Challengers Defeat Two Virginia Prosecutors, Hint at Reform Coalition

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!