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Could voting out judges end mass incarceration?


What you’ll read today

  • Spotlight:  Voting out judges to end mass incarceration

  • Is Orange County DA candidate sending mixed signals on jail phone company’s contract?

  • Charlotte district attorney says he won’t stop prosecuting panhandlers

  • Former probation commissioners call for an end to marijuana testing

  • Michigan police place a 12-year-old in handcuffs

  • Allegation that Virginia prison terminated a woman’s visit because she was wearing a tampon

  • Advocates call for a Queens DA who won’t ignore the risks immigrants face from ICE

In the Spotlight

Could voting out judges end mass incarceration?

This week, the Houston Chronicle’s editorial board took the extraordinary step of recommending that nearly every sitting criminal court judge in Harris County be voted out. The reason was the county’s cash bail system, described as unconstitutional in a 193-page decision by a federal judge last year, and misdemeanor judges’ insistence on defending that system. The decision, the editorial said, “presents an astounding and disturbing vision of aspects of our courthouse run by people who don’t know whether our bail methods work and don’t seem to care.” Yet all but two criminal court judges continue to fight to preserve the bail system. When the editorial board met with each judge in preparing its endorsements, those judges offered various defenses, all deemed unsatisfactory. Hence: “we recommend that every incumbent judge continuing to fight the bail lawsuit be removed from his or her seat.” [Houston Chronicle Editorial Board]

The scourge of cash bail has been a topic in other judicial races. Earlier this year in San Francisco, four public defenders set out to unseat four incumbent judges. In their platform, they targeted the racial bias of the criminal legal system; the problems with sentencing, bail, and police misconduct; and the incumbents’ complicity in the status quo. Reporting on their ultimately unsuccessful challenge, and the questions it raised about judicial elections as a vehicle for criminal justice reform, Lara Bazelon described San Francisco’s “much-criticized money bail system,” with an average felony bail more than five times the national average. [Lara Bazelon / Slate]

The challengers’ effort in San Francisco was also an effort to have the bench better represent the community it serves. The San Francisco bench is regarded as diverse, and the incumbents included two Asian-Americans, but only 10 percent of its judges are Black, compared with 51 percent of the public defender office’s clients. Latinx people are also a high percentage of those represented by the office, but are only 6 percent of those on the bench.  [Lara Bazelon / Slate]

Nationally, state courts bear little resemblance to the population as a whole. In 2015, the American Constitution Society issued a report on what it called “the Gavel Gap”—the underrepresentation of women and people of color in state courts. Women make up roughly a half of the population and a half of those attending law schools yet less than a third of state court judges are women. Also, the report stated: “Not a single state has as many women judges as it does men.” People of color are 40 percent of the population but less than 20 percent of the judges in state courts. In 16 states, people of color accounted for fewer than 1 in 10 state judges. Women of color are represented at only 40 percent of their presence in the general population. [American Constitution Society]

To some degree, judicial elections are the culprit. The Center for American Progress looked at the underrepresentation of people of color and white women in state court in another 2015 report. It found that even when judges of color were appointed to the bench, they had a lower re-election rate than white judges. White judges had a 90 percent re-election rate, compared with 80 percent for Black judges and only a 67 percent re-election rate for Latinx judges. There is concern that this is the inevitable result of increased spending on judicial races post-Citizens United, the 2010 Supreme Court case that struck down limits on campaign contributions. The Center for American Progress report focused on states with contested judicial election. [Azure Gilman / Al Jazeera America] Earlier this year, a federal judge in Texas found that its statewide elections for judges, while diluting the voting power of Latinx voters and resulting in two overwhelmingly white high courts, did not violate the Voting Rights Act. The judge conceded that the “electoral disadvantage” experienced by the Latinx voters could be overcome by switching to single-member elections, but she declined to order that change, reasoning that voters had failed to prove that the obstacles they faced in electing their preferred candidates were “on account of race.” [Alexa Ura and Emma Platoff / Texas Tribune]

Among the concerns about judicial elections—that they compromise independence, diminish faith in the courts, and depress diversity—are also concerns about how they drive harsher punishments and resistance to social change. But advocates for change are trying to bring enough pressure to bear that judges complicit in the worst of the criminal legal system are punished and progressive candidates are voted in. For that they need voters to turn out and to vote in down-ballot races. 

Last week, the Illinois publication Injustice Watch released its 2018 Cook County Judicial Voting Guide. Illinois has a system of retention elections—after winning their seats in partisan elections, judges seek retention six years later in nonpartisan elections. This year, 59 judges are seeking retention. It has been 28 years since a Cook County judge lost retention but the efforts of community groups may mean that disaffection with certain judges could now translate into an impact at the ballot box. There are also elections for open judicial seats, but given the dominance of the Democratic Party in Chicago, the majority of these elections were decided in the primary. [Injustice Watch]

For judges seeking retention, the guide covers multiple areas, including reversal rates, the sentencing practices of criminal division judges, disciplinary records, and courtroom observation. One judge, for instance, is being sued by two exonerated men who allege that when he was a prosecutor, he and a now-disgraced detective worked to frame them for murder 25 years ago. A campaign to unseat him succeeded in making him the only judge the Cook County Democratic Party decided to not recommend for retention. Another judge, Michael Clancy, in bond court, has repeatedly set bail higher than defendants can afford, in violation of a court rule enacted last year. [Injustice Watch]

Stories From The Appeal

Orange County, California, supervisor Todd Spitzer, who is running for district attorney. [Flickr/spitzer4da]

Is Orange County DA Candidate Sending Mixed Signals on Jail Phone Company’s Contract? Todd Spitzer blasted Global Tel Link for recording attorney-client phone calls, but his campaign won’t call on a PAC supporting his candidacy to return the company’s lobbyist’s donation. [George Joseph]

Charlotte District Attorney Says He Won’t Stop Prosecuting Panhandlers. A judge’s decision could end the practice of jailing people for soliciting money along streets and highways, but DA Spencer Merriweather has been slow to embrace the change. [Steven Yoder]

Stories From Around the Country

Former probation commissioners call for an end to marijuana testing: Five former New York City probation commissioners issued a statement calling for New York to stop marijuana testing of people on probation and parole in the state. While the number of people incarcerated in New York has declined in the last two decades, the number of people admitted to prison because of parole violations increased 21 percent from 2015 to 2016 alone. The vast majority of parole revocations results from technical violations, including failed marijuana tests and missing appointments out of fear of failing such tests. Black and Latinx people are disproportionately subject to parole revocations. The commissioners wrote in their statement: “What we want is that people under supervision lead law-abiding lives and meet their obligations as citizens. As long as they do, we should be no more concerned about them using marijuana than we are of them having a glass of wine.” The statement calls on the legislature to “codify” the ban on testing, as part of legislation to legalize marijuana use. [The Crime Report]

Michigan police place a 12-year-old in handcuffs:  Grand Rapids, Michigan, police officers handcuffed a 12-year-old girl in the course of investigating what turned out to be a false report of a shooting at the family’s home. This is the fourth time since March 2017 that officers from the department have handcuffed Black children not accused of a crime. In August, officers handcuffed 11-year-old twins and a 17-year-old while responding to a report of a young person with a gun. The girl’s mother, Deborah Wooten, said officers placed her child in handcuffs while on her knees and then searched her for weapons. She said her daughter is traumatized and having trouble sleeping. The officers removed the handcuffs when they learned her age. The police chief defended the officers’ actions, saying the officers showed “compassion” and “good judgment” and the girl was handcuffed “for a minute and change.” [Associated Press]

Allegation that Virginia prison terminated a woman’s visit because she was wearing a tampon: Days after Virginia prisons said they were lifting a policy barring visitors from wearing tampons or menstrual cups, a woman says her visit with her husband was terminated and she was accused of smuggling drugs in with a tampon. The woman, who has visited her husband every weekend for five years, says that during her visit on Sept. 29, she told a corrections officer that she had her period. She was ultimately cleared for the visit but when she later went to the restroom and returned to the visit room, she was told the visit was terminated. She says a prison official told her they were investigating a package in the bathroom that had blood on it. The Virginia Department of Corrections would not comment on the story. A tweet from Oct. 2 references drugs discovered in a bathroom during visitation. [Lauren Gill / Shadowproof]

Advocates call for a Queens DA who won’t ignore the dangers immigrants face from ICE: Queens has the highest percentage of foreign-born residents of any county in the United States. Yet, unlike prosecutors in other New York City counties, its district attorney, Richard Brown, has not called on ICE to stop making arrests in courthouses. Nor does Brown’s office evaluate its policies and practices in light of the possibility of detention or deportation for immigrants. If Brown runs for re-election, he will face a challenge for the first time since he was elected in 1991, including from City Council Member Rory Lancman. Lancman has said that, if elected, he will look at the immigration consequences of prosecutorial decisions, end the prosecution of low-level offenses that disproportionately sweep up immigrants, clear up open summons warrants, and stop prosecuting people for driving with suspended licenses when the suspensions result from a failure to pay fines.  [David Brand / Documented]

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