Responsibility and accountability in the criminal justice system – a challenge

An important issue that we ought to pay attention to when we select our leaders in November is how they plan to ensure efficiency by insisting on responsibility and accountability in the criminal justice system.  This debate is taking place in the form of countercharges by the two major party candidates for Governor in their paid political advertising and in statements to the media.  The issue being discussed is whether Mayor O’Malley’s policy of “Zero Tolerance” of “Quality of Life Crimes” in Baltimore City is efficient and wise.

It is contended by the Governor and his spokesman on this issue, Attorney and former Circuit Court Judge William Murphy, that this policy of the Baltimore City Police Department and the Mayor has resulted in “mass arrests” of individuals in the City for allegedly committing “minor” or “quality of life crimes,” e.g. “loitering,” disorderly conduct,” “drunk in public,” “malicious destruction of property – i.e. graffiti,” “petty theft,” etc.  It is further pointed out by the critics of this policy that a disproportionate percentage of those persons arrested for these offenses are African American or other minority citizens.  Following their arrests, these individuals are then either never formally charged or the charges against them are summarily “dropped,” meaning they are not prosecuted.

Although it is not mentioned in their paid political advertising, it is conceded that this policy has resulted in a substantial reduction in crime in Baltimore City.  However, as far as its critics are concerned, the “substantial reduction in crime” is not enough to justify the large percentage of arrests that are not followed by formal prosecution.  There is no mention in any of the Governor’s ads about any positive effects of the policy, specifically the reduction of crime that has occurred contemporaneously and, therefore, arguably because of the policy.  Conversely, the Mayor’s ads tout the reduction of crime in Baltimore without mentioning the downside of the policy, i.e. the large number of arrests that are subsequently deemed to not be worthy of prosecution and, therefore, perhaps of dubious legality.

Now, I am not naive.  I used to manage state and local political campaigns several lives ago before I became a judge and stopped having partisan thoughts.  I realize that the purpose of paid political advertising is to persuade targeted voters to vote for the candidate paying for the 30 or 60 second spot, not to present a balanced or even complete view on an issue or societal problem.  Having acknowledged that, I will use the rest of my space in this column to comment further on how this debate can be developed into something more useful than a get out the vote technique.

First, some further truths to complement both candidates’ advertising.  The “Zero Tolerance” of “Quality of Life Crime” is a law enforcement strategy that seeks to reduce all crime by not tolerating any crime.  It has worked in one form or another in other cities such as New York, Boston, and Philadelphia, as well as in Baltimore.  In all those cities, as in Baltimore, the same criticisms have been made.

The policy is made even more controversial than it would be otherwise by the fact that this law enforcement strategy is not shared by the Baltimore City State’s Attorney, who is independently elected and who, in the criminal justice system, has the exclusive and final say over whether a person arrested will be prosecuted.  Baltimore’s State’s Attorney and her Assistants choose not to prosecute many of the people arrested for these “Quality of Life Crimes” for a variety of reasons, including a cost-benefit analysis.  This cost-benefit analysis begins, and in many cases ends, with the fact that, even though technically the case could be successfully prosecuted, it is not worth it because the arrest itself deters further criminal activity by the suspect, which is the only purpose for detaining the person even briefly.

The Police know that, in many cases, the States Attorney’s Office will not prosecute individuals arrested for these “minor” crimes.  That being the case, the critics of this policy suggest that the Mayor and his Police Department are violating the civil rights of certain citizens, particularly identifiable minority citizens, ostensibly to make other citizens safer by preventing crime.  The critics then question whether it should continue.  The question that the Governor and his spokesman, Mr. Murphy, do not answer in their political ad is “Are they willing to trade off the reduced crime rate and the improved quality of life that accompanies it to return crime to the levels that made the City more dangerous prior to Martin O’Malley becoming Mayor?”.  The Governor should answer this question if he wants this policy to be an issue in this election.

This hammer, of course, should swing both ways.  Does the Mayor believe that arresting large numbers of minority citizens, who are then not prosecuted for the alleged minor crimes committed because under any cost-benefit analysis it makes no sense, is a legally acceptable and appropriate law enforcement strategy because crime is deterred if not punished by this process?  If so, is there a quantitive or qualitive “tipping point” where these arrests become abusive and, therefore, intolerable?  That question is never addressed in any of the Mayor’s political ads.  The Mayor should answer this question if he wants credit for the reduction in Baltimore’s crime rate to be a reason to elect him Governor.

Finally, we may want to ask the Mayor, the Governor, and the independently elected State’s Attorney whether any of them think not having a joint law enforcement strategy on this, as well as in other areas, is in the interest of the citizens of Baltimore and the State of Maryland.  Do the Governor, the Mayor, and the State’s Attorney believe that the criminal justice system can ever hope to work efficiently if the law enforcement strategy of the independently elected State’s Attorney is not coordinated with that of the Police Department?  Their collective and individual answers to these questions logically must be, “Of Course Not!”  If so, then the next question to the Governor, Mayor, and State’s Attorney must be “if you wish to be elected or re-elected, don’t you think in your current or new office that you have a responsibility to move beyond your electoral posturing and targeting voters to devise an effective and coordinated law enforcement strategy that will work for all of the people?  Do you favor a law enforcement strategy that will be synergistic instead of disjointed?  Is law enforcement enhanced by a strategy that is uncoordinated?  Doesn’t this political and other criticism visibly undermine public trust, confidence, and respect for law enforcement and the Courts?”.

The overriding principle of accountability in the criminal justice system is not confined to Governors, Mayors and State’s Attorneys.  Judges, collectively and individually, should be willing to accept responsibility for their decisions and to be held accountable therefore by the media, victims, the citizens of his/her jurisdiction, as well as the accused.  That means that when a judge makes a decision to exclude, or what lawyers and judges refer to as “suppress,” otherwise reliable evidence of a crime from a trial because it was obtained in the judge’s view in violation of the constitutional rights of the accused or not presented as the law requires, that judge should explain the basis for that ruling and should not blame others for his decision.  The judge should also explain, if it is not obvious, the constitutional, statutory provisions or Rule which requires the judge’s decision be what it is and if necessary and appropriate, defend rather than attack the wisdom of the law and the balancing of the need for order and liberty which caused it to be enacted.  More importantly, when a judge exercises his or her discretion, most often evident in decisions relating to whether to release an accused until his trial and in sentencing convicted criminal defendants, he or she should be prepared to explain, defend and be held accountable for those decisions.

Judges should recognize and acknowledge that all media coverage and scrutiny of their decisions, as well as proposals for judicial evaluations are not threats to judicial independence and should not be considered as such.  Any judge who comes to the Bench thinking that he or she should be immune or otherwise shielded from criticism should begin looking for some other line of work and should probably give up his or her day job while conducting the search.

Ironically, defense attorneys in our system appropriately are not publicly accountable in the same way judges and prosecutors are.  Nor should they be.  Defense attorneys are certainly responsible as Officers of the Court and accountable for fully complying with the letter and the spirit of the Rules of Professional Conduct, which include important provisions requiring an attorney to proceed in good faith at all times and to always be candid with the Court and with other counsel, including prosecutors.  However, with this very significant limitation or qualification, a criminal defense attorney’s primary duty and therefore responsibility is to defend and counsel his client zealously.  A criminal defense attorney is not accountable to the general public.  His duty to defend his client does not depend in degree on what his client is charged with or how horrible his conduct is alleged or perceived to be.

We are all, however, responsible and accountable for electing leaders, who will work together to produce a law enforcement system that is coordinated, efficient, and economical.  This principle should shape our debate.  It has not done so to date.

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