On Tuesday, Louisiana voters overwhelmingly passed a ballot measure which will phase out the state’s Jim Crow-era practice of allowing split guilty verdicts in felony cases. The ballot initiative campaign was led by a coalition of grassroots organizations, but, after the state legislature agreed to put it on the ballot, numerous prosecutors, and even the state’s Republican Party, publicly backed the change.
With this widespread support, a majority of voters in nearly every district across the state voted to repeal the practice. Even Calcasieu Parish, where the local prosecutor controversially defended the practice while acknowledging its white supremacist origins, saw a majority of voters approve the initiative.
The now repealed Louisiana law was passed during a post-Reconstruction constitutional convention, where lawmakers openly declared that their mission was “to establish the supremacy of the white race.” And the law functioned as its writers intended well over a century after the fact. Historically, the law has disproportionately worked against Black defendants, who were convicted more frequently in cases when one or two jurors felt reasonable doubt about the accusations. AnAdvocate analysis of hundreds of felony convictions in parishes across the state found that 40 percent of such decisions came over the objections of one or two jurors. But the Black defendants in such cases had a conviction rate 10 points higher than that of white defendants, 43 percent versus 33 percent.
Across the state, roughly 2,000 people today are serving life sentences as a result of the law. People convicted on split juries, however, will not receive any retroactive benefits from the law’s passage.
Louisiana’s reform now leaves Oregon as the only state in the country that allows split juries to produce guilty verdicts for felony cases, other than murder. As Louisiana began to re-evaluate its rule, some efforts to bring Oregon in line with the rest of the nation have also started gaining steam.
Nonunanimous verdicts have sent hundreds to prison in Oregon. A 2009 review by the state’s Office of Public Defense Services Appellate Division of 662 cases on appeal found that there were nonunanimous verdicts in nearly 66 percent of cases where the jury vote was recorded. (The study was not necessarily a representative sample of all felony cases, but even its most conservative estimate indicated that at least 40 percent of all guilty jury verdicts in felony cases featured nonunanimity.)
As in Louisiana, Oregon’s practice is rooted in its own rich history of white supremacy. Much of the momentum for the 1934 constitutional amendment was sparked after public outrage over a manslaughter verdict for a case involving a Jewish defendant, Jake Silverman, the year prior. One of the 12 jurors objected to Silverman’s murder charge, and as a compromise he was convicted for manslaughter. In response to the verdict, Portland’s main newspaper published an editorial claiming that southern and eastern European migrants had spoiled the jury system.
“This newspaper’s opinion is that the increased urbanization of American life … and the vast immigration into America from southern and eastern Europe, of people untrained in the jury system, have combined to make the jury of twelve increasingly unwieldy and unsatisfactory,” the newspaper wrote. Explicitly citing the Silverman case the following year, opponents of nonunanimous juries campaigned for a state constitutional amendment, which passed with a 58 percent vote.
Over 70 years later, a consensus is growing that the rule should change—but the path forward is unpredictable. Olan Wilson, a Black man, is now challenging the provision in state court for violating the U.S. Constitution’s equal protection clause. In 2016, Wilson argued that he did not receive a fair trial because only one person on his jury was Black. The Black juror was one of two to vote not guilty, but these objections were overridden because of the nonunanimous jury rule. His case is working its way through the state’s appeals court, which could rule the practice is unconstitutional.
County prosecutors also tried to write their own ballot initiative to require unanimous juries, but quickly abandoned the effort. In January, citing issues of racism and bias, Oregon’s District Attorneys Association publicly declared that it would lead a campaign to repeal the law. At the time, Multnomah County District Attorney Rod Underhill proclaimed, “We stand emphatic and firm in our shared belief that racism, bias, prejudice and discrimination simply cannot play a role in a criminal justice system.” But soon after the announcement, it came to light that the association intended to repeal another provision of the 1934 amendment that gave defendants the right to choose a jury trial or a judge-only trial. Defense attorneys and criminal justice reform advocates publicly opposed the measure. The DAs scrapped their proposal in response to the backlash.
What happens next is still up in the air, according to Aliza Kaplan, a law professor at Lewis & Clark Law School who is one of the major figures pushing for jury reform in Oregon. In an email, Kaplan noted: “There is a possibility of legislation during this session (and there seems to be support) that could get rid of them but it may be too legalistic to get there, so more likely, it will end up a ballot initiative.”
At least one outspoken Oregon prosecutor is hoping the system will stay the same. Josh Marquis, the Clatsop County DA and a member of the Board of Directors for National District Attorneys Association, argues that the split-verdict practice benefited the system by producing fewer hung juries—when a jury cannot come to a consensus—overall.
Fewer hung juries is not a just outcome, said Kaplan. Some prosecutors think hung juries “are a waste of resources,” she told The Appeal. “But if its a hung jury, it’s basically showing that the prosecution couldn’t prove their case beyond a reasonable doubt.”
Marquis, who is set to retire at the end of this year, acknowledges that the calls for reform have momentum and support from younger prosecutors. “There’s a broad push in the Oregon legislature, including from young DAs, most of them much younger and less experienced than me, to support it,” he said in a phone interview. “Until two years ago, I never heard defense attorneys complaining about it.”
Last month, Oregon’s House Judiciary Committee chairperson, Jeff Barker, told the Willamette Week that he expected a bill ending the practice to come before him.
The change could not come soon enough, argues Kaplan. The continuing use of nonunanimous juries “leaves us behind Louisiana on criminal justice issues,” she said. “I think that is incredibly sad and telling. It’s time we get rid of them.”
Special Edition: Ballot Initiative Elections Guide
As you head to the polls today, look out for ballot initiatives that would reform the criminal justice system. As Daniel Nichanian analyzed for The Appeal: Political Report, 14 states are holding 18 referendums on measures relevant to criminal justice and law enforcement practices. The outcome of these votes, particularly those in Florida, Louisiana, Ohio, and Washington, could have tangible, far-reaching effects on the way justice is meted out.
Below, we highlight some of the most promising initiatives on the ballot.
FLORIDA: Voters could overhaul state’s regime of mass disenfranchisement and open the door to retroactively applying criminal justice reforms
No state disenfranchises as many of its residents as Florida. Ten percent of its voting-age population is stripped of the right to vote because of a felony conviction, according to a 2016 report by the Sentencing Project. More than 20 percent of Black adults are affected. Florida is one of four states that disenfranchise people even after they complete a felony sentence. Floridians must wait at least five years after the completion of a sentence to even apply for voting rights to be restored. The application process takes many more years, and culminates in a hearing in front of the governor and other statewide officials. The board only hears a few hundred cases a year, and it enjoys full discretion over what questions to ask and how to decide. They can even decide based on how they believe a given person will vote in the future.
Amendment 4 would overhaul this system. It would enfranchise an estimated 1.5 million people by automatically restoring people’s voting rights once they complete a felony sentence, except for people convicted of murder or a sexual offense. The amendment needs the support of 60 percent of voters, a threshold that polls suggest is realistic.
But the very people whose rights are being decided are barred from participating in this vote. This referendum is the culmination of organizing efforts led by the Florida Rights Restoration Coalition and its president Desmond Meade, who is himself disenfranchised. Mother Jones and the New York Times Magazine recently published in-depth profiles of the coalition’s work.
Retroactive criminal justice reforms
Florida’s “Savings Clause” bars the legislature from reducing sentences that people are already serving, meaning that no sentence reform can be applied retroactively. This prevents meaningful decarceration. Florida is the state that goes furthest in barring new legislation from applying retroactively, according to the state’s Constitution Revision Commission.
On Nov. 6, Floridians will weigh in on Amendment 11, a measure to repeal the “Savings Clause.” It was placed on the ballot by the Constitution Revision Commission, which notes that people who committed certain drug offenses before Florida modified its sentencing statutes in 2014 are serving far longer sentences than people convicted of the same offense today.
Some Florida newspapers, including the Miami Herald and the Tampa Bay Times, do not endorse Amendment 11 because they worry that the National Rifle Association might push for making the state’s Stand Your Ground law retroactive. Melba Pearson, deputy director of the ACLU of Florida, which supports Amendment 11, argues that this concern is “valid” but “outweighed” by the positive changes the measure would bring about. “Amendment 11 would be a great vehicle for reducing mass incarceration,” Pearson told The Appeal: Political Report. As examples of reforms that could be made retroactive, she mentions revising mandatory minimum sentences, the suspension of driver’s licenses, and legalizing marijuana.
LOUISIANA: Amendment 2 would require unanimous jury verdicts, as in 48 other states
The writers of Louisiana’s 1898 Constitution couldn’t ban Black people from serving on a jury, but they circumvented that limitation by enabling juries to convict over the objections of holdouts who would have acquitted. Today, Louisianans can be convicted of any felony (including murder) by non-unanimous juries: Only 10 out of 12 jurors need to vote for conviction to get a guilty verdict. This has made trials likelier to end in a guilty verdict in Louisiana than elsewhere, which contributes to the state’s high incarceration rate and may increase the pressure defendants face to accept a plea deal. The New Orleans Advocatehas found that Black defendants are more likely than white defendants to be convicted by a non-unanimous jury, and Black jurors are more likely to be the holdouts than white jurors. This law effectively diminishes Black people’s power as jurors and as defendants.
Amendment 2, if adopted in November, would revise the Constitution and require unanimous jury verdicts for all felony convictions. The measure enjoys unusually broad support, including endorsements from both the Democratic and Republican parties. Its most prominent opponent is Attorney General Jeff Landry, who is preparing to challenge Governor John Bel Edwards in 2019. (Edwards supports the measure.) The Louisiana District Attorneys Association is staying neutral, and some of the state’s most prominent DAs have even endorsed it.
OHIO: Reform package would make drug possession a misdemeanor—retroactively
Issue 1 would cut incarceration by overhauling Ohio’s sentencing guidelines and probation system.
First, it would make possessing any drug a misdemeanor rather than a felony—at least for one’s first two convictions. People arrested for possession would generally no longer face prison terms. Five states have already reclassified drug possession as a misdemeanor, all since 2014. Second, it would bar reincarceration over minor probation violations that aren’t themselves a crime, such as missing an appointment. Third, it would allow people currently in prison to reduce their sentence by up to 25 percent by participating in rehabilitation programs. It would also make the new drug statutes retroactive: People currently incarcerated for drug offenses could petition for new sentences. Policy Matters Ohio, a group that backs Issue 1, estimates that these provisions combined would decrease the prison population by approximately 10,000.
TENNESSEE: Nashville considers an independent police oversight board
In the wake of a Nashville police officer shooting and killing Jocques Clemmons, a Black man who was running away, a community group, led by Clemmons’s mother, has pushed a referendum that would create an independent board empowered to investigate police misconduct. When the federal Department of Justice investigated Nashville’s broader policing practices in 2017, it recommended that the city consider creating an independent oversight board.
The Fraternal Order of Police and the Davidson County Republican Party are mobilized against the proposal; they argue that police officers are already held accountable through internal investigations and external offices like the district attorney. David Briley, Nashville’s Democratic mayor, says that he supports the idea of an oversight board but not this initiative, in part because of insufficient police input.
WASHINGTON: Ballot measure would change law that makes it nearly impossible to hold police officers accountable for excessive force
If voters approve Initiative 940, Washington would no longer be the only state in the country that requires prosecutors to meet the “malice burden,” a standard so high that it has made it nearly impossible to prosecute police officers for killing civilians. Current law protects officers from being held criminally liable for using deadly force if they act “without malice and with a good faith belief that deadly force is justifiable.” King County Prosecuting Attorney Dan Satterberg, who has complained about how difficult it is to get convictions in police shooting cases, has said the current law provides an “almost perfect defense to a mistaken use of force” and “has kept police officers out of court as defendants.” The Seattle Times compiled data in a special report on the 1986 malice law, finding 213 fatal police shootings in Washington between 2005 and 2014. The lone case in which an officer was criminally charged in the shooting of a driver resulted in a not-guilty verdict. [Steve Miletich / Seattle Times]
Initiative 940 would impose a two-part test to determine if an officer acted in good faith. One part requires proof that a reasonable officer would have used deadly force in the same circumstances. The other asks if the officer “sincerely and in good faith believed that the use of deadly force was warranted in the circumstance.” It would also require independent investigations into all police officers’ use of force that results in serious injury or death. Finally, it would mandate de-escalation and mental health training for all police officers, and create a duty for them to provide first aid. [German Lopez / Vox]
The initiative is supported by De-Escalate Washington, a coalition of civil rights groups, in addition to certain law enforcement groups and individuals, including King County Sheriff Mitzi Johanknecht and the Black Law Enforcement Association of Washington. Meanwhile, a group that supports local police officers has spent more than $111,000 fighting the initiative. The group laments that the initiative makes police “put greater emphasis on providing medical care to individuals instead of actually doing their job of protecting the community from crime.” They claim it would make communities less safe. Over half of the contributions to that group came from the Seattle Police Officers Guild and other police guilds have contributed significantly to fighting the initiative. [Kellen Browning / McClatchy]
These measures, which are broadly but not entirely similar, strengthen victims’ ability to testify at hearings, mandate that they be notified of certain developments, and often empower them to refuse to speak with defense attorneys; they also broaden who is classified as a victim. Critics argue that these measures promote punitive outcomes and harm defendants’ rights to be innocent until proven guilty and to due process, as Meaghan Ybos reported for The Appeal in March and Sophie Quinton for Stateline in October.
It may be Donald Trump’s America, but in local elections this year, candidates from both parties are shying away from “tough on crime” campaigning and instead promising to reform the criminal justice system. Prosecutors and sheriffs who hold tremendous discretion in shaping law enforcement policies are on the ballot in hundreds of counties—as are referendums and statewide contests that could transform prosecution and sentencing rules. Candidates are talking about cash bail reform, trumpeting their support for diversion programs, highlighting their concern about racial disparities, and promising that they will not participate in federal operations that target immigrants.
“It’s a testament to the influence the movement has had in shifting the field,” Udi Ofer, the director of the ACLU’s Campaign for Smart Justice, told The Appeal.
Reform advocates have scored decisive wins in recent years, whether by electing prosecutors likeLarry Krasner, who ran on targeting mass incarceration, or by directly persuading voters to reduce aggressive sentencing throughreferendums. This year alone, in a series of primaries, such as in St. Louis County; Cole County, Missouri; and Bexar County, Texas, candidates running on reforming the criminal justice system ousted prosecutors who favored more aggressive tactics and issued alarmist public safety warnings. And incumbents under political pressure from activists have embraced important reforms, as New York Governor Andrew Cuomo did when he signed into law the country’s first commission to investigate prosecutorial misconduct weeks before facing a Democratic primary.
Still, as reform rhetoric becomes more popular, it is clear that candidates are using it to refer to vastly different policies. “It’s easy to say yes” to diversion, Danny Carr, a candidate for district attorney in Jefferson County, Alabama,said during an October debate in which he and his opponent both voiced support for such programs. “The better [question] is, would you broaden the types of cases that are eligible for diversion programs?” Similarly, many prosecutorial candidates are pledging to ensure that no one is jailed because they are too poor to post bail, but the impact of such promises will hinge on how they define indigent status, or forwhich exact charges they will refrain from seeking bail. And then there are incumbents like Erica Marthage, the state’s attorney in Bennington County, Vermont, whose electoral enthusiasm for alternatives to incarceration belies a punitive record.
Many politicians still use the usual playbook of attacking opponents as “soft on crime” or hostile to policing. According to Ofer,Florida’s andGeorgia’s gubernatorial elections “will be looked at as a defining moment for tough-on-crime versus smart justice platforms.” Some local elections feature similar clashes, sometimes in conservative jurisdictions like Oklahoma’sPayne and Logan counties.
But the pressure that many candidates face to steer clear of conventional promises of aggressive prosecution speaks to the changing politics of criminal justice reform. All in all, The Appeal: Political Reporthas identified and previewed 45 state and local elections where some important aspect of the criminal justice system is at stake on Tuesday. Some trends emerge.
Many routes to marijuana reform
The movement to legalize marijuana has a lot riding on Election Day.Four states might legalize the drug by referendum: Michigan and North Dakota for recreational use, and Missouri and Utah for medicinal use.
Victories by governors who back marijuana legalization—including JB Pritzker (Illinois), Tim Walz (Minnesota), Gretchen Whitmer(Michigan), Michelle Lujan Grisham (New Mexico) who are all favored to win, as well as candidates locked in tighter contests such as Andrew Gillum (Florida), Ben Jealous (Maryland), and Ned Lamont (Connecticut)—could alter the legislative landscape on this issue. Pritzker and Grisham in particular are likely to govern alongside a Democratic legislature. In Michigan, Whitmer’s win could facilitate the referendum’s expansion into legislation to expunge past convictions.
North Dakota’s referendum already contains that additional step toward expungement; it would seal the records of people who have completed their sentence for most marijuana convictions, but it would not alter the sentences that people are currently serving. “I think in past years the focus had been on creating the system for moving forward, and now that that’s become less of an unknown people are more comfortable looking back and looking at past convictions,” Mason Tvert, the spokesperson for the Marijuana Policy Project, told The Appeal.
In states that have not legalized marijuana, prosecutors have wide latitude for handling cases—whether they file charges at all, and if so how severe they are. Many candidates for district attorney are now promising to use their discretion to limit, if not eliminate, marijuana charges, or else to treat these cases as civil infractions instead of criminal offenses.
John Creuzot, who is running for district attorney in Dallas County, says that he would no longer charge first-time marijuana possession cases, while Joe Gonzales, running in Bexar County, wants to strengthen the county’s cite-and-release program. In Minneapolis, the disparity in marijuana possession arrests between African Americans and whites was elevenfold according to an ACLU study from 2014; Mark Haase, who is running to be county attorney in Hennepin County (the jurisdiction that includes Minneapolis) has pledged to not charge any marijuana offense absent “circumstances like very, very large amounts or sale to a minor.” And in Boston, Rachael Rollinshas gone a step further by statingthat her default policy if she is elected district attorney would be to not prosecute any drug possession charges.
Reforms to sentencing and conviction rules target mass incarceration
Efforts to curb unequal convictions, shorten sentences and reduce the severity of charges will appear on ballots all over the country on Tuesday.
Louisiana’s Amendment 2 takes aim at the state’s racial disparities. It would no longer allow non-unanimous juries to render guilty verdicts for felonies, a vestige of the Jim Crow-era Constitution that still results in Black Louisianans’ disproportionate incarceration, as a New Orleans Advocate investigation showed this year.
Mandatory minimum guidelines, another major obstacle to decarceration, could face renewed pushback if critics of the guidelines win. In Florida, where lawmakers from both parties have called for sentencing reform, the viability of such rollbacks hinges on who will wield the governor’s veto pen; Republican gubernatorial nominee Ron DeSantis supports maintaining mandatory minimums while Gillum, his Democratic opponent, supports letting judges occasionally override them.
Massachusetts could be in for a change as well. In 2015, 10 of the state’s 11 DAs signed a letter in defense of mandatory minimums that lawmakers were targeting. The possible elections as district attorney of Rollins in Boston, Andrea Harrington in Berkshire County, and John Bradley inPlymouth County would give state reformers new allies.
Prosecutorial candidates who are seeking to reduce the prison population have also converged on targeting the effects of fines and fees that courts impose on defendants. Many individuals who cannot afford these costs are jailed, a cycle that Carr has pledged to break in Jefferson County, Alabama.
More indirectly, the presence of fines and fees can result in harsher sentences. In Bexar County, Texas, defendants must pay a steep fee to access the less punitive diversion programs. One of the district attorney candidates, Joe Gonzales, denounced this as a “pay to play” system. In Payne and Logan counties in Oklahoma, DA candidate Cory Williams says he would curb prosecutors’ habit of charging defendants with felonies to extract higher fees from them.
Local cooperation with ICE could expand—or contract
To amplify its reach, ICE uses a variety of agreements with local law enforcement. The most visible type of agreement is the 287(g) deal that authorizes local deputies to act like federal immigration agents by investigating the status of people they detain. Other modes of cooperation can be more informal and harder to track. They include providing ICE with lists of foreign-born individuals held at county jails, giving ICE office space in said jails, or agreeing to detain people that ICE has arrested in exchange for nightly payments.
Tuesday’s elections for sheriff or county executive—the officials who often decide a county’s cooperation with ICE—will be decisive for the fate of many such partnerships.
The scope of the potential change is limited by the fact that many politicians who criticize ICE also argue that their county would suffer too big a financial hit if they severed their existing relationship with the federal agency. Immigrants’ rights advocates counter that more is at stake. “What kind of public servant do you want to be,” Johana Bencomo, the director of community organizing at NM CAFé, told The Appeal in reference to this dynamic unfolding inDoña Ana County, New Mexico. “Do you want to be one that’s attached to money or one that’s serving your community and what your community needs?”
Still, The Appeal has identified 10 counties—plus an entire state—where divergent approaches to local immigration enforcement are confronting one another on Tuesday’s ballot.
Maryland alone features at leastfour counties in which the fate of a single election will most likely affect participation in the 287(g) program. North Carolina’sWake County features a similar showdown between longtime sheriff Donnie Harrison and Gerald Baker, a challenger who pledges to withdraw from 287(g). The ACLU has spent $140,000advertising this election’s impact on immigration policy, an ACLU official told The Appeal.
Elsewhere in the country—fromHennepin County, Minnesota andHillsborough County, Florida toUlster County, New York andOrange County, California—sheriffs and undersheriffs who assist ICE are running against challengers who have pledged less cooperation and who warn of straining ties between sheriff deputies and immigrant communities. “All you’ve done is you’ve created hate toward the local law enforcement,” Gary Pruitt, the Democratic nominee for sheriff in Hillsborough County, told The Appeal about current Sheriff Chad Chronister’s deal with ICE.
In Oregon, the Federation for American Immigration Reform and Oregonians for Immigration Reform, organizations that the Southern Poverty Law Center classifies as hate groups, have put forward a referendum (Measure 105) that would repeal the state’s 32-year old “sanctuary” law.
Voters weigh in on prosecutorial and policing misconduct
Sheriffs and prosecutors wield tremendous force but face little oversight, and often little electoral accountability. Seventy-four of Minnesota’s 87 prosecutorial elections only featured one candidate this year, for instance, according to an analysis by The Appeal, a phenomenon in keeping with studies of past cycles.
But voters already rejected the legacies of two of the nation’s most controversial officials already this year. Bob McCulloch, St. Louis County’s longtime prosecuting attorney, lost to Wesley Bell in the August Democratic primary in what was his first contested election since the Ferguson protests of 2014. Milwaukee County ousted Acting Sheriff Richard Schmidt, who had worked under Sheriff David Clarke during a string of gruesome deaths in the Milwaukee jail.
On Tuesday, voters will weigh in on other allegations of abuse or misconduct.
The sheriffs ofHillsborough County, Florida; Santa Clara County, California; Los Angeles County; Frederick County, Maryland; and Wake County, North Carolina, are seeking re-election; The Appeal has recently reported on the abusive detention conditions in jails run by the first three, and on aggressive policing conducted by the latter three’s deputies. Hennepin County Attorney Mike Freeman’s contentious re-election racehas been shaped by his decision to not charge police officers who shot and killed two Black men. And inRensselaer County, New York, District Attorney Joel Abelove is running for re-election a year after he was indicted for withholding evidence from a grand jury in the aftermath of a police shooting. (The charges were dismissed in June, though the state attorney general’s office has appealed.)
Local referendums also seek to curb official abuses. Nashvillecould implement a civilian board to investigate police misconduct, and two Alabama countiesmay bar sheriffs from personally pocketing funds allocated for food in jails.
Bail reform is on everyone’s lips
“More than any other year, bail reform has become a topic of conversation,” Ofer of the ACLU says, referring to the demands to overhaul a system that keeps many poor individuals in jail before trial because they cannot afford the financial conditions set for their release.
In New York, the urgency of overhauling this system has drawn more attention since Kalief Browder, a teenager incarcerated for three years without a trial because his family was unable to pay bail, died by suicide in 2015. Last year, Selmin Feratovic died on Rikers Island while held on a $50,000 bail. An audit revealed that in 2016 about 76 percent of the people jailed on a given day in New York City had not yet been tried, and that a majority of these pretrial detainees are there because they cannot afford bail.
Despite the pressure created by such cases, change has proved elusive so far in New York. Reform efforts stalled in the state Senate this year. Two Democratic candidates who won primaries for the state SenatetoldThe Appeal in September that they would prioritize such legislation in the upcoming session; that plan is most likely dependent on whether their party wins a majority in that chamber on Tuesday.
Here again prosecutors have a great deal of influence because they often have leeway in the bail amount and conditions they seek. Candidates like Bell, Rollins, or Bradley have pledged to eliminate the use of cash bail for some offenses or to ask for more releases on personal recognizance, which enable people to be released pretrial without owing a payment. Jealous and Gillum, as well as Stacey Abrams of Georgia, all feature bail reform in their gubernatorial platforms.
Judges also enjoy discretion in deciding how to set bail. In Harris County (the Texas jurisdiction that includes Houston), Democratic challengers have made this into an issue against the county’s misdemeanor judges in the wake of a court ruling that found that Harris County’s bail practices violated defendants’ rights.
But as promises to reform the bail system become ubiquitous, Ofer acknowledges that some of the candidates lack a sufficiently specific or daring vision of what it should entail. Vague slogans have served as cover for toothless changes, and poor reforms can worsen the situation if they replace cash bail with alternatives that increase pretrial detention, as Ofer believes California did this year. Still, he argues that the spread of this message represents progress. “It shows success by the movement that the issue has elevated to such prominence that candidates feel that they have to take a pro-bail reform position,” he said.
“The job of advocates,” Ofer added, “is going to be to fill the gap in what bail reform means.”