New momentum for bail reform, marijuana legalization, and resistance to ICE

In This Edition of the Political Report

November 9, 2018: Candidates ran for prosecutor, sheriff, and governor this year by promising to reject the usual “tough-on-crime” policies and to instead confront mass incarceration, fight racial disparities in criminal justice, and limit the scope of immigration enforcement. Of the candidates with ambitious platforms, some, such as Ben Jealous in Maryland and Mark Haase in Minnesota, lost on Tuesday, but many others were voted into office (Andrea Harrington and Rachael Rollins in Massachusetts, and Wesley Bell in Missouri, to name a few), building on a wave of recent reform wins. And longtime incumbents such as Sheriff Donnie Harrison in Raleigh, North Carolina, were ousted, failing to capitalize on the conventional campaign strategy of warning of a collapse in public safety.

Of course, the aim of transforming the criminal justice system hinges on what happens after these electoral results. Today, The Appeal: Political Report looks at how the 2018 election results’ might impact four aspects of the criminal justice system; more will come in the weeks ahead.

• Bail reform builds momentum in Texas and New York

• Voters restrict ICE’s reach in key counties around the nation

• Movement to legalize marijuana moves forward

• What accountability is there for misconduct through the polls?

• Quick link: Six states adopt Marsy’s Law

You can visit The Appeal: Political Report’s website for information about each individual election we tracked this fall, and other features like a map of recent reforms.

Bail reform builds momentum in Texas and New York

In 2017, a court ruling found that the bail practices of Harris County, Texas, (the county that contains Houston) violated defendant rights. Since then, the county’s Republican misdemeanor judges have been fighting this ruling—a decision that their Democratic challengers like Alex Salgado denounced in the campaign, as Maura Ewing reported in The Appeal. “It cannot be stressed enough that bail reform in Harris County could easily begin with the judges—they could do away with cash bail tomorrow if they chose to do so,” County Commissioner Rodney Ellis told Ewing.

We will now get to how far these candidates are willing to go: Democrats swept all fifteen of the criminal court positions on the ballot, even though all were previously held by Republicans. “Criminal court judges have the discretion to lower the pre-set bail schedule that hearing officers follow, to write policy that mandates the use of non-cash bail, and to show leniency when a person misses a hearing or is late,” Ewing writes. The incoming judges could also agree to settle the lawsuit against the county’s practices, instead of fighting the ruling.

New York State will represent another test of Democratic candidates’ willingness to follow through on promises to overhaul the bail system. The pressure for reform has mounted in New York with cases like that of Kalief Browder, who as a teenager was incarcerated for three years without a trial because his family could not afford the financial conditions set for his release. Reform efforts stalled in the Republican-run state Senate earlier this year.

New York’s legislative landscape changed on Tuesday as Democrats grabbed solid control of the Senate and therefore of the state government. A number of the incoming Democratic senators, including Alessandra Biaggi and Zellnor Myrie in a September interview with The Appeal, have said that they would prioritize cash bail reform upon joining Albany. In February, Senate Minority Leader Andrea Stewart-Cousins listed cash bail legislation in a trio of reforms Senate Democrats would implement, alongside “comprehensive speedy trial reform” and “requir[ing] comprehensive and automatic discovery.” The Appeal: Political Report will return to the details of New York’s proposed reforms in the future.

In addition, new prosecutors were elected on Tuesday who ran on curbing pretrial detentions. Wesley Bell in St. Louis County, Missouri, Rachael Rollins in Suffolk County, Massachusetts, and John Creuzot in Dallas County, Texas, will come into office on pledges to eliminate cash bail for some offenses or ask for more releases on personal recognizance, which enable people to be released pretrial without owing a payment. Such reforms, if properly implemented, could have a significant impact beyond the rate of pretrial detention. For instance, in Dallas County, defendants charged with marijuana possession were twice as likely to plead guilty if bail conditions were imposed on them.

Voters restrict ICE’s reach in key counties around the nation

Voters on Tuesday put ICE on notice in several states and counties. “People showed up yesterday because they want their local communities to revolve [around] their values, even if what happens in Washington does not for the foreseeable future,” Elizabeth Alex, senior director of community organizing at CASA, told The Appeal about elections she was tracking in Maryland.

Before Election Day, I previewed the campaign’s stakes for immigration policy in key counties. One important question was the fate of candidates who pledged to terminate their counties’ participation in ICE’s 287(g) agreement, which deputizes local officers to act like federal immigration agents and investigate people’s immigration statuses.

At least three such candidates won offices that will enable them to withdraw from an existing 287(g) deal. They are: Garry McFadden, who will be sheriff of Mecklenburg County, North Carolina (Charlotte); Gerald Baker, who will be sheriff of Wake County (Raleigh); and Steuart Pittman, who will be county executive of Anne Arundel County, Maryland (Annapolis). In addition, Democratic Sheriff Doug Mullendore of Washington County, Maryland, won against a a challenger who campaigned on having the county join 287(g). However, in two other Maryland counties already in it (Harford and Frederick), incumbents beat challengers.

Baker’s win came over Wake County’s longtime sheriff Donnie Harrison, who joined the 287(g) program in 2007 and who has consistently defended practices that immigrant advocates worry will lead to increased deportations.

The sheriff of Hennepin County, Minnesota, appears to have lost his re-election bid as well, again in an election in which his cooperation with ICE loomed large. While Hennepin County is not party to the 287(g) deal, Rich Stanek’s policies of sharing information about the people he detains, and of giving ICE access to these detainees, have drawn protests, as I wrote in July. Stanek’s loss to Dave Hutchinson was an upset that will be felt beyond Minneapolis since Stanek is an influential figure who was scheduled to soon preside over the National Sheriff’s Association. In New York, another sheriff known for aggressive law enforcement practices, Paul Van Blarcum of Ulster County, lost to Juan Figueroa, who denounced the incumbent’s “hard-line policy of reporting immigrants under custody to ICE.” In Oregon, voters upheld their sanctuary law, which restricts cooperation over immigration between local forces and the federal agency, in a referendum.

However, in Orange County, California, Undersheriff Don Barnes was elected sheriff. Barnes has defended the department policy of circumventing California’s new sanctuary law and still getting ICE the information it might want. Barnes has said that cooperating with ICE is essential to targeting “high-level criminals,” a claim that considerably misstates the range of people about which his department has been notifying ICE. “They paintbrush the immigrant community as criminals as a whole,” Roberto Herrera, the community engagement coordinator at Resilience Orange County, told me in October about the sheriff’s office.

That was a common strategy among candidates who were defending cooperating with ICE. Steve Schuh, the incumbent Republican county executive of Anne Arundel County, sent out a mailer centered on MS-13 gang members that warned that Pittman, Schuh’s opponent, “Will Release Violent Criminals Into Our Communities.” (See both sides of the mailer.) Pittman won by 4 percentage points, and he will govern with a newly Democratic-majority county board.

“We’ve got a lot of local problems to solve and holding ICE detainees is not one of them,” Pittman said in June. “Our biggest problem right now is beds for people who want drug treatment.”

Movement to legalize marijuana moves forward

In Michigan, voters approved a referendum that legalizes marijuana for recreational use. They also elected a Democratic governor (Gretchen Whitmer) and Attorney General (Dana Nessel) who both backed legalization, which could ease implementation. The measure will allow people to possess up to 2.5 ounces of marijuana, and set up a taxed system of commercial businesses.

Michigan’s initiative does not contain a provision to expunge past marijuana-related convictions. But Whitmer has already said since her victory that she will push for expungement legislation and consider executive action as well. “I think that the people of Michigan have said that for conduct that would now be legal, no one should bear a lifelong record for that conduct,” she said on Wednesday. Nessel supports such reform, and state Representative Sheldon Neeley, a Democrat who represents Flint, has introduced a bill to this effect. The Appeal: Political Report will keep track of these debates going forward.

North Dakota, however, rejected a referendum to legalize marijuana. Missouri voted to legalize medical marijuana, the second state to do so this year after Oklahoma did so in June. (Utah was also voting on legalizing medical marijuana, but the final results of the referendum were not yet known as of Thursday.)

Victories by gubernatorial and legislative candidates who support legalizing marijuana altered many states’ political landscape around the issue. JB Pritzker, Michelle Lujan Grisham, and Ned Lamont will be the new pro-legalization governors of Illinois, New Mexico, and Connecticut, respectively; each will govern with a Democratic legislature. In New York, where Democrats captured full control of the state legislature, City & State New York expects marijuana legalization to at least be under discussion.

In elections for prosecutor, many candidates ran on promises to limit, if not eliminate, marijuana charges, or else to treat these cases as civil infractions instead of criminal offenses.

In Dallas County, Texas, John Creuzot, a Democrat, defeated District Attorney Faith Johnson; Creuzot has said that he would no longer charge first-time marijuana possession cases. Marijuana possession represents a large share of criminal filings in the county (10 percent since 2017). In Bexar County, the next district attorney will be Joe Gonzales, a Democrat who campaigned on strengthening the county’s cite-and-release program. And in Suffolk County, Massachusetts (Boston), Rachael Rollins was elected prosecutor on Tuesday after announcing during the campaign that her default policy would be to not prosecute any drug possession charges at all.

In fact, Rollins publicized a broader list of charges that she typically would not prosecute. Sarah Lustbader wrote about Rollins’s embrace of declinations in the Daily Appeal in September. “Declinations stand in stark contrast to drug courts and probation, which often carry the threat of years of incarceration that are often imposed automatically for even a minor drug relapse,” Lustbader wrote.

That said, there were a number of major elections where marijuana legalization or the racial disparities of marijuana arrests featured prominently because of a challenger’s campaign, but where the incumbent won. One such election, which I profiled last week, was that for Hennepin County Attorney. (This is the Minnesota county that contains Minneapolis.) Incumbent Mike Freeman, who generally expressed confidence in the county’s justice system on the campaign trail and rejected the view that mass incarceration exists in Minnesota, beat challenger Mark Haase. In elections for governor in Florida and Maryland, Ron DeSantis and incumbent Governor Larry Hogan won respectively against Andrew Gillum and Ben Jealous, the Democratic nominees whose ambitious platforms included marijuana legalization, among many things.

What accountability is there for misconduct through the polls?

This year, voters ousted many law enforcement officials who faced public protests over their actions if not allegations of outright misconduct. In August, St. Louis Prosecuting Attorney Bob McCulloch lost in his first contested election since the Ferguson protests of 2014.

On Tuesday, voters ousted two other public officials who drew fire for their handling of police shooting investigations.

In Rensselaer County, New York, District Attorney Joel Abelove was indicted in 2017 for withholding evidence from a grand jury in the aftermath of a police shooting. He lost his re-election bid against Mary Pat Donnelly. Donnelly said she would abide by requests from statewide officials to take over police shooting investigations; Abelove’s refusal to do so was at the crux of the charges against him. “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,” Donnelly told WAMC

In New York’s 11th Congressional District, which encompasses Brooklyn and Staten Island, Republican Rep. Dan Donovan lost his re-election bid against Max Rose, his Democratic challenger. As district attorney of Staten Island, Donovan drew protests for wrapping up his investigation into Eric Garner’s death without bringing any indictment. In 2017, Rose co-authored an an op-ed in Forbes in 2017 that denounced the “staggering” scope of mass incarceration and obstacles to re-entry.

But voters also approved more systemic reforms to the handling of police shootings. Nashville, Tennessee, approved an independent civilian board to investigate police misconduct; the board will have subpoena power, though it will only issue recommendations to the police department and the mayor. And Washington State approved Initiative 940, which lowers the standard that prosecutors have to meet to prosecute a police officer who shoots and kills a civilian.

Sheriff misconduct was also on the ballot Tuesday, with some mixed results. The sheriffs of Wake County, North Carolina, and Los Angeles County, California, lost their re-election bids. The Appeal has reported on the aggressive policing they have overseen, but the sheriffs of Hillsborough County, Florida and Santa Clara County, California secured new terms. In October, The Appeal reported on the abusive detention conditions in the jails that they each run.

In Alabama, voters in Morgan County and Cullman County each voted to bar sheriffs from personally pocketing funds allocated for food in jails, a practice that has been deemed legal in Alabama but that state politicians are trying to terminate. Etowah County Sheriff Todd Entrekin, who was reported to have pocketed $750,000 of food funds over three years, lost his own re-election race a few months ago in the Republican primary.

Quick link: Six states adopt Marsy’s Law

A billionaire’s decadelong campaign to enshrine victims rights in state constitutions expanded to 11 states on Tuesday: Florida, Georgia, Kentucky, Nevada, North Carolina, and Oklahoma all voted in referendums to adopt Marsy’s Law, in addition to the five states that have done so since 2008. Critics warn that this measure “endangers the rights of defendants,” Melissa Gira Grant reported Wednesday in The Appeal.

The foundation championing these measures spent $37 million in Florida alone, Grant wrote. Among other provisions, Florida’s version “limits the timeline for defendants’ appeals to two years in noncapital cases and five years for those facing the death penalty.”

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