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In New York, Local Elections Heat Up, Amid New Moves Against Criminalizing Sex Work

The Appeal: Political Report’s February 11 newsletter

In New York, Local Elections Heat Up, Amid New Moves Against Criminalizing Sex Work

The Appeal: Political Report’s February 11 newsletter

Feb. 11, 2021: Donald Trump’s impeachment trial has begun, which is a reminder that the 2020 cycle is in the rearview mirror. But already local elections that are happening in the spring of 2021 are demanding our attention.

  • New York: BLM activist shakes up the sheriff race in a county known for deadly jails
  • Marijuana: Virginia rolls toward legalizing marijuana, but South Dakota is on the brink of voiding its legalization measure
  • California and Louisiana: The New Orleans DA steps away from longer sentences over repeat offenses, while a judge blocks some of the Los Angeles DA’s reform on this issue
  • New York takes two steps against the criminalization of sex work
  • The politics of prosecutors: New essays interrogate the role of DAs in changing the system
  • New York: Manhattan DA candidate lays out how she would cut the DA’s budget by half and stop prosecuting dozens of charges

You can subscribe to the Political Report newsletter here. In case you missed it, catch up with last week’s newsletter. You can also visit our interactive tracker of legislative developments and our interactive tracker of the latest reforms being implemented by prosecutors nationwide.

New York: BLM activist shakes up the sheriff race in a county known for deadly jails

Many people have died over the last decade in the Erie County jails, but as usual the people who run the jails have faced little if any accountability. Will there be space in this year’s sheriff race for candidates and advocates to push for real change? 

Raina Lipsitz reports in The Appeal: Political Report on the county’s dire situation and why the 2021 elections matter, and also on the shake-up that took place in the election last week: A Black Lives Matter activist who made national news last year when he was tackled by the police during a protest against police brutality has jumped into the sheriff’s race. 

Read Lipsitz’s full story here.

That activist, Myles Carter, is now making a case for reform. “I’ve been exposed to the criminal justice system my entire life,” he told Lipsitz. (If he lived in California, Carter would not be able to run because of the state’s ban on people without law enforcement credentials running for sheriff. A new bill introduced in the legislature would change that, as Katie Fernelius reported in the Political Report last week.)

Marijuana reform: Virginia rolls toward legalizing marijuana, but South Dakota is on the brink of voiding its legalization measure

A South Dakota judge has struck down the 2020 ballot initiative that legalized marijuana, ruling that the initiative was too complex to count as a single measure. Proponents of the measure will appeal to the state Supreme Court. 

South Dakota was one of four states where voters approved legalization referendums last year, a clean sweep that confirmed the issue’s wide popularity with the public. This is not matched among public officials, however: Legalization remains far more controversial in congressional debates.  So far, only two states have legalized marijuana via the legislative route, as opposed to 13 states that have done so via popular initiatives meant to circumvent politicians’ opposition.

Still, Virginia may very soon become the third state to legalize marijuana legislatively. 

The state Senate and House each passed measures to legalize marijuana last week. (In 2020, after Democrats took full control of the state government, the legislature decriminalized marijuana, but the politics of the issue have shifted even since then.)

Virginia’s legislative fight is not done yet, though: The chambers must resolve the differences between their respective bills. Governor Ralph Northam has indicated he supports legalization.

See also: Other states that are considering legalization legislation this year include Connecticut, New Mexico, and New York. In Idaho, though, Republican lawmakers are pushing a constitutional amendment that would preemptively block a ballot initiative on the issue.

California and Louisiana: The New Orleans DA steps away from longer sentences over repeat offenses, while a judge blocks some of the Los Angeles DA’s reform on this issue

An emerging policy staple for reform-minded prosecutors who wish to reduce incarceration is to say they will not charge people under sentencing enhancement statutes that trigger harsher prison terms—often decades long. That’s the subject of two major developments over the last week.

New Orleans DA Jason Williams tackles “multi-bill” prosecutions

This was a major issue on the campaign trail in 2020: Activists demanded that candidates pledge to not use the state’s “multi-bill” statute that leads to long sentences for people with repeat offenses. Jason Williams, who ended up winning the DA race in the fall, said during the campaign that he would never use it.

The Lens, a local publication, reports that he is sticking to that promise so far. This is a big break, The Lens explains, from the more punitive practices of past New Orleans prosecutors.

Separately, this week Williams hired G. Ben Cohen as his chief of appeals. Cohen is an attorney who has fought prosecutors, including by defending Evangelisto Ramos in the case that led the U.S. Supreme Court to strike down the constitutionality of non-unanimous juries. 

Los Angeles judge blocks some of DA George Gascón’s reforms

A California judge issued a ruling this week against the reform rolled out by the Los Angeles district attorney in December that instructed prosecutors in his office to not seek some enhancements for repeat offenses, in particular under the state’s “Three Strikes” system. The judge ruled that prosecutors lack the discretion to dismiss those enhancements. 

“We can no longer afford—morally, socially or economically—to justify tough-on-crime policies in the name of victims when a majority of the survivor community supports rehabilitation over excessive sentences,” DA George Gascón, who won in 2020 on a vow to reduce incarceration and who then rolled out a wave of reforms in December, wrote in response in a Twitter thread

The ruling, which Gascón says he will appeal, came in the context of a lawsuit brought against his reforms by the Association of Deputy District Attorneys (ADDA). Piper French reported on the ADDA and its lawsuit in The Appeal in January, and found a “longstanding pattern of ideologically motivated advocacy and commitment to tough-on-crime policies.” 

New York takes two steps against the criminalization of sex work

New York activists have been pushing for the state government to decriminalize sex work, but they have not been successful at getting lawmakers to push that through. Two new developments represent steps in that direction, however.

First: The state last week repealed a statute that gave police officers broad authority to arrest people for “loitering for the purpose of prostitution,” Bryce Covert reports in The Appeal

Advocates have long said the police have used the statute, often called the “walking while trans” ban, to disproportionately target trans people of color. Beyond ending this authority, Covert writes, the new state law also “automatically seals any previous arrest records under the statute.” But similar statutes exist elsewhere in the country, Covert finds. 

Second: Brooklyn DA Eric Gonzalez, who has pushed some criminal justice reforms in his first term, announced last week that he was dropping hundreds of open cases against sex workers, and that he would decline to prosecute future prostitution cases. Otillia Steadman reports in BuzzFeed that Gonzalez has been “rolling out” this approach over the last year, and some local activists said this is an important step to protect sex workers. 

But Gonzalez is not declining to prosecute all behaviors tied to consensual sex work, and he will continue to prosecute people who buy or promote sex work. Advocates for full decriminalization stress that this partial approach means continuing to expose sex workers to law enforcement and the criminal legal system. (See below for my interview with a Manhattan DA candidate who says she favors full decriminalization, and vows to act accordingly in the office.)

The politics of prosecutors: New essays interrogate the role of DAs in changing the system

“Can prosecutors help end mass incarceration?” Rachel Barkow, a law professor at New York University, asks in an article that is forthcoming in the Michigan Law Review, and which she shared on SSRN.

Barkow lays out why the wider ecosystem of criminal justice is essential. Lasting change will not come from DAs exercising power more wisely, but from long-term statutory and institutional reforms, which prosecutors can help bring about. “For this movement to be truly transformative, these prosecutors will need to do more than seek to exercise the vast discretion of their offices more wisely than their predecessors,” Barkow writes. “They will need spearhead institutional changes, including changes that limit the leverage prosecutors have over defendants.”

The Appeal pays attention to the systemic pushback that some prosecutors’ decarceral reforms have received, and to the calls to slash the footprint and budget of prosecution. We also invite you to check out our interactive tool, “The Politics of Prosecutors,” that tracks new policies some prosecutors are releasing, especially if they go beyond emphasizing prosecutors’ case-by-case discretion.

In addition, Katrina vanden Heuvel wrote a column in the Washington Post this week on recent changes brought about by progressives elected as prosecutor. And Marc Levin published a commentary on Law360 about declination policies, with which prosecutors presumptively say they will not charge entire categories of cases. He notes that this is nothing new: “In about half the states, adultery or fornication remain crimes, but prosecutions are unheard of. Reflecting the consensus that such conduct is not worthy of the criminal sanction, no district attorney has been criticized for ignoring these laws.” Declination policies are also the topic of this newsletter’s final section, below.

New York: Manhattan DA candidate lays out how she would cut the DA’s budget by half and stop prosecuting dozens of charges

As more district attorneys win elections on promises to reform the criminal legal system, demands are mounting for them to not just tinker with its edges but directly downsize it. The goal, for many activists, isn’t only for this system to treat people differently, but to ensure people never encounter it in the first place.

Last week, Tahanie Aboushi, a candidate for DA in Manhattan’s 2021 election, rolled out a list of more than 40 offenses she says her office would not prosecute because they criminalize poverty, mental health issues, and substance use. Her new policy proposal builds on an earlier promise to end the prosecution of a shorter, and more qualified, list of charges.

If she is elected, she would not file criminal charges over drug offenses, sex work, driving without a license, disorderly conduct, some theft charges, fortune telling, and many more, in cases where these would be the top charge. Such cases would be outright dropped when brought to her by the police.

I spoke to Aboushi last week about why she wishes to reduce criminalization. She explained why she extends her declination promise to drug sales and why she is proposing to fully decriminalize sex work.

New York should “stop over-relying on the DA’s office and the police to respond to everything that goes on in society,” Aboushi said. “Interaction with the justice system is destabilizing.”

This would substantially reduce the “footprint” and also the budget of the DA’s office, Aboushi vows. Her memo says she would reduce the budget by half. “When we clean those cases out,” she said, “we’re going to see we don’t need an office of this size, with so many different moving parts, all contributing to the very issues we’re fighting against.” In the course of the Q&A, she also addressed sections of her policy that call for reducing convictions and incarceration over offenses that aren’t in her declination list, including higher-level offenses that involve violence, saying she aims to reduce the footprint of the system in all cases “without exception.”

Aboushi is one of eight candidates in the Democratic primary to replace DA Cy Vance, who has not yet said whether he will seek re-election.

A number of her opponents have also said they would decline to prosecute some offenses that feature on her list, as I detail in my article.

Although the scope of these declination policies varies, the very notion that DA candidates would be competing to see who will most reduce their office’s jurisdiction would have sounded strange as recently as 2018, back when Rachael Rollins released a list of 15 offenses she would not prosecute on her way to winning the DA race in Boston. Her decision to propose a blanket declination policy, as opposed to saying she would treat these charges differently, less harshly, or less frequently, was heralded by reform advocates for pushing the boundaries of what was being debated in DA elections.

You can read my full Q&A with Aboushi here.

Lawmakers Address the Size of Policing, the Death Penalty, Sex Work

The Appeal: Political Report’s Feb. 4 newsletter

Lawmakers Address the Size of Policing, the Death Penalty, Sex Work

The Appeal: Political Report’s Feb. 4 newsletter

If you are keeping one eye glued these days on the congressional drama around the stimulus checks and on Senate maneuvers like reconciliation, you would be well advised to keep the other eye on state legislatures that have been rapidly moving forward important bills. In today’s newsletter:

  • National: Bills to reduce the reliance on policing are popping up around the country
  • Virginia: The Senate votes to abolish the death penalty, and other reforms advance, too
  • New York repeals its “walking while trans” ban
  • California: A new bill would significantly expand the pipeline for reform candidates
  • Legislative round-up: other developments from Arizona, Florida, and Montana

Also today, we will check in on some new prosecutors and DA elections that are on the horizon:

  • Louisiana and Texas: The new DAs in New Orleans and Austin lay out first reforms
  • New York: Some Manhattan candidates vow to break ranks with tough-on-crime DAs

In case you missed it, catch up with last week’s Political Report newsletter, which probed emerging policing reforms and new bills against felony disenfranchisement. You can also visit our interactive tracker of legislative developments and our tracker of the politics of prosecutors.

Legislation to promote alternatives to policing is popping up around the country

Since the Black Lives Matter protests of 2020, most of the interesting initiatives to reduce the footprint of police departments, including the creation of alternatives to policing and reductions in law enforcement budgets, have moved forward at the municipal level. Just last week, Austin’s City Council voted to use money diverted from the police department to buy a hotel to provide housing services for people who experience chronic homelessness; the Political Report also reported last week on a participatory budgeting initiative in Seattle to decide how to spend millions cut from the police department.

Proposals are now also emerging in state legislatures that would facilitate such local initiatives, Meg O’Connor reports this week.

“Lawmakers in at least nine states have introduced legislation to keep cops out of schools, disincentivize arrest quotas, civilianize traffic enforcement, and have health professionals respond to calls about people experiencing health crises instead of police,” O’Connor reports in her comprehensive look at the national landscape as 2021 sessions gets off the ground.

In particular, there is a wave of proposals that are meant to help local governments set up agencies of mental health responders that could respond to emergency calls, though only in Maryland does the legislation actively discourage the dispatching of police officers. Other legislation O’Connor reviewed, including once again in Maryland, would incentivize the use of law enforcement for traffic issues.

Virginia: The state Senate votes to abolish the death penalty, and other reforms are moving forward, too

Virginia took a decisive step on Wednesday toward becoming the first Southern state to abolish the death penalty, when the state Senate passed Senate Bill 1165.

The Senate voted 21-17 on the bill, which was carried by Democrats. Neither of the two Republicans who had supported it in committee ended up voting for it. The state House may vote on the bill later this week, though the legislative process may still take a while longer.

If Virginia were to abolish the death penalty, it would be a significant turnaround given the state’s predilection for capital punishment throughout U.S. history. But it’s also a turnaround from 2020, when the identical state legislature rejected similar legislation (see my Jan. 21 newsletter for more).

In Virginia, all bills face a Friday deadline to pass through at least one of the two chambers of the state legislature, or else they can no longer pass in this year’s legislative session.

Three other bills beat the deadline earlier this week. House Bill 2290 would end the enhanced penalties imposed on people who are repeatedly convicted of misdemeanor theft. HB 1936 would end the state’s draconian practice of punishing all felony robbery by at least five years in prison, though some robbery convictions would retain exceedingly long terms. (Theft of at least $1,000 is a felony in Virginia.) And HB 2038 would restrict incarceration over violations of probation.

Other measures that have passed at least one committee and are still under consideration to beat Friday’s deadline are bills to legalize marijuana, narrow disenfranchisement, and end mandatory minimums. (See last week’s newsletter for more details on the latter two measures.)

A poll released this week by Christopher Newport University found wide support in the state for two emblematic proposals, death penalty abolition (56 to 44 percent) and marijuana legalization (68 to 32 percent).

New York repeals its “walking while trans” ban

In a big win for New York activists who are pushing to both reduce the footprint of policing and to decriminalize sex work, this week the state repealed a statute that is known as the “walking while trans” ban.

The statute gave New York police officers wide discretion to arrest people for “loitering for the purpose of prostitution.” It enabled “police to decide, for instance, that a woman’s skirt is too short, or that she’s been lingering too long on one street corner, and to apprehend her,” Amanda Arnold wrote in an explainer in The Cut last year. Trans women were primary targets for arrests under this statute. “Trans women are often assumed to be sex workers, yet police officers don’t see them as victims worthy of protection,” Emma Whitford wrote in The Cut in 2018. “The stigma surrounding sex work is compounded by the stigma surrounding their gender identity.”

The new reform, signed into law by Governor Andrew Cuomo on Tuesday and sponsored by Democratic lawmakers Brad Holyman and Amy Paulin, comes out of sustained activism and litigation by sex worker advocates and by groups such as the Legal Aid Society, DecrimNY, and the New York Transgender Advocacy Group. There are broader efforts by New York advocates to fully decriminalize sex work.

California: A new bill would significantly expand the pipeline for reform candidates

It’s rare enough for anyone to challenge the local officials who run the criminal legal systems— judges, prosecutors, and sheriffs—let alone for candidates to run on a platform of meaningful change. In California, that dynamic is especially complex in sheriff elections because of a law enacted in the 1980s that requires that candidates have law enforcement backgrounds.

This instantaneously excludes anyone who does not already work within the system. Of course, outsider candidates are no panacea for criminal justice reform, and many may have no interest in change themselves. Still, a pipeline of people who are already focused on challenging mass incarceration and policing practices are barred from running.

State lawmakers have introduced legislation this week that would lift this ban, Katie Fernelius reported in The Appeal: Political Report on Monday, and enable many more Californians to run.

“The bill comes at a pivotal time,” Fernelius writes, “as the Los Angeles County Sheriff’s Department is under state investigation for potential civil rights violations. The department has a history of corruption and in recent years has come under fire for brutality, sexual assault, and gang activity within the ranks.”

Legislative round-up: other developments from Arizona, Florida, and Montana

Arizona: In recent years, Republican lawmakers in Arizona championed proposals to reduce sentencing and enable early release in recent years, but other powerful Republicans blocked those measures during the legislative process. Will that dynamic perdure in 2021? The Arizona Mirror reports that a staunch opponent of criminal justice reform who led a key committee has retired from the legislature; but his replacement is indicating he has little appetite to allow sentencing reforms to move through this year. Still, advocates vow to press ahead.

Florida: State Senator Jeffrey Brandes, a Republican, is proposing to exclude people with felony convictions from the minimum wage increase that Floridians approved in November, Jerry Iannelli reports in The Appeal.

Montana: The legislature is advancing a bill that would compensate people who are exonerated for each year they were wrongfully convicted. Importantly, lawmakers have so far rejected an amendment that would make this compensation conditional on the beneficiary dropping all legal action against the state, the Independent Record reports.

Louisiana and Texas: The new DAs in New Orleans and Austin lay out first reforms

Prosecutors elected on progressive platforms in 2020 have been rolling out reforms since taking office, including in Athens, Georgia, Ann Arbor, Michigan,, and Los Angeles. This week, eyes are on announcements in New Orleans and Austin.

Austin: José Garza, the new DA of Travis County (Austin), released a memo last week that jump-starts some of his reform commitments, including instructing prosecutors to seek no bail or “low” bail in more cases, and expanding diversion programs by removing some restrictions on access. Garza also confirms his campaign promise, which goes further than other progressives who have run for DA, of no longer prosecuting the low-level possession and sale of drugs.

New Orleans: Jason Williams replaced an exceedingly punitive DA in January, and last week he announced two breaks with his predecessor’s record. First, in all cases in which “juvenile lifers” are being resentenced, the DA’s office will no longer seek life without parole. (Many people who received a mandatory sentence of life without parole as minors are entitled to a resentencing hearing because of U.S. Supreme Court rulings from the early 2010s, but courts may still reaffirm the initial sentence.) Second, his office will no longer oppose any incarcerated person’s request for parole; some DAs have a policy of routinely opposing all parole requests. In addition, a 55-year-old man who was serving a life sentence for robbery was released this week after 24 years in prison, The Advocate reports, after Williams’s office agreed to have a court cut his sentence. Williams has appointed Emily Maw, who is the former director of the Innocence Project New Orleans, as the chief of his civil rights division, and who is now reviewing past sentences.

New York: Some DA candidates in Manhattan vow to break ranks with tough-on-crime colleagues

Prosecutors’ statewide associations are some of the staunchest foes of criminal justice reforms. They are ostensibly professional organizations, but they double as powerful political lobbies. These associations have begun to splinter in recent years, most notably in California, Pennsylvania, and Virginia. 

Will that splintering reach New York this year? It may through the DA race in Manhattan, Sam Mellins reports in The Appeal: Political Report and New York State Focus

Three candidates are vowing that if they are elected they would not join the District Attorneys Association of New York (DAASNY), an influential organization that just in recent years has fought bail reform and sued over a law against prosecutorial misconduct. They are civil rights attorney Tahanie Aboushi, public defender Eliza Orlins, and Assemblymember Dan Quart. 

The other five candidates said they would not leave the association, or they are undecided. Most vowed to promote change from the inside, however. But advocates warn it’s not so simple: DA associations often talk in the name of all prosecutors, even when decision-making is in the hands of a smaller group, which can foster a misleading perception that their position is the voice of law enforcement professionals.

2021 Brings Movement Against the Death Penalty and for Voting Rights in States

The Appeal: Political Report’s January 28 newsletter.

2021 Brings Movement Against the Death Penalty and for Voting Rights in States

The Appeal: Political Report’s January 28 newsletter.

The word “decarceration” made it into the Merriam-Webster dictionary this week, a testament to the changing debates around the criminal legal system that have continued to upend local policies this week. On the menu in today’s newsletter: 

  • Oregon: Will this state accelerate the movement against felony disenfranchisement?
  • Virginia: The state legislature is rapidly advancing reforms against mandatory minimums, the death penalty, disenfranchisement, and more
  • Legislative roundup: Other developments from Alabama, Illinois, Missouri, New York, and Pennsylvania
  • The politics of prosecutors: New Austin DA makes changes, Florida and Texas prosecutors who once ran on reform pursue aggressive prosecutions, and Staten Island prosecutor embraces facial recognition
  • Washington: After cutting its police budget, Seattle turns to participatory budgeting

In case you missed it, catch up with last week’s Political Report newsletter, which reviewed a wave of major reforms in Georgia, Michigan, Virginia, and Washington, D.C., that have made 2021 start with a bang.

You can also visit our interactive tracker of legislative developments, our tracker of the politics of prosecutors, and our portal on the 2020 elections.

Will Oregon accelerate the movement against felony disenfranchisement?

Oregon lawmakers have introduced a bill to enable people to vote from prison, Kira Lerner reports in The Appeal: Political Report this week.

If the legislation were to pass, Oregon would join Maine, Vermont, and Washington, D.C., as the only jurisdictions that have no felony disenfranchisement.. But Oregon would be the first state to abolish the practice, since Maine and Vermont have never had it in the first place and D.C. is not a state, and advocates told Lerner they hope this milestone would jumpstart changes elsewhere. 

“Prison is about the loss of liberty, not the loss of citizenship,” Anthony Richardson, who is incarcerated in the state, told Lerner. He added that Oregon first disenfranchised people in prison “over 160 years ago, during a time of forced labor, exclusion laws, lashings, lynching, and policies designed solely to benefit white men and oppress people of color,“ and “continues to forbid Oregonians in prison from being valued as human beings in this state.” Indeed, Oregon has among the nation’s highest racial disparities in incarceration, a reality that the bill’s proponents are stressing to make the case that suffrage cannot stop at the prison doors.

The introduction of Oregon’s bill builds on national efforts to end felony disenfranchisement that the Political Report has closely followed. In 2019, I interviewed Maine’s secretary of state about how voting from prison works there, and about his perspective that suffrage can provide a “sliver of light.”

After the Political Report broke news of the Oregon bill on Monday, some public officials and advocates in other states responded by calling on their leadership to follow suit. Eli Savit, the newly elected prosecutor of Washtenaw County, Michigan, tweeted; “Hey Michigan! We already let returning citizens vote when they come home. How about let’s end prison disenfranchisement altogether?” The ACLU of Virginia tweeted, “@GovernorVA, we can do this in Virginia.”

Virginia: The state legislature is rapidly advancing reforms against mandatory minimums, the death penalty, disenfranchisement, and more

Virginia has long been a bastion of punitive politics. The state’s incarceration rate is higher than the sky-high national average, it all but eliminated parole in the 1990s, and it has among the nation’s harshest felony disenfranchisement statutes. But Democrats gained control of the legislature in the 2019 elections, upending the political landscape. Last year, Virginia eliminated life without parole for minors, decriminalized marijuana possession, and ended prison gerrymandering, among myriad other changes.

Many important reforms are rapidly moving in the 2021 session, but questions remain as to the scope of lawmakers’ ambitions.

Death penalty abolition: Virginia may be the likeliest state to abolish the death penalty this year, I wrote in my newsletter last week after the Senate Judiciary Committee—almost identical in its membership to the committee that sunk legislation abolishing the death penalty last year—voted to advance a new abolition bill. This week, the Senate Finance Committee voted to advance the legislation as well, sending it to the chamber’s floor. Once again, all Democratic senators voted in favor of the bill, as well as one Republican. 

What are the odds of passage in the full Senate? I put together a whip count of the senators’ public positions, combining their votes in committee with their responses to my direct email inquiries, and identified 17 supporters out of 39 lawmakers. The bill also has to pass the House.

Mandatory minimums: The Senate Judiciary Committee advanced a bill this week that “would end mandatory minimum jail and prison terms for more than 200 crimes,” the Associated Press reports. Advocates who testified for the bill stressed that mandatory minimums empower prosecutors to control sentencing with how they decide to charge a case and grant them additional leverage to pressure defendants into guilty pleas. The progressive association of state prosecutors that formed in 2020 to promote criminal justice reform had made repealing mandatory minimums one of its first demands. 

Voting rights: In a dramatic shift this week, Democratic lawmakers significantly expanded the scope of their legislation against felony disenfranchisement, with the governor’s support. I wrote two weeks ago that Governor Ralph Northam had unveiled a push to narrow felony disenfranchisement that was remarkably disappointing compared to legislation that many states have passed in recent years; it would have restored people’s voting rights after they finish their entire sentences, including periods of supervision. But lawmakers amended the bill on Monday to enable anyone who is not presently incarcerated to vote. 

This change would enfranchise tens of thousands of additional Virginians; it would also make the situation far less confusing to many others who on paper would have been enfranchised under the prior proposal but who in practice would have to navigate byzantine rules to figure out whether they are eligible. “To me, completion of sentence of imprisonment is a very clear, bright-line standard,” said Delegate Mark Levine, a Democrat. Still, the bill would leave behind incarcerated Virginians; state advocates have pushed for lawmakers to entirely eliminate disenfranchisement. 

And more: Other bills that touch on the criminal legal system advanced past at least one committee over the last week. In particular, House Bill 2290 would end the enhanced penalties imposed on people who are repeatedly convicted of misdemeanor theft. HB 1936 would end the state’s draconian practice of punishing all felony robbery by at least five years in prison (theft of at least $1,000 is a felony in Virginia), though some robbery convictions would retain exceedingly long terms. Other bills would restrict incarceration over violations of probation, and provide defendants access to legal counsel at bail hearings—a protection defendants often lack at a key moment.

Legislative roundup: Other developments from Alabama, Illinois, Missouri, New York, and Pennsylvania

Alabama: People with felony convictions must carry special IDs

Connor Sheets of reported last year that Alabama is the only state where people with multiple felony convictions must carry a special ID card, and face incarceration if they do not. This week, Sheets wrote a Twitter thread that explains that, despite promises by sheriffs to change their practices in response to his article, Alabamans continue to be arrested and face jail charges because they were not carrying “felon IDs.”

Illinois: Waiting for the governor

The omnibus legislation that I reviewed last week still sits on Governor J.B. Pritzker’s desk. It would affect cash bail, felony murder, and driver’s license suspensions, among other matters.

Missouri: A Republican lawmaker would protest drivers who injure protesters

Tennessee grabbed headlines in 2020 with a new law that criminalized activities tied with protests. A disturbing trend has emerged in 2021 of other state legislatures considering bills meant to crack down on protesters, and using the Jan. 6 insurrection in the U.S. Capitol as cover to do so, Meg O’Connor reported in The Appeal last week. In Missouri, Senator Rick Brattin, a Republican, now is proposing legislation that “would release a motorist from liability if they injure someone who blocks traffic during an unlawful protest.” State Democrats want the legislature to adopt stricter law enforcement rules, but a special session in the GOP-run legislature last fall derailed most such proposals.

New York and Pennsylvania: Will marijuana legalization finally come?

Will these two Northeastern states legalize marijuana this year? Joshua Vaughn reports in The Appeal that they face mounting pressure now that neighboring New Jersey took that step in November through a ballot initiative; they stand to lose out on a lot of potential revenue. New York Governor Andrew Cuomo has said that legalization, which he used to oppose, is a priority for him this year. State advocates hope that Democrats’ increased majority in the New York legislature will also spur further reforms that they have long pushed for, such as legislation to decriminalize possession of a syringe.

The politics of prosecutors: from Austin, Houston, Jacksonville, and New York City

Duval County, Florida: Prosecutor will seek the death penalty if the defendant doesn’t drop innocence claims

Melissa Nelson, the chief prosecutor of Duval County (Jacksonville), first ran on promoting reforms and using the death penalty judiciously. But The Appeal reports this week that she is now seeking the death penalty against a man who is intellectually disabled, according to his attorneys. “In letters to community members, Nelson seems to suggest that she would consider dropping the death penalty if not for Glover’s innocence claim and his plans to appeal his conviction,” Elizabeth Weill-Greenberg writes. 

In 2020, at least seven candidates won prosecutorial races after running on a much stronger commitment. Rather than say they would use their discretion more wisely (a promise that can be made to fit any circumstance, as we’ve also seen in Houston in circumstances similar to Jacksonville), they vowed to simply never seek the death penalty. A number of them, including in Los Angeles and Athens, Georgia, have reaffirmed this in formal memos since taking office. 

New York City, New York: Staten Island’s DA embraces facial recognition

The office of Staten Island DA Michael McMahon purchased facial recognition software from Clearview AI in 2019, George Joseph reports in Gothamist, despite the grave concerns that facial recognition raises about surveillance and privacy. Joseph adds that Staten Island appears to be the only one of New York City’s five boroughs to have done so.

Travis County (Austin), Texas: Early changes greet Austin’s new prosecutor

A grand jury in Travis County has indicted two police officers over the 2019 assault of Paul Mannie, a Black man. Austin’s police department had cleared the officers of wrongdoing through an internal investigation, but José Garza, a progressive who won the DA race last year, ran on a promise of presenting “all use-of-force cases to grand juries that involve deaths or serious injuries,” the Austin American-Statesman reports. It may be hard for prosecutors to secure convictions if the police department is not cooperating. (See also: Grits for Breakfast, a blog that covers the criminal legal system in Texas, reviews Garza‘s first weeks on policing.)

Separately, this week Garza‘s office supported the release of Rosa Jimenez, a woman who has been fighting to establish her innocence; Margaret Moore, the DA ousted by Garza last year, had resisted Jimenez’s claims but eventually shifted her position during the campaign.

Harris County (Houston), Texas: DA prosecutes a doctor over COVID-19 vaccines 

A Texas doctor administered nine doses of the COVID-19 vaccines that he said would otherwise go to waste to people who were not on the priority list. Houston’s DA, Kim Ogg, charged him with theft in response. This week, local judge Franklin Bynum dismissed the charge and starkly criticized Ogg for filing it. “the State attempts, for the first time, to criminalize a doctor’s documented administration of vaccine doses during a public health emergency,” wrote Bynum, who won this judgeship in 2018 as a democratic socialist candidate and gained national attention. But Ogg said she still intends to present the case to a grand jury. (See also: In 2019, a federal judge reproached Ogg for engaging in Willie Horton-style tactics to derail the county’s proposed bail reform.)

Washington State: After cutting its police budget, Seattle turned to participatory budgeting

In tandem with the nationwide movement to defund police, “people’s budgets” are on the rise as advocates call for public funds to go toward healthcare, housing, and public services instead. In November, Seattle went further than other cities that have reduced police funding. The City Council not only cut the police budget by 18 percent, but it also allocated millions that waswereslated to go to the police to a participatory budgeting process that will give residents a say in how the money should be used.

Manjeet Kaur writes in the Political Report this week on Seattle’s Black Lives Matter movement, and how it channeled momentum from the streets into budget debates and ultimately won a groundbreaking reform that will directly involve people in governing in a way that we may have seen elsewhere in the world but has rarely been practiced within the United States.

D.C. Adopts a “Second Look” Law, and More Local Races Loom on 2021 Horizon

The Appeal: Political Report’s January 21 newsletter

D.C. Adopts a “Second Look” Law, and More Local Races Loom on 2021 Horizon

The Appeal: Political Report’s January 21 newsletter

The United States has a new president and a new majority in the U.S. Senate, and some rapid federal changes may be coming to immigration and judicial appointments. But in recent weeks I’ve also been chronicling the local and state momentum in favor of changing the criminal legal system and its many tentacles, and there was still more over the past week. 

  • Washington, D.C.: Mayor Bowser signs a “second look” law that may help shorten the sentences of some incarcerated people
  • Illinois: Legislature passes a major reform package that touches on bail, felony murder, fines and fees, and more
  • Virginia: Early success for legislation to abolish the death penalty
  • Michigan: New prosecutor will stop prosecuting sex work
  • Georgia: Cobb County’s new sheriff quits ICE’s 287(g) program, as he had promised

In case you missed it, catch up with the most recent Political Report newsletter, on major reforms in Georgia, Michigan, and Ohio. You can also visit our interactive tracker of legislative developments, our tracker of the politics of prosecutors, and our portal on 2020’s elections.

Raising the Curtain on the 2021 Elections

In 2020, progressives won prosecutor and sheriff elections across the Sun Belt, from Los Angeles to suburban Atlanta, and to a lesser degree the Midwest.  The East Coast may take its turn in 2021. A string of local elections that hold the potential of upending the criminal legal system are on the horizon in the spring and fall.

Voters in Brooklyn, Manhattan, Philadelphia, numerous Virginia cities, as well as a medley of counties in Pennsylvania, New Jersey, and New York will elect their prosecutors and/or sheriffs, against the backdrop of sustained organizing and renewed protests. Three of these states also hold statewide elections that may alter the political landscape for criminal justice reform, and a string of municipal races nationwide will affect control over law enforcement.

As ever, local and state officials hold a huge share of the power to fight mass incarceration and wind down our punitive era. Even as Democrats are set to take control of the federal government this week, and some of their agenda involves changes to the criminal legal system, the politics of county prosecutors and sheriffs will have an outsized impact on issues such as sentencing and pretrial detention to drug policy, and plenty of activism will continue pressuring lawmakers, governors, and mayors to aggressively overhaul state rules and statutes.

Beyond the results of any individual race, though, 2021 may continue transforming the broader culture of criminal justice elections. In recent years, local candidates have laid out increasingly bold platforms, perhaps fueled by rising protests and by the previous wins of decarceral candidates whose successes called into question the electoral potency of tough-on-crime attacks. This has meant more proposals that would shrink criminal legal system and law enforcement altogether—by not prosecuting certain behaviors at all or by closing jails, for example—rather than just making them work differently. This shift is still nascent, however. Will the 2021 elections further it?

This week, I broke down some of the defining questions regarding local and state elections that will occupy our attention this year: How are the elections in Philadelphia and New York City shaping up? Which sheriffs are up for re-election after running jails with terrible conditions? How might the year alter Virginia’s balance of power? Read the full article for answers.

Washington, D.C.: Mayor signs a major “second look” legislation that may help shorten the sentences of some incarcerated people

Last week, Mayor Muriel Bowser signed the Second Look Amendment Act, an important reform in Washington, D.C., that would give hundreds of people who are serving very lengthy sentences a chance to be released earlier than scheduled. (Since D.C. is not a state, the bill will become law only after a statutory review period during which Congress is entitled to intervene to block it.)

Meg O’Connor reported on the bill in The Appeal in December, before the D.C. Council was set to vote on it. She explains that it builds on a 2016 reform that has allowed “people who committed serious crimes before their 18th birthday to petition the court for resentencing after they have served at least 15 years.” The Second Look Amendment Act would raise the cutoff age to 25, which would extend the eligibility to apply for a reduced sentence to at least 300 more incarcerated people.

O’Connor adds that the “Second Look Amendment Act is part of an emerging trend to extend youth resentencing measures to young adults,” as other states have adopted laws to either raise the age of juvenile jurisdiction higher than age 18 or to extend some provisions categorized as youth justice to ages 21 or 25. 

The bill also furthers broader efforts to fight very long sentences that amount to life in prison, whether for youth specifically or for anyone

“If we really are going to do anything about mass incarceration, decriminalizing marijuana isn’t going to do it,” Barbara Fedders, who directs the Youth Justice Clinic at the UNC School of  Law, told O’Connor. “It’s going to be these sort of things—taking a second look at people who have been convicted of violent crimes.”

Illinois: Legislature passes a major reform package that touches on bail, felony murder, fines and fees, and more

The Illinois legislature last week adopted an omnibus bill years in the making that was championed by the Legislative Black Caucus. The bill, which now sits on Governor J.B. Pritzker’s desk, touches on many aspects of the criminal legal system. Here is an early selection of articles that delve into some of its core aspects.

Bail reform: “The legislation abolishes cash bail—a system that made avoiding pretrial detention contingent on an ability to pay—in all circumstances except when required by laws and agreements Illinois entered into with other states,” Elizabeth Weill-Greenberg writes in The Appeal. Advocates point to other provisions that would ensure pretrial detention decreases.

Felony murder: The omnibus bill would narrow the felony murder doctrine. “If passed, the bill will ban prosecutors from filing first-degree murder charges in cases where defendants did not commit the act or know it would occur, or where the death was caused by a third party,” Rita Oceguera writes in Injustice Watch. However, the bill would not bring relief to people already incarcerated because it would not apply retroactively.

Driver’s license suspensions: As momentum builds nationally against suspending driver’s licenses for a failure to pay court debt, the Illinois legislation would curtail though not eliminate the practice: If the bill is signed, people would no longer see their license suspended over unpaid red-light and speed camera tickets. The bill “would restore the driving privileges of some 11,000 people by July and eliminate a significant trigger for personal bankruptcies in Chicago,” Melissa Sanchez reports in ProPublica

I will return to the legislation when the governor has acted on it.

Virginia: Early success for legislation to abolish the death penalty

Less than one year ago, legislation to abolish the death penalty in Virginia failed in the state Senate’s Judiciary Committee. The vote wasn’t even close.

On Monday, though, the same Judiciary Committee—with nearly the exact same composition—advanced a similar bill on a vote of 10-4. 

All Democrats who are in the committee voted to advance the measure, as did one Republican (Bill Stanley). The most surprising vote is that of Majority Leader Dick Saslaw, a Democrat who has championed the death penalty for decades, including advocating for legislation in 2015 that would protect corporations that manufacture execution drugs from transparency laws. One factor that has changed since last year is that Governor Ralph Northam endorsed abolition this month; in addition, the Trump administration’s rush to kill people on the federal death row has galvanized more people to prioritize repealing the death penalty.

“Certainly, the recent string of executions brings added attention to the discussion,” Senator Jennifer Boysko, a Democrat who already long opposed the death penalty, told me this week. “And I’m glad that people are thinking about it and weighing it in their minds with some seriousness.”

Virginia, which is one of the states that has used the death penalty most aggressively since it was reinstated as a punishment in 1977, may be the likeliest state to abolish it this year. But the final votes on the floor of the Senate as well as in the House of Delegates remain uncertain.

Michigan: New prosecutor will stop prosecuting sex work

Eli Savit, the new prosecuting attorney in Washtenaw County (Ann Arbor), Michigan, announced last week that he would no longer prosecute acts involving consensusal sex work, including the soliciticition of a consensual exchange.

“The criminalization of sex work actually increases the risk of sex work-adjacent harm,” says the eight-page policy memo released by Savit’s office, comparing it to the effects of other “prohibitionist policies.”

The directive also states that criminalization “is in serious tension with established norms related to bodily autonomy and personal liberty.”

The decriminalization of sex work has become an insistant theme in district attorney elections over the past two years, but few prosecutors so far have announced formal policies of declining to prosecute. Chesa Boudin, the DA of San Francisco, announced last year he would not press charges for behaviors related to prostitution.

Savit, who won in 2020 on a progressive platform, has rolled out other reforms since he became prosecutor. On Jan. 4, he announced his office would no longer seek cash bail, as Rachel Cohen reported in the Political Report.

Georgia: Cobb County’s new sheriff quits ICE’s 287(g) program, as he had promised

Craig Owens, the new sheriff of Georgia’s Cobb County, a populous county in the Atlanta suburbs, terminated his county’s contract with ICE’s prized 287(g) program this week.

“Let me be clear: there’s a new day and a new era in Cobb County,” Owens said on Tuesday

Owens, a Democrat, defeated longtime Republican Sheriff Neil Warren in November on a promise to end 287(g) and curtail broader cooperation with ICE, as we reported in September. At the time, he told the Political Report that the 287(g) program “often turns into profiling, looking at Africans, Latinos, Muslims, and other immigrants. It causes all types of problems, is expensive to maintain, and I don’t see why the county should be involved in it.” 

The 287(g) program, which deputizes local law enforcement to act like federal immigration agents within jails and puts thousands of people each year on ICE’s radar, has been a longtime target of immigrants’ rights activists in Cobb County. 

Two other populous Southern counties, Georgia’s Gwinnett and South Carolina’s Charleston, elected new sheriffs in November who earlier this month ended their own jurisdictions’ 287(g) contracts. (See the Jan. 7 newsletter.) “These incredible victories are the culmination of more than a decade of fighting back by immigrants’ rights organizers against the devastating 287(g) program which led to untold numbers of families being torn apart,” Azadeh Shahshahani, legal and advocacy director of Project South, told me in November when the election results first came in. 

(It has since been reported that Butch Conway, who was just replaced as sheriff of Gwinnett County, attended the Jan. 6 Trump rally around the U.S. Capitol.)

The changes in Cobb, Gwinnett, and Charleston counties mirror what has occurred elsewhere in the South in recent years, as a wave of sheriffs have won after running against ICE cooperation.

It’s noteworthy that all three new sheriffs who ran and won in 2020 on a promise of ending the 287(g) contract have done so promptly after taking office because there has been some evidence since November that some local Democratic officials may use Joe Biden’s victory over Donald Trump in November as cover to continue helping ICE.


Our New Interactive Tool to Follow Tuesday’s Criminal Justice Battlegrounds

Our New Interactive Tool to Follow Tuesday’s Criminal Justice Battlegrounds

Today in the Political Report newsletter


Oct. 29, 2020: The 2020 elections are five days away, and today we are bringing you new tools and resources to follow the local politics of criminal justice and mass incarceration next week.

Also today:

  • Education policy, and its role on the criminal legal system, is at stake in local elections

  • Oklahoma: State Question 805 could build on the state’s decarceral steps

  • California and North California: Spotlight on state Supreme Courts

  • Election quick hits, from coast to coast

  • Virginia adopts policing reforms, which fall short of what advocates pressed for

Catch up with last week’s newsletter. You can always visit our interactive tracker of legislative developments and our tracker of the politics of prosecutors,

A new interactive guide to the 2020 elections that will shape criminal justice

The general election is upon us. In fact, tens of millions of votes have already been cast. With anxieties understandably high about the presidential election, down-ballot races have perhaps gotten less love than usual. The Appeal: Political Report has focused all year on the local races that might challenge mass incarceration and advance criminal justice reform.

This week, we launched our annual interactive tool that will help you track the criminal justice battlegrounds in the 2020 elections. It will help you visualize and offer you access to our reporting and analyses of the most important DA and sheriff elections, referendums, and more.

You can also revisit my guides to the 30 most important prosecutor and sheriff elections, and to 12 state and local elections that may challenge ICE’s powers.

As the map makes clear, opportunities to upend the criminal legal system are uneven around the nation. Many states are not holding local elections at all; some are but drew very few candidates. But there are some hot spots that jump out where the landscape may be unrecognizable in a week.

Los Angeles County has the biggest stakes on the ballot next year. Voters there have to choose  between district attorney candidates with starkly different visions for the office. They will also get to weigh in on three statewide ballot initiatives and a local referendum pertaining to criminal justice, and races for city- and county-level officials that have been debating decarceration.

Maricopa County is close behind. The nation’s fourth most-populous county will choose its next sheriff and prosecutor, with clear contrast in each race, and weigh in on an initiative to legalize marijuana. Should Democrats flip the state legislature, it may also open different horizons for reform legislation that have gone nowhere in recent years.

There are a select number of counties that, like Maricopa, are hosting both prosecutor and sheriff elections that have high stakes for reform. Pay attention to Hamilton County (Cincinnati), Ohio, to Charleston County, South Carolina, and to Oakland County, Michigan. And don’t sleep on Georgia and Texas: These states are on everyone’s minds this week as Joe Biden’s presidential campaign makes an explicit play for their electoral votes. But many local elections are worth watching in each.


Education policy, and its role in the criminal legal system, is on the line in local elections

The criminal legal system is closely entangled with schools and education policy. Funding flows more easily to the former, and the presence of police officers on campuses or disciplinary choices at many schools feed the law enforcement system.

So to deepen our focus on the local politics of mass incarceration, the Political Report launched a three-part series in the run-up to Nov. 3, about local elections where education issues are at stake.

Rachel Cohen reports that school board races are being rocked by debate on whether to terminate the presence of police officers in schools. She dives into Prince George’s County, Maryland.

Jennifer Berkshire reports that Arizona Republicans’ efforts to defund and privatize public schools have frustrated voters across the political spectrum and created an opening for a legislative flip. A ballot initiative that would hike taxes to fund education has garnered rare bipartisan support.

In the third article in this series, Courtney Napier reports on conflicts over racial segregation in the school board elections in Wake County (Raleigh), North Carolina. You will find the article on our website tomorrow.

Oklahoma: State Question 805 could build on the state’s decarceral steps 

Voters’ most direct opportunities to upend the criminal legal system comes via referendums. Make sure to read our coverage of each of California’s three major ballot initiatives that pertain to criminal justice, Proposition 17 (on voting rights), Prop 20 (on sentencing), and Prop 25 (on pretrial detention). Oregon may be the first state in the nation to decriminalize drug possession via Measure 110. Four states are deciding whether to legalize marijuana.

One major initiative that will directly affect incarceration is Oklahoma’s State Question 805

It would prevent prosecutors who have charged someone with a nonviolent offense from seeking a harsher sentence based on the defendant’s prior nonviolent convictions, Oklahoma Watch explains. (The statewide association of prosecutors is predictably fighting the measure.) 

Some Oklahomans are serving staggeringly long sentences via such enhancements. If the measure passes they would be able to petition for shorter sentences, though that would not be automatic.

This measure builds on other recent successful initiatives that have helped reduce Oklahoma’s record prison population, and have shown that criminal justice reform can be popular in one of the country’s most conservative states. Still, Oklahoma remains among the most carceral states.

California and North Carolina: Spotlight on state Supreme Courts

As we experienced again over the last month, when the U.S. Supreme Court issues a ruling, or has a vacancy to be filled, its politics face close scrutiny: What judicial philosophies and interpretive approaches are justices following? What is the policy impact of the partisan balance of power? But these questions are comparatively neglected when it comes to state Supreme Courts. 

The Appeal: Political Report’s series on state supreme courts tries to fix this by examining court  appointments and elections, and their consequences, through the lens that their power deserves.

Our latest installment: articles spotlighting the California and North Carolina Supreme Courts.

Earlier this month, Kyle Barry wrote that California Governor Gavin Newsom’s decision to add a former prosecutor to the state Supreme Court adds to the stark unbalance in professional experiences that has defined that court and many others around the nation.  

Last week, Barry dived into the three Supreme Court elections that are being held next week in North Carolina and explains why they will shape civil rights and criminal justice litigation going forward. In particular, pay attention to the race for chief justice between a Democratic former public defender and a Republican former prosecutor.

Election quick hits, from coast to coast

Arizona: Meg O’Connor reports in The Appeal on how debates about police accountability are shaping the prosecutor’s race in Maricopa County, and what the challenger is vowing to change.

Montana and South Dakota: Marijuana legalization is in promising, if uncertain, shape in Montana and South Dakota, according to two new polls of next week’s initiatives. Montana’s measure is leading by 16 percentage points, and South Dakota’s by 7 percentage points. South Dakota is also voting on whether to allow marijuana for medical purposes; that measure is leading by a far wider margin in this survey.

Tennessee: Voting rights are particularly catastrophic in Tennessee. A new Sentencing Project study shows that more than 20 percent of Black adults are disenfranchised because of the state’s harshly punitive felony disenfranchisement laws, the second-highest rate in the country. A judge ruled this week that the state does not have to expand voter eligibility.

Washington, D.C.: This summer, D.C. abolished felony disenfranchisement, enabling people with felony convictions to vote from prison. Kira Lerner reports in Slate on how it is unfolding.

Virginia adopts policing reforms, which fall short of what advocates pressed for

This week, Governor Ralph Northam signed into law a package of legislation that reforms policing rules, including a ban on no-knock warrants, a bill to strengthen the decertification process, and a bill authorizing jurisdictions to create civilian oversight boards with subpoena power. Virginia is now the second state to have a law banning no-knock warrants, after Oregon.

Many of the bolder bills that advocates were pushing for, though, including qualified immunity reform, derailed during the special session.

Separately, Northam signed Senate Bill 5018, which makes some people who are terminally ill eligible to be considered for parole. Virginia ended the parole process in the 1990s but has taken incremental steps to revive it this year.

California Legislature Passes Series of Reforms, and Prosecutors Roll Out New Policies

Also today: Cooperation with ICE is at stake in Louisiana's October elections.

California Legislature Passes Series of Reforms, and Prosecutors Roll Out New Policies

Also today: Cooperation with ICE is at stake in Louisiana's October elections.

In This Edition of the Political Report

September 19, 2019: 

  • Louisiana: Cooperation with ICE looms large in sheriff elections

  • California: Legislature adopts a flurry of reforms, but voting rights wait for 2020

  • Kentucky and Virginia: Prosecutors in Louisville and Alexandria limit marijuana cases

  • Maryland: Prince George’s County prosecutor will no longer request cash bail

You can always visit our interactive tracker of major legislative developments, our interactive tracker of the politics of prosecutors, and our portal on local elections happening in 2019.

Louisiana: Cooperation with ICE looms large in sheriff elections

The Ascension Parish sheriff’s department detained a U.S. citizen as part of an immigration hold for four days despite a court order that he be released, according to a lawsuit by the ACLU of Louisiana. The ACLU alleges that this is part of a systematic policy to target Latinx individuals. Sheriff Bobby Webre, who was not yet in office during these specific events, told The Advocate that he would mount a “rigorous defense” of his department.

Moses Black Jr., however, takes issue with current practices. He is challenging Webre in the Oct. 12 sheriff’s election.

“The ACLU is doing the right thing bringing this to light,” he told the Appeal: Political Report. Local authorities are participating in a nationwide “all-out war on Hispanics,” he said, because “they can get away with it.” Webre’s office did not answer a request for comment on the ACLU’s allegations; Byron Hill, the third candidate in the race, also did not respond.

Louisiana will hold 63 elections for sheriff this fall. These could impact ICE’s reach, as well as the scale of immigration enforcement and detention in the state.

Sheriffs nationwide have the authority to enter into various partnerships with ICE, both formal and informal. In Louisiana, many have taken full advantage over the past year to help the federal agency identify or incarcerate undocumented immigrants.

As Louisiana’s incarceration rate plunged in recent years, local agencies have rapidly entered in new contracts to rent now-vacant jail space to ICE, considerably expanding the federal agency’s capacity to detain immigrants. In addition, three sheriff’s departments have now joined ICE’s 287(g) program (two of them this year), which authorizes local deputies to act as federal immigration agents within parish jails.

“This is a crisis happening in our own backyards, betraying the state’s commitment to decarceration and exposing thousands of immigrants and asylum seekers to brutal and dehumanizing conditions,” Alanah Odoms Hebert, executive director of the ACLU of Louisiana, told the Political Report. People detained by ICE in the state are held in poor conditions, investigations have found.

Black, the sheriff candidate, faults the underlying racial pattern in this resilience of incarceration, and links amplified immigration enforcement to the criminal legal system’s disparate impact on African Americans. “I see Blacks who go to jail for lower offenses, and what they’re trying to do to Hispanics who come to the United States to make a better life for themselves and their families—I see that right now the government is trying to prevent that,” he said. “They’re trying to send Hispanics to Mexico or Honduras and put Black men in jail. The United States is made for everybody.”

“It’s a business for them,” he added. ICE pays counties more money to detain an immigrant than the state pays them to incarcerate someone with a criminal conviction.

The sheriff’s elections this year offer a platform for immigrants’ rights advocates to call these policies into question. There is an election in every parish except Orleans (New Orleans), which is on a different schedule.

“These sheriffs absolutely need to answer to voters about their role in this crisis that diverts resources away from other public safety priorities and makes everyone less safe,” Odoms Hebert said, calling on candidates to curb cooperation with ICE and specifically to commit to ending 287(g) partnerships. 

Nowhere is this issue more at stake than in East Baton Rouge, the state’s most populous parish. The sheriff who signed a 287(g) contract is running for re-election, and his two challengers told the Political Report that they oppose the partnership.

Click here for the rest of the Political Report’s primer on the 2019 sheriff’s races in Louisiana and ICE cooperation, including in East Baton Rouge.

California: Legislature adopts a flurry of reforms, but voting rights wait for 2020 

Before adjourning for the year on Friday, California’s legislature passed a series of reforms to its criminal legal system. These bills are now all on Governor Gavin Newsom’s desk. Newsom has until Oct. 13 to sign them, veto them, or let them become law by doing nothing. Here is a preliminary overview of some of these bills.

  1. Rights restoration: “It’s time to allow people with felony convictions to serve on juries,” Vaidya Gullapalli wrote in the Daily Appeal in July. The California legislature moved to do just that: Senate Bill 310 would allow most people with felony convictions to serve on juries after the completion of their sentence.

  2. Sentencing (1): California is notorious for automatically expanding prison terms. SB 136 would eliminate one such mechanism: one year-additions to a person’s sentence for each prior felony conviction punished with prison or jail. Proponents of SB 136 organized an exhibit called “What a Difference a Year Makes;” it may seem obvious that it does, but as Vermont prosecutor Sarah Fair George told the Political Report in August, we too often treat prison time as an abstraction, “just throwing out numbers.” 

  3. Sentencing (2): Assembly Bill 484 would eliminate the requirement that individuals convicted of “furnishing or transporting” some drug offenses receive a sentence that includes an at least 180-day jail stay.

  4. Private facilities: AB 32 would ban private prisons and immigration detention centers. The state could still extend a contract with a private contractor to lessen overcrowding in state-run prisons. AB 32 should cut ICE’s detention capacity in California. While it would not terminate the existing contracts of the state’s four privately-run immigration detention centers, which have capacity to detain 4,500 immigrants, the contracts could not be extended. Grisel Ruiz, an attorney with the Immigrant Legal Resource Center, a group that advocated for the bill, frames AB 32 as a step toward ending ICE detentions in California. “Due process can’t coexist with detention,” she told me. She acknowledged some advocates’ concerns that ICE detainees may be transferred elsewhere, but argued that bed capacity matters. “It makes ICE’s job to engage in enforcement much harder if they don’t have those immediate beds in their backyard,” she said.

  5. DA power: In her resistance to reform this year, San Diego DA Summer Stephan went so far as to ask some defendants to waive their hypothetical future rights to seek relief under still-nonexistent reforms. Lawmakers replied with AB 1618: If signed, it would void any deals where defendants forfeit rights derived from future reforms.

  6. Fines and fees: Criminal fines and fees are a significant burden on poor people, and AB 927 would require courts to determine defendants’ ability to pay before imposing a financial obligation on them (except restitution); the bill also lists circumstances under which defendants are presumed unable to pay. Sponsors connect AB 927 to a recent court ruling that held that financial obligations are unconstitutional if imposed on people who cannot pay them. That said, the legislature did not pass another bill (SB 144) that went further by outright eliminating many of California’s fees. The bill may return next year, and some local jurisdictions are stepping in for now. This week, the Contra Costa County Board of Supervisors voted to suspend criminal court fees imposed in the county. 

  7. Surveillance: AB 1215 would ban the use of facial recognition technology in police body cameras over the next three years, a temporary response to worries about surveillance.

  8. Expungement: Most people eligible for the cumbersome process of expungement do not apply, so two states have adopted “Clean Slate” laws to automate it. California could be third: AB 1076 creates an automatic expungement process for all misdemeanors and some felonies. “By removing the burden from being on the individual to request a record change (often requiring the services of an attorney), we reduce barriers to success by making the process less bureaucratic and more effective,” Jay Jordan, executive director of Californians for Safety and Justice, said via email. Expungement “allows people to access jobs, housing, and other opportunities.” Outstanding fines and fees will not be a barrier. However, the bill was amended to only apply to offenses committed after 2021. Jordan attributed this to budgetary limits and vowed to press ahead. The bill “establishes a pioneering foundation that can be built upon through future budget allocations to make it retroactive,” he said. “There is no longer a debate on whether providing relief to this broad group of people is sound policy, and that’s a pivotal turning point.”

The legislature also adopted other bills on matters like early release or health care in prison. 

One measure that remained on the table is the constitutional amendment to restore voting rights for people on parole. The Assembly had passed it, but the Senate adjourned without voting on it. 

Since California’s legislative process carries over into 2020, the Senate can adopt it after recess in January. That would place it on the 2020 ballot for voters to approve. Taina Vargas-Edmond, executive director of Initiate Justice, a group that champions ending disenfranchisement, told me that she was “fairly optimistic” that the Senate would pass it next year.

California is one of 32 states to disenfranchise at least some people who are not presently incarcerated. The Political Report closely tracks this issue, and the map below captures what may well be 2019’s final legislative landscape on voting rights:

Kentucky and Virginia: Prosecutors in Louisville and Alexandria limit marijuana cases

A growing number of prosecutors are limiting or ending the prosecution of marijuana possession. The latest to join this trend are in Alexandria, Virginia, and Louisville, Kentucky.

Virginia: Bryan Porter, the commonwealth’s attorney of Alexandria (a Northern Virginia city of about 150,000), has announced that people charged with simple marijuana possession will be eligible for pretrial diversion. Their case would be dismissed after up to nine months of supervision and drug screening. This policy goes beyond state statutes, which only provide diversion for people’s first offense. It will help people “avoid the consequences of a criminal record for marijuana possession,” Porter told me. It has no restrictions regarding prior criminal history, he said, nor regarding the amount of marijuana possessed—as long as his staff does not consider possession to indicate an “intent to distribute.”

I asked Porter why he is not adopting a policy of just declining to prosecute marijuana cases, as others have. After all, this program remains burdensome for defendants and for law enforcement. He pointed to a state Supreme Court’s ruling in May that denied the Norfolk prosecutor’s power to dismiss marijuana cases filed by local law enforcement if judges were refusing to. Porter said his policy is on safer ground because he is using “the authority that I do have with regard to the disposition of cases.” That said, he acknowledges that even under his plan judges would need to grant the motions to dismiss the charges of people who have gone through the program. Porter also called on the legislature to decriminalize marijuana.

Kentucky: Jefferson County Attorney Mike O’Connell rolled out a policy of no longer prosecuting people for possessing up to one ounce of marijuana. (Jefferson County is home to Louisville.) This applies to cases where marijuana possession is the only or most severe charge. O’Connell pointed to the racial inequality in marijuana prosecutions. “For me to truly be a minister of justice, I cannot sit idly by when communities of color are treated differently,” he said. In January, a Louisville Courier Journal investigation found that African Americans are far likelier than the city’s white residents to be charged with marijuana possession, despite comparable rates of use. 

As county attorney, O’Connell has jurisdiction over lower-level offense. (More severe charges fall under the jurisdiction of the commonwealth’s attorneys.) When it comes to marijuana, this covers possession of up to eight ounces. I asked his office why it will continue prosecuting people who possess between one and eight ounces, rather than decriminalizing altogether. “With marijuana still fully illegal in Kentucky, we felt this was the most appropriate step at this time,” said a spokesperson. O’Connell’s decision has sparked discussion elsewhere in the state. 

Maryland: Prince George’s County prosecutor will no longer request cash bail

Aisha Braveboy, the state’s attorney of Prince George’s County, announced a significant bail reform in a speech this month. “I do not believe in the cash bail system,” she said. “Starting October 1st, my office will no longer request cash bail as a condition of release.”

Reform advocates express optimism about the reform in the Washington Post. They also note implementation will be crucial. Reducing pretrial detention will depend on the judges who actually set bond, and who could deny people pretrial release. It will also depend on what replaces cash bail.

One cause for caution is that Braveboy’s office told the Post that prosecutors could seek alternative conditions for release such as drug testing or electronic monitoring. These are burdensome, and could carry financial costs if defendants choose private monitoring or “less demanding” oversight, the Post reports. Denise Roberts, the communications director of the state’s attorney’s office, told me that prosecutors would seek release on personal recognizance, with no additional conditions, if they judge that a defendant “does not pose a danger” and that “there is no risk of failure to appear.” In addition, prosecutors could seek to deny bond to defendants whom they deem to be dangerous. Roberts said there should be no cases where prosecutors would have previously sought cash bail but would now seek to deny any release.

A standalone page on Kentucky, Maryland, and Virginia’s reforms is available here.

Thanks for reading. We’ll see you next week!

Federal Judge Rebukes the Willie Horton Strategy

Also today: Michigan advocates push for expungement reform

Federal Judge Rebukes the Willie Horton Strategy

Also today: Michigan advocates push for expungement reform

In This Edition of the Political Report

September 12, 2019: 

  • Texas: In approving bail reform, federal judge rebukes Houston’s DA for using the Willie Horton strategy

  • Michigan: Advocates introduce bills to expand, automate expungement

  • Hawaii: Prosecutor reduces penalties for driving without a license or insurance

  • Legislative roundup: California repeals “posse comitatus” doctrine, New York eases the court process for some teenagers, Oregon considers rolling back death penalty reform

  • National: Election Day nears for DA elections, and the Political Report has you covered

You can always visit our interactive tracker of major legislative developments, our interactive tracker of the politics of prosecutors, and our portal on local elections happening in 2019.

Texas: In approving bail reform, federal judge rebukes Houston’s DA for using the Willie Horton strategy

U.S. District Judge Lee Rosenthal gave preliminary approval last week to a settlement that restructures Houston’s bail system and provides for the pretrial release of most people charged with misdemeanors in Harris County, the nation’s third most populous county and home of Houston. And she did it over the objections of District Attorney Kim Ogg.

Rosenthal offered a stern rebuke of Ogg’s bid to stop the settlement by reviving the Willie Horton strategy, so named because of an ad that George Bush’s allies ran during the 1988 presidential campaign to portray Massachusetts Governor Michael Dukakis as soft on crime. The commercial focused on a single individual’s crime, which it blamed on Massachusetts’s furlough policies.

Detractors of any given criminal justice reform have long banked on the expectation that a single instance of a crime, if traced to that reform, will spark more backlash than any of its positive repercussions will draw praise. The mythical status acquired by the Willie Horton ad cemented that expectation. As John Pfaff, a law professor at Fordham University, wrote in 2017, reform foes “will always be able to point to a shocking crime” that provides them “with a concise, emotionally powerful attack,” and “people will always fear that some act of recidivism is lurking just ahead” no matter “the benefits of keeping more people out of prison.”

The strategy continues to be frequently employed, enabled by sensationalist media coverage that fuels a cycle of always-tougher-on-crime politics.

Houston has been the site of this pattern this year. But this time Rosenthal provided a blueprint to counter the hype.

In 2017, Rosenthal struck down Harris County’s pretrial approach to people charged with misdemeanors. She found that the county’s systematic reliance on cash bail meant that it was effectively detaining people for being poor, and that this was unconstitutional “wealth-based discrimination.” The county’s misdemeanor judges initially fought this ruling, but voters swept them away in the 2018 midterms and replaced them with a slate of judges who backed Rosenthal.

This paved the way for officials to reach a settlement this summer to expand the use of personal recognizance bonds, with which people are released pretrial without financial conditions. (This settlement only applies to misdemeanor-level charges, not to higher-level felony offenses.) It also allocates funding for services like child care to help people meet their court dates.

The settlement formalizes changes that the county’s new misdemeanor judges adopted earlier this year. Since January, 85 percent of the people charged with a misdemeanor are automatically eligible for no-cash bond; others may also be eligible after a hearing as well.

But this change also supplied the opponents of reform with a gigantic pool of cases from which to cherry-pick. There are, after all, tens of thousands of misdemeanor cases filed in Harris County each year.

And so it is that, with the clock ticking to a final settlement and with the 2018 elections lost, the opponents turned to the Willie Horton approach. Josh Bruegger, the police chief of Pasadena (the county’s second-largest city, southeast of Houston), devoted eight paragraphs of a Houston Chronicle opinion piece to a man who allegedly committed an armed robbery after being released on personal recognizance. “It’s these dangerous revolving-door practices that unnecessarily put our citizens and our law enforcement officers’ lives in jeopardy,” he wrote.

Ogg, the county’s chief prosecutor, followed suit last month. She had seemed initially supportive of the reform, but she unexpectedly announced her opposition in August, faulting it for being too lenient. “There’s just no fairness in it for victims, for cops, or for prosecutors,” she told Houston Public Media last week. She warned that “we see judges right now letting dangerous misdemeanor offenders out—domestic violence abusers, pimps, people who stalk folks, DWI offenders—and we see those individuals go out and commit additional crimes.”

Ogg also filed a legal brief in August objecting to the settlement. As evidence of “unreasonable judicial discretion,” the brief devotes an entire section (pages 17 to 20) to detailing the stories of five individuals who were all charged this year for an offense they committed while released from jail pretrial. 

Rosenthal’s order granting preliminary approval for the settlement directly rebuts this argumentative strategy. “Several amici cite cases of misdemeanor defendants committing crimes while on bond as evidence that the decree endangers public safety and should be rejected,” writes Rosenthal, who then cites pages 17 to 20 of Ogg’s brief.

She continues: “These anecdotes do not undermine the record or the court’s findings of fact and conclusions of law. No pretrial bail system can prevent every defendant who is released on money bail or personal bond from committing an offense or failing to appear. The amici’s argument is essentially an argument for incarcerating every arrestee and defendant until trial or other disposition. … The amici’s hindsight disagreements with individual case outcomes have no bearing on whether the decree is a fair, reasonable, and adequate remedy for the constitutional violations that the record shows prevailed in Harris County.”

Here Rosenthal, who herself was appointed to the federal bench by George Bush in 1992, lays bare the absurd premise of those who offer a handful of anecdotes as reason enough to oppose a systemic reform, as if in so doing they have shifted the burden of proof onto the proponents of reform. But that burden has long been met by the tremendous personal, economic, and legal harm that befalls those who cannot afford to buy their freedom, as well as their families. In Harris County, as elsewhere, people detained pretrial have disproportionately been people of color.

Justifying the pre-emptive incarceration of thousands who are not yet convicted of a crime because some fraction of them would commit an offense if released is a pernicious logic that has no bounds. As Rosenthal writes, it is at its core “essentially an argument for incarcerating every arrestee and defendant until trial or other disposition.”

It is rooted in the untenable suggestion that a penal system that allows a single case of recidivism is too lenient.

Against that suggestion, it is almost beside the point to cite the studies that show the public safety risks of using cash bail, and that belie the link between bail reform and increased crime.

“When people seek to cultivate fear in our culture by presenting isolated incidents, we have to ask: what do they really tell us?” Premal Dharia, the director of the Defender Impact Initiative, which promotes criminal justice reform through engagement with public defenders, told me about Ogg’s brief and Rosenthal’s response. “Such stories about isolated incidents will not help us make meaningful decisions about what is best and safest for our communities, and they don’t account for other kinds of harm, such as the devastation pretrial detention wreaks on countless people’s lives. The evidence⁠—which is what we should all be relying upon—is clear that our system of over-incarceration is destructive … and does not make us safer.”

This tactic is ingrained in the country’s conversations on criminal justice. But amid a turning tide in the politics of mass incarceration nationwide, Rosenthal’s response is a reminder to not let that tactic go unchallenged, however routine it may feel.

A standalone version of this article is available here.

Michigan: Advocates introduce bills to expand, automate expungement

Expungement carries huge benefits, yet the process is so obscure and complicated that few of those who are eligible (and there are not enough to start with) take advantage. In Michigan, for instance, a study by researchers at the University of Michigan found that 90 percent of residents who are eligible for expungement do not apply, for reasons that include cost, bureaucratic complexity, and insufficient information.

And expungement rules are restrictive. Michigan legalized marijuana in 2018 without including a provision to clear old convictions, unlike what Illinois did in the spring.

Michigan advocates are looking to fight this situation. A bipartisan legislative coalition has introduced a package of six bills that reform the state’s expungement process. These bills would simultaneously expand who is eligible for seeking an expungement in the first place (including marijuana offenses), and automate the expungement process for some categories of convictions. That latter step follows the “Clean Slate” model, which Pennsylvania passed in 2018 and Utah in 2019 and which I reported on in March; it provides that people’s records be cleared without requiring that they go through court proceedings.

A separate bill, filed in July by state Senator Jeff Irwin, would automatically expunge the records of people with misdemeanor marijuana convictions; approximately 235,000 people would be eligible, according to the Detroit Free Press.

Hawaii: Prosecutor reduces penalties for driving without a license or insurance

Justin Kollar, the chief prosecutor of Kauai County, rolled out a new policy to lessen penalties for driving without a license or insurance. These offenses are often linked to poverty and to an inability to pay court debt, which triggers license suspensions. Hawaii law provides for harsher penalties and detention when a traffic infraction is treated as a repeat violation. Kollar told the Honolulu Civil Beat that such enhancements “disproportionately impact the economically disadvantaged,” trapping them in a “cycle they can’t get out of.” So his office will treat all such infractions as first-time violations, regardless of prior history.

Hawaii’s other three chief prosecutors oppose Kollar’s move. They have a history of opposing criminal justice reform, as I reported in July.

Elsewhere in the country, DAs like Rachael Rollins in Boston and Amy Weirich in Memphis have gone a step further: They have said they are altogether declining to prosecute cases of driving on a suspended license when the suspension is due to unpaid debt. 

I asked Kollar why he is not adopting such a policy. He replied that his office only has access to limited information regarding “what caused the original suspension or revocation,” and that he cannot “see if the suspension or revocation was strictly due to fines.” He added that he would consider dismissing cases if the state provided such data, and that he would support legislation to end the suspension of driver’s licenses over unpaid fines. Montana and Virginia adopted such laws this year.

Legislative roundup: California repeals “posse comitatus” doctrine, New York eases the court process for some teenagers, Oregon considers rolling back death penalty reform

California: In August, the state repealed an 1872 law (the California Posse Comitatus Act) that made it a misdemeanor to refuse to help law enforcement. The posse comitatus doctrine has a long and dark history that illuminates the way local law enforcement has functioned, Sarah Lustbader writes in The Appeal.

New York: A new law will ease the implementation of the state’s Raise the Age law, which increased the jurisdiction of the youth justice system. As Lauren Gill reports in The Appeal, the law eliminates a burdensome requirement that 16- and 17-year-olds show up in adult criminal court for their case to be moved to family court. 

Oregon: Lawmakers did not mean for a law they adopted this summer restricting the death penalty to be retroactive. But some analyses have indicated it may be after all. Governor Kate Brown, a Democrat, has signaled her support for holding a special session in the coming weeks for the purpose of re-expanding the death penalty, but the situation remains suspenseful.

National: Election Day nears for DA elections, and the Political Report has you covered

Four states hold multiple elections for prosecutor in November, and the Appeal: Political Report has now published statewide primers of the stakes and hot spots in each of them. Revisit our coverage, and prepare for the elections.

The Political Report also publishes previews of individual races and Q&As with candidates. You can find our full coverage of the 2019 local elections here.

Thanks for reading. We’ll see you next week!

Illinois Banned a Prized ICE Program. Why Are So Few Blue States Doing the Same?

Also today: How an attorney general candidate wants to reform criminal justice

The Appeal: Political Report

Illinois Banned a Prized ICE Program. Why Are So Few Blue States Doing the Same?

Also today: How an attorney general candidate wants to reform criminal justice

In This Edition of the Political Report

September 5, 2019:

  • Mississippi: How a candidate for attorney general hopes to reform criminal justice: “We won’t have people stacked on top of one another in prisons, in cages”

  • Illinois bans prized ICE program, but movement is slow elsewhere

  • Massachusetts organizers launch petition drive to abolish felony disenfranchisement

  • Pennsylvania: Larry Krasner’s office reforms youth justice, obtains exonerations

  • Virginia candidates endorse prospect of progressive alliance

You can always visit our interactive tracker of major legislative developments, our interactive tracker of the politics of prosecutors, and our portal on local elections happening in 2019.

Mississippi: How a candidate for attorney general hopes to reform criminal justice

As executive director of the ACLU of Mississippi from 2013 through June, Jennifer Riley Collins worked to reform Mississippi’s criminal legal system. Now, she is running as the Democratic nominee to be the state’s next attorney general. 

That office that represents the state in court, among other duties. But Collins frames her bid as a continuation of her work as an advocate. “My interest has always been in protecting and defending the Constitution of the United States, protecting and defending the constitutional rights of all its citizens,” she told me. “If our Constitution and our laws say that a person has that right, I want to make sure that that right is evenly applied across the board.”

In a wide-ranging conversation, I talked to Collins what this commitment looks like when it comes to issues that involve the criminal legal system, and what an attorney general could actually do.

Mississippi has one of the country’s highest incarceration rates. While DAs and law enforcement officers are generally independent of the attorney general’s office, Collins said she would focus on training them to detain fewer people, so as to free up resources for community services and treatment. “Being hard on crime is not the best approach, because we are throwing people away, we are impacting entire communities,” she said. “I think as I begin to set the standard for how we are going to approach criminal justice as Mississippi’s top cop, you will see the narrative begin to shift as well. … Doing the same thing that we have done, being hard on crime, has already proven not to work, so why do we continue to do that?”

“If we’re working with law enforcement who could have issued a person a summons instead of putting that person in jail, if we’re working with prosecutors,” she added, “then we’re dealing with the drivers of overincarceration, and we won’t have people stacked on top of one another in prisons, in cages.”

On issue upon issue, Collins made the case that inadequate funding for public services—be it teacher salaries, Medicaid expansion, mental health services, or jail conditions—is feeding overincarceration and creating collateral crises. “We need to make sure that our teachers are receiving a wage so they’re not having to work two or three jobs, so that they’re tired and end up trying to push zero-tolerance policies which drive children out of schools, and we know that everyday that they’re outside the learning environment is a day they are more likely to end up in the prison system,” she said. “All of those things connect, none of them are in isolation.”

Part of her approach, she added, would involve using the attorney general’s platform to publicize lawmakers’ budgetary decisions. “If we want to fix what’s going on in jails,” she said, “beat up on the people who are controlling the budget.”

We also discussed the terrible conditions in state prisons (she called them a “direct result of our reliance on overincarceration”), Mississippi’s restrictive disenfranchisement rules, and DA misconduct in the wake of the U.S. Supreme Court’s ruling in the Curtis Flowers case

If elected, Collins would become the first Black politician to hold statewide office in the state since Reconstruction, according to the Jackson Free Press. Mississippi is the state with the highest share of African Americans. It has a long history of voter suppression and intimidation, and Jim Crow-era laws are still weighing on the present campaign.

“I say it is time for us to take a seat that is already at the table so that we can inform laws and policies that are impacting everyone at the table, not a contingent of Mississippi,” she said, quoting Shirley Chisholm’s call for people to “bring a folding chair.”

Collins secured the Democratic nomination to replace outgoing Attorney General Jim Hood in August. She will face off against Republican nominee Lynn Fitch, who is currently the state’s treasurer, in November. 

Our full interview with Jennifer Riley Collins is available here.

Illinois bans prized ICE program, but movement is slow elsewhere

Governor J.B. Pritzker signed a law that bans county governments in Illinois from contracting into ICE’s prized 287(g) program, which deputizes local officers to act as federal immigration agents. 

“Illinois is traditionally a welcome state for immigrants,” said Fred Tsao, a senior policy counsel for the Illinois Coalition for Immigrant and Refugee Rights. “We and many of our allies have done a pretty good job organizing immigrant communities to have a voice in state level policy.” 

Tsao added that the 287(g) program stretches the duties of local law enforcement, and harms residents’ trust in and ability to turn to local authorities. Immigrants’ rights advocates have made a similar case elsewhere, to some political success, from Arkansas to Maryland. “It creates a climate of fear, particularly for the Latino community and communities of color,” Jose Perez, the deputy general counsel of LatinoJustice PRLDEF, told the Appeal: Political Report in October.

There was already no Illinois county in the 287(g) program when the law passed. But there may have been one soon: Sheriff Bill Prim had applied last year for McHenry County (a GOP-leaning area north of Chicago) to join. The law effectively interrupts that application. 

Prim already detains people arrested by ICE in the county jail he runs. In 2017, he faced multiple lawsuits for not releasing individuals based on ICE’s requests not to; the lawsuits were later dismissed. Illinois had just adopted the Trust Act, which prohibits local authorities from honoring ICE detainers, which are warrantless requests.

The state’s new legislation (House Bill 1637) extends the Trust Act by prohibiting another form of cooperation with ICE, 287(g) contracts. Less than 3 percent of all counties nationwide have joined the program—a decision that is often, but not always, in the hands of county sheriffs—so membership remains an unusually tight relationship. 

California adopted a ban against these contracts in 2017, soon after President Trump’s election. But the reform has not taken off since as a staple of lawmaking in Democratic states, let alone in states under divided or Republican control, at least not until this Illinois law.

This year, Colorado Governor Jared Polis threatened to veto a bill this year unless its sponsors removed a ban on 287(g) contracts. There was no legislative movement elsewhere. In New York, not only did the Democratic legislature not pass a proposed ban this year, but the Republican sheriff who signed the state’s only 287(g) contract is coasting to re-election unopposed this fall. 

And in Massachusetts, where Democrats enjoy a veto-proof legislative majority, lawmakers have repeatedly ignored or killed the Safe Communities Act, which includes a measure that would ban 287(g) within the state. Massachusetts is one of just three states (alongside Arizona and Georgia) with a statewide 287(g) contract through its Department of Corrections, which runs state prisons. The DOC, which is run by an appointee of Republican Governor Charlie Baker, renewed its contract this summer. 

Meanwhile, Illinois adopted a separate bill, besides the ban on 287(g) contracts: House Bill 2040 prohibits privately run immigration detention centers. “We will not allow private entities to profit off of the intolerance of this president,” Governor Pritzker said in June.

Tsao of the Illinois Coalition for Immigrant and Refugee Rights called for broader action against detaining immigrants. “Our view is that people shouldn’t be detained, period,” he said. “Let’s allow people to be in the community if they’re asylum seekers with no place to go, let’s provide them with communities of care where they can be better integrated. We should not be doing this, and especially not for profit.”

The full, standalone version of this article is available here.

Massachusetts organizers launch petition drive to abolish felony disenfranchisement

The nationwide movement to abolish felony disenfranchisement is entering a new phase in Massachusetts. Attorney General Maura Healey has certified a citizen-initiated petition drive filed by the MASS Power coalition. This sets the stage for the coalition to start collecting signatures in the coming weeks. They only have until Nov. 20 to collect 80,000 signatures; if they do, the earliest the initiative could make the ballot is 2022.

I reported in February on the multipronged efforts to enable people to vote from prison in Massachusetts, as well as on the state’s sordid history with disenfranchisement. At the time, the legislature was still considering a constitutional amendment, but the measure was soon killed by a committee in a secret vote.

“We do not want to depend on the action or inaction of legislators who have largely shown themselves to be either cowardly or disinterested in the matter,” Austin Frizzell, an organizer with MASS Power, told me. “With the issue of voting rights for incarcerated people getting national attention, we do want to capitalize on this moment but also recognize that such issues make that national stage because organizers are out there making these issues pressing and salient. The referendum process also gets us out into the communities we live in to challenge the idea that disenfranchisement is inherently part of prison.”

Pennsylvania: Larry Krasner’s office reforms youth justice, obtains exonerations  

Over the last week, two publications probed the effects of reforms adopted by Philadelphia DA Larry Krasner:

  1. The Appeal reports that the number of minors charged as adults was halved in Krasner’s first year in office. His staff uses its charging discretion to circumvent the state’s requirement that minors be automatically treated as adults when charged with certain offenses. Krasner said he would support eliminating automatic adult prosecution, as Oregon did this summer. 
  2. CBS News reports on a string of nine exonerations by the county’s Conviction Integrity Unit. “There was a culture at various times of win at all cost,” Krasner, who strengthened the unit’s mission of investigating wrongful convictions, told CBS. “And if that meant that you were gonna take the document that suggested there was a different suspect, a document that the Constitution requires you, as a prosecutor, to turn over to the defense, and you were gonna shred it, you did.”

Earlier this year, an academic study measured the effects of Krasner’s bail reform.

Virginia: Candidates endorse prospect of progressive alliance, though dearth of competitive races limit its potential scope

Jim Hingeley, who is running for prosecutor in Albemarle County, told me in a Q&A last week that he would look to form an alliance with other reform prosecutors to counter the “regressive” politics of the Virginia Association of Commonwealth’s Attorneys. “If I’m elected and other progressive prosecutors are elected, we would be small in number, but we can constitute a different voice,” he said. Instances of such state-level alliances by reform prosecutors have popped up in recent years, but they remain few and far between, in contrast with the lobbying of state prosecutors’ associations.

The two candidates Hingeley named as prospective allies both replied to the Q&A by tweeting their support for such an alliance, and for Hingeley: Parisa Dehghani-Tafti (Arlington County) and Steve Descano (Fairfax County). Dehghani-Tafti is certain to win in November; Descano faces Jonathan Fahey, an independent who is running against the overhaul Descano has promised.

One obstacle to broadening the ranks of reform-minded prosecutors is that electoral competition is often confined to larger, more (sub)urban, counties. Here are my calculations of Virginia: 

  • Of the 11 jurisdictions with more than 100,000 residents with elections this year, seven feature multiple candidates on the November ballot (64 percent). 

  • Of the 42 jurisdictions with fewer than 30,000 residents, only 12 do (29 percent).

In all four states with multiple DA races this year (Mississippi, New York, Pennsylvania, and Virginia), a majority feature just one candidate—often an unchallenged incumbent.

Thanks for reading. We’ll see you next week!

Joe Arpaio Is Running for Sheriff, Again

Also today: A Q&A with Jim Hingeley, a longtime public defender who is running for prosecutor to fight “family separation”

Joe Arpaio Is Running for Sheriff, Again

Also today: A Q&A with Jim Hingeley, a longtime public defender who is running for prosecutor to fight “family separation”

In This Edition of the Political Report

August 29, 2019: 

  • Virginia: A longtime public defender runs for prosecutor to fight “family separation”

  • Arizona: Joe Arpaio is running for sheriff, and pledges to reopen his “concentration camp”

  • Mississippi: Medicaid expansion foe wins GOP primary, sets up November clash on issue

  • The politics of prosecutors: Florida prosecutor rolls out new Brady policy, Texas DA fights bail reform, Seattle continues to decriminalize drugs, and more

You can always visit our interactive tracker of legislative developments, our interactive tracker on the politics of prosecutors, and our portal on local elections. 

Virginia: A longtime public defender runs for prosecutor to fight “family separation”

Every year, the United States’s enormous reliance on incarceration separates millions from their families for some period of time, a reality that has yet to stir a transformation of our criminal justice practices. “Every day, we lock parents up for decades in our prisons regardless of how it will affect their children, and no one bats an eye,” Sarah Lustbader of The Appeal wrote in the Washington Post last year, at the height of the protests against President Trump’s immigration policies. “Those who are demanding that children not be treated as collateral damage when it comes to immigration should be just as vocal when it comes to criminal sentencing.”

A candidate for prosecutor has picked up the challenge in Albemarle County, the Virginia jurisdiction that surrounds Charlottesville. “Family separation is not just an ICE policy,” Jim Hingeley wrote on Facebook this month, linking it to pretrial detention and mass incarceration. Hingeley was the chief public defender of Albemarle County and Charlottesville from 1998, when he opened the office, to 2016. He is now running as the Democratic nominee against Commonwealth’s Attorney Robert Tracci, a Republican.

I talked to Hingeley about his concerns regarding family separation, and why he thinks the prosecutor’s office is a place from which to fight it.  “I saw families that were torn apart, and I saw the consequences of that,” he replied, alluding to people he represented as a public defender. He denounced the isolation produced by incarceration, from the impact of prisons’ geographic remoteness to the way in which pretrial detention cuts people off from resources they may need for a strong defense. “Their prospects for success after incarceration were very considerably diminished because of family separation,” he said. He also evoked the effects on children, who studies have found experience more hardships when a parent is incarcerated.

Prosecutors have the discretion to alleviate these problems via charging or sentencing decisions that divert more people from incarceration, and Hingeley said he would pursue approaches that keep more people “in the community” and “out of jails and prisons.” For one, he has also pledged to not seek cash bail, which is a system that keeps people detained pretrial over a financial inability to pay.

He also wants to charge more cases at the misdemeanor level, instead of the harsher felony level. In Albemarle County, a higher share of the more serious arrests result in felony-level convictions than in most of the state’s other large jurisdictions, according to an analysis published by Justice Forward Virginia, a nonpartisan political action committee.

Reducing charges in this way would make people eligible for diversionary programs they would otherwise be barred from, so that their offense triggers consequences other than incarceration. If more people faced “some kind of sanction … in the community,” as opposed to receiving a prison sentence, it would lower “the number of people who are going to be separated from their family and from community resources,” he explained.

Lower charges would also mean shorter sentences in cases where prosecutors recommend incarceration, and fewer collateral consequences. State law provides that anyone who is convicted of a felony loses the right to vote for life, and Tracci, the incumbent prosecutor, joined a legal brief in 2016 against then-Governor Terry McAuliffe’s attempt to reform this. By contrast, Hingeley said he applauds McAuliffe’s policy, and that he would be mindful of the loss of voting rights when deciding whether to charge an offense as a felony.

Other candidates are also running for prosecutor elsewhere in Virginia on a platform of ending mass incarceration. Hingeley says he is keeping an eye on their races to form an alternative to the politics of the Virginia Association of Commonwealth’s Attorneys, the group that lobbies on behalf of state prosecutors. “I’ve worked against the prosecutors’ association in the legislature on behalf of poor people,” he said, calling them “a very regressive force.” “If I’m elected and other progressive prosecutors are elected,” he added, “we would be small in number, but we can constitute a different voice.”

Our full interview with Jim Hingeley is available here.

Arizona: Joe Arpaio is running for sheriff, and pledges to reopen his “concentration camp”

Joe Arpaio announced on Sunday that he will run for his old position as sheriff of Maricopa County (a huge jurisdiction that includes Phoenix and most of Arizona’s population) in 2020. Arpaio was sheriff for 24 years before disregarding court orders that he stop rounding up Latinx residents and losing his 2016 re-election bid. If he wins the GOP nomination against multiple opponents, he is likely to face Sheriff Paul Penzone, the Democrat who ousted him.

As sheriff, Arpaio detained people in horrid conditions that were continually denounced for human rights abuses. He held immigrants outdoors, often in blistering heat and in chain gangs, in a facility (Tent City) he himself called a “concentration camp.” He oversaw a string of gruesome jail deaths. And he effectively treated his department as a branch of federal immigration enforcement, conducting street patrols that courts and government reports found amounted to systematic racial profiling. In 2011, the U.S. Justice Department documented a “pervasive culture of discriminatory bias against Latinos” in the sheriff’s office.

When Arpaio ignored rulings that he must stop racial profiling, a judge found him guilty of contempt of court. But President Trump pardoned Arpaio in 2017. The two men, who have built careers on their nativist politics, could now share the ballot next year in Maricopa County.

And sheriff elections have consequences. Penzone promptly undid Arpaio’s signature policies after beating him; he closed Tent City and stopped honoring ICE detainers (requests that people suspected of being undocumented be held beyond their scheduled release date). The fate of those reforms is on the line in the 2020 elections. Arpaio said in launching his bid that he would reopen Tent City if he is elected. 

U.S. Representative Alexandria Ocasio-Cortez drew backlash for using the expression “concentration camp,” but here we have a prominent law enforcement official who used those same words to describe a facility he himself was overseeing, and who is now running for office to bring that camp back.

All of this said, the issues that plagued Arpaio’s tenure were not unique to him. This fall alone, elections will direct immigration policy in counties like Prince William in Virginia and shape detention conditions in many jails.

Mississippi: Medicaid expansion foe wins GOP primary, sets up November clash on issue

The prospect that Mississippi will expand the Medicaid program suffered a blow on Tuesday when Lieutenant Governor Tate Reeves won the GOP nomination for governor. 

Reeves is staunchly opposed to expanding Medicaid as provided under the Affordable Care Act, and he ran ads attacking his Republican opponent Bill Waller for supporting this. “Bill Waller would expand Obamacare in our state,” said one ad. “Three hundred thousand more people on welfare.” An estimated 300,000 Mississippians could qualify for Medicaid if the state implemented this policy.

Reeves next faces Democratic Attorney General Jim Hood, who unlike Reeves favors expanding Medicaid. 

Mississippi has one of the country’s highest rates of uninsured residents, alongside other states that have not expanded Medicaid. Having a minimum wage job is enough to make one too wealthy to qualify for Medicaid under the current rules, according to Mississippi Today

Poor access to healthcare is also furthering a dire crisis in the state’s rural hospitals. A report published by the Mississippi Center for Justice in 2015 documents that poor areas with a higher share of uninsured residents are also facing a severe shortage of medical providers, which impedes everyone’s access to treatment whether or not they have insurance. “Mississippi is at the bottom of the pile when it comes to issues of need for access to quality healthcare,” Jennifer Riley Collins, the executive director of the ACLU of Mississippi and the Democratic nominee for attorney general this year, told me. “Citizens of the state of Mississippi are dying, literally, because they can’t access healthcare.”

A lack of insurance coverage also blocks people with substance use or mental health issues from receiving treatment, which makes them likelier to interact with law enforcement. Mississippi is essentially using its carceral system as its response to matters like the opioid crisis. 

Expanding Medicaid could enable more of a public health approach to issues presently funneled through prisons and jails. Stacey Abrams, Georgia Democrats’ gubernatorial nominee in 2018, ran on a platform that called Medicaid expansion a “vital investment” in “public safety,” a connection that studies have documented.

A governor who supports this policy may not be sufficient to achieve expansion (Mississippi Today reports that expansion “likely” requires legislative action), but could facilitate negotiations already in progress between state actors and add pressure on lawmakers.

Ten percent of the voting-age population will be barred from voting in this governor’s race due to Mississippi’s harsh Jim Crow-era rules regarding felony disenfranchisement. In Mississippi as elsewhere, many formerly incarcerated people face health issues but do not qualify for Medicaid under current eligibility rules. They will not be able to weigh in come November.

The election is further shadowed by another Jim Crow-era state law, which requires that a candidate win a majority of the state’s 122 House districts in addition to winning the most votes; otherwise, the election is thrown to the legislature. The rule effectively gerrymanders the governor’s race.

A standalone version of this story is available here.

The politics of prosecutors: Florida prosecutor rolls out new Brady policy, Texas DA fights bail reform, Seattle continues to decriminalize drugs, and more

Florida: Aramis Ayala, the prosecutor of Orange and Osceola counties, announced an expanded process to place people (such as some law enforcement officers) on a so-called Brady list of people with documented credibility issues. Prosecutors will be barred from calling some of those individuals as a witness, and for others on the list they will be warned to proceed with caution. 

Missouri: St. Louis Circuit Attorney Kim Gardner is trying to vacate the murder conviction of Lamar Johnson because of large amounts of prosecutorial and police misconduct. “Police and prosecutors made up the evidence, according to a 67-page motion,” reports the Washington Post. A long list of issues in Johnson’s 1995 trial was uncovered by a conviction integrity unit (CIU), and 43 reform-minded prosecutors filed an amicus brief in support of Gardner. But on Friday, Judge Elizabeth Hogan refused to grant Gardner’s motion for a new trial, arguing that a circuit attorney has no such authority and that deadlines long expired. The Appeal’s Vaidya Gullapalli reminds us that few prosecutors set up CIUs, and those that do face intense blowback. 

Texas: Harris County (Houston) is on the verge of a major restructuring of its bail system, but DA Kim Ogg just threw a wrench in the planned reform. To recap: A federal judge found the county’s bail rules for misdemeanor offenses unconstitutional in 2017, and this year local officials unveiled a settlement that expands public defense services and provides for the pretrial release of most people arrested for misdemeanors. But last week Ogg filed a legal brief objecting to the settlement, in part over its perceived leniency toward defendants. Audia Jones, who is challenging Ogg in the county’s 2020 DA race, told The Appeal in March that she was “all for” the settlement, and would favor also reforming the way cash bail is used for felonies.

Washington: Seattle has steadily moved toward decriminalizing drugs, and Nicholas Kristof writes in the New York Times about the policies implemented by local officials, including Prosecuting Attorney Dan Satterberg, to promote a public health response to addiction. “Anyone caught here with a small amount of drugs—even heroin—isn’t typically prosecuted. Instead, that person is steered toward social services to get help,” Kristof writes. A program launched in 2011 to divert people toward treatment was expanded last year when Satterberg announced he would stop prosecuting possession of less than one gram of any drug.

Thanks for reading. We’ll see you next week!

Reform Prosecutors Respond to U.S. Attorney General, Announce New Drug Policies

Also today: Can Louisiana continue reducing its incarceration rate?

Reform Prosecutors Respond to U.S. Attorney General, Announce New Drug Policies

Also today: Can Louisiana continue reducing its incarceration rate?

In This Edition of the Political Report

August 22, 2019: 

  • National: Reform prosecutors respond to U.S. Attorney General William Barr

  • Louisiana: Criminal justice reform is on the line in the governor’s race this fall

  • The politics of prosecutors: In California and Florida, two prosecutors announce new policies to dismiss simple drug possession case

  • Vermont, and beyond: Prosecutor who sends staff to prison makes waves

You can always visit our interactive tracker of legislative developments, our interactive tracker on the politics of prosecutors, and our portal on local elections. 

National: Reform prosecutors respond to U.S. attorney general

U.S. Attorney General William Barr attacked the country’s new reform prosecutors last week, calling them “anti-law enforcement DAs,” in a speech covered in the previous Political Report.

Fair and Just Prosecution, an organization that advocates for criminal justice reform, released a statement answering Barr signed by 30 current elected prosecutors, three attorneys general and two sheriffs, among others. After faulting Barr for “using rhetoric that harkens back to the parochial ‘tough on crime’ narrative of past decades that stoked fear and impeded progress,” the signatories say they joined “this public statement to make clear that a growing number of criminal justice, law enforcement and prosecution leaders reject AG Barr’s perspective; we do not view our jobs as waging a ‘war’ against ‘criminal predators.’” 

Separately, Parisa Dehghani-Tafti (a prosecutorial candidate who ousted a Virginia incumbent in the June primaries on a platform of reducing mass incarceration), as well as District Attorney Mark Gonzalez of Nueces County, Texas, and Prosecuting Attorney Wesley Bell of St. Louis County, Missouri, published a joint op-ed in the Washington Post responding to Barr. 

Their op-ed offers a manifesto of sorts for reform prosecutors. “We understand that our current criminal legal system throws away too many people, breaks up too many families, destroys too many communities and wastes too much money,” they write. “And we refuse to accept that a wealthy democracy cannot figure out how to keep its people safe without criminalizing as many things as possible, prosecuting as hard as possible and punishing people for as long as possible.”

This confrontation seems likely to recur, as the number and the ambition of reform prosecutors grows. The Appeal has reported on the hostile environment in which prosecutors like Kim Gardner in St. Louis, Larry Krasner in Philadelphia, and Rachael Rollins in Boston are operating, and on legislative attempts to dilute their authority.

And just days after Barr’s speech, U.S. attorney William McSwain escalated the attorney general’s rhetoric by blaming Krasner for a standoff in which a gunman wounded six police officers. “The crisis was precipitated by a stunning disrespect for law enforcement,” McSwain said. Sarah Lustbader writes in the Daily Appeal that a “pressing challenge” in response to an incident like Philadelphia’s is to “not to fall into McSwain’s trap of competing over who was less lenient and more incarceratory.” 

Louisiana: Criminal justice reform is on the line in the governor’s race this fall

Louisiana overhauled its criminal legal system in 2017 and soon shed its status as the country’s top incarcerator. That year, a package of sweeping reforms expanded alternatives to prison, and reduced mandatory minimums and some sentences. The Republican legislature adopted these measures by large majorities, and Democratic Governor John Bel Edwards then signed them into law. 

Despite this bipartisan pedigree, some of the state’s most prominent Republican officials are foes of criminal justice reform and use them to attack Edwards, who is up for re-election this fall. One of his main challengers, GOP Representative Ralph Abraham, is running firmly against the policies, which he says have “opened the gates” to crime.

This election will shape the viability of further criminal justice reform over the next four years. 

Louisiana’s legislature passed new measures this year, albeit smaller ones, and advocacy groups are championing more bold changes to overhaul the state’s reliance on incarceration. 

“Ten years ago, five years ago, you went to that statehouse, you talked about the people who were incarcerated and formerly incarcerated, and the tone was very negative. Now, we hear a very different tone,” Bruce Reilly, deputy director of Voice of the Experienced, an organization that advocates for criminal justice reform in Louisiana, told me. “The really positive part is how many people have come on board.” Reilly credits the advocacy of formerly incarcerated people, which his group champions, for changing the narrative.

A governor opposed to these shifts could use his veto pen to block new reforms, or pressure lawmakers to roll back existing ones.

Louisiana’s 2017 laws reduced the magnitude of incarceration in the state. Its prison population dropped by 19 percent between 2012, when it peaked, and 2018, according to a state report on the laws’ impact after a year in effect. This drop was fueled by a cut in the use of habitual offender enhancements, which provide harsher penalties for people with prior convictions, and in the length of sentences for drug convictions.

The same report found that this has saved $12 million originally allocated to incarcerate people. Louisiana is reinvesting the majority of those funds into programs meant to serve as alternatives to prison or to facilitate re-entry.

That said, sentencing schemes remain very harsh. Even the reduced 2018 incarceration rate was far higher than the national average: 50 percent higher, according to the Prison Policy Initiative.

And the number of people incarcerated in Louisiana is climbing again this year because ICE is contracting with local law enforcement to use now-vacant jail space to detain immigrants.

Still, Abraham is staking his gubernatorial bid on warnings that even the most consensual of criminal justice reforms threaten public safety. 

In December, he opposed the final passage of the First Step Act, the federal law that decreased lower-level sentences and curbed mandatory minimums. Three of Louisiana’s four other Republican representatives voted for it, but in voting against it Abraham invoked his home state. “We’ve seen the negative effects this kind of criminal rights activism is having in Louisiana, and I’d hate to inflict that mistake on communities elsewhere in our country,” he said in a statement

Neither his campaign nor his office answered a request for comment on which specific reforms he opposes, and on what negative effects he sees. 

His words echo a 2018 op-ed written by U.S. Senator John Kennedy and state Attorney General Jeff Landry, who cite two cases of recidivism as their evidence for the ill effects of Louisiana’s reforms, a familiar strategy that Adam Johnson of The Appeal has dubbed “emotionally charged anecdotes and a lack of meaningful statistics.”

“Before the ink was barely dry, critics of the reforms began denouncing them with overinflated claims and anecdotal evidence,” Daniel Erspamer, chief executive of the Pelican Institute, a conservative think tank that supported the 2017 laws, told me. “While it’s certainly too early to claim ultimate success or failure, the actual data suggests progress in reducing crime and recidivism while saving scarce taxpayer dollars,” he added, pointing to early data that finds that the rate of reincarceration is lower than it was before the laws went into effect. 

Edwards, unlike Abraham, describes reform as a boost to public safety. “Just like we did in Louisiana, Congress has … recognized that what this country is doing, as it relates to criminal incarceration, just hasn’t been working,” he said in a statement after the passage of the First Step Act. “We have been spending too much money on a system that is broken, and our communities have not been any safer for it.”

Edwards’s other main challenger is Eddie Rispone, a Republican businessman who has not taken a clear public position on the 2017 criminal justice reforms. His website does not have an issues page as of this week, and his campaign did not answer a request for comment.

Other matters related to the criminal legal system are also occasioning contrasts. Edwards used his clemency powers more frequently than his predecessors, though he slowed down the pace in the latter part of his term, The Appeal reported last year.

He also expanded the state’s Medicaid program shortly after becoming governor. Medicaid expansion can alleviate patterns of reincarceration by improving access to treatment for people with addiction and mental health issues. Abraham and Rispone have both sharply criticized the program, but have stopped short of saying they would fully rescind Edwards’s executive order.

The rapid growth in the detention of immigrants looms large as well. Counties throughout the state are entering deals to rent their jail space for ICE to detain immigrants it arrests elsewhere. And they reap substantial financial benefit. ICE pays counties considerably more money for detaining an immigrant than the state pays them for incarcerating someone with a criminal conviction, according to the Times-Picayune.  

Both Republicans say they would support or accelerate this trend. Rispone took out a full-page ad in the Times-Picayune in July to proclaim his alignment with the White House on the issue. “When I’m governor, Louisiana will stand with President Trump to protect ICE, build the wall, and end illegal immigration,” the ad says. “We’re getting tough on illegal immigration the second my hand comes off the Bible.” And Abraham says he would look to further enshrine cooperation with ICE via legislation to override local efforts to restrict it. The Edwards campaign did not respond to a request for comment on his views regarding local cooperation with ICE.

“This state is very willing to lock up as many immigrants as will come our way, and the progress we made in decarceration has been erased,” Reilly of Voice of the Experienced said. 

Comparing this dynamic to the federal incentives that drove punitive laws in the 1990s, he added: “People who didn’t want to be the number one incarcerator in the country have shifted their tune now that there are federal dollars behind it.”

You can find the standalone version of this article here.

The politics of prosecutors: In California and Florida, two prosecutors announce policies to dismiss simple drug possession cases

California: The office of Santa Clara County DA Jeff Rosen announced that it will decline to prosecute many cases of simple drug possession. Prosecutors will seek drug possession charges only if they deem it accompanied by other offenses, or if it is a person’s third offense within 12 months. In 2018, approximately 4,500 cases were prosecuted that fit the criteria of cases that will now be declined; that’s an impressive 13 percent of all cases charged in Santa Clara last year. “We are drawing the line between public health and public safety,” Brian Buckelew, a supervising deputy DA, told KPIX. “The people can get a higher degree of treatment without the stigma, without the conviction, without everything else.” 

Florida: Aramis Ayala, the prosecutor for Orange and Osceola counties, rolled out a policy in June aimed at reducing the number of people prosecuted for drug possession. Prosecuting drug possession “has failed to reduce levels of drug use, dramatically increased the number of individuals incarcerated and undermined public safety by diverting much-needed resources,” Ayala said in a statement. The policy sets up conditions for prosecutors to outright dismiss drug charges: People will need to complete a one-hour course for lower-level charges (possession of marijuana or drug paraphernalia, or offenses involving trace amounts of other drugs) to be dropped; for possessing drugs other than marijuana, people will need to complete a course and community service, and not be rearrested for six months. If someone doesn’t fulfill those conditions, or if Ayala’s office decides they need substance use treatment, they may still be diverted toward rehabilitative services. 

Prosecutors who over the last year have announced policies to not prosecute possession of some drugs other than marijuana include Kim Foxx (Chicago), Sarah Fair George (Burlington, Vermont), and Rachael Rollins (Boston). Implementation of such policies is always crucial since prosecutorial discretion remains strong. For instance, these policies generally apply to simple possession, which means possession is not accompanied by another offense. But a prosecutor could respond by making more frequent use of other charges to circumvent it. 

Vermont, and beyond: Prosecutor who sends staff to prison makes waves

Chittenden County State’s Attorney Sarah Fair George’s initiative to require that her staff visit a prison is making waves. The Political Report published a Q&A with George last week, in which she laid out her hope that such visits counter prosecutors’ reflex to seek incarceration.

Janos Marton, who is running to be DA in Manhattan on a decarcerative platform, tweeted his approval. “I commend @SarahFairVT for this, and would do the same in Manhattan. (Maybe have ADAs spend the night!),” he wrote.

I asked Marton why he would implement such a policy. “Jail has a visceral impact on all of the senses, and serves as a reminder of the callousness and racism embedded in our criminal legal system,” he said. “To experience that, even for 24 hours, even knowing that there are no collateral consequences on the other side, ought to shift some ADAs’ perspectives on what jail is and what purpose it serves. For example, is it morally appropriate to use pretrial jail detention to leverage plea bargain outcomes? Recognizing that jail and prison conditions are different, we would also want to better understand prisons as we interrogate the kind of sentences we seek, and when we seek prison sentences at all rather than another form of accountability.”

Justin Kollar, the prosecutor in Hawaii’s Kauai County, also tweeted in response to the Q&A that he and his staff “regularly visit Hawaii’s prisons and jails for minimum term hearings,” and that such visits can be “eye opening.” He told me that “seeing the bleak conditions of a jail environment firsthand really brings it home for most folks that we should only put people in that type of restricted environment if it is truly necessary to protect the citizenry from violence. The therapeutic and rehabilitation components are better administered, for most people, in the community.”

Thanks for reading. We’ll see you next week!

Prosecutor Sends Staff to Prison, U.S. Attorney General Attacks Reform DAs

Also today: Colorado organizers prepare for the 2020 legislative session

Prosecutor Sends Staff to Prison, U.S. Attorney General Attacks Reform DAs

Also today: Colorado organizers prepare for the 2020 legislative session

In This Edition of the Political Report

August 15, 2019: 

  • Vermont: Prosecutor sends staff to prison, to counter their reflex to incarcerate

  • The politics of prosecutors: U.S. attorney general attacks reform DAs

  • Colorado: Death penalty, prison gerrymandering, and ICE could be on the 2020 menu

  • Legislative roundup: Connecticut improves prosecutorial transparency, Oregon keeps its nonunanimous jury verdicts, New Jersey may expand qualified immunity, and more

You can always visit our interactive tracker of legislative developments, our interactive tracker on the politics of prosecutors, and our portal on local elections. 

Vermont: Prosecutor sends staff to prison, to counter their reflex to incarcerate

Sarah Fair George, the state’s attorney of Chittenden County (home to Burlington) in Vermont, has instructed all prosecutors and staff members who work in her office to visit the St. Albans prison, also known as the Northwest State Correctional Facility. 

I talked to George on Wednesday about this initiative, and how it could change practices in her office. She said prosecutors often treat prison time “nonchalantly,” as something abstract, and get in the habit of “just throwing out numbers.” “We say six months or two years, and don’t really have to think about what it means for the person,” she explained. 

“It’s important to stand in that space and see it for yourself, and feel it for yourself,” she said. “My hope is that people recognize that six months is a long time to spend in jail. Maybe thirty days can be enough time, maybe no jail. Just being more cognizant of the space you’re sending people to when you put an arbitrary number on an offer sheet.”

She said this perspective should fuel shorter sentences, but also restrain prosecutors from seeking incarceration in the first place. “They spent an hour and a half there and were relieved to get out,” she said of the staff members who have already visited St. Albans as part of her initiative. “So let’s imagine how this might impact somebody who is there for six months or a year, and how this impacts them as a community member when they get back out. Is there a way that we can avoid that entirely, and not risk them coming out a more violent person, or with some type of trauma having been in jail? Can we find another way?”

I also asked George, who as prosecutor has implemented programs to divert people from prison, about reforms that lawmakers should adopt to further decrease reliance on incarceration. Among other measures, she endorsed a proposal to eliminate de facto life without parole sentences. That would be a national first. She also told me that Vermont must do more to ensure all incarcerated people have access to ballots.

The full interview with Sarah Fair George is available here.

The politics of prosecutors: Attorney General William Barr attacks reform DAs

In a speech at the Fraternal Order of Police conference on Monday, U.S. Attorney General William Barr delivered a wide-ranging attack laiden with martial imagery against efforts for police oversight and against reform-minded prosecutors, whom he called “anti-law enforcement DAs.”

Chris Geidner, The Justice Collaborative’s senior adviser for law and policy, and I fact-checked and annotated Barr’s speech with 22 replies that provide context and corrections. Read the annotated version of the speech in The Appeal.

In addition, Fordham Law School professor John Pfaff writes in The Appeal that “Barr is out of step with the data and the desires of the people who have elected progressive prosecutors.” Pfaff explains further that the speech reflects the Trump administration’s resistance to policing reform.

Colorado: Death penalty, prison gerrymandering, and ICE could be on the 2020 menu

Colorado’s legislative session ended in May with plenty of movement on criminal justice reform. The state narrowed disenfranchisement, defelonized most drug possession cases, required jails to provide free menstrual hygiene products, barred law enforcement from honoring ICE detainers, shielded some immigrants from facing deportation due to misdemeanors, and restricted cash bail.

But reform stalled on some major fronts, including the death penalty, prison gerrymandering, and ICE’s 287(g) program. Some advocates are now planning their next moves on these issues.

1. Capital punishment

While efforts to abolish the death penalty have long stalled, 2019 seemed promising given Democrats’ newfound control of the state government. But sponsors pulled the bill from consideration in the spring because of insufficient support in the state Senate. 

The ACLU of Colorado is now planning community-outreach events in the remainder of 2019 to persuade undecided senators to back abolition next year, according to Westword.

The Colorado Independent reported in March that 14 of the 19 Democratic senators support abolition, plus Republican Kevin Priola. That left the legislation three votes shy of a majority. Democratic Senator Rhonda Fields opposed it, while fellow Democrats Jessie Danielson, Joann Ginal, Tammy Story, and Nancy Todd were on the fence. None of these four Democrats answered a request for comment on what they are looking to hear on this issue to decide whether they will support abolition. Opponents of the death penalty need to persuade three of them, or else they need to secure more Republican support.

There has been no execution in Colorado since 1997. But David Sabados, executive director of Coloradoans for Alternatives to the Death Penalty, told me that abolition would tangibly impact future cases. Prosecutors still seek the death penalty, he said, “which is time-intensive, which is incredibly expensive, which can be an extra trauma to victim family members watching these long cases play out.” Sabados also faulted the death penalty’s disproportionate application. The three people on Colorado’s death row are all African American.

2. 287(g)

A new law restricts local law enforcement’s cooperation with ICE, but it was narrowed after Democratic Governor Jared Polis warned he would veto it over a provision banning counties from joining ICE’s 287(g) program, which deputizes local officers to act like federal immigration agents. The Trump administration’s harsh policies toward immigrants are only growing more visible, and some lawmakers like Senator Julie Gonzales want to return to the issue and strengthen the “bright line” between ICE and local law enforcement.

3. Prison gerrymandering

Time is running out for states to eliminate prison gerrymandering, the practice of counting incarcerated people where they are detained rather than at their last address for purposes of redistricting. This skews power toward disproportionately white and rural areas. With the next round of redistricting around the corner, states must act within the next two years, and there is now movement afoot in Colorado.

Representative Kerry Tipper told the Colorado Independent that she may introduce legislation to end prison gerrymandering next year. Tipper, a Democrat, is working on this bill with Common Cause Colorado, the state chapter of an organization that supports voting rights. “When you have folks that are being counted in the area they’re being incarcerated in,” she said, “how is it fair to bloat numbers for purposes of redistricting, when these people can’t vote?” 

Indeed, people incarcerated over a felony conviction cannot vote in Colorado, unlike in Maine and Vermont. Colorado enfranchised people on parole this year, but it did not altogether abolish criminal disenfranchisement. Representative Leslie Herod, a Democrat who sponsored that reform, told me in May that she was open to advocating for that next step. She also told me this week that she thinks that “prison gerrymandering should be a thing of the past.”

There are many other issues for Colorado to address next year. 

The most immediate include extending its new restrictions on cash bail to more categories of offenses, and expanding its new law that reclassifies drug possession as a misdemeanor by lifting the carve-outs and making defelonization retroactive (Oklahoma did the latter this year). Herod also said she wished to reduce incarceration, and specifically target “the increase of the female prison population,” by “providing more in-community treatment” for people who are currently being incarcerated for issues related to addiction and mental health.

A standalone version of this article is available here.

Legislative roundup: Connecticut improves prosecutorial transparency, Oregon keeps its nonunanimous jury verdicts, New Jersey may expand qualified immunity, and more

Connecticut: Prosecutorial decisions typically function as a black box, which makes it difficult to assess fundamental matters like the extent of racial disparities in a given office. Connecticut is set to change this. Last week, Governor Ned Lamont signed legislation that WNPR says is the “first in the nation to mandate the collection of prosecutorial data statewide.” Prosecutors will now need to collect demographic data pertaining to charging and sentencing decisions, the use of diversion, and their plea offers. Connecticut is one of the only states in the country that does not have elected prosecutors.

New Jersey: While calls to improve police accountability have intensified nationwide, New Jersey is heading in the opposite direction. The Appeal reported this month on a bill that would expand qualified immunity, the doctrine that largely protects law enforcement officers from legal accountability, to police officers at private colleges and universities. The bill, which is sponsored by Democratic Assemblymember Roy Freiman, was adopted by the Assembly but has yet to be considered in the Senate. “They’re trying to protect themselves from the fallout of police violence rather than trying to make sure police violence never happens in the first place,” Micah Herskind, an activist who opposes the bill, told The Appeal. 

Oregon: Since Louisiana’s 2018 referendum, Oregon is the only state where people can be found guilty by a nonunanimous jury. And the state took no action this year to end this anomaly. Reform looked to be on the way when even the Oregon District Attorneys Association endorsed changing the state Constitution, and when the House passed a bill to put the matter on the 2020 ballot. But the Senate adjourned without adopting it. The Associated Press reports the issue is sure to return next year. The U.S. Supreme Court is set to consider a case involving a nonunanimous conviction, and some advocates say they will press the issue in the legislature once more.

Rhode Island: Samantha Michaels reports in Mother Jones that in Rhode Island, anyone who is serving a life sentence is considered to be “civilly dead,” and therefore deprived of all civil rights. This includes the right to complain in state court about mistreatment. Rhode Island is the only state where the status of “civil death” is applied so literally, but legislation to end it has failed every year since 2014. Will 2020 change this? A related bill that failed this year would have abolished life without parole for people under 18.

Thanks for reading. We’ll see you next week!

Challengers Defeat Two Virginia Prosecutors, Hint at Reform Coalition

Also today: Colorado's Democratic governor opposed banning ICE contracts

Challengers Defeat Two Virginia Prosecutors, Hint at Reform Coalition

Also today: Colorado's Democratic governor opposed banning ICE contracts

In This Edition of the Political Report

June 13, 2019:

  • Virginia: Challengers defeat two prosecutors, hint at a coalition against mass incarceration

  • Colorado: Democratic governor opposed banning ICE contracts

  • Washington D.C.: City council could abolish disenfranchisement

  • Legislative roundup: Arizona and Minnesota legislature adjourn with little to show on reform, New York lifts ban on gravity knives

As always, we invite you to visit our interactive map of legislative developments on criminal justice reform here.

Virginia: Challengers defeat two prosecutors, hint at a coalition against mass incarceration

Theo Stamos, the chief prosecutor of Arlington County, argued in 2018 that mass incarceration is an expression “used to delegitimize” what prosecutors do. “There isn’t a prosecutor in this country that engages in mass incarceration,” said Stamos, who has a history of harsh practices.

But voters in two populous Virginia counties, home to a combined 1.4 million people, signaled that they believe otherwise in Tuesday’s Democratic primaries.

They ousted Stamos and Ray Morrogh, her Fairfax County colleague, in favor of two challengers who campaigned on “ending” or “dismantling” mass incarceration.

Parisa Dehghani-Tafti, a former public defender and the legal director of the Mid-Atlantic Innocence Project, defeated Stamos in Arlington County and Falls Church. She is unopposed in the general election.

Steve Descano, a former federal prosecutor, beat Morrogh in Fairfax County and Fairfax City. In this Democratic-leaning jurisdiction, he faces Jonathan Fahey, who is running as an independent, in November’s general election. No Republican candidate filed.

These results prolong a tide of electoral success for candidates who ran for prosecutor looking to overhaul the local legal system. They include Larry Krasner in Pennsylvania, Satana Deberry in North Carolina, and Rachael Rollins and Andrea Harrington in Massachusetts.

“We give prosecutors so much discretion about how to resolve criminal cases,” Andy Elders, the director of policy development for Justice Forward Virginia, a nonpartisan political action committee, told the Political Report on Tuesday evening. “Tonight’s results are part of a nationwide movement in which voters are telling prosecutors that they want change.” Elders is also the deputy public defender for Fairfax County.

The two challengers received considerable financial support from a political action committee funded by George Soros to promote criminal justice reform.

Reform-oriented platforms

In separate interviews with the Political Report, Dehghani-Tafti and Descano laid out how they would reform prosecution.

They both said that they would not seek the death penalty nor prosecute marijuana possession charges.

Both questioned why anyone would ever be denied voting rights over of a criminal conviction. “We should never forget that these laws are the vestiges of Jim Crow,” Dehghani-Tafti said. This made for a striking contrast given their opponents’ joint decision to jump on to a 2016 lawsuit against then-Governor Terry McAuliffe’s executive order restoring voting rights for people who complete their sentences. McAuliffe endorsed both of the challengers.

A core argument of Descano’s campaign was that prosecutors file excessively severe charges. “There is a cycle of decreased opportunity, increased poverty, increased crime. That’s what we want to break here,” he said, adding that he would file fewer felony-level charges and “create a presumption that any theft under $1,500 is treated as a misdemeanor.” (Virginia’s current felony threshold stands at $500.) He also faulted prosecutors for “reflexively” seeking high sentences, and said he would end cash bail and increase the use of pre-conviction diversionary programs.

Dehghani-Tafti told the Political Report that she ran for prosecutor to address mass incarceration more frontally than she could as a defense attorney. “I don’t think we’ll ever have a perfect system, but right now I think going in on the inside and trying to reform based on evidence and based on data is about the only choice we have,” she said. Referring to obstacles she herself has experienced in obtaining the records and files she would need to argue for her client’s innocence, she talked of instituting more open practices to communicate information with the defense.

I asked Jenny Glass, director of advocacy at the ACLU of Virginia, what she thought would change after the incumbents’ departure. She said she “would expect to see a lot of data” since both winning candidates “made commitments to release data related to charging decisions, to plea bargains, and to collect information related to race and ethnicity.”

A statewide coalition?

Reform-oriented prosecutors elsewhere in the country have frequently found themselves isolated within their state. But Dehghani-Tafti and Descano may each have company in the other. They indicated during the campaign that they saw themselves to be part of a movement to overhaul the legal system statewide.

Dehghani-Tafti faulted the Virginia Association of Commonwealth’s Attorneys (VACA), which lobbies on behalf of state prosecutors, for advocating punitive practice. She told the Political Report she is “hoping” to be elected “with a wave of other reform prosecutors” to “transform” how VACA flexes its muscle. Descano, who would represent Virginia’s largest county if he is elected in November, echoed Dehghani-Tafti when he said he would use his office’s visibility to put together a “coalition” that would “act as a counterpoint” to VACA’s current politics.

“I will bring to bear the coalition I have built to go down and say, ‘Hey, legislators, you’ve heard this regressive view of the world, let me tell you a progressive view of what justice should be,’” Descano said.

That would overhaul the prospects of criminal justice reform as much as anything Descano and Dehghani-Tafti can do within their jurisdictions. It would clarify the existence of political fault lines around the existence of mass incarceration, and give reform advocates allies in offices that typically oppose reform. “When we think about creating legislation,” Glass told the Political Report, giving as an example a prospective bill to restrict solitary confinement, “it will be positive to know that there will be people in a very powerful lobbying group to support it.”

The full version of this article is available here.

Colorado: Democratic governor opposed banning ICE contracts

Opposition to ICE has risen on the left during the Trump administration. But a Colorado bill to curtail the agency’s reach was considerably weakened after Democratic Governor Jared Polis objected to restrictions it imposed on local cooperation with federal immigration authorities.

His office warned in April that he would veto House Bill 1124 unless it was stripped of some of its most important provisions, including a ban on counties joining ICE’s prized 287(g) program. As of this week, 86 counties nationwide (including Colorado’s Teller County) are part of this program, which deputizes local officers to act like federal immigration agents.

The bill’s sponsors agreed to drop the section that directly targeted 287(g). This left them with “a shell of what they once hoped to advance this legislative session,” Alex Burness wrote in the Colorado Independent. The governor signed the narrowed version in May.

“We were faced with a choice, either run a bill that the governor would sign or that the governor would veto,” Democratic Senator Julie Gonzales, one of the sponsors, told me. She added that she had been “surprised” by Polis’s “really staunch opposition to certain aspects of the original version” of HB 1124, as well as to another reform derailed earlier in the year.

But some immigrants’ rights advocates also argue that 287(g) has been invalid under state law all along, and that the final version of HB 1124 does contain a clause that reaffirms this.

What was removed from HB 1124

One provision that the governor opposed would have barred ICE from entering jails without a warrant. It was removed from HB 1124.

Another section would have prohibited local authorities from entering contracts to help enforce federal immigration law. This would have applied to the 287(g) program. Critics argue that 287(g), which authorizes local officers to research the status of people held in jail and to arrest suspected undocumented immigrants, distorts the purpose of local agencies and harms public safety. “When local law enforcement gets involved with immigration enforcement, it erodes trust and it creates fear in the local community,” Angela Chan, the policy director and a senior staff attorney at Asian Americans Advancing Justice – Asian Law Caucus, told me.

Chan helped draft the law California adopted in 2016 to limit cooperation with ICE. It forced Orange County to terminate its 287(g) contract. 

Polis’s office did not reply to a request for comment on the governor’s position. His staff said in April that he was committed to protecting counties’ local control. Chan described that position as ironic because “the local law enforcement agency is deciding that rather than doing their job they’re going to take on federal responsibility,” she said.

Despite the law’s narrowing, Colorado advocates also contend that the removed section was not necessary to ban 287(g). “The ACLU believes that these agreements violate existing state law and will explore that avenue going forward,” Denise Maes, public policy director of the ACLU of Colorado, told me.

Their argument is that Colorado sheriffs only have the powers granted to them by state law, which makes no mention of sheriffs playing a role in civil immigration law. The final version of HB 1124 does contain a clause affirming that sheriffs only possess explicitly enumerated powers. State Representative Adrienne Benavidez, a Democrat who sponsored HB 1124, told me this clause “may not stop somebody” from joining 287(g), but that it represents “additional legislative support to a civil action in court against local law enforcement that did that.”

What HB 1124 does contain

As adopted, HB 1124 curbs ICE’s reach in three ways. First, it restricts communication between ICE and probation officers, who until now could share information with federal agents who lacked a warrant. Second, it bars local law enforcement from detaining people beyond their scheduled release because of a detainer request by ICE.

Third, it requires that people in jail be advised that they do not have to talk to ICE, and that their answers could be used against them if they do. “We really think it’s going to help clarify who’s who and make sure that people can understand their constitutional rights before they consent to give that type of interview,” Brendan Greene, campaigns director for the Colorado Immigrants Rights Coalition, told me.

Immigrants’ rights advocates vowed to demand stronger protections. “Politicians and elected officials need to know that we plan to push the envelope” so that “our immigrant families, friends, and neighbors no longer need [to] live in the shadows,” Maes said. Gonzales, the state senator, agreed that the legislature must do more to “draw a bright line” and to tell ICE to “stop using our local law enforcement as a force multiplier for your deportation machine.”

The full version of this article is available here.

Washington D.C.: City council could abolish disenfranchisement

The two whitest states (Maine and Vermont) are currently the only jurisdictions with no felony disenfranchisement, a practice with racist roots. That perverse situation could change this year if Washington, D.C., abolishes disenfranchisement.

Kira Lerner reports in The Appeal on a new bill that would enable people to vote from prison. Every member of the City Council signed on as a co-sponsor. People who are convicted of a felony in D.C. are detained in federal prisons. If this bill becomes law, they would vote in D.C. with absentee ballots. (D.C. already authorizes people to vote while on probation and on parole.)

This proposal furthers nationwide organizing to abolish disenfranchisement. Bills were filed in at least seven states this year.

Legislative roundup: Arizona and Minnesota legislature adjourn with little to show on reform, New York lifts ban on gravity knives

Arizona: Despite having bipartisan support, ambitious reforms failed this year because of influential GOP power-holders and state prosecutors. That pattern was repeated this week, this time over a watered-down bill that the legislature adopted with near unanimity. Republican Governor Doug Ducey vetoed a bill that would have narrowed the circumstances in which prosecutors can treat defendants as repeat offenders. That status triggers stacked charges and harsh sentences. While 85 of the state’s 90 lawmakers voted for the bill, Arizona prosecutors still lobbied against it. Pima County Attorney Barbara LaWall and Maricopa County Attorney Bill Montgomery (a perennial obstacle to reform in Arizona) wrote to Ducey that it would create a “strong incentive for repeat offenders to commit as many offenses as they can before being caught.” The legislature has already adjourned so it cannot override Ducey’s veto.

Arizona did adopt one law reforming the legal system this year: Senate Bill 1310 amends the requirement that people serve 85 percent of their sentences to 70 percent, but only if their sole offense is drug possession and if they complete a treatment or self-improvement program. This bill is a considerably narrowed version of legislation that activists championed early this year. It applies retroactively, however, so it should enable thousands to be released earlier than planned.

Minnesota: The legislature adjourned in May without adopting reform legislation. A proposal to stop suspending driver’s licenses over an inability to pay court fines and fees did not make it past either chamber (despite bipartisan success elsewhere), nor did a proposal to consider indigency before imposing fines and fees. Other bills that drew attention but passed neither chamber included a five-year cap on probation terms and a proposal to enable people on parole to vote, as is the law in 18 other states. Earlier this year, the GOP-run Senate also killed a bill to legalize marijuana.

New York: The state’s ban on gravity knives is no more: Governor Andrew Cuomo signed into law a bill sponsored by Assemblymember Dan Quart that decriminalized their possession. The Appeal reported on this legislation in March: The ban “has swept up tens of thousands of New York City residents, overwhelmingly people of color, for owning what critics argue are common work tools,” Jon Campbell wrote. Cuomo had vetoed similar legislation twice before.

New York: The Domestic Violence Survivors Justice Act is a new law that allows sentencing judges to consider whether a crime was connected to abuse that a defendant suffered. “One of the most striking things about the law is that it chips away at the entrenched notion that some people in society do harm and others suffer harm,” Sarah Lustbader wrote in The Daily Appeal

Thanks for reading. We’ll see you next week!

Virginia’s Primaries Could Overhaul Prosecution, and Three States Reform Their Drug Laws

Illinois is legalizing marijuana, while Colorado and Oklahoma confront drug possession.

Virginia’s Primaries Could Overhaul Prosecution, and Three States Reform Their Drug Laws

Illinois is legalizing marijuana, while Colorado and Oklahoma confront drug possession.

In This Edition of the Political Report

June 6, 2019:

  • Virginia: Tuesday’s elections could overhaul prosecution in Northern Virginia

  • Colorado, Illinois, and Oklahoma: Three states reform their drug laws

  • The politics of prosecutors: Quick hits from California, Florida, Louisiana, and Maine

As always, we invite you to visit our interactive map of legislative developments on criminal justice reform here.

Virginia: Tuesday’s elections could overhaul prosecution in Northern Virginia

The nationwide push to overhaul prosecutorial practices has reached Virginia, which hosts three elections for commonwealth’s attorney on Tuesday. These elections are all Democratic primaries in populous Northern Virginia counties, and the results of each could substantially transform local approaches to prosecution.

Prince William Democrats are set to nominate their first candidate in half a century who is not Paul Ebert, a retiring prosecutor with a predilection for the death penalty. But the widest contrasts lie elsewhere. Theo Stamos, the commonwealth’s attorney of Arlington County and Falls Church, faces Parisa Dehghani-Tafti, a former public defender is now legal director of the mid-Atlantic Innocence Project. Ray Morrogh, the commonwealth’s attorney of Fairfax County and Fairfax City, faces Steve Descano, a former federal prosecutor.

Arlington and Fairfax counties

The two challengers are confronting the state’s criminal legal system as something that needs systemic reforms that prosecutors can take on, beyond changing how they assess individual cases.

Dehghani-Tafti told me that her work as a defense attorney meant dealing with single cases as they came along—“plucking the babies out of the river,” she said—but that her candidacy was a way of “walking upstream” to “see who is throwing them in” and address the problem head-on. She said in her campaign announcement that she was running “to dismantle the mass incarceration machine.” Descano similarly told me in an interview that “if you were to have a prosecutor who was committed to making a dent in mass incarceration and ending mass incarceration, it would be within their powers” to do so, for instance by “changing the way that you charge crimes.”

Both challengers cast themselves as part of a broader movement to overhaul statewide practices.  Descano talked of creating “a coalition” to “act as a counterpoint” to the Virginia Association of Commonwealth’s Attorneys (VACA). VACA is the group that lobbies on behalf of Virginia prosecutors, typically for more punitive policies; last year, for instance, VACA opposed a bill to decriminalize marijuana possession. Similarly, Dehghani-Tafti told me that she hoped “to be elected with a wave of other reform prosecutors;” she said of VACA that “right now, they don’t speak for me.”  

Incumbents Morrogh and Stamos, by contrast, have served in VACA’s leadership. Both tout their interest in criminal justice reform, even as they have fought efforts to overhaul the legal system. In 2016, for instance, they signed on to a lawsuit against Governor Terry McAuliffe’s executive order restoring the voting rights of Virginians who have completed their sentences.

Morrogh testified in Congress in 2014 that the Obama administration’s proposed sentencing reforms would “roll the dice with the safety of America’s communities.” His campaign did not respond to a request for comment about his view on the fairness of sentencing in Virginia.

Stamos told me that “Arlington does not engage in mass incarceration” when I asked her if she thought Virginia’s incarceration rate was too high. In an event held in May 2018, she similarly said “mass incarceration” was “a term that is used to deligitimize what we do because there isn’t a prosecutor in this country that engages in mass incarceration.” Prosecutors “don’t round up people in a mass way,” she explained, but instead treat people as individuals.

But prosecutors enjoy wide discretion to handle individual cases in a more- or less-punitive manner. The Appeal reported this week on her office’s history of aggressive charging practices, which have resulted in children being detained over low-level offenses.

A pattern of individual cases can also accumulate into an unequal system. Stamos touted the decrease in the jail population, and it is true that Arlington’s per capita incarceration rate is lower than the statewide average, according to the Vera Institute of Justice’s database. But, for Black people, this rate is higher than the statewide average. African Americans make up 9 percent of Arlington’s population but approximately 60 percent of people who are convicted of marijuana possession, trespass, or larceny, according to an analysis by the state Supreme Court. Stamos told The Appeal that this disparity is due to people “coming into our community and committing offenses” from elsewhere. “Arlingtonians are very law-abiding, as it turns out,” she said. “It’s other folks coming from other areas of the region.”

The candidates’ differing attitudes toward systemic reform plays out on concrete issues. The full version of this article contrasts their positions on a range of issues; both challengers have notably said they would not file marijuana charges and would not seek the death penalty.

Prince William County

A commonwealth’s attorney since 1968, Paul Ebert has made Prince William County a national epicenter for the death penalty. The Washington Post wrote last year that Ebert has obtained more capital sentences than “any other prosecutor in Virginia.” He replied that “very few” people “qualify for” the death penalty, but “for some reason, Prince William seems to get people who qualify.”

This explanation obscures commonwealth’s attorneys’ discretion. He should know. His tenure has been marred by complaints of excessive or inappropriate behavior, including a case Radley Balko of the Post dubbed “one of the more brazen examples of prosecutor misconduct in recent memory.”  

Ebert, a Democrat, is retiring this year after 51 years in office, and two Democrats are running to replace him in next week’s primary. Amy Ashworth is a former prosecutor who now works as a private attorney, and Tracey Lenox is a criminal defense attorney who is running with Ebert’s endorsement. (The winner faces Mike May, a former county supervisor, who has already secured the GOP nomination.)

In separate interviews, both candidates highlighted changes they’d make to his office, though neither endorsed some of Descano or Dehghani-Tafti’s bolder positions. Both said they wanted to restrict the use of the death penalty, but neither ruled out seeking it.  

Both talked of de-emphasizing prosecution and incarceration over low-level charges. Lenox told me she would seek to “divert and dismiss” most “nonvictim misdemeanor charges” like marijuana possession and driving with a suspended license. Ashworth mentioned the two same examples to explain that “it is not smart to focus on prosecuting victimless crimes,” though she repeatedly specified that she was talking of first-time offenses as to the scope of cases to divert. Also, Ashworth and Lenox both spoke against declination policies, including for marijuana. Ashworth argued that a blanket policy would violate her oath of office; Lenox expressed concern that it could generate a backlash against reform among other stakeholders. “Diversion is the easier project, because then you can give the judges something to hang their hat on,” Lenox said.

A more straightforward difference emerged when I asked how they would each change the legal system’s approach to offenses involving violence. Both invoked Virginia’s non-mandatory sentencing guidelines in their response, but to contrary effects. Lenox questioned the guidelines’ neutrality, arguing that they reflect “norms” inherited from a time where “high incarceration was the solution to things”; she said she wants to create opportunities for below-guideline sentences. By contrast, Ashworth declined to assess the guidelines’ fairness. She emphasized the value of using them as a constraint in order to be consistent and reduce sentencing disparities.

A full, standalone version of this story is available here.

Colorado, Illinois, and Oklahoma: Three states reform their drug laws

Pushback against the “war on drugs” has long been central to criminal justice reform efforts, and in May three states overhauled their drug laws to pursue less punitive models.

1) Illinois is legalizing marijuana.

Illinois is set to legalize the possession and sale of marijuana. The bill passed the legislature last week, and the state’s governor has said he will sign it.

The bill faced a test beyond legalization: to confront the racially disproportionate harm that the prohibition of marijuana has caused. In legalizing pot, other states have often failed to clear past convictions, and the industry is primarily benefiting white investors. How does this change fare?

First, it sets up a streamlined pardon process to expunge existing convictions, which will relieve thousands from the lifelong implications of past prosecutions. Individuals will not need to initiate a request as long their offense involved less than 30 grams of marijuana. Relief will entail an individualized review process, however. The original legislation proposed a more automatic process, and it did not specify that 30-gram threshold, but it was amended after the state’s attorneys association demanded a greater role for prosecutors in determining eligibility.

Second, the bill allocates some of the revenue generated by legalization to programs meant to reverse the “systematic disinvestment of the same communities where folks with criminal records are concentrated,” as Sharone Mitchell Jr., deputy director of the Illinois Justice Project, put it. “The 25 percent share of the tax revenue reserved for violence prevention, re-entry services and social determinants of health” are a “game changer when it comes to violence reduction,” Mitchell told me. He credited the work of the Illinois Black Caucus.

Third, it boosts the licensing applications submitted by residents of a “disproportionately impacted area” and of people with past convictions. Fourth, it provides financial assistance for people who want to enter the marijuana industry and who have been directly impacted by its prohibition; nevertheless, opening a dispensary will still entail a very high startup cost.

2) Colorado reclassifies drug possession charges and shrinks penalties.

Colorado is lowering drug possession to the misdemeanor level. This new law, effective in 2020, reclassifies possession of nearly all Schedule I and Schedule II substances, including heroin and fentanyl.

This significantly reduces penalties associated with possessing these drugs. It shortens sentences and shifts people from prison to county jails. Drug possession currently carries a prison sentence and a subsequent parole period, but this change provides a sentence of up to 180 days in jail and a probation period.

The Senate limited the original bill’s scope, however, when it added a weight limit of 4 grams over which possession remains a felony. The law also contains other exceptions. It never applies to cathinones, flunitrazepam, ketamine, gamma hydroxybutyrate (GHB). Possession of other substances will also be a felony beyond a third offense. In addition, the law is not retroactive.

Five states have already reduced drug possession into a misdemeanor, all since 2014, according to a 2018 report published by the Urban Institute: Alaska, California, Connecticut, Oklahoma, Utah. The report found that none of these states’ reforms specified a weight limit.

Brian Elderbroom, a scholar at the Urban Institute who co-wrote the 2018 report with Julia Durnan, called Colorado’s bill a “critical first step.” He added, though, that it does not meet the standard of the five reforms assessed in his report. It “builds on reclassification efforts in other states by also limiting incarceration in local jails and investing in treatment programs,” he told me, but “lawmakers left plenty on the table when they amended the bill to retain the felony classification in certain cases.”

3) Oklahoma had already ‘defelonized’ drug possession. Now that is retroactive.

Drug possession is already a misdemeanor in Oklahoma. Voters reclassified it in a 2016 ballot initiative, State Question 780, that passed by a large margin; it also reclassified theft of under $1,000. But SQ 780 was not retroactive; people already convicted got no relief.

This just changed. House Bill 1269, signed into law in May, makes SQ 780 retroactive. It instructs the state to identify and resentence people now in prison for felony drug possession. (People convicted of other offenses in addition to drug possession, and people convicted of theft, will need to file a commutation petition to be considered.) Up to 800 people who are serving simple possession charges will be eligible for release, The Oklahoman reports.

The law also makes already-released individuals eligible for expungement. Up to 60,000 people could qualify for this form of relief, according to Kris Steele, the executive director of Oklahomans for Criminal Justice Reform, a coalition that supported the change. Steele is also the state’s former Republican speaker. “When an individual can remove that scarlet letter, it opens up a myriad employment opportunities and new housing opportunities, it allows that individual to move forward in a very positive manner,” Steele told me.

But Steele also expressed concerns about the way lawmakers set up the expungement system. For one, the reform requires individuals who are eligible to file an application rather than shift that burden on the state. Steele said that although the reform provides a simplified application, people may still perceive the process as too burdensome. “Many individuals who are involved in the justice system may be skeptical of applying because it is additional involvement with a system that has been punitive,” he said.

A full, standalone version of this article is available here.

The politics of prosecutors: Quick hits from California, Florida, Louisiana, and Maine

California: A new state law empowers district attorney to reopen past cases and seek a reduced sentence. San Francisco DA George Gascón has proposed creating a Sentencing Review Unit to conduct this work, but Mayor London Breed’s proposed budget does not provide funding for this unit.

Florida: Aramis Ayala, the state attorney of Orange and Osceola counties, announced last week that she would not seek re-election in 2020. Ayala tied her decision to her struggle with statewide politicians over the death penalty. When she vowed to not seek the death penalty, Governor Rick Scott reassigned cases to other prosecutors and the state Supreme Court upheld Scott’s move.

Louisiana: Leon Cannizzaro, the DA of Orleans Parish (New Orleans), is the subject of an Intercept investigation on how his office is undermining defendants’ right to counsel, and of an Appeal investigation on the harmful effects of his office’s handling of jailhouse informants. Cannizzaro is known for harsh prosecutorial practices, and last month, he announced he would pursue a more punitive approach toward minors.

Maine: Natasha Irving, the DA of four coastal counties, announced that she was expanding the use of preconviction diversion and of restorative justice programs, the Bangor Daily News reports.

Thanks for reading. We’ll see you next week!

Big Week for Reform: States Abolish the Death Penalty, Expand Voting Rights

Spotlight on Colorado, Nevada, and New Hampshire

Big Week for Reform: States Abolish the Death Penalty, Expand Voting Rights

Spotlight on Colorado, Nevada, and New Hampshire

In This Edition of the Political Report

May 31, 2019:

  • New Hampshire abolishes the death penalty

  • Colorado and Nevada significantly narrow felony disenfranchisement

  • North Carolina: Durham’s DA rolls out new policies to reduce pretrial incarceration

  • Virginia: Prince William County candidate discusses cash bail, declination, and the death penalty

  • Virginia: Previous interviews with nonincumbent candidates in the June primaries

New Hampshire abolishes the death penalty

New Hampshire abolished the death penalty Thursday. The Senate voted one week after the House to override Governor Chris Sununu’s veto.

The law passed the Senate with no vote to spare, but that was enough to make New Hampshire into the 21st state to have abolished the death penalty. That number that does not include states with governor-imposed moratoriums. Sentences and executions have also considerably declined nationwide.

“We’re experiencing a climate change in the United States when it comes to the death penalty,” Robert Dunham, executive director of the Death Penalty Information Center, told me. “With New Hampshire’s abolition, half of the states have either abolished the death penalty or have a moratorium on executions.”

Washington was the most recent state to repeal the death penalty when its Supreme Court struck it down in 2018. Governor Gavin Newsom imposed a moratorium on the death penalty in California this year.

Although New Hampshire has not executed anyone for 70 years, critics of the death penalty say this law is significant. John-Michael Dumais, campaign director of the NH Coalition to Abolish the Death Penalty, told me in the fall that success would help people around the country who argue that the death penalty “doesn’t conform to our evolving standards of decency.”  Achieving abolition can also free up the energy and imagination of reform advocates. New Hampshire will now have “space to look more broadly at the issue of criminal justice reform,” Dunham told me. “In states with the death penalty, when you address criminal justice reform, it’s hard to do so while ignoring the harshest punishment that’s available.” Case in point: In Massachusetts and Vermont, which have already repealed the death penalty, advocates this year have pushed for abolishing sentences of life without the possibility of parole.

Newsom’s moratorium prompted conversation about Democratic politicians’ growing comfort with opposing the death penalty. That was on display again in New Hampshire. Democratic lawmakers were nearly unanimous in favor of abolition (218 of 224 voted yes in the chambers’ initial votes). 

But GOP lawmakers proved decisive as well. Nearly half backed abolition when legislators first sent the bill to the governor, and the veto override would not have passed on Democratic votes alone. “I’m a pro-life advocate, and that is a credo I’ve tried to live with my entire life,” Republican Senator Bob Guida said on the floor shortly before voting for abolition.

Abolition efforts moved forward but fell short elsewhere this year.

Wyoming came remarkably close to repealing the death penalty. Abolition passed the largely GOP House but fell just short in the Senate. It also lacked sufficient support in Colorado and Nebraska. In Washington, the House did not take up a bill enshrining in state law last year’s ruling striking down the death penalty; the Senate had adopted it.

State lawmakers considered other sorts of legislation pertaining to the death penalty this year, but many legislatures adjourned over the last month without adopting these changes. Iowa will not reinstate the death penalty this year; Missouri will remain one of three states where a death sentence does not require a jury to reach unanimity; and in Texas, a bill to create a pretrial hearing about intellectual disability had initial success but did not make it through. 

The full version of this article is available here.

Colorado and Nevada significantly narrow felony disenfranchisement

Colorado and Nevada adopted new laws that will restore people’s voting rights as soon as they are released from incarceration, as opposed to doing so at later stages of the legal system (if ever).

These reforms deal a blow to a system that excludes and marginalizes millions of U.S. citizens, disproportionately African American, across the country. They are the latest successes in the nationwide movement to confront felony disenfranchisement. The movement has upended the voting rights debate by focusing widespread attention on bolder and more democratic reforms than we have come to expect, whether ones like Colorado and Nevada or ones that go further.

Prior to this week, just one state had passed a law to enfranchise people upon their release over the last decade (Maryland in 2016). Colorado and Nevada did this within a day of one another.

Nevada had some of the country’s harshest statutes as one of 12 states where some people could not vote even after completing their sentence. The new law enfranchises people who have completed their sentence (as Florida’s Amendment 4 mostly did). But it also goes further by enfranchising people who are on probation and on parole. Approximately 75,000 Nevadans were disenfranchised in 2016 for reasons that will no longer exist in 2020, according to a Sentencing Project report; that’s more than 3 percent of the voting-age population. Twenty-three percent were Black, even though African Americans represent only 8 percent of the state’s voting-age population.

Colorado’s new law reaches the same point through a smaller jump. The state disenfranchised people who are in prison and on parole; this reform ends the latter. There were approximately 9,000 Coloradoans disenfranchised while on parole in 2016. Of those, 17 percent were African American, compared to 4 percent of the state’s voting-age population.

A changing landscape

Neither state abolished felony disenfranchisement, however. People will remain barred from voting while incarcerated, unlike in Maine and Vermont, which have never disenfranchised people based on a criminal conviction. From Hawaii to New Mexico, activists are organizing at the state level to emulate Maine and Vermont and achieve universal suffrage. Voting while incarcerated was also among the demands of last year’s prison strike, and it came to the fore in the presidential campaign when Senator Bernie Sanders stated his support.

No other candidate took Sanders’s position, but most at least embraced the stance that people’s rights should be restored once they are released from incarceration. Listening to these national debates, you would think that this view—that formerly incarcerated people should vote—is the default stance to which the Democratic party has sternly adhered.

But that was far from the case in states before the organizing toward universal suffrage acquired this increased visibility over the last year.

Of the 14 states with a Democratic government, five allow all formerly incarcerated people to vote. Colorado and Nevada will make it seven. But similar bills were killed this year in New Mexico and Washington, and have not advanced so far in Connecticut and New York. 

The synchronicity of Colorado and Nevada’s reforms, and the striking intraparty unity around them, makes them appear routine for Democratic legislatures. But that impression underscores the scale of this change. Reforms that until recently pushed the envelope of Democratic governance are more clearly coming into view as compromise measures, which are essential but still removed from universal suffrage.

“Restoring parolees’ voting rights” is an “important first step,” Representative Leslie Herod, who authored Colorado’s new law, told me earlier this month. She also said that “we need to consider restoring voting rights to those incarcerated” because “if anyone should be voting, it’s those who have been most affected by our laws.”

Clarifying eligibility

Reforms like Colorado and Nevada’s don’t just expand eligibility. They also clarify it. People involved in the criminal legal system often face a dizzying maze of rules to figure out whether they are entitled to vote, with the potential threat of prosecution looming if they get it wrong. State officials sometimes pointedly refuse to provide information to affected individuals.

Even as it leaves many stripped of the right to vote, enfranchising anyone who is not incarcerated at least makes the situation more straightforward for communities outside the prison walls. “We need a law that is so simple and so clear that you don’t need to get legal advice,” Lonnie Feemster, the Nevada director of the NAACP National Voter Fund, told me in December. That’s a low bar most states still have not crossed.

A full version of this article, with a map of 2019 reforms, is available here.

North Carolina: Durham’s DA rolls out new policies to reduce pretrial incarceration

Durham County District Attorney Satana Deberry, who was elected in November, is rolling out new policies to reduce pretrial incarceration and narrow the use of cash bail, a practice that leaves poor people in jail because of an inability to afford a payment.

In an internal memo released this week, her office states that only “in rare circumstances” should making a financial payment be a condition for pretrial release.

Studies of Durham’s legal system have long shown racial disparities in pretrial incarceration, and Indy Week published an in-depth feature last year on efforts to eliminate cash bail led by local groups like the Southerners on New Ground and the Southern Coalition for Social Justice.

Prosecutors do not set the conditions of release; magistrates and judges do. But prosecutors make requests, and often ask for harsh conditions. Moreover, the judicial branch made a change of its own this year: The county’s top judges announced new guidelines for magistrates and judges to “de-emphasize” cash bonds. They did so in part by using unsecured bonds (which require that people make a payment if they do not appear in court) as an alternative. But Deberry’s memo asks prosecutors to “disfavor” unsecured bonds as well, and states that financial conditions should require a determination of “an individual’s financial circumstances.”

This memo establishes a presumption that people arrested on lower-level charges (infractions and misdemeanor) should be released based only on a written promise to appear in court, with the exception of domestic violence cases. For felony-level offenses, it recommends the release of more people based on a written promise or based on nonfinancial conditions like house arrest. When judges plan to impose cash bail, the memo instructs prosecutors to ask for a “thorough inquiry into defendant’s ability to pay” and for the release of written findings.

In 2018, Philadelphia District Attorney Larry Krasner implemented a similar policy of not seeking cash bail in cases involving misdemeanor and nonviolent felony charges, and a subsequent study found no ill effect on court attendance or on recidivism.

The memo also recommends reducing arrests over a failure to appear in court; these have been a major source of jail incarceration in the county. It also encourages the use of automated services that notify released defendants of their court dates.

A spokesperson for Deberry’s office told me that the new policies took effect in February, and that the county’s average monthly jail population has since dropped from 420 in January to 366 in April (and 356 this week). She attributed this decline to the office’s shift in policies “to a great extent.”

Virginia: Prince William County candidate discusses cash bail, diversion, and the death penalty

The position of commonwealth’s attorney in Prince William, a populous county in Northern Virginia, is up for grabs for the first time in decades. Paul Ebert, a Democrat whose office is known for frequently pursuing the death penalty, is retiring after 51 years in office. Last week, I talked to Tracey Lenox, a criminal defense attorney and one of the two candidates running to replace Ebert in the June 11 Democratic primary.

This week, I talked to Amy Ashworth, the other Democratic candidate, who is a private attorney and a former prosecutor in the commonwealth’s attorney office. Ashworth told me she would support decriminalizing or legalizing marijuana, and repealing the death penalty. She said that until those changes become law, however, she would remain open to seeking the death penalty, and she would not institute a policy of declining to pursue certain types of charges like marijuana possession (as prosecutors have done elsewhere). Ashworth argued that such blanket declinations would violate her oath of office. She explained that she would instead use diversion programs and alternatives to incarceration for “the vast majority” of marijuana possession cases and for “many first offender nonviolent misdemeanors.”

Ashworth also discussed why cash bail has “unfairly punished” defendants, and she reiterated her opposition to Prince William County’s 287(g) contract with ICE.

The full interview with Amy Ashworth is available here.

Virginia: Previous interviews with nonincumbent candidates in the June primaries

Three jurisdictions are holding contested elections for prosecutor in the June 11 primaries. With this interview with Ashworth, the Appeal: Political Report has now published conversations with all four of the nonincumbent candidates about how they would like to reform their counties’ current prosecutorial practices. You can revisit our three earlier interviews here:

The Political Report will return to these elections next week.

Thanks for reading. We’ll see you next week!

Pittsburgh’s Punitive DA Wins Primary. Reformer Ousts the Philly Sheriff.

Also today: Montana, North Dakota, and Washington State adopt reforms.

Pittsburgh’s Punitive DA Wins Primary. Reformer Ousts the Philly Sheriff.

Also today: Montana, North Dakota, and Washington State adopt reforms.

In This Edition of the Political Report

May 23, 2019:

  • Pennsylvania: Rochelle Bilal ousts Philadelphia Sheriff Jewell Williams

  • Pennsylvania: Stephen Zappala wins, alongside five other DAs who faced a primary

  • Virginia: Prince William County candidate argues for diverting, not declining, low-level cases

  • Washington: State restricts juvenile detention, amends three strikes, ends prison gerrymandering

  • Legislative roundup: Montana will stop suspending driver’s licenses over fines and fees, North Dakota reduces marijuana penalties

For more on this year’s local elections for prosecutor and sheriff, you can visit our elections portal.

Pennsylvania: Rochelle Bilal ousts Philadelphia Sheriff Jewell Williams

Philadelphia is sure to have a new sheriff next year. Rochelle Bilal handily ousted incumbent Sheriff Jewell Williams in Tuesday’s Democratic primary. She is a former police officer and president of the Guardian Civic League, an association that represents Black police officers.

As head of the League, Bilal endorsed Larry Krasner’s successful bid for district attorney in 2017. The president of the local police union (Fraternal Order of Police Lodge 5) tried to use that endorsement against Bilal this year. But Krasner and Bilal have maintained their ties. Krasner headlined fundraising efforts for Bilal, while Bilal told the Philadelphia Tribune that she would be a “partner” of the “reform effort which is presently active in Philadelphia,” including Krasner’s “efforts to change items such as cash bail and sentencing guidelines.”

Bilal is likely to win November’s general election in this heavily Democratic city. She will face no Republican opponent, though independent and third-party candidates can file to run until August.

The powers of the Philadelphia sheriff are circumscribed, but I wrote in my preview of the race last week that one issue rose to the fore: The sheriff is in charge of selling foreclosed property, and local housing advocates have denounced the pace of these sales. Nikil Saval, an organizer with the left-leaning group Reclaim Philadelphia, told me that a sheriff should help shift from a “culture that favors punishment” to one “that values keeping people in their home.”

Bilal told me last week that she would shift the focus of the office from managing sales to fighting foreclosures. She said she would “put less money in advertising and selling homes” and “more money into foreclosure prevention and community education,” with goals of linking people to legal assistance and establishing a “consumer protection division” to investigate complaints. And she sees a connection between confronting foreclosures and criminal justice reform. “Due to the trauma foreclosures cause to families because of the housing instability, it could potentially lead to more people being involved in criminal activities,” she said.

Pennsylvania: Stephen Zappala wins, alongside five other DAs who faced a primary

Seven DAs faced a challenger in Pennsylvania’s primaries on Tuesday. All prevailed except the incumbent in the state’s smallest county.

Nearly all of them face no major-party opposition in November’s general election, though independent and third-party candidates can still file to run until August. As such, they are close to securing new four-year terms, having won primaries with often diminished media visibility and low turnout.

The Political Report has updated its masterlist of Pennsylvania’s 2019 DA elections with the results of all 15 primaries that took place this week. Besides the seven counties where DAs faced direct challenges, there were eight primaries that featured no incumbent. I will return to some of these eight, as well as to the counties that will feature contested elections in November.

For now, let’s review the major takeaways of the seven primaries that involved incumbent DAs.

Stephen Zappala survives challenge in Allegheny County: Zappala defeated Turahn Jenkins, the first opponent he faced since 1999. Jenkins did better in the city of Pittsburgh, but Zappala won suburban areas by overwhelming margins. As I wrote in my preview last week, the county’s legal system is marked by stark racial disparities, and this primary was marked by significant disagreements. Zappala positioned himself against the “philosophy” of “socialists and the ACLU.” Jenkins called the criminal legal system a “black hole,” and ran on a slate of reform proposals.

As a result, the state’s second-largest county will most likely remain in the PDAA. One question going into these elections was whether Krasner’s reform efforts would gain an intrastate ally. In December, he quit the Pennsylvania District Attorneys Association (PDAA), which often lobbies for punitive policies in the state capital. Jenkins, Allegheny’s losing candidate, told me at the time that he might withdraw from the PDAA if elected.

Cumberland County DA Skip Ebert wins primary. Ebert easily defeated Jaime Keating, a former assistant DA, in the GOP primary. Both ran by highlighting their punitive credentials. Since taking office, Ebert has made aggressive use of statutes that allow for prosecuting overdoses as homicides; he said that he would step up these charges if re-elected. Keating also touted his support for such charges, which public health advocates denounce as harmful. Ebert faces Democrat Sean Quinlan in November.

Cameron County ousts its DA. In the state’s smallest jurisdiction, Paul Malizia defeated DA Jeanne Miglicio (who narrowly ousted Malizia in 2015) in the GOP primary. Four other incumbents easily won GOP primaries. They are Huntingdon’s Dave Smith, McKean’s Stephanie Vettenburg-Shaffer, Mercer’s Pete Acker, and Susquehanna’s Marion O’Malley; none will face a Democratic opponent in November

A standalone version of this article is available here.

Virginia: Prince William County candidate argues for diverting, not declining, low-level cases

The prosecutorial election of Prince William, a populous county in Northern Virginia, is up for grabs for the first time in decades. Commonwealth’s Attorney Paul Ebert, a Democrat whose office is known for its frequent pursuit of the death penalty, for misconduct findings, and for harsh prosecutorial practices, is retiring after 51 years in office. Amy Ashworth and Tracey Lenox are running to replace him in the June 11 Democratic primary.

This week, I talked to Lenox, who works as a criminal defense attorney, about her politics. She described “criminal justice reform” (making “a significant change in the way Prince William handles equal justice issues and justice reform”) as an impetus behind her candidacy, and I asked for details about what this change would mean. She said she would “divert or dismiss” most “nonvictim misdemeanor charges,” including possessing marijuana and driving with a suspended license. It “doesn’t make sense” to “convict people of offenses like that,” she said. She also discussed wanting to set up a restorative justice program and open file discovery, and she explained that the death penalty is used inequitably, but she did not rule out seeking it. I also asked how her emphasis on reform fits with the endorsement she received from Ebert. You can read the full interview here. Below is a lightly edited excerpt.

Are there specific offenses that you would altogether decline to prosecute, or for which you would expand diversion programs that don’t rely on filing charges or obtaining convictions?

Absolutely. Super easy ones: driving on suspended, first-offense shoplifting, possession of marijuana. Disorderly conduct is another one that is utilized in a very destructive way. So the majority of nonvictim misdemeanor charges. … Almost any Class 1 misdemeanor that is not a crime of violence or that doesn’t have a victim involved in it, I would be seeking ways to divert and dismiss. We have proof that people who have been tagged with conviction have a very difficult time getting jobs, going back home and supporting their family, and being productive members of their community. We also know data-wise that it doesn’t cause less recidivism, it doesn’t make a community safer to convict people of offenses like this. It doesn’t make sense from a public safety standpoint. It really undermines communities more than anything else to be seeking convictions for nonviolent misdemeanor offenses.

Could you walk me through how you’re thinking about diversion versus declination in these cases? For the offenses you listed, would you want to use a diversion program, or would you be open to dropping the charges altogether?

Prosecutors have enormous power. We can make a lot of decisions that are going to reduce the mass incarceration that we have right now. … But if you unilaterally make decisions that do not incorporate the other stakeholders and players in the legal justice system, you can get a backlash. Look at what’s happening in Norfolk, where the judges are rebelling against a unilateral “we aren’t going to prosecute marijuana charges.” That doesn’t help the defendant to do that. If you go in and null pross without having gotten some buy-in from the judges that you have to go in front of every day, you aren’t going to be able to accomplish what you’re setting to do, which is making sure that people don’t have convictions, and have a second chance. Instead, diversion is the easier project, because then you can give the judges something to hang their hat on.

The full interview with Tracey Lenox is available here. We will publish an interview with Amy Ashworth, Lenox’s primary opponent, next week.

Washington: State restricts juvenile detention, scales back three strikes, ends prison gerrymandering

Three bills pertaining to the criminal legal system became law in Olympia over the last month.

Detaining minors: Federal law restricts the detention of minors for noncriminal acts but it makes exceptions when such behavior violates a valid court order, and Washington aggressively uses this exception to incarcerate children. Charlotte West reported in The Appeal in March that the state leads the country—by far—in detaining minors for status offenses like skipping school and running away. “The fact that a child can go into detention for something that isn’t a crime is state-sanctioned trauma,” state Senator Jeannie Darneille told West.

Senate Bill 5290, sponsored by Darneille and signed into law this month, will change this. It will eliminate detention as a sanction for children who disobeyed truancy, and for at risk youth, children in need of services, and dependency petitions. But these restrictions will go into effect at a slower pace than the original bill proposed; they will be phased in between 2020 and 2023. Senator Manka Dhingra, a Democrat involved in negotiations over the bill, told me local judges had objected that to “protect children” they “had no other options other than locking them away.” She described the consequent delay as a way of ensuring the legislature allocates more resources so “children have access to therapeutic options” like early intervention services and therapeutic facilities.

The bill was championed by the Mockingbird Society, a group that focuses on improving foster care and that works with young people who face homelessness. Liz Trautman, director of public policy and advocacy, told me that her organization’s “goal is to take detention off the table so we can address the root causes of behavior like truancy or running away.” Calls for this reform emerged in Mockingbird’s conversations with directly affected young people. “Jail was not something that helped them,” Trautman said. It “either pushed them further in the criminal justice system or made them less willing to trust that the system was going to help them.”

Three strikes: Washington State amended its three-strikes statutes this year by adopting Senate Bill 5288. The law, also sponsored by Darneille, removes second-degree robbery from the list of offenses that can trigger a life without parole sentence.

The bill will not apply retroactively, however, and so the 62 people who are currently serving life without parole sentences in part due to a second-degree robbery conviction will get no relief. The Associated Press’s Tom James reports that the legislation was initially retroactive, but that this clause was removed in part because of the Washington Association of Prosecuting Attorneys, the group that lobbies on behalf of the state’s prosecutors.

I asked Dhingra about the decision to not make the clause retroactive. She said prosecutors objected that many sentences were the result of negotiated pleas and that they might have filed more serious charges had this reform been in place then. She also said many lawmakers “get nervous” about criminal justice reforms and want “buy-in” from prosecutors. “It really came down to making sure we had consensus, making sure other Democrats were comfortable, and not creating something we couldn’t handle,” she said. Dhingra’s proposal for bringing relief to these individuals is expanding post-conviction review.

Prison gerrymandering: Washington became the fifth state to end prison gerrymandering this week. A new law, also sponsored by Darneille, requires the state to count incarcerated people at their last known address for purposes of redistricting, as opposed to where their prison is located. Vaidya Gullapalli and I wrote on this legislation, and on how our counting practices dilute the power of communities of color and urban areas, two weeks ago.

A standalone version of this article is available here.

Legislative roundup: Montana will stop suspending driver’s licenses over fines and fees, North Dakota reduces marijuana penalties

Montana and Tennessee: Thanks to a new law the state adopted this month, Montana will stop suspending driver’s licenses over a failure to pay court fines and fees, a practice that can trigger mounting legal and economic hardships. (Virginia adopted a similar law in April, though only as a temporary reform.) Tennessee’s legislature has also passed a bill to restrict license suspensions, though, unlike Montana’s reform, Tennessee’s would apply only when a court determines that a person is too poor to pay or is making “reasonable” efforts to do so.

North Dakota: North Dakota reduced penalties for marijuana possession last month. In a step toward decriminalization, a new law eliminates the threat of jail for first-time offenders who possess under half an ounce. It reduces possession of a greater quantity from a felony to a misdemeanor. 

Thanks for reading. We’ll see you next week!

Pennsylvania Primaries Are a Week Away

Also today: What is sheriffs' role toward the opioid crisis?

Pennsylvania Primaries Are a Week Away

Also today: What is sheriffs' role toward the opioid crisis?

In This Edition of the Political Report

May 16, 2019: Pennsylvanians head to the polls on Tuesday to vote in local elections, including primaries for district attorney and sheriff. I previewed the state’s DA races in March. Today I delve into two of Tuesday’s primaries:

  • Pennsylvania: Pittsburgh’s DA race showcases ‘fundamental disagreement’

  • Pennsylvania: Foreclosures and ICE are on the menu in Philadelphia’s sheriff election

  • The Badge: Our series on the powers of sheriffs examines the opioid crisis

  • Legislative roundup: Colorado requires free tampons in jails and restricts pretrial detention; Louisiana moves against incarcerating witness; and more

Pennsylvania: Pittsburgh’s DA race showcases ‘fundamental disagreement’

Allegheny County District Attorney Stephen Zappala told the Pittsburgh Post-Gazette that his re-election race was marked by a “fundamental disagreement as to what the office of the district attorney is supposed to be.” That much is indisputable.

Tuesday’s Democratic primary has become a showcase of the political fault lines that are fueling different approaches to the role of prosecutor today. It opposes Zappala to Turahn Jenkins, the county’s former chief public defender and a former assistant DA. (The winner will face no Republican in the general election because none filed to run, but candidates outside the two main parties could still file up until August.)

According to Zappala, what’s at stake in this disagreement is whose side a DA is on. “Socialists focus on the rights of the accused,” he said. (The Pittsburgh Democratic Socialists of America have recommended voting for Jenkins.) “There’s no consideration for victims’ rights. They don’t consider public safety. They don’t consider input from the police. … I’m not running for public defender. I represent the people of the Commonwealth of Pennsylvania.”

What stands out in Zappala’s statement is the very premise that there is an easy split between defendants’ rights and victims’ rights, and that a DA must pick one or the other.

Given Pennsylvania’s sky-high incarceration rates and the racial disparities in the county’s legal system, this split obscures the role that DAs play in shaping the livelihood of entire communities, and it downplays just how many lives DAs impact based on how they use their tremendous discretion. Not to mention, the line between victim and accused is just not that self-evident.

The outlook that Jenkins has laid out during the campaign is instead that the legal system as a whole is not functioning, and that this affects a broad swath of residents. “I’m finding that no matter where I go, there’s someone who has been adversely affected by the criminal justice system,” he told the Pittsburgh Current. He called this system a “black hole.” “It’s really easy to fall into it and very difficult to get out,” he said.

This competing perspective is that many of the individuals who comprise “the people of the Commonwealth of Pennsylvania” are harmed rather than represented by its legal system.

The Appeal has documented that Allegheny County’s legal system disproportionately targets African Americans. More than 80 percent of the minors who were charged as adults by Zappala’s office in 2016 and 2017 were Black, for instance, even though about 20 percent of the county’s 14- to 17-year-olds are Black.

I asked Zappala’s campaign how he explains these disparities, and whether he would change his practices to reduce them. Zappala answered in an email via a spokesperson that racial disparities are “catalyzed” by problems like poverty, and a lack of affordable housing or healthcare, which “disproportionately afflict the black community,” and which exceed what DAs can affect. The “criminal justice system… plays its part in weaving the blanket of racial bias,” he said, but “is merely one part of a vast and flawed complex adaptive system.” His response only mentioned two specific policies, first that he would “continue to advocate” for diversionary courts, and second that racial bias can be alleviated by changing how judges instruct juries.

Zappala has also said elsewhere that there is only so much his office can do, and that the responsibility for disparities in the criminal legal system is diluted. “The criminal justice system can’t fix this—not by ourselves,” he told the Post-Gazette.

But Zappala does wield influence at the statewide level. He is a member of the executive committee of the Pennsylvania District Attorneys Association (PDAA), which lobbies for legislative change in the name of the state’s prosecutors and typically uses its sway to ask for more punitive policies. Jenkins told me in December that, if elected DA, he may withdraw from the PDAA because their “views and policies” are “partly responsible for many of the issues that plague our criminal justice system.”

Besides intervening in legislative debates, DAs also have ample discretion to overhaul intracounty practices.

In a Political Report interview in April, Joshua Vaughn pressed Jenkins on how he would change county policies if elected. “I think we need to shift our efforts to restoring people, not punishing them,” Jenkins said. He stated his opposition to the death penalty (which Zappala has sought), and his support for making it harder to try minors as adults. He also said he wanted to reduce arrests for low-level offenses such as marijuana possession by diverting cases “before they enter the criminal justice system.”

Jenkins stopped short of supporting some important reform paths. He said he was open to prosecuting some overdose cases as homicides, a punitive approach to which Zappala and other Pennsylvania DAs have turned in response to the opioid crisis. Also, he indicated no plans to simply drop some types of cases (as opposed to expecting people to complete diversionary steps). Other prosecutors have implemented that bolder move.

In 2018, shortly after announcing his candidacy, Jenkins told community members that being gay or trans was a “sin,” which immediately frayed his relationship with local activists. Jenkins later apologized, and the Current reported in April that he had repeatedly met with LGBTQ rights advocates and rebuilt some of those ties. Pittsburgh DSA addressed this dynamic at some length in its recommendation.

Another issue that has unfolded during this campaign is Zappala’s prosecution of police officer Michael Rosfeld, who shot and killed Antwon Rose II in June. Rosfeld was acquitted in March, and Jenkins has criticized Zappala’s handling of the case. Zappala has long faced protests over his handling of cases involving police. The Post-Gazette found in June that Zappala had brought no charge in 18 of 22 police homicide cases over his tenure. Jenkins told the Political Report that the DA’s office should “perhaps” have referred more such cases to the attorney general.

Given the scale of the candidates’ disagreements, you would be forgiven for assuming that Pittsburgh’s DA elections have historically been hotly contested. But Jenkins is Zappala’s first opponent since 1999. Zappala faced no challenger in four consecutive re-election bids—not in 2003, not in 2007, not in 2011, and not in 2015.

The full, standalone version of this article is available here.

Pennsylvania: Foreclosures and ICE are on the menu in Philadelphia’s sheriff election

The authority of the Philadelphia sheriff is circumscribed. The office doesn’t manage county jails, for instance, unlike in much of the country. But its powers—mainly, guarding courthouses and running the sales of foreclosed properties—nevertheless have important ramifications for immigrants and for the city’s economic health.

Sheriff Jewell Williams faces three opponents in his bid for a third term in Tuesday’s Democratic primary. They are Rochelle Bilal, a former police officer and president of the Guardian Civic League, the local chapter of the National Black Police Association, as well as Larry King Sr. and Malika Rahman, who are both former sheriff’s deputies.

The campaign is taking place against the backdrop of three sexual harassment lawsuits filed against Williams, who has denied wrongdoing. Two have been settled; a third is still pending.

Philadelphia’s Democratic Party initially recommended endorsing Williams but promptly revoked this recommendation in April. Williams has the support of local unions, however. John McNesby, the president of the Fraternal Order of Police Lodge No. 5, has suggested that Bilal’s past support for District Attorney Larry Krasner had cost her support among law enforcement officers.

“She has some loyalty from people who don’t really help our officers,” McNesby told the Philadelphia Inquirer. Krasner has headlined fundraising efforts for Bilal this year.

Two policy areas are on the menu. Some candidates have argued that the sheriff’s office should do more to assist people whose properties are foreclosed. Another focal point is ICE’s presence inside and outside courthouses, especially in light of a reported case of an ICE agent trying to find a defendant in March.

The full article, available here, details the election’s contrasts on foreclosures and ICE.

The Badge: Our series on the powers of sheriffs examines the opioid crisis

Sheriffs shape jail conditions and enjoy great discretion on matters ranging from immigration to solitary confinement, but their authority and decisions are often overlooked. The Badge is an Appeal: Political Report series that examines the power and roles of sheriffs. This second installment, by Jessica Pishko, is on the opioid crisis.

Read “The Opioid Crisis and the Elected Sheriff” here. Below is its beginning.

Madison Jody Jensen was arrested for drug possession in 2016 and booked into the jail run by the Duchesne County Sheriff’s Department in Utah. As The Appeal has reported, she went through withdrawal in her cell, vomiting and defecating on herself, but she was denied the medical care she requested. She was later found dead from dehydration as a result of withdrawal.

Deaths like Jensen’s are not uncommon. As of 2017, Utah had the highest number of jail deaths per capita; it also has a serious opioid crisis, which mirrors a nationwide problem. One estimate shows that of the 10 million people processed through jails every year, approximately a quarter have opioid use disorder.

Jails are particularly dangerous places for people with opioid addiction. They put people who are on successful treatment regimens outside jail at risk for relapse, and they can provoke dangerous withdrawal symptoms, especially in light of the frequently inadequate access to medical care. People are in greater danger of overdosing and dying after incarceration.

While the legal system may not be the best place to address addiction as a health problem, the fact that users are being arrested, and that many still lack health insurance or access to community programs, makes treatment in jails essential to preventing serious and even deadly issues. Medical studies show that people treated while incarcerated are less likely to overdose after their release. But this also forces the issues of rethinking law enforcement attitudes toward substance use, and expanding access to alternative avenues to treatment.

As a result, sheriffs—as elected officials who control treatment in jails, shape law enforcement practices outside them, and influence broader local debates—are on the frontlines of the opioid crisis.

Legislative roundup: Colorado requires free tampons in jails, restricts pretrial detention; Louisiana moves against incarcerating witness; and more

Colorado: Local jails will now need to provide free menstrual hygiene products to people in custody. A new law, sponsored by lawmakers Leslie Herod and Faith Winter, extends a mandate that already existed in state prisons. According to 9News, the catalyst for this reform was Elisabeth Epps, an activist with the Denver Justice Project, who has talked about the difficulties she had experienced getting such products while she was detained in jail for interfering with police.

Colorado: Epps also plays a central role in state organizing against cash bail—and the state just moved on this issue too: A new law will prohibit the use of money bail in petty offense cases and most traffic offense cases. That is a modest reform compared to changes adopted elsewhere, though the legislature also passed a separate bill (the governor has yet to sign it) that requires bond hearings within 48 hours of arrests, rather than letting people languish in jail for longer.

Louisiana: Louisiana DAs put victims in jail to compel them to testify in criminal proceedings. The Senate adopted legislation in May to restrict the use of such “material witness warrants” against victims of sexual offenses and domestic violence. The reform was narrowed along the way. The original bill barred jailing such people entirely; but the bill that passed was amended on the Senate floor and only prohibits it in misdemeanor cases. In felony cases, jailing victims is restricted, but not barred. The head of the Louisiana District Attorneys Association testified against the original version in committee.

Louisiana: On Tuesday, a House committee advanced to the floor a bill abolishing the death penalty. A Senate committee advanced another abolition bill in April, but it was rejected on the Senate floor last week. Louisiana is one of six states where abolition has taken at least one legislative step this year.

New Hampshire: Governor John Sununu vetoed legislation abolishing the death penalty, as he had already done in 2018. But this year the bill passed both chambers with veto-proof majorities, so its proponents should be able to override Sununu’s veto unless lawmakers change their votes.

You can visit our legislative roundup page for more on legislative developments.

Thanks for reading. We’ll see you next week!

Presidential Candidate Bernie Sanders and Maine Secretary of State Matthew Dunlap Discuss Prison Voting

In voting rights special, we also bring you the latest on rights restoration reforms nationwide

Presidential Candidate Bernie Sanders and Maine Secretary of State Matthew Dunlap Discuss Prison Voting

In voting rights special, we also bring you the latest on rights restoration reforms nationwide

In This Edition of the Political Report

May 2, 2019: Efforts to expand voting rights have accelerated in states over the last year, as The Appeal has chronicled. Now, the issue has percolated at the presidential level. This special edition of the Political Report brings you two interviews and an update on legislative developments to keep track of the latest on felony disenfranchisement.