Four days after Maryland Governor Larry Hogan declared a state of emergency, and three nights into the citywide 10 PM to 5 AM curfew, Baltimore lawyers and activists are beginning to grapple with exactly how the official response to unrest over the death of Freddie Gray has impacted protesters' constitutionally protected legal rights.
Perhaps the most controversial decision of the past few days came on Tuesday, when Hogan suspended a state rule that requires an individual to be brought before a judicial officer or released from jail within 24 hours following their arrest. The decree paved the way for arrestees to languish in jail for up to 47 hours without charges. The Maryland Public Defender's Office issued a statement Wednesday challenging Hogan's legal authority to tell the judiciary what to do.
That night, 101 of the 201 arrested protesters were released from jail without charges. At a press conference earlier Wednesday, Baltimore Police Captain Eric Kowalczyk said his department had struggled to file formal charges against the protesters because officers were so busy responding to emergencies elsewhere; he insisted that charges would still be filed at a later date.
"On a normal day, if I'm a patrol officer and I was filing a charge, it could take upwards of two hours," Sarah Connolly, a Baltimore Police spokeswoman, told VICE. "But when you're having multitudes of arrests, and when you are working to ensure the preservation of life and property, which was paramount, it just wasn't possible [to file all the charges.]"
Natalie Finegar, the Baltimore Deputy District Public Defender, told VICE that Hogan's order is a clear instance of the executive branch overstepping its legal bounds. She notes that there is already a judicial provision within the Court of Appeals to change the 24-hour detention rule in the case of an emergency. Hogan's executive order, Finegar contends, demonstrates disregard for the checks and balances of the legal system.
Other experts point out that holding uncharged people in jail is simply bad policy regardless of the legality, especially in this fraught political moment. "If the citizens of Baltimore are reacting [on the streets] to longstanding systemic issues, then dealing with arrestees in a systematically unfair manner, like leaving people in jail without charges, doesn't really seem to be an effective response," said Cherise Fanno Burdeen, the executive director of the Pretrial Justice Institute, a nonprofit committed to pretrial justice reform.
Another reason few charges were filed this week is because Baltimore's district courts closed after Monday's riots. In Baltimore City, courts close fairly frequently for all sorts of reasons, including snow days; the judiciary decides when to close the courts. On Tuesday, none were open, and on Wednesday just one out of four was operational—creating a serious backlog for cases that would have normally been divvied up. (By Thursday, all four district courts had reopened.)
"Courts are not supposed to shut down, especially when you're arresting hundreds of people in a moment of crisis," said Alexandra Natapoff, a professor at the Loyola Law School in Los Angeles. "If people are being arrested, courts should be open to handle the cases. The wheels of justice should continue to spin equally for everyone at all times."
In light of Hogan suspending the 24-hour rule, Finegar told VICE that her office filed 82 habeas corpus petitions on behalf of detained arrestees. (The Guardian had previously reported that Hogan had effectively suspended the state's habeas corpus law, but this is misleading, as state and federal habeas corpus laws—which gives detainees the ability to seek relief from unlawful imprisonment—are unchanged.) However, before those habeas corpus petitions could be ruled upon, the city released the remaining uncharged protesters in a nod to the fact that they no longer had the authority to detain them. Finegar believes that many who were released on Wednesday were illegally held in the first place.
Another issue is that many arrested protesters were given extraordinarily high bail amounts. Some were apparently even asked to pay their bail all at once, in cash—which is notable given that detainees usually have the option to pay deposits or to take out loans from bondsmen.
"For my clients, a $50,000 cash-only bail is tantamount to no bail," said Finegar. "I'm a nice middle-class public servant and even I couldn't post something like that."
"What is unconstitutional is using money to detain and deprive an individual of due process," Burdeen added. "And yet that is essentially what is happening here." The Guardian reported on one case where a 19-year-old had bail set at half a million dollars. The defendant, who failed to produce the money, was then sent to jail. Generally speaking, if a detainee cannot make bail and cannot take out a loan, then they will essentially serve a jail sentence before even being found guilty of a crime. According to Finegar, that could mean sitting in jail for anywhere from 30 days to a year.
"We have to look beyond the law if we want to really reform the criminal justice system." –Alexandra Natapoff
On Thursday afternoon, ACLU-Maryland's legal director Deborah A. Jeon sent a letter to Baltimore Mayor Stephanie Rawlings-Blake calling for an end to the citywide curfew. "We have a right to demand policy changes of our government…. and we have a constitutionally protected right to do so on the streets and sidewalks of Baltimore." Jeon added that at this point the curfew's "unnecessary restrictions" seemed to do more to stoke community resentment than to ensure public safety.
The curfew is a First Amendment issue more so than a criminal one. And First Amendment decisions are often seen as balancing acts between the need for public safety and to protect one's right to protest, move, and assemble. "It has to be a reasonable balance, and whether this curfew is a reasonable one is subject to debate," said Eve Brensike Primus, a University of Michigan law professor. In a Thursday evening press conference, Baltimore Police Commissioner Anthony Batts said that despite the city's relative calm, they would not be lifting the curfew this weekend because there are large protests planned. "We have a lot more protests that are popping up by the minute, and even if we didn't, we have other cities that have large protests and their activities impact our city too," said Batts.
The argument that Baltimoreans should be kept under curfew because protests are happening in other cities certainly raises some serious constitutional questions.
Activist groups are responding to these issues; the Ferguson Legal Defense Committee is operating a jail support hotline. On Wednesday night, the Public Justice Center (PJC), a Baltimore-based legal advocacy organization, held an event to train lawyers, law students, and legal experts in jail support and legal observing for demonstrations. Nearly 50 people showed up, which, according to PJC attorney Zafar Shah, was beyond the group's expectations. "There wasn't enough seating," he said. In addition, Maryland Public Defender Paul B. DeWolfe issued a call for private lawyers to help represent the 201 protesters arrested on Monday night. DeWolfe told the Daily Record that many private attorneys have offered their services.
Of course, it's safe to say a few well-intentioned lawyers are unlikely to change the game here.
"Yes there will be lawsuits, and appropriately so, but we can't rely on them to fix the underlying problem," said Natapoff. "We have to look beyond the law if we want to really reform the criminal justice system. That's why these protests all over the country are so important."
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