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

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 Case in point: In Massachusetts and Vermont, which have already repealed the death penalty, advocates this year have pushed for abolishing sentences of life without the possibility of parole.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 commonwealth’s attorney has a very holistic role:” An interview with Parisa Dehghani-Tafti (Arlington County and Falls Church)

• “Ending mass incarceration” requires “a systemic approach:” An interview with Steve Descano (Fairfax County and Fairfax)

• “It undermines communities to be seeking convictions for nonviolent misdemeanor offenses:” An interview with Tracey Lenox (Prince William County, Manassas, and Manassas Park)

The Political Report will return to these elections next week.

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