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A Nationwide Push for Expungement Reform, and New Marijuana Policies in the Twin Cities

Also today: The Political Report launches a new series on the powers of sheriffs

In This Edition of the Political Report

March 21, 2019: Today the Political Report is happy to launch The Badge, a new series that will examine the powers and responsibilities of sheriffs.

You can visit the Political Report’s page on criminal justice developments in state legislatures, featuring our interactive map.

Florida: Mike Williams wins reelection as Jacksonville sheriff

Mike Williams, a Republican, easily won a second term as the sheriff of Duval County, which includes Jacksonville. The Political Report previewed this election’s stakes on policing practices and accountability, transparency, and immigration last week.

This was the first 2019 election that could have restricted ICE’s reach. Duval is one of just 76 jurisdictions nationally that have joined ICE’s 287(g) program. But Williams himself renewed the contract in 2016, and his challenger this year had said he was not looking to quit it. Five other counties with 287(g) contracts hold local elections this year: East Baton Rouge Parish, Louisiana; Monmouth County, New Jersey; Rensselaer County, New York; and Culpeper and Prince William counties, Virginia. The filing deadlines for most loom in the coming weeks. The Political Report will return to them at that point.

The Badge: New series on the powers of sheriffs launches by examining jail deaths

by Jessica Pishko

Sheriffs shape jail conditions and enjoy great discretion on matters ranging from immigration to solitary confinement, but their authority and decisions are often overlooked, which is a challenge for reform. The Badge is a new series that will examine the powers and responsibilities of sheriffs. First up: jail deaths. You can read the full article, written by Jessica Pishko, here. Below is its beginning.

Jails made headlines in 2015, when the 28-year-old Sandra Bland was arrested and placed in a Waller County, Texas, jail. She was unable to post bail, which was set at $5,000. Less than three days later, she was dead of an apparent suicide.

Such deaths happen with alarming regularity. A nationwide HuffPost study over one year identified an average of two fatalities per day. This first edition of The Badge, a new Political Report series on the powers of sheriffs, examines the problem of jail deaths and the responsibilities of sheriffs for the welfare of people in their custody.

Local jails house pretrial detainees who have not yet been found guilty of a crime and people serving short sentences. According to the National Sheriffs’ Association, 85 percent of local jails are run by sheriffs. In those spaces, it’s the responsibility of sheriffs to ensure that people have access to adequate healthcare and safe detention conditions.

This installment explores why jails are such dangerous places. It also reviews why the public does not know more about them, what policies could make jails safer, and why sheriffs often evade accountability.

Read the full article, Jail Deaths and the Elected Sheriff, here.

Delaware, Utah, and beyond: Reformers push to expand and automate expungement

Criminal convictions have ramifications far beyond the explicit sentences imposed on individuals, impeding their access to housing and blocking them from jobs for the decades that follow. Different states open the door to varying degrees for people to have their records cleared, but even for eligible individuals, the process is so difficult—and costly—that few people take advantage of it.

Reform advocates have had recent success targeting both sides of that problem. Last year, Pennsylvania expanded who is eligible to have their records sealed, and it made the process automatic for some. The state may soon have company.

Earlier this month, the Utah Legislature passed a “Clean Slate” bill, similar to Pennsylvania’s, to automate some of its expungement process. And reformers in Delaware are working to increase people’s eligibility for expungement in the first place. Delaware law currently provides adults no opportunity short of a pardon to have past convictions expunged.

“If you address mandatory minimums, and sentencing reform, and prison conditions but neglect to address barriers of re-entry, then people are going to be trapped in cycles of incarceration and reincarceration where they don’t have job opportunities on the other side,” said Rebecca Vallas, the vice president for the Poverty to Prosperity Program at the Center for American Progress, a liberal think tank.

Delaware’s proposed legislation (Senate Bill 37) would delineate cases in which expungement petitions must be granted (arrests where there was no conviction and some lower-level convictions). It would also delineate other situations, including some felony convictions, where expungement is at the discretion of courts. State Senator Darius Brown, a sponsor of the bill, told me that removing the “barriers and impediments” that people with convictions will promote “economic opportunity and economic justice,” and provide “opportunity for upward mobility.”  A new study conducted at the University of Michigan found that Michiganders who received an expungement saw their wages go up by more than 20 percent within a year, boosted by an easier time navigating the job market.

This bill is part of a larger package of proposals announced last week by a coalition of legislative, legal, and associative actors. Proposals include lowering charges for drug offenses, limiting the treatment of minors as adults, and constraining the stacking of charges. 

SB 37 would expand eligibility for expungement in Delaware, but individuals would have to take action to benefit. Brown told me that the coalition pushing the bill would need to continue its work to ensure “that people are informed and educated” and organize events to promote access.

Unlike Delaware, Utah already allows adults with misdemeanor or felony convictions to petition for expungement after a set period of time.

But people hoping for expungement must file petitions and face multiple fees and filing requirements. In Utah, as elsewhere, many people do not apply or face obstacles when they do. The University of Michigan study found that 90 percent of eligible Michiganders do not apply for reasons ranging from cost and bureaucratic complexity to insufficient information. These are issues in Utah as well. Noella Sudbury, director of the Salt Lake County’s Criminal Justice Advisory Council, asked impacted individuals why they had yet to apply during an “expungement day” her office organized last year. “The two top reasons were that it’s too overwhelming and complicated, and it’s too expensive,” she said.

Vallas, who helped develop the original Clean Slate bill in Pennsylvania, emphasized the procedural maze that individuals need to surmount to benefit from expungement in nonautomated systems. The point of an “automatic clearing of criminal records,” she said, is for people to not “have to go through that one-off process of having to figure out a bunch of complicated legal documents, going in front of a judge, filling court dockets.”

Utah’s Clean Slate legislation (House Bill 431) would create such an automatic process. It would apply to people who were acquitted and to people who were convicted of some misdemeanor offenses after waiting periods of up to seven years after sentencing. The bill “shifts the burden away from the individual to the government,” said Sudbury, who advocated for the legislation alongside its sponsor, state Representative Eric Hutchings, and a coalition of Utah groups.

“It just says we have the technological tools to identify who you are and give notice to all those agencies that your record is expunged, and if after a period of time, you would have your record expunged anyway, then we will expunge it for you,” Sudbury said.

The bill has passed both legislative chambers unanimously and is now on the governor’s desk.

Sudbury said Utah should also revisit the connection between expungement and debt. “If you have open debt you wouldn’t be eligible,” she said. Paying off court fines and fees hinges on an ability to gain a stable income, and this is hindered as long as people retain a record.

Clean Slate bills that would automate existing expungement processes have been introduced in a number of other states, including in California, where it is championed by San Francisco District Attorney George Gascón. In January, California began implementing a law that automates the initiation of the expungement process for marijuana-related convictions.

The full and standalone version of this story is available here.

Minnesota: Twin Cities prosecutors roll out new marijuana policies

The two county attorneys of Minnesota’s Twin Cities have announced new policies on how their offices will handle the prosecution of marijuana-related offenses.

Hennepin County (Minneapolis): County Attorney Mike Freeman issued a memo in August, which he presented at a news conference last week. The memo first addresses marijuana possession. Since possession of less than 42.5 grams is a misdemeanor handled at the city level, Freeman’s memo addresses cases above 42.5 grams, which are felonies. His policy is that people arrested for possession will be asked to complete diversion programs, either as a condition for charges to not be filed at all (if possession is under 100 grams) or as a condition for charges to be dropped. The office may offer a stay of adjudication to people it deems not eligible for diversion based on the office’s criteria. Spokesperson Chuck Laszewski told me that they the office already used these diversionary options prior to this memo, but for fewer cases and smaller quantities. Second, the memo addresses the sale of less than 42.5 grams of marijuana: Such cases will be charged, then pushed to pretrial diversion. It was revealed last year that nearly all people arrested in sting operations by the Minneapolis police and then charged by Freeman’s office were African American. The memo also outlines numerous exceptions to all these policies such as possession of a firearm or prior convictions, which the county’s chief public defender denounced in the Star Tribune.

Ramsey County (St. Paul): County Attorney John Choi issued a Feb. 28 memo that only addresses marijuana sales: His office will no longer file charges for sales of less than 42.5 grams. When I asked whether this is conditional on completing diversion (as in Hennepin), spokesperson Dennis Gerhardstein clarified via email that “these cases will be declined/refused for prosecution.” However, the policy would not apply if there is “a clear and compelling public safety reason.” Gerhardstein told me that Choi would need to approve this determination. According to the memo, elements that could justify this determination include the sale of THC oil or factors the state defines as aggravating. When I asked Gerhardstein for their policy toward possession, he said that they already divert felony possession cases, but that they do so through a pretrial (as opposed to precharge, as some Hennepin cases) program. He added that Choi thinks “we should allow the marijuana cases to be included in our pre-charge diversion program in the near future.”

Thomas Gallagher, a criminal defense attorney in Minneapolis who is on the board of Minnesota NORML, the state affiliate of the National Organization for the Reform of Marijuana Laws, told me that he thought Freeman’s announcement was not ambitious enough. He called on Freeman to process more cases without filing charges, if not drop them altogether. “The reason I think it’s realistic for the Hennepin County prosecutor to not charge any marijuana cases is that there are prosecutors right now on the East Coast that are saying we are not going to charge any marijuana cases, period,” Gallagher said. “If they can do it, why can’t Hennepin County do it?”

Last month, Baltimore State’s Attorney Marilyn Mosby, citing a “crisis of disparate treatment of Black people,” rolled out a policy of not prosecuting marijuana possession cases regardless of quantity. Mosby told NPR that “if you are arrested for having and being in possession of a marijuana, you will then be released without charges.”

I asked Freeman and Choi’s offices whether they considered adopting a policy like Mosby’s, and why they chose not to. “We did think about it, but believe that the current paradigm of petty misdemeanor plus the legislation that we are working on (42.5 to 200 grams = misdemeanor level) would be what the public would generally support in our jurisdiction,” Gerhardstein wrote in an email about Ramsey County, referring to proposed legislation to reduce marijuana possession from a felony to a misdemeanor. Laszewski pointed me toward Freeman’s memo, which says that “our state should not have to rely solely on discretionary decisions by local police and prosecutors to ensure that our laws are sensible and just.”

Freeman and Choi’s memos come amid a statewide debate about legalizing marijuana, a move backed by Minnesota’s newly elected governor, Tim Waltz.

A standalone version of this story is available here.

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