn Mosby—who all also advocated unsuccessfully over the last two years for new statewide mandatory minimums.

“Mandatory minimum sentences are shortcuts we don’t need as prosecutors,” says Vignarajah. “We should be able to walk into a courtroom and explain why a sentence is appropriate and have faith in our judges to determine where a specific defendant falls on the spectrum between a violent repeat criminal and someone who needs a second chance. Mandatory minimums are unduly rigid and strip away discretion that judges need.”

Todd Oppenheim, a public defender in Baltimore who opposes the mandatory minimum measure, says that in his experience most defendants who would be affected by the bill are young and/or first-time offenders, not the “repeat violent offenders” who tend to dominant the debate. “The possession of a handgun is considered a violent offense, but I don’t see it as one because I know the circumstances under which my clients come into possession of it,” he says“Like drugs, a lot of my clients don’t understand that you can possess something without it being on your body.”

The Baltimore Police Department, by contrast, emphasizes that in the past 18 months, 60 percent of the 605 convicted gun offenders had had more than half their sentence suspended by a judge, and more than 100 people were arrested on handgun charges at least twice. The mandatory minimum “isn’t about mass incarceration or locking up more people,” Commissioner Davis testified in July. “It’s about holding the right people accountable.”

Still, there are alternative ideas.

With a new grant from Bloomberg Philanthropies, Johns Hopkins’s Daniel Webster is currently working with the state’s attorney’s office and the police department to develop new training protocols that will help strengthen the prosecution of illegal firearms. “First we have to have good policing that is done in a way to identify illegal gun possession without doing illegal searches and unconstitutional policing,” he says. “And then we need to have solid evidence that is useable to bring convictions.”

Dayvon Love emphasizes investments in community-based solutions, “where violence is prevented by people who are in closest proximity to the violence.” Leaders of a Beautiful Struggle’s recommendations include more funding for Safe Streets Baltimore, which uses a public-health strategy of employing ex-offenders as to mediate neighborhood disputes. In studies, the model has shown to be effective, but Baltimore’s program has drawn controversy in the past due to allegations of criminal activity by program workers. Love also cites efforts like the Baltimore Ceasefire movement and local violence prevention centers.

Gill, of Families Against Mandatory Minimums, points out that the number of full-time law enforcement officers per 1,000 Baltimore residents fell 14 percent between 2003 and 2015, and even more in 2016. “Mandatory minimums are incredibly expensive—prison is not cheap,” she says. “It might be a better investment to put more squad cars on street corners than to jack up sentences.”

In other words, the answer doesn’t have to be a year in jail, but the assumption that there will be some consequence to breaking the law. “Right now a lot of people figure I’ll just take my chances,” says Webster.

Kleiman of NYU thinks policymakers should be considering things like 9 p.m. curfews. “It’s the perfect sanction in the sense that it’s salient, it’s aversive, and it doesn’t interfere with family duties and employment,” he says.

Ironically, on October 1, a major new statewide law—the Justice Reinvestment Act—goes into effect, and it will significantly reduce mandatory minimum sentences for non-violent offenders throughout Maryland. The law, which was signed in May of 2016, was widely seen as the broadest criminal justice legislation to pass in decades, representing a major shift away from “War on Drugs”-era policies.

“There’s a progressive movement to move away from incarceration for nonviolent offenses,” says Oppenheim. “But when it comes to violent offenses—and the definition of violence I think is subjective—leaders still harbor the old-school mentality. They don’t have any real ideas, and it helps them get elected.”

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How Cops Have Turned Baltimore into a Surveillance State

Originally published in VICE on September 13, 2016.
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Somehow, the policing nightmare in Baltimore keeps getting worse.

In July, charges were dropped against all the officers responsible for 25-year-old Freddie Gray’s death, a massive defeat for police accountability in a city crying out for it. Just weeks later, the feds released a scathing report finding Baltimore cops engaged in systematic racism and callousness towards victims of sexual assault. And perhaps most spectacular of all, a magazine story late last month revealed cops have been running a secret aerial surveillance program in city skies.

All of which is to say that just as cynical and frustrated residents began to plot the long road to reform in a city wracked by gun violence and shady policing, experts and reform advocates now find themselves at a loss to explain how one city is wrapped up in just about every kind of police excess there is.

The aerial surveillance program consists chiefly of flying planes over 8,000 feet in the air and gathering video footage across a roughly 30 square mile radius, as Bloomberg Businessweek reported. The program was funded secretly by Texas billionaires, Laura and John Arnold, who say they are looking to support new tools that can help police departments more effectively solve crime. The planes have flown about 300 hours in Baltimore since January.

For its part, the police department denies that officers have done anything wrong, or that the planes even amount to a form of surveillance. TJ Smith, media relations chief for the Baltimore Police Department, told VICE the aerial program “doesn’t infringe on privacy rights” because it captures images available in public spaces. “We do not feel like citizen’s rights were violated because they weren’t,” he said. “This phase is a trial run to see if this is technology would be useful in the city of Baltimore. We are constantly searching for creative ways to solve crime in a city that saw 344 murders in 2015.”

An evaluation of the program’s effectiveness, also funded by the Arnolds, is expected to come out later this month.

Meanwhile, last week, in the final days available for public comment on the feds’ scathing appraisal of Baltimore cops—the NAACP Legal Defense and Education Fund, the University of Maryland Francis King Carey School of Law, and Maryland Congressman Elijah Cummings hosted a town hall for residents to share their thoughts on police reform. Michael Wood, a former city cop turned reform activist, attended, and while he expected racism to be at the top of the list, the surveillance bombshell was clearly overwhelming residents, too.

“I haven’t spoken to a person who isn’t furious,” Wood told VICE of revelations about the program.

Remarkably, the mayor and the city council were both unaware of the surveillance experiment’s very existence, namely because it was funded secretly through a local foundation. The foundation’s leadership have claimed they did not realize what the Arnolds’ money was going towards, and in a statement, Laura Gamble, board chair, and Thomas Wilcox, the foundation’s president and CEO, said they have “learned valuable lessons from this experience.”

Baltimore public defenders were also kept in the dark, and argue that police and prosecutors’ failure to disclose—in court documents—when video footage came from aerial surveillance is a serious problem. Defenders have called for a suspension of the program.

Meanwhile, state and local politicians are looking at legislative responses to the city’s latest police scandal. At the next session, Curt Anderson, the head of Baltimore’s delegation to the Maryland House of Delegates, is considering introducing surveillance regulations that would apply to all Maryland police departments. He told the Baltimore Sun that lawmakers need to figure out “how and where [footage] would be used, where you keep the information, how much it would cost to store that information, and how much it would cost someone if they made a request for that information.” On the local level, the ACLU of Maryland plans to craft legislation for someone on the Baltimore City Council to sponsor, which would limit the scope of police surveillance and/or increase the level of civilian oversight.

Elizabeth Joh, a law professor at the University of California Davis who specializes in policing and technology, told me that while police secrecy is nothing new, the kind of dragnet surveillance that Baltimore has engaged in—where officers aren’t necessarily looking for one particular person, or conducting a specific investigation—raises serious political issues. “You need to balance some legitimate police needs with the idea that police may just have too much information on innocent people,” Joh said. “And that’s a real struggle for people in a democracy to figure out. Police can go as far as they want, but what do communities want?”

Baltimore police officials maintain the aerial surveillance program is just an extension of CitiWatch, its street-level closed circuit television system. But according to Anne McKenna, a visiting law professor at Penn State University and a national expert on technology and surveillance, the “breadth and scope” of Baltimore’s aerial surveillance program raises new questions that are nowhere near settled in case law. And when you take the department’s reported aggregation of social media posts, overlay it with aerial surveillance and closed circuit TV footage, “Well, you’ve really created Big Brother,” McKenna said.

But Tara Huffman, director of Criminal and Juvenile Justice at the Open Society Institute-Baltimore, actually sees the city’s police commissioner, Kevin Davis, who took over not long after Gray’s death, as someone who genuinely understands the importance of reform. Which makes the surveillance revelations all the more surprising. “It seemed completely contradictory to the actions we’ve seen Commissioner Davis take,” Huffman told VICE.

Baltimore, of course, is continuing to struggle with gun violence—the Sun reports there have been 215 homicides already this year, and the police’s clearance rate for solving murder cases has tended to be dreadfully low. But the connection between aerial oversight and catching violent criminals isn’t always so clean-cut.

“I think what is alarming—and I think it’s fair to say uniquely alarming about what we’ve seen going on in Baltimore—is there’s been a massive investment of resources to monitor speech and protest,” said Lee Rowland, the Senior Staff Attorney with the ACLU’s Speech, Privacy and Technology Project. “Exercising your First Amendment right is not probable cause, it’s not reason for suspicion. That the police would be directing their investigative resources to fly over protests or spend their days on Facebook looking for speech when there’s been no complaint or evidence of a crime, that is a use of power we should call out as wrong.”

Challenges remain for Baltimore residents, as the deadline for a consent decree with the Department of Justice draws near and opposition from the police union looms large. But most glaring of all to some observers is the fact that the police department continues to argue that tracking social media and conducting aerial surveillance shouldn’t even bother people.

“The community’s reaction to the surveillance helps to underscore just how fractured the relationship is, just how deep the distrust, the resentment, the suspicions run,” said Huffman. “The community is in a position where transparency is the order of the day.”

Why Focusing on Mass Shootings Won’t End Gun Violence in America

Originally published in VICE on October 12, 2015.
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Earlier this month, a 26-year-old student at an Oregon community college fatally shot nine people and injured nine others on campus. Soon after, the shooter killed himself. What came next was a sadly familiar story: The president delivered a national speech, liberal politicians vowed to pass comprehensive gun control, conservative leaders—who are still generally opposed to Medicaid expansion—insisted that mental health care would have prevented the shooting. And of course some Serious Public Figures found ways to shift the conversation away from popular reforms like universal background checks to oddities like arming teachers or how the Holocaust wouldn’t have happened if only Jews had more guns.

On Friday, the national news media reported on two more campus shootings, one in Arizona and the other in Texas. But these same outlets paid little or no attention to the two mass shootings that happened in Baltimore this month: On October 10, five people were shot near a strip mall, and several days later, another five people were shot near an elementary school.

This disparity in coverage showcases how a few high-profile shootings can dominate the discourse around gun deaths in harmful ways, as the public focuses on extreme events rather than the everyday tragedy of firearm-related suicides, homicides, and accidents.

“The Oregon shootings fit a pattern of gun violence that still shocks us… mainstream, middle class America can picture itself in a community college classroom in Oregon or in a movie theater in Colorado or an elementary school in Connecticut,” wrote the Baltimore Sun editorial board. “But when it happens on a street corner in Baltimore, we—even many of us who live here—are conditioned to gloss over it. The idea that these are things that happened to someone else, maybe even to someone who had it coming, has by now become so deeply ingrained in us.”

Mass Shooting Tracker, a crowd-sourced database project started in 2013, reports that there have been nine mass shootings in Baltimore in 2015, 13 in Chicago, six in Detroit, five in St. Louis, three in Los Angeles, and four in Philadelphia. The database defines “mass shooting” as any instance where four or more people are shot in one event. (Other organizations define mass shootings as instances where there have been at least four fatalities, building off the FBI’s definition of “mass murder.”)

Shira Goodman, executive director of the gun control advocacy group CeasefirePA, says it can be especially difficult for families living in crime-ridden urban communities to have their experiences go overlooked or underreported. “The gun violence they experience gets written about on the back pages of the paper, or Section B, and it’s just a couple of lines, but for those families, their lives have been irrevocably changed and devastated,” she tells VICE.

Goodman adds that she believes the mass shootings which draw national attention serve as important “teaching moments” and have helped to engage those who aren’t living directly in impacted communities. “I think people do get drawn in for different reasons, which is good, but we have to be very mindful that we are working in all parts of the country, be it cities, suburbs, rural areas—gun violence really is an American problem.”

For public policy experts, though, the fact that national discussions around gun violence seem to reawaken only after mass shootings—not counting those in urban cities like Baltimore, Philadelphia, and Chicago, of course—is incredibly frustrating. Tens of thousands of people die in America every year from gunfire, homicide, and suicide, and mass shootings are responsible for just a fraction of those deaths.

In fact, a growing body of research suggests that the sort of mass shootings that make headlines are statistical aberrations. Many of these cases seem to involved young, mentally ill, isolated white men who unleash their rage on random civilians. But a study published this year in the American Journal of Public Health found that “surprisingly little population-level evidence supports the notion that individuals diagnosed with mental illness are more likely than anyone else to commit gun crimes.” The study cites past research showing about 85 percent of shootings occur within social networks, and that just 3 to 5 percent involve mentally ill shooters. As co-authors Jonathan M. Metzl and Kenneth T. MacLeish put it, “People are far more likely to be shot by relatives, friends, enemies, or acquaintances than they are by lone violent psychopaths.”

Which begs the question: If mentally-ill loners aren’t the only problem, and mass shootings aren’t the cause of most gun deaths, how can this plague of violence be addressed?

“Can gun laws address mass shootings? Honestly, we don’t have the best data to answer that in a definitive, scientific way,” says Daniel Webster, the director of the Johns Hopkins Center for Gun Policy and Research. Such shootings occur too infrequently to allow for sound statistical modeling. “But the only time we talk about gun policy is with mass shootings. We ask, ‘Could this have prevented the Oregon shooter?’ That’s perhaps an interesting question we could ponder, but how relevant is that to the 33,000 killed and another 75,000 treated with gunfire every year?”

While Webster and other experts tend to agree that expanding access to mental health care is an important public health imperative, to say that doing so would dramatically reduce gun violence is not consistent with the evidence.

For Webster, a more relevant question is how could we move to pass expanded background checks on gun sales—a policy that 85 percent of Americans support, including 88 percent of Democrats and 79 percent of Republicans. “Ben Carson and all the Republican candidates are talking about this issue in a way that’s totally disconnected to the much, much larger problem of gun violence,” Webster adds, referring to Carson’s claim that Nazi gun control laws paved the way for the genocide of Europe’s Jews. “For those who don’t want to anger the gun lobby, they change the subject.”

In other words, every time Americans talk about taking away guns from the public, or loopy proposals like arming ordinary people to prevent mass tragedies, they lose focus on legit proposals that might enjoy bipartisan support.

Mark Kleiman, a public policy professor at the University of California in Los Angeles who focuses on drug abuse and crime control policy, says he, too, has grown impatient with the gun control debate, “because it ignores all the ways not related to guns specifically that we can reduce gun violence.” What nearly half of all homicides do share, Kleiman argues, is that those who are under the influence of alcohol commit them. And research finds that the risk of homicide, suicide, and violent death significantly increases with chronic heavy drinking.

To reduce annual homicides, Kleiman supports increasing the tax on alcohol, as intoxication has proven to be a much greater risk factor for gun violence than mental illness. Heavy drinkers, who are particularly prone to violence, consume more than four out of five alcoholic drinks. Doubling the alcohol tax, Kleiman says, could reduce annual murders by 3 percent. Tripling it, which would cost the median drinker less than 20 cents a day, could reduce it by 6 percent. “That’s 800 annual homicides we just wouldn’t have,” Kleiman says.

While Obama pushed for increased funding for gun research after the Sandy Hook massacre in 2012, there are still huge gaps in data about guns deaths. A ban on federally funded research into firearms, pushed by the NRA in 1996, has greatly limited the amount of studies conducted around guns over the past two decades. The ban had a chilling effect on not only state and federal agencies, but also academic researchers. The Washington Post reported in January that many private nonprofits have also avoided funding gun-related research proposals.

I asked Kleiman if he thought we’ve made any progress in the national debate since Sandy Hook in December 2012. “No, I don’t think anything has changed,” he said. “This is not an issue that will break through the polarization. Being in favor of gun control is a blue issue, and being against it is red.”

Kleiman says Democrats should focus all their political energy on passing universal background checks, and quit focusing on policies that “fetishize” guns like assault weapon bans. The president is reportedly exploring how he could pass more gun control reforms through executive action, but his options seem limited.

“An outright ban on guns is not politically possible and it’s not constitutionally possible,” says Webster. “Talking about disarming an entire population is nonsense. Let’s talk about the actual issue.”