Marijuana prosecutions are in the spotlight in Minneapolis and Birmingham


In This Edition of the Political Report

November 1, 2018: Election Day is coming in just five days. The Appeal: Political Report has previewed 45 elections on November’s ballot—referendums, elections for sheriff, county executive, and prosecutor, and more—that could change the criminal justice landscape. You can explore all previews individually here. You can also read spotlights on the counties where immigration policy is on the ballot, and on referendums that could impact the criminal justice system. On election night and the days after, you can visit The Appeal: Political Report’s website to learn the results once they are known—and I’ll have more in my next newsletter, of course.

  • Alabama: Candidates for Birmingham DA debate marijuana prosecution, fines and fees

  • California: Los Angeles holds rare runoff for sheriff in a department rocked by scandals

  • Florida: Implementation of medical marijuana splits attorney general candidates

  • Maine: Sahrbeck is only active candidate left in election for Portland DA

  • Minnesota: Racial disparities and police shootings under the spotlight in Hennepin County

  • New York: A year after being charged with misconduct, a prosecutor seeks re-election

Alabama: Candidates for Birmingham DA debate marijuana prosecution, fines and fees

A forum organized by Faith in Action on Oct. 16 laid out essential differences between the candidates running for district attorney of Jefferson County, which contains Birmingham. The candidates are Mike Anderton, a Republican who has served as DA since being appointed by Governor Kay Ivey in November 2017, and Danny Carr, a Democrat who served as interim DA for the 11 months prior.

You can watch the forum in its entirety here; in this post, I highlight two areas.

First, they both professed support for diverting low-level drug offenses—but it became apparent that they meant different things by this. Rightly noting that “it is easy to say yes” to a question about diversion, Carr said that the real question is what exact categories are included, and whether the next DA would “broaden the types of cases that are eligible for diversion programs.” He added, “My answer to that is, it’s not just possession cases, I think some distribution cases should go to diversion programs.” Anderton offered a more restrictive answer, noting that when it comes to diversion even some cases of possession can be “too much.”

Carr has emphasized reforming marijuana policy during his campaign. “It’s hard to imagine that our limited resources should be devoted to jailing individuals for marijuana possession instead of focusing on serious violent crimes,” he tweeted in October. In a follow-up with WBRC, Carr specified that he would not dismiss these cases but rather seek fines instead of jail, and that he would be open to treating some marijuana possession like a traffic citation. In October, the Alabama Appleseed Center for Law & Justice and the Southern Poverty Law Center released a report on disproportionate racial impact of marijuana enforcement. “Black people were approximately four times as likely as white people to be arrested for marijuana possession,” according to the report.

Second, the candidates were asked whether they would oppose incarceration over a failure to pay fines and fees. “I would never, ever, ever recommend a person going to jail for not being able to pay their fines and fees, absolutely not,” Carr answered. (In answering a questionnaire prepared by the Justice Collaborative, which along with The Appeal is a fiscally sponsored project of Tides Advocacy, he committed to opposing not just incarceration but also driver license suspensions.) But Anderton offered a qualified answer, that he opposes incarceration “if someone’s trying” by making at least monthly payments of $5 to $10. “I’m not going to start running a debtors’ prison, I would never do that,” Anderton added.

But a report released by Greater Birmingham Ministries and Alabama Appleseed last month found that prison is a common experience for Alabamians in this situation. “Nearly half [of individuals surveyed] said they had been jailed for failure to pay court debt,” the report finds. “People who had been declared indigent in a court of law were far more likely than their non-indigent peers to have spent time behind bars for failure to come up with the money demanded of them.”

California: Los Angeles holds rare runoff for sheriff in a department rocked by scandals

Numerous scandals have hit the Los Angeles Sheriff’s Department this year. In September, The Appeal reported about mounting allegations of abuse by the department’s deputies. In early October, the Los Angeles Times published an investigation into racial profiling that found that 69 percent of drivers stopped by sheriff’s deputies from 2012 through 2017 were Latinx.

Jim McDonnell, the incumbent sheriff, is now seeking a second term against challenger Alex Villanueva. (The election is nonpartisan, though McDonnell is an independent and a former Republican and Villanueva is a Democrat. Mayor Eric Garcetti has endorsed McDonnell.)

Immigration enforcement looms large. McDonnell opposed Senate Bill 54, the “sanctuary” law that limits contact between local law enforcement and federal authorities, before it passed; he argued that it would threaten public safety. He provides ICE an office in a jail, and Villanueva has blamed him for the rising number of people transferred to federal authorities. “[McDonnell] increased deportations in spite of SB54,” he said. Villanueva supports SB 54 and says that he would impose further distance from federal authorities. “I’m going to create a very bright line between department’s actions and ICE, and I’ll actually physically kick ICE out of the county jails,” he said.

When you have access to the jails like ICE, it makes your job much easier,” says Diana Colin, the program director of CHIRLA Action Fund, an immigrants’ advocacy group that has endorsed Villanueva. Barring ICE from jails would limit the ways in which someone can end up on the agency’s radar, she told me.

But Comlin also said that the next sheriff should go further in ending all “contact, transfers, and coordination” involving ICE. In illustrating the spatial separation he calls for, Villanueva says that transfers into ICE custody would occur—just not at the jail. “We’re going to do the transfers outside of the view of other inmates, in the courtyard of our secure bus terminal,” he has said. Ace Katano, a criminal defense attorney and member of Ground Game Los Angeles, endorsed Villanueva in a recent blog post but also questioned just how much this position represents a break with ICE. “To really get the sheriff’s department out of the business of immigration doesn’t just involve setting policies at the jail, it also involves setting policies regarding who is put in detention in the first place,” Katano told me. “The criminal justice system is the first point of contact for a lot of people going into deportation proceedings,” so “how do you avoid putting people into custody?”

Villanueva has also proposed pausing the county’s plan to replace the Men’s Central Jail. “It’s just another jail,” he said. “It’s putting lipstick on a pig.” According to the Los Angeles Daily News, he proposes building alternatives like “decentralized mental health facilities.” McDonnell and Villanueva have both indicated that they oppose giving a civilian oversight commission subpoena power, which would help the group conduct independent investigations.

Florida: Implementation of medical marijuana measure splits attorney general candidates

Amid a nationwide pattern of referendums being disregarded by elected officials, Sean Shaw says he is running for attorney general of Florida to “hold the legislature accountable” for failing to implement such initiatives. Shaw, a state lawmaker himself who is now the Democratic nominee, says he could even sue the legislature to ensure compliance.

One of the referendums that Shaw has in mind is on medical marijuana, which passed overwhelmingly as an amendment to the state Constitution in 2016. Governor Rick Scott and the legislature then adopted a ban on smoking marijuana. A court has since struck down that ban as violating the referendum, and officials are appealing that decision. The Republican nominee for attorney general, former circuit court judge Ashley Moody, supports the appeal and the ban on smokable marijuana, while Shaw calls the ban “arbitrary.” “The day I take office those appeals will end,” he said. Shaw has also indicated support for wider marijuana legalization and for policies that move away from incarcerating people for drug possession. “We ought to be building substance abuse centers, not just more prisons all the time,” he said.

On issues that animate the state’s political scene, Moody and Shaw disagree along predictable lines. Those include Florida’s Stand Your Ground law (Shaw says that he would like it repealed because it enables murder), the Affordable Care Act lawsuit (which Moody, unlike Shaw, would maintain), and the initiative to restore the voting rights of most people who complete a felony conviction (Moody opposes it, Shaw supports it). In fact, Republicans have attacked Shaw as “soft on crime” in part because he backs rights restoration.

The GOP campaign against Andrew Gillum, Democrats’ nominee for governor, also revolves on criminal justice. A new ad narrated by Brevard County Sheriff Wayne Ivey, Flagler County Sheriff Rick Staly, and Seminole County Sheriff Dennis Lemma describes Gillum as part of the “radical forces” that “want an end to the current policing and prison system.” But Staly for one should be familiar with the system’s faults; he keeps boasting about the poor conditions in his county jail.

Maine: Sahrbeck remains the only active candidate in election for Portland DA

 The election for district attorney of Cumberland County (which contains Portland) has narrowed precipitously. Republican nominee Randall Bates withdrew in September; this week, Democratic nominee Jon Gale dropped out over allegations of sexual misconduct. This leaves independent Jonathan Sahrbeck as the only active candidate. (Bates’s and Gale’s names remain on the ballot.)

 Sahrbeck has been running on maintaining the status quo in the DA’s office, where he works. As I wrote in September, he uses scare quotes around “mass incarceration,” calls for easier pretrial detention, and rejects the need to collect data on racial disparities because he is confident enough that there is no bias among prosecutors so “tracking such information would be unnecessary.

Minnesota: Racial disparities and police shootings under the spotlight in Hennepin County

The Minneapolis police arrested 47 people between January and May as part of sting operations against small-scale marijuana sales. But the Hennepin County public defender’s office publicized in June that 46 of them were African American, and that all had been charged with a felony. “Approaching black men and women who are low income and homeless and then having the county attorney charge them with felony drug sales makes me very angry and disappointed,” said Mary Moriarty, the county’s chief public defender. The Minneapolis police quickly announced that it would end the stings, and County Attorney Mike Freeman released a statement explaining why his office was unaware that the prosecutions had nearly only targeted African Americans. “Because [the stings] occurred over a period of months and were distributed to about a half-dozen of our attorneys for prosecution, we did not detect any pattern,” Freeman wrote.

But racial disparities in marijuana enforcement in Minneapolis were well-established long before this controversy. “African-Americans in Minneapolis were more than 11 times likelier than whites to be arrested for possessing marijuana,” an ACLU report found in 2014. Freeman has served as the county attorney since 2006. (He also served for eight years in the 1990s.)

Racial disparities and punitive prosecution are under the spotlight in next week’s election for Hennepin County attorney, which pits Freeman against attorney Mark Haase. Both are Democrats; Haase won the party’s endorsement at a convention in May.

Freeman points to his success at reducing juvenile incarceration through programs that divert young defendants from detention. He has also implemented changes in access to diversion programs to address racial disparities, and has partnered with other officials to discuss shifting approaches to law enforcement toward more rehabilitative policies. But Freeman also voices more confidence than Haase regarding the overall health of the state’s criminal justice system. “Perhaps prosecutors have contributed to mass incarceration in some places in the U.S. but we have not experienced ‘mass incarceration’ in Minnesota,” Freeman writes in the first sentence of his answer to an ACLU questionnaire. He rightly points out that Minnesota’s incarceration rate is among the lowest in the country. But it remains far above that of other countries; it has risen over the past decade despite a nationwide decline; and it is subject to a massive racial disparity: The incarceration rate of Black Minnesotans in state prisons is ten times that of white Minnesotans, according to the Sentencing Project.

By contrast, Haase is likelier than Freeman to highlight the impact of police and prosecutorial discretion. “A lot of disparities are created by how the law is enforced by police,” he said about the marijuana stings. “It’s the prosecutor’s responsibility to adjust charging accordingly… I’m going to move away from prosecuting marijuana and publicly advocate for legalization partly because of the disparities.” Haase has also proposed new changes to reduce the use of cash bail;  Freeman has indicated more comfort with the current rates of pretrial release.

One of the biggest issues in the campaign has been Freeman’s decision to not prosecute the two police officers who shot and killed Jamar Clark and Thurman Blevins, two Black men. Before making those decisions, which drew large protests, Freeman ended the use of grand juries in police shooting cases, as had been demanded by activists. Haase says that he would create a “police charging advisory panel” to issue recommendations in police shooting cases.

New York: A year after being charged with misconduct, a prosecutor seeks re-election

In 2017, Rensselaer County District Attorney Joel Abelove was indicted for official misconduct and first-degree perjury for his handling of a police shooting. After Sgt. Randy French shot and killed Edson Thevenin, a Black man, Abelove speedily impaneled a grand jury that decided not to indict French; he did so over the wishes of then-Attorney General Eric Schneiderman, who was looking to take over the investigation in accordance with an executive order signed by Governor Andrew Cuomo. Among the charges Abelove faced was “withholding evidence from the grand jury,” Brendan Lyons writes. “The Times Union reported last year that Abelove did not subpoena two civilian witnesses who were at the scene of the shooting.” Abelove was also charged for providing French immunity before he even testified to the grand jury.

A judge dismissed the charges in June 2018, finding that the attorney general’s office lacked the jurisdiction to prosecute Abelove; the attorney general has since sought a reargument.

Abelove faces challenger Mary Pat Donnelly on Nov. 6. Abelove is a Republican while Donnelly is a member of the Independence Party, running as the Democratic nominee.

Donnelly says she would abide by requests from statewide officials to take over police shooting investigations. “The DAs work hand in hand with the police officers on a daily basis,” she told WAMC. “So for the elected DA of the county to insist on handling the investigation of a police officer who he works with on a frequent basis, it just doesn’t allow for justice to be served.”

Reporting in The Alt, Luke Stoddard Nathan describes Donnelly’s other policy positions as “fairly moderate.” “There can be a function to a low-level marijuana charge,” Donnelly told The Alt about marijuana prosecution, “depending on if it’s linked to something else, depending on if it is an individual who may have a bigger problem.” She does not support Cuomo’s proposal to eliminate cash bail for misdemeanors and felonies that are classified as nonviolent; that proposal could come up in the 2019 legislative session.

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