Document Type


Journal Title

Maryland Law Review



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Summer of 2020 represented a potentially pivotal moment in the movements against mass incarceration and for racial justice. The authors commenced a study of Baltimore’s pretrial legal system just as the convergence of the COVID-19 pandemic and urgent cries of Black Lives Matter appeared to present a once-in-a-generation opportunity for meaningful decarceration. Over forty-four weekdays in June and July, the team observed bail review hearings in 509 cases and collected extensive data from the arguments and recommendations offered by the pretrial agency and prosecuting and defense attorneys. Unfortunately, the hoped-for reform failed to materialize as judges held nearly 62% of all defendants “without bail,” sending detainees back to jail indefinitely despite the pandemic and despite their legal presumption of innocence. Even worse, stark racial inequalities persisted.

This Article argues that the failed reform of Baltimore’s pretrial legal system represents a larger triumph of structural racism and that nothing short of radical transformation of the body politic will end such systemic racism. After describing the original empirical study, presenting a critical history of pretrial justice struggles in Maryland, and relating representative narratives of detainee experiences, the Article employs a novel analysis that reveals a basic pattern of structural injustice replicating itself, like DNA in cells. When plotting the addresses of study defendants onto maps of Baltimore, the unmistakable pattern of a butterfly emerges. This evokes the vital work of Dr. Lawrence Brown who has famously observed that “hypersegregation” in Baltimore looks like a Black butterfly. The Black butterfly represents the physical manifestation of systemic racism; it reveals a pattern of inequality that cuts across economic, political, and other socio-cultural systems.

Using data from the Baltimore Neighborhood Indicators Alliance, this Article visualizes the connection between pretrial injustice and structural racism through a series of original computer-generated maps. These maps connect neighborhood indicators measuring racial composition, median household income, transportation services, access to home Internet, and other non-criminal markers of advantage and disadvantage to the stories of individual criminal defendants from the Article’s study. The contours of the Black butterfly continuously re-appear, suggesting an inextricable relationship between judicial institutions of “criminal justice” and institutions meting out economic, political, and socio-cultural opportunity.

Though it is dispiriting that unequal pretrial detention continued relentlessly in Baltimore despite the pandemic and then-Chief Judge Barbera’s call for racial justice, Baltimore’s experience in the time of COVID exemplifies the challenges faced everywhere by those seeking to dismantle structures of racism. Lessons learned from Baltimore apply to the entire nation. Ultimately, analysis of the butterfly in the time of COVID underscores the necessity of connecting all reform efforts aimed at confronting inequality across all domains. Indeed, structural racism has a Hydra-like quality. If you ignore the body and simply cut off one head, two will grow back in its place. Only Herculean focus and a willingness to burn out injustice across the whole monster can lead to meaningful change.

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Law and Race Commons



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