By Van Smith

Baltimore, Jan. 31, 2019

When a state criminal conviction causes unjust collateral damage to the convict, Maryland courts may issue a “writ of error coram nobis,” which clears the conviction. To do so, arguments must persuade the court that strict legal thresholds have been met. The Baltimore City State’s Attorney’s Office (BSAO) this week made those arguments in Baltimore City Circuit Court, acting as the coram-nobis petitioner on behalf of thousands of pot-possession convicts whose cases date back to 2000.

The defendant in that civil proceeding? The same as the petitioner: the State of Maryland. In essence, the BSAO is suing itself over what it now believes was and is a terrible and harmful miscarriage of justice: the prosecution of a disproportionate number of African-Americans for possessing cannabis.

The petition, signed by BSAO chief counsel Antonio Gioia and chief deputy state’s attorney Michael Schatzow for the elected Baltimore City State’s Attorney Marilyn Mosby, describes pot prohibition’s “sordid history” that “lies in ethnic and racial bigotry,” and its codification as policy was “insanity” borne of xenophobia against “a large influx of Mexicans into America seeking to escape the violence of the Revolution of 1910.”

Some of the arriving Mexicans used “marihuana” recreationally, the petition continues, while some Americans at that time treated ailments with cannabis. A “campaign of government-sponsored fearmongering against the new immigrants” ensued, the petition recounts, resulting in most states outlawing pot possession by 1931. Thereafter, the blatantly racist federal anti-drug effort led by Harry Anslinger resulted in a de facto federal ban in 1937. The “final descent into legislative madness,” argue Gioia and Schatzow, occurred when cannabis was deemed a Schedule I controlled dangerous substance, joining the ranks with heroin and cocaine.

(In a footnote, Gioia and Schatzow add that “the complete irrationality of maintaining marijuana as a schedule I drug” – which “by definition is one that has ‘no accepted medical use’” – “is evident by the fact that there are currently in excess of 47,000 patients enrolled” in Maryland’s medical-marijuana program.)

The petition cites the U.S. Supreme Court in noting “the determination of Congress to turn the screw of the criminal machinery – detection, prosecution, and punishment – tighter and tighter,” while arguing, citing in particular the crack-cocaine sentencing disparity that Congress in recent years has lessened, that the machinery “has been applied disproportionately against the African-American community.”

While cannabis use is a color-blind phenomenon, the petition explains, enforcing pot prohibition has been racially lopsided. African-American Marylanders were nearly thrice as likely as whites to be arrested for pot possession between 2001 and 2010; in Baltimore, the figure was 5.6 times. The racially disproportionate effect of pot-possession enforcement plays out nationwide, the petition points out, and continues even as the wave of decriminalization and legalization has swept the country since 2010 – including in Baltimore City, where “racial disparities continue to exist after the decriminalization of small amounts of marijuana.”

This historical and ongoing race-based unequal treatment under the law, the petition asserts, meets the coram-nobis legal requirement that “challenging the criminal convictions are of a constitutional character.” As for showing collateral damage necessary for a writ, Gioia and Schatzow cite a litany of harms arising from the convictions – not only to reputation, but also “denial of eligibility for government benefits, significant social and psychological difficulties, public housing eligibility, use of criminal history by private landlords as a screening device, convictions operating as a de facto basis for job denial, and for those convicted individuals who are employed, much lower earnings than individuals without a conviction.”

Over time, the petition states “the collateral consequences have increased in both severity and unfairness, in light of the continued disparate enforcement, well-documented by research, and the subsequent legalization or decriminalization of marijuana in various quantities and circumstances.”

Calling cannabis possession a “patently innocuous” offense, the petition argues that the BSAO’s position is “tantamount to a confession of error” for prosecuting it over the years, especially now that “contemporary attitudes and public policy toward marijuana have changed dramatically.”

That the confession is coming from the office that prosecuted the offenses – that the petition is a “State v. State”-captioned matter – adds weight to the BSAO’s groundbreaking argument.