New California laws will help thousands have old convictions vacated, expunged, or reduced

In This Edition of the Political Report

October 5, 2018:

  • California: Three new laws provide thousands an opportunity to have old convictions vacated, expunged, or reduced

  • California: (More) new laws limit prosecution of children, increase police transparency

  • Maine: Portland DA candidates at odds on even basic reform steps

  • New Mexico: Doña Ana sheriff race puts spotlight on Operation Stonegarden

  • Quick link: ACLU launches nationwide voter tool

As always, you can use this database to read the previews of all upcoming profiled elections. This second database lists the previews of all past profiled elections.

California: Three new laws provide thousands an opportunity to get old convictions vacated, expunged, or reduced

On Sunday, California significantly restricted the circumstances under which someone can be prosecuted for a murder that they did not commit. Under the old felony murder rule, people could be charged with murder for a death that occurred during a felony in which they participated, even if they themselves did not kill anyone or even know that someone had been killed. But a law signed by Governor Jerry Brown (Senate Bill 1437) narrows this rule to people who commit murder, intend it, or act with “reckless indifference to human life.” “Most people have no idea that you could be charged with murder and convicted with murder without having committed murder or even being present when the murder occurred,” state Senator Nancy Skinner, who introduced the legislation, told me. District attorneys “can no longer threaten everyone with a first-degree life sentence in the same way,” Kate Chatfield, the policy director of Restore Justice, told me.

The law applies retroactively. People can now petition to have a murder conviction vacated and replaced with a new sentence if they would not have been convicted under this law. Chatfield, who drafted SB 1437, estimates that approximately 800 people could be resentenced in this way.

To benefit from this provision, an incarcerated person would need to file a petition documenting eligibility. If the court establishes a prima facie showing of eligibility, prosecutors who wish to stop a conviction from being vacated would need to demonstrate beyond a reasonable doubt that the individual is ineligible. “We anticipate that a lot of these petitions can be dispensed of rather quickly, that it will often not be contested that somebody was just out of the scene,” Chatfield said. “We learned from the past in order to make the process streamlined from the outset.” The San Francisco public defender’s office said on Monday that it will examine all past homicide convictions to identify individuals in a position to demand a new sentence.

Other bills that Brown signed on Sunday also expand opportunities to modify past sentences. Assembly Bill 2942 will enable prosecutors to reopen cases in order to ask a judge to impose a reduced sentence. For instance, sentences decided under the state’s three-strikes law “could be reduced if prosecutors withdraw a prior conviction … from the court’s consideration,” Kyle Barry reported in The Appeal. This change heightens the stakes of electing DAs committed to acting against excessive sentencing.

AB 1793 shifts the burden of review. It instructs state officials to identify individuals eligible to have marijuana-related convictions expunged or reduced. Although Californians’ ability to petition for such relief grew in 2016, few have taken advantage. “It’s safe to say the number of persons eligible to have their offenses reduced from felonies to misdemeanors is in the hundreds of thousands,” Dale Gieringer, director of California NORML, told the Los Angeles Times.

California: (More) new laws limit prosecution of children, increase police transparency

Governor Brown had until Sunday to decide whether to sign a large pile of bills—and when it came to criminal justice reform he greenlighted most (though not all). Some takeaways:

California overhauls youth justice…: Brown signed two bills authored by state Senators Holly Mitchell and Ricardo Lara that will restrict most children under 12 from being prosecuted in juvenile court (SB 439) and will bar anyone under 16 from being prosecuted as an adult, keeping them in the more rehabilitative juvenile system (SB 1391).

…and sheds exceptionally tight police confidentiality rules: Brown signed two bills that require the public release of body camera footage within 45 days (AB 748) and of records pertaining to officer shootings and misconduct investigations (SB 1421). Such records were confidential because of a law signed in 1978 by none other than Jerry Brown. “California was the only state that had a complete lock on any public access” to disciplinary records, state Senator Nancy Skinner told me. Skinner, who authored SB 1421, credits its success to “heightened public interest in holding police departments accountable.”

Reforms rethink the definition of and responses to violence: Politicians who champion criminal justice reform often focus on low-level offenses, even though major cuts to incarceration require broader change. But the latest laws challenge that dynamic. The new felony murder law enables existing murder convictions to be vacated. “We are starting to realize that the term ‘violent offenses’ is so overbroad,” Chatfield told me of the impetus behind it. In addition, the law barring adult prosecution of children under 16 makes no exception for offenses involving violence.

“The legislature is for the first time rethinking the way we react to violent behavior,” Anne Irwin, who advocated both reforms as director of Smart Justice California, told me. “That broad recognition that mass incarceration is not making us safer is now extending to even crimes of violence. … There is a way to respond to violence that does more to rehabilitate.”

The politics of reform have shifted: California reformers have enjoyed recent success—not just in the legislature but also in referenda. The new laws “are reflective of a new moment in California where the legislature and the governor are finally agreeing with the public … that we shouldn’t be incarcerating as many people as possible for as long as possible,” Irwin said. Most California DAs urged Brown to veto the felony murder bill and the bill barring adult prosecution. But Brown was not swayed. “District attorneys always like to say that we don’t make the laws, we just enforce them,” Chatfield said. “I think that their attitude on criminal justice reform and on the bills that have come out of California really belie that.”

What’s next for safe injection sites? Brown vetoed a bill that would have enabled San Francisco to open a safe injection site. “With all due respect, Governor Brown doesn’t have a full understanding of harm reduction,” Irwin told me. “I think he vetoed the bill because he thought safe injection sites would be government-sponsored drug use. I think that’s misguided. … The best thing we can do in some cases is try to prevent as much harm as possible.” But the politics of this issue could soon change. Mayor London Breed has vowed to press ahead, and Gavin Newsom (the frontrunner to replace Brown as governor in next month’s election) said on Monday that he remains “very, very open” to supervised injection sites.

Maine: Portland district attorney candidates at odds on even basic reform steps

Many candidates for prosecutor this year make some rhetorical concessions to criminal justice reform, whatever their broader platform. But Jonathan Sahrbeck’s responses to an ACLU questionnaire reflect a staunch embrace of the status quo. He uses scare quotes around “mass incarceration” and dismisses even a need for bias training or for more data on racial disparities. “We do not base prosecution on race in any way shape or form,” he writes of the Cumberland County DA’s office, where he works. “Tracking such information would be unnecessary.” Asked what changes he would implement, he calls for harsher prosecution of some offenses and easier pretrial detention.

Sahrbeck is running for DA of Cumberland County (which includes Portland) as an independent. He faces Democrat Jon Gale, a defense attorney and former prosecutor. Stephanie Anderson has served as the county’s Republican DA since 1991. She retired this year, and Republican nominee Randall Bates dropped out of the race last week.

Sahrbeck is running on aggressively prosecuting sex trafficking and prostitution. Writing in the Portland Phoenix, Brian Sonenstein has pointed to a tension between Sahrbeck’s commitment to not stigmatize sex workers (“It is vital those on the front lines see these women as victims instead of criminals,” Sahrbeck writes on his website) and his actions as a prosecutor. Sahrbeck charged a woman who was seeking asylum “with engaging in prostitution despite clear indications she was a victim of sex trafficking,” but “none of [her] abusers were arrested.”

Gale, the Democrat, supports reforming prosecutorial practices. “The changes people are seeking addressing economic and racial disparity in sentencing, encouraging treatment and diversion away from convictions, and reducing crime by addressing causes rather than simply throwing people in jail—that’s been my fight for years as a defense attorney,” he told the Bangor Daily News. He is running on making greater use of substance abuse and mental health treatment programs, as well as restorative justice and diversion programs. “We are more effective at reducing crime by addressing the causes than by simply throwing people in jail,” he told the ACLU. “The more we move away from punishment of addicted people, the better.” Unlike Sahrbeck, he mentions mass incarceration and “systemic bias and racism” as problems to be addressed. He commits to “dramatically reducing” the use of cash bail—but not to fully eliminating it. Gale also answered in the negative to a number of ACLU questions about loosening conditions of release, for instance by limiting random searches.

New Mexico: Doña Ana sheriff race puts spotlight on Operation Stonegarden

Doña Ana County Sheriff Enrique Vigil lost in June’s Democratic primary. He was weighed down by a series of scandals, but also by controversies regarding his role in federal immigration enforcement. “Deputies working under Vigil assisted the United States Border Patrol with hundreds of apprehensions over the course of three years” despite Vigil’s insistence that his office was playing no immigration role, Kate Bieri reported for KVIA in May.

The context for this cooperation is Operation Stonegarden, a program through which the federal government provides localities with a grant in exchange for their assistance in border activities. Vigil defended Doña Ana County’s Stonegarden grant as “instrumental in providing the additional funds needed to combat crime,” and the county commission agrees: It voted in September to accept a new $750,000 grant. But the program can involve counties in immigration enforcement. “The idea that you’re going to be watching the border inherently requires local law enforcement who receive these funds to think of themselves as doing immigration work,” Jay Diaz, of the ACLU of Vermont, has said about Operation Stonegarden’s impact.

“The reality is that this kind of money has strings attached,” Johana Bencomo, the director of community organizing at NM CAFé, told me. “It’s about what kind of public servant do you want to be. Do you want to be one that’s attached to money or one that’s serving your community and what your community needs?”

In contrast to Doña Ana County, the supervisors of Pima County, Arizona, ended their participation in Operation Stonegarden in September, terminating a grant of $1.4 million.

The candidates for Doña Ana sheriff are now Kim Stewart, who won the Democratic primary, and former Republican sheriff Todd Garrison. At a candidate forum on Sept. 15, both were asked if they have an ethical issue with the Stonegarden grant. Both answered that they do not. Garrison strongly defended it and its importance for law enforcement; Stewart called immigration assistance an “obligation” that her office would owe federal authorities due to the commission’s decision. “It doesn’t matter what my position is, that’s what it says in the grant, and that’s what we as a community have decided to accept in 2019,” she said.

Nevertheless, Stewart suggests on her website that she may minimize assistance. “If DASO [the sheriff’s office] is receiving grant money from the federal government and there is any clause which can compel DASO to assist ICE or CBP [Customs and Border Protection], we need to carefully avoid situations where DASO renders routine assistance,” she writes. “When we become the immigration police, we shut the door forever on those who need our help.” During his tenure as sheriff, Garrison staked aggressive stances on immigration and border security. He denounced federal immigration reform and criticized President Barack Obama’s decision to establish a national monument as weakening public safety. In 2012, advocates cited complaints that Garrison’s deputies were asking for people’s immigration status during traffic encounters.

Quick link: ACLU launches nationwide voter tool

The ACLU launched a new voter education tool, Vote Smart Justice. It contains an individual page for hundreds of gubernatorial, congressional, and legislative races, featuring criminal justice positions and statements by each candidate. Here’s the page devoted to the governor’s race in Maryland, for instance.

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