Eight legislative reforms await the California governor’s signature, and more

In This Edition of the Political Report

September 13, 2018: Governor Jerry Brown must soon decide the fate of a series of criminal justice reforms that the California legislature adopted in August. I also review Delaware and Rhode Island’s primaries, and look ahead to general elections in Plymouth and Tulsa counties.

  • Primary results: Kathleen Jennings wins primary for Delaware attorney general, and more

  • California: Legislature sends wave of reform bills to Governor Brown’s desk

  • Massachusetts: Plymouth County DA faces former employee who assails his ethics and policies

  • Oklahoma: In Tulsa’s DA race, challenger wants to shift criminal justice conversation

  • National: Prison strike demands end to felony disenfranchisement, as New York heads to polls under new rules

You can check out our locality-specific index of past newsletters if you wish to review our past coverage of the local politics of criminal justice reform. And you can use this database to review the results of all the primaries I have discussed in the newsletter since June.

Primary results: Kathleen Jennings wins primary for Delaware attorney general, and more

Delaware and Rhode Island settled five primaries I profiled in past newsletters:

Delaware: Kathleen Jennings easily won the Democratic primary for attorney general, an influential position that appoints Delaware’s prosecutors. Jennings is a former prosecutor who supervised criminal prosecutions while working for the state Department of Justice. She now faces the Republican nominee, attorney Bernard Pepukayi.

During the primary, Jennings talked of the need to reduce incarceration; she highlighted her past support for reform legislation like a 2016 bill that repealed some mandatory life sentences. She advocated enabling judges to impose concurrent rather than consecutive sentences. “I support revising our criminal code to avoid the stacking of charges on top of one another for a single crime,” she said in an ACLU candidate questionnaire where she also committed to supporting reductions to—but not the repeal of—mandatory minimum sentences.

The Delaware Supreme Court struck down the death penalty in 2016, but some lawmakers are pushing to overturn that decision. Jennings said during the campaign that she opposes capital punishment. “It has not proven to be an effective deterrent, and the process by which it has been imposed has been ruled unconstitutional,” she told the ACLU. She did not commit to not seeking the death penalty if the legislature does reinstate it, however; in 2013, she testified in the legislature against a bill that would have abolished the death penalty.

Rhode Island: Rhode Island toughened drug sentencing this year, a move that then emerged as a factor in the state’s Democratic primaries. Dubbed Kristen’s Law, the new legislation created a penalty of up to life in prison for people who sell drugs that lead to a fatal overdose. The Appeal recently published an article by Abdullah Shihipar and Meghan Peterson laying out this law’s pitfalls. “Instead of enacting punitive and likely to be ineffective legislation like Kristen’s Law, we must seriously pursue decriminalization and harm reduction,” they write.

Governor Gina Raimondo defeated challenger Matt Brown in Democrats’ gubernatorial primary. Brown, a former secretary of state who ran to Raimondo’s left, criticized her for signing Kristen’s Law, which he said is “doubling down on mass incarceration.”

Three progressive lawmakers who voted against Kristen’s Law faced primary challenges backed by the leadership of the state Democratic Party. State Representatives Moira Walsh and Marcia Ranglin-Vassell survived, while state Senator Jeanine Calkin lost. As I previewed in July, Walsh traced part of the state party’s hostility toward her to her activism against Kristen’s Law. She helped organize a protest against the legislation, taking aim at Raimondo. “While she lamented the children being taken away from their parents at the border, she saw no irony in the fact that she would be signing a law to take other people’s children away today,” Walsh said.

California: Legislature sends a wave of reform bills to Governor Brown’s desk

In recent weeks, the California legislature has adopted a series of bills reforming sentencing and policing rules. Governor Jerry Brown has already signed Senate Bill 10, which overhauls the bail system and which has been denounced by groups including the Vera Institute of Justice and the ACLU for worsening the problem of pretrial detention even as it does away with cash bail. In a New York Times op-ed, David Feige of the Bronx Freedom Fund and Robin Steinberg of the Bail Project argue that SB 10 “will broaden the use of preventive detention” and “institutionalize the imposition of probation-like conditions” on people not yet convicted. But reform advocates are more enthusiastic about other bills, which they helped push through.

Here are eight bills sitting on Brown’s desk as of Wednesday, awaiting his signature or veto:

  • SB 439 and SB 1391 tackle the judicial treatment of children and teenagers. SB 439 would restrict most children under 12 from being prosecuted in juvenile court. “Involvement with the juvenile justice system can be harmful to a child’s health and development,” Senator Holly Mitchell stated at a hearing. SB 1391 would bar anyone under the age of 16 from being prosecuted as an adult, including for offenses involving violence, keeping them instead in the more rehabilitative juvenile system. Both bills were authored by Mitchell and Senator Ricardo Lara.

  • SB 1393 would eliminate the mandate that judges increase a defendant’s sentence by five years for each prior felony conviction. Such sentence enhancements would be up to a judge’s discretion. Also introduced by Lara and Mitchell, this bill builds on other reforms that California has adopted in recent years to curb sentence enhancements.

  • SB 1437 would limit California’s “felony murder” rule. California currently “holds an accomplice in an offense such as robbery liable for a homicide that happens during the crime, regardless of whether the defendant was involved in the killing,” Melody Gutierrez explains. SB 1437, authored by Senator Nancy Skinner, would significantly shrink the circumstances under which someone can be charged for a murder that they did not personally commit. For further information, you can read Abbie Vansickle’s investigation on “felony murder” published by the Marshall Project.

  • AB 2942 would enable prosecutors to reopen a case and recommend that a judge impose a reduced sentence. The Appeal just published an article on this bill. Kyle Barry writes that it could “codify sentence review as part of the prosecutor’s job.” For instance, sentences decided under California’s three-strikes law “could be reduced if prosecutors withdraw a prior conviction (or ‘strike a strike’) from the court’s consideration.”

  • SB 1050 would extend new resources to people exonerated after a wrongful conviction.

  • AB 748 and SB 1421 aim to improve police transparency. AB 748 would mandate the release of body camera footage to the public within 45 days. SB 1421 would require the release of information pertaining to officer shootings and use-of-force investigations. Such records are currently confidential because of a bill signed in 1978 by none other than Jerry Brown, who was also governor at the time. A Sacramento Bee editorial called on Brown to sign SB 1421 and “set his legacy straight” by ending the regime of “excessive secrecy” he created decades ago.

Brown needs to make decisions on each bill soon, and I will review these in later newsletters.

Massachusetts: Plymouth County DA faces former employee who assails his ethics and policies

Massachusetts’s Sept. 4 elections resolved three hotly disputed Democratic primaries for district attorney—and they also added a Democratic candidate where there was none: John Bradley received enough write-in votes in Plymouth County (south of Boston) to make it onto the ballot as the Democratic nominee against longtime Republican DA Timothy Cruz.

Bradley used to work as a prosecutor in Cruz’s office. He filed a wrongful termination lawsuit in 2012, claiming that he was fired for refusing to meet Cruz’s expectation that his employees donate to his reelection campaign. Bradley eventually received $248,000 in a settlement—but not before Cruz raised further eyebrows for choosing to pay a Boston law firm millions to defend him rather than relying on the free services of the attorney general. In recent years, Cruz’s office has also drawn criticism for its handling of cooperating witnesses and its failure to disclose exculpatory evidence, and it has faced allegations of racially selective prosecutions. In addition, Massachusetts Attorney General Maura Healey sued Cruz in 2016 over his refusal to release information requested by journalists; the Boston Globe called this “the first time in recent memory the attorney general has filed a lawsuit to enforce the state’s public records laws.”

Picking up on the topic of his legal dispute with Cruz, Bradley says that if he is elected he would not allow his employees to contribute to his future campaigns. In an ACLU questionnaire, he also commits to collecting and releasing new data on prosecutorial decisions and their demographic patterns, and he outlines a number of other reforms he wishes to implement: notably, increasing the use of diversion programs and eliminating cash bail for all offenses except those he calls “serious felonies.” “The [DA’s] office has misguided and draconian policies on issues like plea bargaining and minimum mandatory sentencing resulting in racially and financially disparate incarceration,” Bradley told the ACLU. He says that he supports curbing mandatory minimum sentences for drug offenses, though he also opposes their elimination.

As DA, Cruz has testified against legislative efforts to curb mandatory minimum sentences, often in coordination with the state’s other prosecutors. Over the years, he has also championed legislative proposals to toughen sentencing, for instance through new mandatory minimum sentences or stricter parole rules.

Oklahoma: In Tulsa’s DA race, challenger wants to shift criminal justice conversation

Jenny Proehl-Day, the Democratic nominee for Tulsa County district attorney, begins answering an ACLU questionnaire by noting that she is a former prosecutor: “I contributed to the issue of mass incarceration and now I am trying to be a part of the solution,” she writes. In a later response, she says,“My entire goal as the DA is to bring criminal justice reform to Tulsa County and to Oklahoma.” In an interview she gave to the podcast “Citizens of Tulsa,” Proehl-Day further explains that the criminal justice system should be organized around the idea that people are rehabilitable. “It’s personal because I think that it’s important for people to look at offenders as more than the crimes that they committed, and more as they’re human beings and they have a history and their past led them to come into the criminal justice system,” she says.

Proehl-Day is running against District Attorney Steve Kunzweiler, a Republican who is seeking a second term. Kunzweiler has opposed past criminal justice reform efforts. In 2016, he spoke out against State Question 780, the ballot proposal that made drug possession into a misdemeanor and raised the threshold of felony theft. Proehl-Day, meanwhile, says that she would limit the use of money bail, implement a unit to review convictions, and not seek life without parole for juveniles.

While Kunzweiler is favored in a county that Donald Trump easily carried in 2016, Proehl-Day frames her candidacy in part as an opportunity to spark a new sort of dialogue. “What I’ve gone through is so much more common than district attorneys would like you to believe,” she tells “Citizens of Tulsa,” referring to family members’ struggle with addiction and mental health. “So I think it’s really important to have these conversations because it’s affecting more people than it’s not.”

National: Prison strike demands end to felony disenfranchisement, as New York heads to polls under new rules

The 19-day prison strike ended on Sept. 9, amidst retaliation against organizers and resistance by public officials to release much information about what took place.

Among strikers’ demands is an end to the disenfranchisement of people with felony convictions. “Prisoners are beginning to coalesce around the push to regain the vote as a means of forwarding the cause of prison reform,” Ed Pilkington reported in The Guardian on the strike’s final day. In addition, formerly incarcerated people are playing a leading role in state efforts to end disenfranchisement. Kira Lerner reported in June on Voices of the Experienced, a New Orleans-based advocacy group that championed a new law narrowing disenfranchisement rules.

New York Governor Andrew Cuomo announced in the spring that he would restore the voting rights of people on parole. But Emma Whitford just reported in The Appeal that, on the eve of the state primary, more than half of the state’s county-level Boards of Elections have not updated eligibility information on their websites, and still say that people on parole are barred from voting. In addition, Cuomo’s executive order restricts the hours at which people convicted of sex offenses can vote in a school, Joseph Spector of the Democrat & Chronicle reports: They can only do so during a two-hour window, from 7 to 9p.m., and the Department of Corrections added a requirement that the parolee obtain “written permission from the parole officer and the school’s superintendent.”

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