In This Edition of the Political Report
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November 15, 2018: The Appeal Political Report is still exploring the impact of last week’s elections on criminal justice reform:
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Oklahoma: In interviews, two candidates talk about the challenges of running for DA
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New Hampshire: Death penalty opponents seize an apparent supermajority in the Senate
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Florida: Voters adopted two far-reaching amendments. What will be their impact?
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Referendums: 15 states voted on criminal justice issues. Here are the results.
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Quick link: Steps for reform in Pennsylvania
You can visit The Appeal: Political Report’s website for information about each individual election we tracked this fall, and for other features like a map of recent reforms.
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Oklahoma: In interviews, two candidates talk about the challenges of running for DA
Jenny Proehl-Day and Cory Williams ran for district attorney on the need to reform Oklahoma’s criminal justice system and curb mass incarceration. On Nov. 6, they lost to two incumbents who are generally reform-skeptic: Steve Kunzweiler (Tulsa County) and Laura Austin Thomas (Payne and Logan counties). (See: my previews of these elections are here and here.)
In separate interviews on Monday, Proehl-Day and Williams detailed some of the difficulties they experienced running for prosecutor on such a platform.
“We struggled to get anybody to care about the DA race,” said Williams, who is a Democratic state representative. “Ninety percent of my campaign was actually an education about what a DA is, what a DA does… [It was] not uncommon to hear, ‘I’ve never been arrested, why do I care, how does this impact me?’” He added that he was hampered by a parallel indifference among the people in a position to help financially. “There isn’t a built-in pipeline fundraising for DA races,” he said, contrasting his experience in this election with his past legislative races.
According to Proehl-Day, people were “completely unaware” of a DA’s role, which enabled Kunzweiler to obscure the discretionary power he enjoys. “The incumbent wanted to frame [reform] as the legislature’s job,” she said. “[He] was dead set that there is no discretion in his job, that he needs to follow the law.”
Proehl-Day and Kunzweiler indeed clashed over prosecutorial discretion. After Proehl-Day said that she would decline to prosecute marijuana possession, Kunzweiler denounced her stance. “That’s not what a DA does, DA’s job is to enforce the laws,” he said. But in a new interview in the New Yorker, Kunzweiler describes his role as going beyond the rigid application of laws, extending it to include “teach[ing] people the morals they either never learned or they somehow forgot.” To illustrate how he makes calls about how to punish defendants, he compares prosecution to disciplining children. “There are times when your kids need a lecture, times when they need a grounding, and times when they need a spanking,” he said.
Proehl-Day listed ways in which Kunzweiler does much more than merely apply the law. “Overcharging, undercharging, those are all discretion,” she told me. She pointed to his efforts to “thwart” a recent reform that voters adopted to reduce drug sentencing by upping the charges he files. But Proehl-Day also described feeling partially boxed in by his rhetoric. “When he frames it that way, I come across looking like an activist,” she said.
The claim that prosecutors’ political preferences are irrelevant to their function also obfuscates the lobbying role that the Oklahoma District Attorneys Council has played by speaking out against legislative reforms. Williams noted that the group has “time and time again” watered down or impeded legislative deals; he said that he ran to be a “counter-lobby” to the council. Prosecutors coming together to organize against legislative reforms is a pattern that recurs across the country.
Both candidates insisted that reform remains urgent, and that the current debates about building new prisons in Oklahoma could be an entry point for change given the cost of building new facilities. “Oklahoma is at a breaking point,” Proehl-Day said, describing as unsustainable the state’s new status of having the country’s highest incarceration rate. “What Oklahoma is doing is fiscally irresponsible and morally repugnant.”
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New Hampshire: Death penalty opponents seize an apparent supermajority in the Senate
New Hampshire fell just short of abolishing the death penalty in 2018. But the turnover brought by the 2018 election may be enough to push abolition supporters over the top.
New Hampshire has not executed anyone since 1939, but it does have one individual on death row—an African American man—since 2008. John-Michael Dumais, the campaign director of the NH Coalition to Abolish the Death Penalty, told me that abolition would be “one more arrow in the quiver” of the national movement arguing that the death penalty “doesn’t conform to our evolving standards of decency.” “Advocates will be able to say, with each new state, ‘Look people don’t really have a wish for this,’” Dumais said.
In 2018, the GOP-run legislature voted to eliminate capital punishment, but the bill was vetoed by Republican Governor Chris Sununu. Fourteen of 24 senators then voted to override Sununu’s veto, two votes short of the necessary supermajority (16 of 24). The vote was bipartisan. Eight Democrats and six Republicans voted aye; two Democrats and eight Republicans opposed.
New Hampshire voters overhauled the state’s political landscape on Nov. 6. They re-elected Sununu as governor, but they also flipped both legislative chambers to Democrats.
And they gave opponents of the death penalty a supermajority in the state Senate, pending one recount, according to an analysis by The Appeal: Political Report.
Of the 17 returning senators, 10 voted for abolition in September (the other 7 voted against it). But all six new Democratic senators are now on record as supporting abolition. Four of these new senators have already voted for abolition while in the House; they are Shannon Chandley, Melanie Ann Levesque, Cindy Rosenwald, and Tom Sherman. A fifth, Jeanne Dietsch, has called the death penalty a “feudal sort of arrangement that we no longer believe in.” The sixth, Jon Morgan, told me in a phone interview that he opposed capital punishment. “I would have supported abolishing the death penalty,” he said in a follow-up email about how he would have voted on the specific bill that the Senate considered in 2018. (Both Democrats who opposed abolition in September—Kevin Cavanaugh and Lou D’Allesandro—are back.)
If all six maintain these positions, the Senate would have enough votes to override Sununu’s veto. (You can review the details of my Senate whip count.)
The catch: Republican Senator William Gannon, who backs the death penalty, is contesting his narrow loss to Morgan. Besides requesting a recount, he has challenged whether Morgan meets residency requirements. If the result flips, the fate of abolition would come down to David Starr, a newly elected Republican. Starr did not respond to my request for comment about his views.
The large size of the state House makes whip counts far trickier. Still, abolition advocates have reason for optimism. In April, the House voted to abolish the death penalty 223 to 116, which was just short of the 2:1 margin needed to override a gubernatorial veto.
The chamber shifted considerably last week. Democrats have won at least 50 more seats in the House than what they had in April (175), according to provisional results. To be sure, some new Democrats will most likely oppose abolition and some of the defeated Republicans supported it. But Democrats were still far more likely to support abolition in the past: In the House vote in April, 83 percent of all Democrats and 47 percent of all Republicans voted to abolish the death penalty. If the incoming House splits along similar lines—an uncertain proposition—that would suffice for abolition. When asked about the chances for reform in the next session, Dumais estimated that there was a “90 percent chance if not better” that the House could override a veto. But he also warned that the chamber just saw a lot of turnover. “We’ll have to do a lot of work,” he said.
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Florida: Voters adopted two far-reaching amendments. What will be their impact?
On Nov. 6, Floridians approved two important ballot initiatives. The adoption of Amendment 11 repeals the state’s “Savings Clause,” which barred the legislature from reducing people’s existing sentences and thereby severely limited the reach of sentencing reforms. Until now, no matter how progressive a reform, it could not be applied retroactively to people already convicted.
Amendment 4 automatically restores the voting rights of people who complete most felony sentences. This will significantly reduce the share of citizens stripped of the right to vote in Florida. (21 percent of Black adults, and 8 percent of the rest of Florida’s voting-age population, according to a 2016 report by the Sentencing Project).
This year, no other state disenfranchised as many otherwise eligible residents, a situation of mass exclusion that calls into question the way in which the press nevertheless covers Florida elections as democratic contests. Governor Rick Scott, who as of this writing led Senator Bill Nelson by a narrow margin in the U.S. Senate race, tightened the rules by which people could regain their rights shortly after becoming governor in 2011. Over the sole term of his predecessor Charlie Crist, about 155,000 people regained their voting rights; but only 3,000 (disproportionately white) people did so during Scott’s two terms, a considerable restriction that looms large over last week’s elections.
Republican Representative Ron DeSantis is the apparent winner of the gubernatorial election, pending a recount. DeSantis opposed Amendment 4 and campaigned against sentencing reforms, so how would his governorship affect the implementation or scope of Amendments 4 and 11?
Amendment 4 is “self-executing,” said Melba Pearson, the deputy director of the ACLU of Florida, which supported both of these ballot initiatives. “There is nothing that the legislature has to do for it to go into effect.” Regarding Amendment 11, Pearson told me that enough lawmakers support sentencing reforms that adopting changes like curbing mandatory minimums and making them retroactive (as the amendment just enabled) would at least be on the table. “We’re taking the long view,” she said. “This might be incremental progress over the course of a few years.” Republican state Senator Jeff Brandes, who has pushed reform bills, sounded an optimistic note as well in an interview with Reason. Amendment 11 “really frees the state up to begin to cast a bold vision for criminal justice reform,” Barnes said. “I think this really is going to be helpful as we look to reduce the prison population in the state of Florida and in a meaningful way.”
One uncertain question regarding Amendment 4, according to Sam Levine of the HuffPost, is whether people will need to have paid all of their legal fines and fees before their rights are restored; some other states impose such a requirement to exclusionary effects. “These are indigent people and the fines and fees are quite excessive, so it doesn’t get paid,” Marc Mauer, executive director of the Sentencing Project, told Levine. “Typically, if you abide by the other conditions of probation, then they just ignore the fines and fees.” The HuffPost article, as well as a new Think Progress story by Kira Lerner on the ramifications of Amendment 4, details other obstacles to an efficient and far-reaching implementation of Amendment 4 such as the degree of clarity and information the state will provide to newly-enfranchised individuals. This has posed problems elsewhere recently, including in Alabama and in New York.
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Referendums: 15 states voted on criminal justice issues. Here are the results
At least 15 states held ballot initiatives on measures relevant to the criminal justice system and law enforcement practices last week.
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Louisianans barred non-unanimous juries from delivering guilty verdicts. Non-unanimous juries were enabled in Louisiana’s 1898 Constitution as a way to circumvent the inclusion of Black jurors. They produced higher rates of conviction in Louisiana, and disproportionately affected African Americans. Oregon is now the only state to allow non-unanimous jury verdicts, and since Louisiana’s vote Oregon leaders (including the state House majority leader and the district attorney of Multnomah County) have already been talking about reform. The Appeal: Political Report will look more deeply into reform prospects in Oregon in a future newsletter.
An electoral setback for criminal justice reformers was the failure of Ohio’s Issue 1. It would have downgraded possessing any drug to a misdemeanor; it also contained other decarceration provisions. Elsewhere, Washington State and Nashville, Tennessee strengthened independent investigations into police shootings. Michigan voters legalized marijuana for recreational use, and Utahns and Missourians legalized medical use, though North Dakotans rejected a measure to legalize recreational marijuana and expunge past convictions, as I detailed last week. And voters in six states approved Marsy’s Law, which Melissa Gira Grant reported on last week in The Appeal.
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Quick link: Steps for reform in Pennsylvania
Abraham Gutman of the Philadelphia Inquirer looks at the criminal justice referendums on the ballot nationwide this year to outline reforms that Pennsylvania should adopt. He argues that the state should fully decriminalize marijuana, expand its expungement process (as North Dakota is considering), and abolish life without parole sentences. As a vehicle to advance that last goal, Gutman points to legislation that state Senator Sharif Street introduced in September; the bill “would make it possible for those sentenced to life imprisonment to eventually have an opportunity for parole in Pennsylvania,” according to Street’s description.
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Thanks for reading. We’ll see you next week.
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