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

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!