Thwarted in court, Mosby turns to federal lobbying over marijuana

Baltimore courts have again rejected Baltimore City State’s Attorney Marilyn J. Mosby‘s attempt to vacate thousands of marijuana convictions.

When Mosby announced sweeping policy changes to her office’s approach to marijuana prosecutions nearly six months ago, she said she also wanted to do something for individuals with convictions for possession on their records.

Mosby’s office attempted to use a rare form of relief, a petition for writ of error coram nobis, to ask judges to grant a request for mass vacatur of roughly 5,000 convictions for possession, arguing that marijuana arrests and prosecutions have disproportionately and unfairly affected communities of color and carry lasting collateral consequences.

Judges in Baltimore’s district and circuit courts were unconvinced, however, and denied the motions in April without hearings, finding “fatal substantive deficiencies.” Last week the judges also rejected motions to reconsider, effectively ending Mosby’s bid to provide sweeping relief to people with possession convictions on their record.

The rulings will not be appealed, according to Antonio Gioia, an attorney with the State’s Attorney’s Office.

In an interview on Friday, Mosby expressed no surprise that the motions to reconsider had been rejected and instead focused on policy changes she said were needed at the state and federal level to assist her efforts.

Mosby testified before Congress last week, highlighting data about the disparate enforcement of marijuana laws and the lasting impact of that enforcement. She advocated for full federal decriminalization of marijuana and the creation of economic incentives for states to automatically expunge convictions and to reinvest money in communities that previously was used for arrest and prosecution.

“We took it to the court, we took it to the state and now we’re taking it to the federal government,” she said.

New law

Mosby may have one more tool to vacate past convictions later this year when legislation she pushed for in the General Assembly goes into effect.

The bill she initially supported specifically allowed for a prosecutor to move to vacate a conviction or probation before judgment for marijuana and paraphernalia possession, but it was met with pushback from the Maryland State’s Attorney’s Association and reluctance from legislators.

The amended bill that eventually passed both chambers does not mention marijuana and was tailored to be used in undoing convictions that depended on testimony from members of Baltimore’s corrupt Gun Trace Task Force. The law allows the state to move to vacate if new evidence creates a probability that the result of the case would have been different or if new information calls the case’s integrity into question and vacating would be in the interest of justice or fairness.

Mosby said she wants to try to use the new law, which takes effect Oct. 1, to vacate marijuana convictions, but she acknowledged that most of the state’s other top prosecutors were against the idea — which led to the removal of the marijuana provisions in the original version.

“If the court doesn’t deem it appropriate, then that’s the reason we need to go to the federal government,” she said.

Olivia Naugle, legislative coordinator at the Marijuana Policy Project in Washington, said the courts’ rejection of Mosby’s attempt to vacate convictions shows the need for the state to change its laws.

“Really, this unfortunate news underscores the need for the General Assembly to act,” she said.

Naugle wrote a letter in support of Mosby’s motion to reconsider. She said the state’s difficulty wiping convictions shows that any move toward legalization of recreational marijuana in Maryland should come with an automatic expungement for past convictions.

“Statewide reform is long overdue and it’s certainly something that we’re hoping the legislature will act (on) and consider a more sensitive and just approach to marijuana,” she said.

Arrests and prosecutions

Another piece of Mosby’s January announcement was the decision to cease prosecution of “simple possession” arrests.

Mosby said preliminary data indicates arrests are down and many people are being released without charges on the advice of her office.

“It looks as if they’re expending their resources to investigate violent crime,” she said.

According to data provided by the Maryland Judiciary, charges for possession of marijuana in Baltimore City District Court dropped to next to nothing in the months after Mosby’s policy announcement. There were 129 charges in January — the policy was announced Jan. 29 — followed by two in February, five in March, zero in April, two in May and four in June.

During the first six months of 2018, more than 700 possession charges were docketed in district court, according to the judiciary.

Mosby said doing away with prosecution for possession allows attorneys in her office to focus on violent crime.

“I think as prosecutors we’re been very proactive in our stance,” she said.

In February, Baltimore Police Commissioner Michael Harrison said he planned to devise a protocol for police when they are faced with an individual suspected of simple possession. Mosby has said her office will continue to prosecute cases of suspected possession with the intent to distribute.

A spokesperson for the police department was not available Monday.