Part of the problem? Maybe, but no longer for mass arrests.

Photographer: Drew Angerer/Getty Images

Debating 'The Wire' Creator on Baltimore Arrests

Francis Barry writes editorials on politics and U.S. domestic policy for Bloomberg View. He was director of public affairs and chief speechwriter for New York City Mayor Michael R. Bloomberg. He is the author of “The Scandal of Reform: The Grand Failures of New York City’s Political Crusaders and the Death of Nonpartisanship.”
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Last week, I wrote a response to an interview David Simon gave to Bill Keller of the Marshall Project, about the link between Baltimore police practices and last month's riots. In that interview, Simon, creator of "The Wire," argued that former Baltimore Mayor Martin O’Malley's strategy of “mass arrests” were in large measure responsible for the death of Freddie Gray and the violence that ensued. I pointed out two statistics that Simon omitted from his analysis:  

"By the time O’Malley left office in 2007," I wrote, "arrests had returned to their 1998 levels."

And arrests have kept falling since. In 2012, Baltimore police made 38 percent fewer arrests than in 1998. If the riot was fueled by anger not only over police brutality but also police arrests for low-level crimes, as Simon seems to suggest, it's a good thing the rioters were too young to light a match or loot a store in 1998 or 2003.

Simon disagreed, first in a series of e-mails and then with a response on his website.  

Martin O’Malley wasn’t the mayor of Baltimore in 2007. He defeated Robert Ehrlich in November 2006 and he was in Annapolis for all of the ensuing year. It was his successor, Sheila Dixon, who began the process of backing the police department away from the overpolicing and zero tolerance ordered up and defended by her predecessor. Mr. O’Malley’s last year to directly influence Baltimore’s crime problem was 2006, when arrest numbers were still in the mid 90,000s for a city of 600,000. 

Simon went on to contend that the data was skewed to undercount the number of people arrested:

His claimed arrest numbers are, for every year of his administration, underinflated apples to every other mayor’s oranges. Why? Well, read my original remarks: Only the O’Malley administration saw fit to implement a dynamic in which dozens of illegally detained arrestees were transported to  [central booking] every night only to be presented with liability forms by morning that would “unfound” their arrest paperwork if they promised not to sue the city. Failure to sign meant you took a charge and waited a day or two to see a court commissioner.  Those unfortunate people -- perhaps as much as 20 percent of the total number of arrests if ACLU-monitored samples are credible -- are not in the data on which Bloomberg so devotedly relies…

The decline in arrests toward the end of Mr. O’Malley’s tenure was not the result of some benign and discerning reconsideration of policy within Mr. O’Malley’s administration, or some nuanced reapplication of the Fourth Amendment by officers who had been rewarded for earlier discarding civil liberties.  No, it was the result of an ongoing law suit by the ACLU and NAACP on behalf of the thousands of innocent people dragged to the city jail without probable cause and in many cases without having their arrests actually recorded as criminal charges. Indeed, ACLU estimates, based on sampling data, indicated that as much as 35 percent of arrestees processed by the O’Malley administration did not have any articulated probable cause in their charging documents.

Simon makes three main points. First, he argues that the decline in arrests didn't return to 1998 levels by the time O'Malley left the mayor's office. Here’s the official data: In 2006, O’Malley’s final full year as mayor (he left office in January 2007), Baltimore police made 93,000 arrests. In 1998, his predecessor’s last full year in office, police made 89,000 arrests. A difference of 4,000 doesn't qualify as a continuation of “mass arrests.” I should have been more precise by saying “almost returned” to 1998 levels. But the point still stands: The decline in arrests began in 2004, when O’Malley was still mayor -- at least according to official data.

This leads to Simon’s second claim: that the arrest data don’t reflect the many people who were arrested and released without being charged.

I asked the Baltimore Police Department whether an arrest that doesn't result in charges being filed is still counted as an arrest. According to a spokesperson, Sergeant Jarron Jackson, it is -- and that policy has been in place for at least 15 years.

The lawsuit by the American Civil Liberties Union against the Baltimore Police Department states that in 2005, prosecutors declined to charge about 30 percent of all warrantless arrests. But the lawsuit doesn't contend that those arrests weren't counted as arrests.

Simon believes that as arrests were peaking in 2003, political pressure led O’Malley’s police department to stop counting many of them. People would be arrested, brought in for booking, but then released without being processed, leaving no paper trail. He says friends and staff members of his experienced this – and I certainly don’t doubt it.

As Simon noted in an e-mail to me, we’ll never know how many people were subjected to this policy. But Simon also acknowledged that by 2006, again driven by O’Malley’s political ambitions, arrests did indeed decline. So when we boil it down, Simon and I agree that the trend of declining arrests is real, and that it began under O'Malley.

In addition, by 2007-2008, when a new police commissioner had, according to Simon, begun righting the ship, arrests fell below 1998 levels, before O’Malley and his zero-tolerance policies ever arrived on the scene.

Lastly, and most importantly, Simon says the column I wrote last week misrepresents his portrayal of arrest levels. “Arrest rates are at an ebb, and he implies, falsely, that I was suggesting otherwise," Simon wrote. My intention was to point out something Simon had not mentioned in his interview: That arrest rates have dropped to historic lows. Simon says that this is common knowledge, and that may well be true in Baltimore.

But Baltimore has become a topic of national conversation, and the major reduction in arrests isn't a point I saw mentioned in the news coverage surrounding Freddie Gray’s death, nor in the criticism of the Baltimore police. I was surprised to learn not just of the drop, but the scale of the drop, and I imagine other readers may have been surprised, too.

In my view, if you’re going to argue, as Simon did, that Freddie Gray’s death and the ensuing riots are the result of a police department with too many officers who were taught to "roam the city, jack everyone up, and call for the wagon,” then it’s only fair to the officers -- and to readers -- to point out that the most recent arrest figures are lower than at any point since at least 1994.  

Simon makes a number of important points: When it comes to arrests, you have to look at quality as well as quantity; trust between officers and the community is essential to effective policing and impartial jury pools. He's also right that arrests made without probable cause harm that trust, impinge on basic rights and fuel anger toward the police. The stories in the ACLU lawsuit are troubling.

But the number of arrests matters too, especially in light of a national debate over policing that seems to rest on the widely accepted premise that arrests are intolerably high. That's an important debate -- and current arrest levels ought be part of it.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Francis Barry at fbarry5@bloomberg.net

To contact the editor on this story:
Christopher Flavelle at cflavelle@bloomberg.net