Candidate: Judges Can Reform Baltimore’s Unequal Justice System
Todd Oppenheim who is running for circuit court judge says judges have the power to alleviate some of the most entrenched inequities in the city’s legal system
STEPHEN JANIS, TRNN: Hello. My name Stephen Janis. I’m a reporter for the Real News Network in Baltimore.
There is no doubt that policing is in crisis, particularly in Baltimore. And the death of Freddie Gray in police custody has thrust the city into the national spotlight, and the discussion on how to fix it. To that end this week, legislators in Annapolis announced a series of proposals to overhaul law enforcement. Among them, transparency for internal discipline and new training standards. But some say those efforts bypass a larger question: can urban police departments be reformed at all? And what really needs to be done to address the underlying problems that precipitate crime, like entrenched poverty and social isolation? And even more important, is policing really the answer to these problems?
To help us answer this question is a man who has been at the center of the city’s massive criminal justice system for years, and has much to say about what ails it. Todd Oppenheim was a public defender who has written scathing editorials for the New York Times, among others, criticizing a system that he says is inherently unfair. He’s also a candidate for judge in Baltimore City.
Todd, thank you for joining us. We appreciate it.
TODD OPPENHEIM: Thank you, Stephen. Thank you to the Real News.
JANIS: Yeah, no problem. So just to start off, you know, talk a little bit about why you decided to sort of start speaking out about these issues. Your editorial in the New York Times is very interesting, because it came when the officers who were charged in the death of Freddie Gray were set bail. And their bail was around $350,000–$200,000. Or actually, $200,000. And you wrote this very interesting editorial about that process. Talk a little bit about that.
OPPENHEIM: The timing of everything kind of fits with where we are as a country. If you look at the national debates now, criminal justice reform is being talked about by our leaders. It’s in the State of the Union address. Though it could have been a little more substantive.
JANIS: That’s true.
OPPENHEIM: But it’s, it’s out there. There is momentum for it. And I have gotten to the point in my career with over 11 years of experience as a public defender, seeing the worst of things, also seeing some good things. I felt it was time to do something more. And in terms of writing, in terms of running for a judgeship, I think that I can make changes in the system and bring a different perspective that we don’t have right now.
JANIS: One of the things you point out about is the inequity in the way the system works. I mean, people who don’t sit inside what is our Mitchell Courthouse, which is where most of these cases end up, and the cases that you defend. What is going on in there that people don’t really know about, that they don’t understand?
OPPENHEIM: Well, I encourage anyone to come and experience it on a daily basis. The courthouse is open. It should be more open. It should be more accessible to people. But you can see it.
It’s an overburdened system. I’ll grant the judges that, and the way that the justice system works. But the way poor people are treated and black people, it’s disproportionately unfair towards those classes. And those are the people that I represent on a, a day-to-day basis. And you see things with bails. The way with, people that are stopped on the street. And the way the war on drugs is carried out. And it affects those populations in ways that people who don’t see the system, who maybe don’t experience it in their own neighborhoods, if you just go into court you can see it on a daily basis.
JANIS: You know, one of the things you talk about is, you know, that the [inaud.], and we see, in one sense we see crime. In the other sense we see this massive criminal justice system. And one of the problems is, is it really addressing the problems, like, that we think are driving some of the crime, like, we say we have this crime problem. But is it really–is the system really addressing it in ways that is actually effectual, do you think?
OPPENHEIM: No. The general thinking is we can incarcerate our way out of problems. And we haven’t been able to do that. The war on drugs is a massive failure. Just locking people up for drug offenses isn’t fixing the underlying root of addiction, of communities that have nothing to turn to. And obviously as a judge, I can’t go and fund programs in communities and build schools, and make job opportunities available. But those are the underlying problems. Crime itself is kind of a response to what’s going on there. And there’s been this misperception, I guess, in society, and that kind of perpetuates in the criminal justice system, that we’re going to fix things by giving people big sentences or locking them up.
And that’s not to say that violent crime shouldn’t be punished, but most of the crime isn’t that. You know, the stuff that affects us on the street, the robberies, the break-ins, that stuff has to be dealt with. But there’s so much more that people don’t see on a day-to-day basis. The net is cast so wide that people who are truly innocent, or just truly unable to present their side of the story, they get wrapped up into it.
JANIS: And you know, you’re running as a judge. Now, somebody will say, well, what kind of judge do–I mean, if somebody were to vote for you, right, how can you, someone with your kind of views, have any impact on, on changing this process as a judge? Is a judge that important, or what could you actually do?
OPPENHEIM: The key word is discretion. And I think even if you look at the sitting judges’ campaign literature you would say they are tremendously powerful. And I agree with that. Every judge, basically, has control of what goes on in their courtroom. They have tremendous discretion.
If you look at the bail issue itself, there is no rubric for setting a bail for a person. It could be $1, it could be $1 million, it could be no bail. And the judge has the leeway to go anywhere in between. And that amount that they set can totally have an impact on a person throughout the entire legal process of their case. You know, bail presumes that someone is going to be released pre-trial. And the object of, of setting a bail is to ensure that the community stays safe, and that they appear in court. And when you’re picking a number, as the judge has all the discretion in the world to do, the judge has to consider, you know, what that person can and can’t make. Because when you pick a number that’s above their means, you’re essentially holding them at no bail.
So you’ve got discretion there. You’ve got discretion in terms of ruling on Fourth Amendment issues, which are the way people are stopped and searched on the street. There are suppression issues, is what they call them. There are motions or hearings that we hold before a trial takes place in a criminal case. And you argue about whether a person is stopped and searched legally. The judge has to evaluate the facts of that circumstance to come up with a ruling. And that ruling in that individual case, it might seem like a microcosm in the system. But that ruling can have an impact on that officer, on the groups of officers they work with, on what goes on, you know, people hear about that hearing. And it certainly has an impact on the people who are stopped and searched by those officers.
And the thing to remember is for every case that comes into the courtroom, there’s ten more searches that are going on on the street that are never litigated.
JANIS: Now, from my experience as a reporter, covering Mitchell Courthouse, judges usually end up sort of, I think, becoming part and parcel of law enforcement. And you know, like you said, you pointed out, you wrote an editorial, you just told me before, where you talked about Fourth Amendment problems where illegal searches are not punished. I mean, what’s going to be different about you, that once you become a judge that you don’t go through that pattern of becoming sort of part of law enforcement, and maintaining sort of the balance which you’re talking about?
OPPENHEIM: Well, working as a public defender for as long as I have, I cannot remove myself from the experiences that I have. And that’s not to say, you know, to my critics, that I’m going to open the cell doors and set the jail free. That’s not what I’m saying.
All I’m advocating for, and what I want to bring to the bench, is fairness. Just a basic sense of fairness. And I think that gets misinterpreted into saying, oh, he’s going to tip the scales. The system is so tilted, so unfavorable towards poor people and black people, that I’m just saying for basic fairness. And I just don’t see myself, the way I’m engaged with the community now, you know, I’m not going to go buy a big house, shut the doors, and stop speaking. I want to make this system accessible to people. I want to go out and have discussions in the community about our legal system. And I want people to be involved in the process.
And I think as a judge when you do that, when you stay engaged, you can’t help but to understand what goes on in the community. And there’s good people on the bench.
JANIS: Well, I just want to ask you–because you are implying to a certain extent that judges are part of the problem.
OPPENHEIM: Certainly, I am. And, and to remove them from the, the equation of reform, you know, we talk–we look at the police department. We look at the leadership in the city, and we say, why is this uprising coming about? Well, the, this mass incarceration, somebody’s handing down these sentences. It’s the people in the legal system. And the judges have so much experience, they have so much control over things, they’re a part of it.
JANIS: So they’re a key equation of this reform. You know, Annapolis, you just–I’m sorry, the General Assembly is coming up with these reforms for law enforcement. But you’re kind of saying if we don’t reform judges, that might not really matter.
JANIS: So, I mean, you know–and in Annapolis, some of the proposals are opening up the, you know, the internal disciplinary system. Having some training, retraining. Letting the public sort of in on it. Do you think that will help? Or do you think it’s something much more fundamental in terms of fixing policing in urban–you’ve seen all this. Will these kind of reforms help, or is there something deeper and fundamental we have to deal with?
OPPENHEIM: It all helps. I mean, the police department needs reform. There’s good officers, but they need reform. The judges need a fix. We all have to look in the mirror, here.
JANIS: But what is it like, essentially, that we’re talking about? Are we talking about a system that’s fundamentally predicated on a bad premise? Are we talking about just tweaking it? I mean, some of the things that, criticisms that you bring up are extremely, like, fundamental. They’re systemic. Is that what we’re talking about? Like, at the core of it, to make this work.
OPPENHEIM: I’ll give you a perfect–no, I think there is hope. You paint a very bleak picture, and I think there is some hope.
The way to look at it, though, it may seem a little skewed to my argument, is how fair of a trial and how well the Freddie Gray officers are being treated. You know, they’ve gotten their day in court. They got a bail that they could make. They’ve gotten special accommodations. They were getting a special appeal heard right now in the middle of their trials while they remain on the street. If we could only just treat every case in the system like that–and I know it’s an overburdened system. But just the perception of fairness, it goes a million miles. And you know, we’re going to have to work towards it. But you can–if you can do it with them in a high-profile case like that, then you can do it with the average case, many of which are much shorter, much more condensed, much less complex.
JANIS: Which brings me, you know, kind of a question, and maybe last question, we’re maybe getting towards the end, is that what you’re saying is that this system entangles people to the point where there’s really no justice. In the end it’s more of an entanglement than it is something that solves problems. Is that what you’re saying, kind of?
OPPENHEIM: It, it definitely entangles people. But you know, it’s not every single case.
JANIS: No, no, I know. I’m just saying, you make a good point. The Freddie Gray case, it’s been, I mean, it’s been amazingly fast. You know, they have bails they can make. They’re out on the street. Their lives aren’t completely–. Are you saying that that’s a big, sort of, structural problem, the system really doesn’t deal with people equally, so it tends to exacerbate some of the conditions of that. So we precipitate crime. I mean, is that kind of what you’re saying?
OPPENHEIM: Sure. Sure.
JANIS: Look, I don’t want to put words in your mouth. But I’m grilling you because you don’t usually get to talk to people who are judges. I mean, judges are kind of closer. But I think you’re bringing up a great point about that system itself, what a fundamental, key part of it is.
OPPENHEIM: Sure. I think when you look–to your point at the end there, it may kind of perpetuate crime. Forfeiture issues, for example. That’s kind of been in the news recently. Forfeiture comes into play in a lot of drug cases where people’s assets, personal property gets seized up as potential evidence in cases.
Now, again, we’re casting this wide net. So you get a lot of innocent people, a lot of drug addicts, a lot of people who are just caught in, in the game, because that’s what they turn to for a quick buck. Their stuff gets seized. So then you get to the point where a case is resolved. Maybe it’s dismissed, maybe they take a plea. They’re done. But they can’t get these vital things back that might let them go back to their regular lifestyle. If they have a legitimate cause, they can’t get to work. If it was money they needed to start a business, they can’t do that. If it’s the kid in the corner who needed maybe a couple bucks to get his ID straight when he gets back out, he can’t get that.
So you know, we’re trying to create this system where we try to fix things by locking people up and coming up with these kind of totalitarian solutions when, you know, community is kind of where we need to be focusing. And the justice system can be there to punish real crime.
JANIS: Well, last, last question. And we will invite any judge who is running to say this. What’s your main pitch to people as to why they should vote for you come April 26, to be circuit court judge in Baltimore City?
OPPENHEIM: To bring a different perspective to the bench. From my experience as a public defender, from what I’ve seen in the courtroom, the judges right now are so far removed from what’s going on, and to not include that in the discussion for change is just crazy, in my opinion. I’ve got vitality, I’ve got energy, and I’ve got ideas for change.
I mean, just a little thing like including in the process an extra step, when a case gets postponed, to look at the bail. I mean, it just seems like a simple thing. A case gets postponed maybe the third or fourth time at the behest of the state, because they’re not ready.
JANIS: Yeah, that’s true. I’ve seen it happen.
OPPENHEIM: You know, a person is sitting in jail, and there’s no automatic mechanism on that day in court for you to say to the judge, judge, maybe we ought to let my client out now just while this case, you know, gets to its conclusion. You can file motions and you can have a hearing scheduled. But it shouldn’t even have to go to that point. You know, the judge is there. They have the ability to review it. It’s maybe a ten-minute hearing. It can be done.
JANIS: Well, [Mr. Oppenheim], we really appreciate it. It was a fascinating discussion. And you know, I mean, this should be something that should be, people should think about, who they vote for, for judge. Thank you for joining us.
OPPENHEIM: Thank you.
JANIS: My name is Stephen Janis, and I’m a reporter for the Real News Network in Baltimore.
DISCLAIMER: Please note that transcripts for The Real News Network are typed from a recording of the program. TRNN cannot guarantee their complete accuracy.