A Butterfly in COVID: Structural Racism and Baltimore’s Pretrial Legal System

Doug Colbert and Colin Starger

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.