California Reforms Go into Effect, Anne Arundel’s ICE Contracts Come to an End, and more

In This Edition of the Political Report

January 17, 2019:

• California: New laws go into effect, as implementation challenges still lie ahead

• Maryland: Anne Arundel’s two ICE partnerships come to an end, unexpectedly

• Legislative round-up: Surveying reform prospects in Iowa, Missouri, Nevada, New Mexico

You can visit the Appeal: Political Report website to read our latest analyses of the local politics of criminal justice reform and mass incarceration.

California: New laws go into effect, as implementation challenges still lie ahead

In September, California Governor Jerry Brown signed a series of reforms that just went into effect at the beginning of 2019 and will transform the state’s criminal justice system. But their scope and the ease with which they will be implemented hinge in part on local officials.

Improving police transparency: Two laws that affect policing went into effect on Jan. 1: They require the public release of body camera footage (Assembly Bill 748) and the public release of records pertaining to officer shootings and misconduct investigations (Senate Bill 1421). Until their adoption, “California was the only state that had a complete lock on any public access” to disciplinary records, state Senator Nancy Skinner told the Appeal: Political Report in October.

But one early test of their impact already met a roadblock. On Jan. 1, the East Bay Express filed a Public Records Act request to obtain records pertaining to the death of Elena Mondragon, an unarmed teenager who was shot and killed in 2017 by two Fremont police officers. The city of Fremont responded to this request with a blanket denial within two weeks, citing a lawsuit filed by Mondragon’s family as the grounds for refusal.

Melissa Nold, an attorney who has represented the Mondragon family, believes that these new laws will require legal wrangling if they are to have a solid impact. “The [police] departments that want to be transparent will use this as an opportunity, but a lot of the departments already didn’t release information that they were supposed to,” she told me. She expects uncooperative departments to continue finding reasons to refuse the release of records. “There is really no repercussion for them, because you can take them to court and all they might have to do is release the information,” she said. “This is one of those things that will have to be tested in court to see what they are or aren’t allowed to conceal.” The Guardian’s Sam Levin reported in 2018 that the opaqueness surrounding Mondragon’s death has contributed to its relative social media invisibility and to a lack of consequences for the officers involved.

Reforming the felony murder rule: Senate Bill 1437, the law that restricts the circumstances under which someone can be prosecuted for a murder that they did not commit, also went into effect on Jan. 1. Because the law is retroactive, people with an existing murder conviction can petition for a new sentence if they would not have been convicted under the new law. But the office of San Diego District Attorney Summer Stephan is preparing to challenge its constitutionality as soon as someone files a resentencing petition, according to Inewsource. Most California DAs had urged Governor Brown to veto this legislation before it became law.

Facilitating expungement of marijuana convictions: Few Californians petitioned to have their marijuana-related convictions expunged or reduced after the state eased that process in 2016. Assembly Bill 1793, which just took effect as well, takes a new approach to clearing criminal records. It requires that state officials identify all individuals eligible for relief by July 1, 2019. “It’s very expensive, time-consuming to navigate the process on one’s own,” Rodney Holcombe, a staff attorney with the Drug Policy Alliance, told me. “Folks are no longer burdened with having to initiate this cumbersome process. Instead the state has to initiate.”

The state’s Department of Justice will then provide county DAs with their information. Each DA must process these files and decide whether to challenge expungement on a case-by-case basis. Individuals whose cases are not challenged by a DA will have their records modified by July 1, 2020; when DAs challenge someone’s file, they must make an effort to notify the convicted individual and a public defender’s office to give them opportunities to respond.

This means that slow if not uncooperative prosecutors could hinder the law’s implementation, and create geographic disparities in the ease with which individuals clear their records. Holcombe, however, noted that he had not heard opposition from individual DAs, and that California’s DA association had not opposed AB 1793. “To date we haven’t heard any pushback from DAs,” he said. He added that another possible hindrance was disparities in resources. “We have counties like San Francisco that are better resourced, with more streamlined processes to move through the files,” he said. “How else can we make sure that counties are well-resourced enough to do it?”

You can find a standalone version of this story here.

Maryland: Anne Arundel’s two ICE partnerships both come to an end, unexpectedly

ICE announced on Wednesday that it would terminate its detention contract with Anne Arundel County (which contains Annapolis) within 90 days. This unexpected move means that ICE will no longer hold people in the county’s Ordnance Road Correctional Center. And it comes in the heels of a proposal by County Executive Steuart Pittman to provide legal defense funds for the people ICE detains there.

Pittman, a Democrat, won in November after campaigning against two new ICE partnerships struck by his GOP predecessor.

He quit the first partnership—a 287(g) contract—in December, as promised. The 287(g) program authorizes local law enforcement to research the immigration status of people they arrest. “The program does … utilize valuable detention staff during a time where staffing shortages are well documented,” his office wrote in a Dec. 27 report. “The stigma of the program also impacts police outreach efforts—particularly in hispanic/latino communities.” (Anne Arundel is one of three counties that left 287(g) as a result of the 2018 elections, alongside two in North Carolina.)

But Pittman simultaneously decided to maintain the second partnership with ICE: an IGSA, or Intergovernmental Service Agreement. This is a contract by which a county rents out jail space to ICE. The county detains people that ICE has arrested (often in other jurisdictions) in exchange for a nightly fee. This arrangement can be lucrative for a county’s budget. According to the county, ICE paid Anne Arundel more than $4 million over the IGSA’s first 13 months.

In the December report, Pittman’s office justified his reversal by stating that detention conditions at the Ordnance Road Correctional Center, where the ICE detainees are kept, are “more humane” than those of the other facilities where detainees would be relocated.

At the time, Pittman also announced that he would propose using some of the revenue received from ICE to provide legal assistance to the ICE detainees held in the county. “I don’t believe that these people should be detained at all,” Pittman told me in a phone interview on Thursday. “But because the president of the United States wants to remove these people, he is going to house them somewhere, and we had a facility that was unoccupied and the ability to do it in a humane way.”

Gabriela Kahrl, an attorney with the immigration clinic of the University of Maryland, told me one day before ICE’s announcement that she supported Pittman’s decision to keep the IGSA contract because it would provide “legal counsel to people who are being detained anyway.” While Kahrl opposes the practice of immigration detentions altogether, her argument was that ICE will still be holding these individuals even it has to move them out of Ordnance Road, so why would the county not agree to detain them if it is willing to give more legal assistance and support than others would? Besides Pittman’s proposed defense fund, she touted the fact that Anne Arundel has a larger immigrant community and more immigration attorneys than comparatively isolated jails where detainees may be relocated. Groups like Bronx Defenders and the Brooklyn Defender Services have made similar arguments as part of the debates on New Jersey’s IGSAs.

But on Wednesday ICE decided on its own to end the IGSA. Kahrl believes that the agency did this because it feared that people brought to Ordnance Road would soon be able to mount stronger defenses. “I think this is them wanting to do their work without having to concern themselves with the due process of those they’re detaining,” she told me right after ICE’s announcement. “I don’t know that for a fact, but it certainly seems to be their reaction to providing meaningful legal representation. … They figured they can’t get away with running roughshod over the process, that this is going to interfere with their ability to expedite the deportation of people who have a legal claim to stay in the United States.”

ICE’s Baltimore field office, which is responsible for Maryland, did not respond to a request for comment on what motivated the agency’s decision. Pittman told me on Thursday that ICE had not answered his own requests for an explanation either. “Some have speculated that they didn’t want to do business with Anne Arundel County because they don’t like the direction that we have gone politically, and some have even speculated that my commitment to providing legal assistance for the detainees was something that offended them,” he said. Pittman added that detainees having legal representation was in ICE’s interest: “It’s more efficient, they have a backlog of cases, and it’s proven over and over again that when people have an attorney they go through the process quickly… If that’s their reason for no longer wanting to do business here, they’re working against their own interest as well as against the interests of the detainees.”

Even some critics of Pittman’s decision to keep the IGSA questioned ICE’s reasons for ending it. Nick Steiner, an attorney with the ACLU of Maryland, told me on Monday that he found Pittman insufficiently supportive of immigrants. “There’s this backward kind of thinking, ‘I want to help immigrants but I am still going to participate in their jailing,’” he said. Maintaining the IGSA was only defensible, Steiner added, if Pittman directed “100 percent of the money he gets for caging those immigrants to providing health and universal representation… If he’s going to participate in that deportation machine, then he needs to be way more committed.” But the Capital Gazette reported that the county was only proposing to set aside 10 percent or less for legal representation, with the rest going to “detention staffing [and] public safety.”

Steiner said after ICE’s announcement that Pittman’s proposal just made ICE look worse. “I still stand by the idea that what [Pittman] was willing to commit, or what he had said he would commit, wasn’t enough,” Steiner told me. “But it just shows that ICE is so opposed to immigrant detainees having representation that even a small portion of the money going to immigrant representation is not something they could swallow… They can’t stand even the possibility of immigrants having due process or protections of any kind.”

Regardless of what drove Wednesday’s decision, Elizabeth Alex, the senior director of community organizing at the immigration advocacy organization CASA, was celebrating the end of ICE detentions in Anne Arundel County. She called the development “awesome” and “amazing.” “We don’t believe local government and local communities should be making money by causing harm to other community members,” she said.

Alex does not believe that the IGSA’s end would worsen conditions for immigrants. She rejects the premise that the same number of ICE targets will be detained whether or not Anne Arundel has a detention contract. “There are thousands and thousands of people that are in the middle of an immigration process, and most of them are not detained at a given time,” she said. “ICE will detain based on a variety of factors and … a critical factor in those decisions is the availability of beds in detention centers. If there are more beds there will be more people in the beds.”

What can Anne Arundel County now do to help individuals who are held by ICE or face deportation?

Advocates called on Pittman to still set aside funds to help immigrants. “There doesn’t have to be a immigrant detention center in Anne Arundel County for a universal defense fund to happen,” Steiner said. Anne Arundel could emulate other Maryland counties like Prince George’s that provide legal representation to their poor residents even if ICE has transferred them to another jurisdiction. Kahrl said this policy should be extended to cover not just residents but also people employed within a county. In other words, instead of providing representation to immigrants it directly detains, Anne Arundel County could choose to provide representation to people who lived or worked there but who are now detained elsewhere.

“I’m going to sit down with [local] organizations and talk about how to best serve that population,” Pittman said. “All options are on the table, but we have no plans at the moment to implement a legal defense fund.”

Three other Maryland counties (Frederick, Howard, and Worcester) currently have IGSAs, and none provide legal funds to ICE detainees. Frederick and Howard, like Anne Arundel, are governed by a Democratic county executive and council.

You can find a standalone version of this story here.

Legislative round-up: Surveying reform prospects in Iowa, Missouri, Nevada, New Mexico

Iowa: GOP Governor Kim Reynolds endorsed two constitutional amendments in her Condition of the State address on Tuesday. The first is Marsy’s Law, which would enshrine a set of rights for victims in state constitutions. (See also: The Appeal’s coverage of Marsy’s Law in other states.) The second is similar to Amendment 4, the initiative that Floridians approved in 2018: It would restore the voting rights of Iowans once they complete their felony sentences. Iowa is one of three states (alongside Kentucky and Virginia) where state law provides for a lifetime voting ban on anyone convicted of a felony. Because of the requirements of passing a constitutional amendment in Iowa, the earliest Reynolds’s proposal could come into effect is 2023. Writing on the blog Bleeding Heartland, Laura Belin reviews speedier executive and legislative paths with which Iowa could enfranchise its residents.

Missouri: New House Speaker Elijah Haahr, a Republican, has thrown his support behind legislation (House Bill 113) that would curb the state’s mandatory minimum requirements and allow some individuals to be released after serving a shorter period of their sentence than currently mandated. “Both in the state and nationally, we’ve got a lot of people that are in jail, especially on nonviolent offenses. These are people that could come out and they could probably go to work tomorrow if we gave them the opportunity,” he said. The Associated Press writes that sentencing reform has stalled in the Senate in the past, however.

Nevada: While some states debate how to accelerate decarceration trends, Nevada is confronting the continued growth of its prison population. The Advisory Commission on the Administration of Justice (a panel that includes lawmakers, judges, law enforcement representatives, and reform advocates) approved a report on incarceration in Nevada on an 11-4 vote. According to the report, which you can read in full here, Nevada’s prison population grew by 14 percent between 2010 and 2016, and it is projected to grow by 9 percent by 2028. The length of incarceration for people convicted of drug offenses has increased by 30 percent since 2012. In addition, the report documents very stark increases in the incarceration rate of women and in the number of women incarcerated for violating probation or parole conditions.

The report also lists 25 policy recommendations that “would avert 89 percent of the projected [10-year] prison population growth,” a far cry from many reformers’ decarceration goals. Many of the proposals target the severity of sentences and charges sought for some low-level offenses, for instance by tripling the threshold at which a theft would count as a felony rather than a misdemeanor; others seek to loosen parole or probation violations. These recommendations are now largely in the hands of Democrats, who seized control of the state government in November. At the time, Nevada Current’s Michael Lyle reported on a broader range of reforms that Democrats may push through in the coming legislative session. (See also: The Political Report on the viability of reforming Nevada’s harsh felony disenfranchisement laws.)

New Mexico: The Albuquerque Journal’s Mike Gallagher has written a five-part series on the conversations happening in New Mexico on whether to legalize marijuana. The second part covers the debates regarding the policy details. That includes how to regulate and tax sales and cultivation, but also how to confront the harm caused by the criminalization of marijuana and to redress past marijuana convictions. The fifth part investigates the viability of reform in the current legislative session: The new Democratic Governor Michelle Lujan Grisham cautiously supports legalization, and Democratic gains in the state House make it likely that the chamber would pass such a measure. But odds are dicier in the state Senate; legalization proponents would need to win over either one Democrat who is on record as opposing it or one Republican.

You can visit the Political Report’s new legislative round-up page for more on legislative debates in states.

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