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New York’s DA Elections Will Shape Prosecutorial Practices, and a Virginia Candidate Discusses His Platform

Also today: Officials announce criminal justice reforms in Texas, Virginia, Utah

In This Edition of the Political Report

April 18, 2019:

  • New York: Stage is (mostly) set for the 2019 district attorney elections

  • Virginia: An interview with Steve Descano, candidate for prosecutor in Fairfax

  • The politics of prosecutors: Officials announce reforms in Texas, Virginia, Utah

  • Legislative roundup: New Hampshire legislature adopts death penalty abolition, Colorado House votes to expand voting rights, and more

You can also visit the Political Report’s portal into criminal justice in the 2019 elections.

New York: Stage is (mostly) set for the 2019 district attorney elections

New York’s legislature reformed the state’s criminal legal system in March by adopting a slate of changes that criminal justice reformers have long championed. On paper, the 25 district attorney elections scheduled for 2019 offer the opportunity for another big overhaul, including on the very issues—bail, discovery rules, trial speed—that lawmakers just addressed.

“Prosecutors have unbelievable discretion,” said Katie Schaffer, a New York organizer with JustLeadershipUSA, a group that supports reducing incarceration, “and they get to make the decisions about whether or not to prosecute something, about what charges to prosecute it under. The criminal code is really written like a menu of options for prosecutors.”

Candidates had until April 4 to file for these races as a member of one of New York’s eight recognized parties. Some of the resulting elections—for instance in Queens, Monroe, and Ulster counties—could emulate the conflicts that have shaken up other local elections in recent years as to the purpose of the criminal legal system and prosecution.

But a majority of the 25 DA elections drew only one candidate (the incumbent), robbing these counties of an opportunity to partake in these debates and host vigorous philosophical contrasts. A majority of Mississippi and Pennsylvania’s DA elections are also uncontested this year.  

Candidates can still file petitions to run as independents until May 28, however. And six of the eight largest jurisdictions with elections are hosting contested races.

The landscape is more desolate still in the sheriff elections since only three of 15 drew multiple candidates. 

The Political Report has identified the candidates who filed to run for DA or sheriff in New York in this masterlist

Beyond the 2019 reforms: Advocates who championed the new legislation are asking DAs to go further, for instance by turning over evidence sooner than the law mandates, committing to not pressure defendants to waive their right to a speedy trial, or taking into account their decisions’ immigration consequences. Also, with proposals to legalize marijuana stalled, DAs retain discretion over whether to prosecute marijuana cases..

Will DAASNY still represent all prosecutors? The statewide group through which prosecutors wield influence in Albany, the District Attorneys Association of the State of New York (DAASNY), resisted the proposed reforms this year. DAASNY enjoys the legitimacy of a professional organization, one that all of the state’s DAs are members of. Will that change after the 2019 elections, as it did in Pennsylvania last year? Two candidates running for prosecutor in Queens, Tiffany Cabán and Rory Lancman, have said they would not join the association if elected.

DAASNY’s next president faces a challenger: Sandra Doorley, the Republican DA of Monroe County (Rochester) and president-elect of DAASNY, is up for re-election this year. She will face former prosecutor Shani Curry Mitchell, a Democrat, in November. Doorley cautioned against proposed bail and marijuana reforms earlier this year; Mitchell told the Political Report in a February interview that she supported them, and outlined other reforms she would implement such as not prosecuting marijuana possession. A former DAASNY president drew no challenger, however: Oneida County’s Scott McNamara spoke against the legislative reforms this year, and argued that his county does not need bail reform or decarceration.

Queens, the marquee election: Queens, home to more than two million people, is the biggest jurisdiction holding a DA election anywhere in the country this year. Richard Brown’s decision to retire after 28 years in office has triggered a seven-person Democratic primary on June 25. The election could overhaul an office that has long embraced a tough-on-crime approach. The Gotham Gazette and The Intercept have published thorough previews of the election’s considerable stakes for reform. The Appeal has also explored the candidates’ positions in articles focused on the decriminalization of sex work and the treatment of people on parole and probation.

Utica County will have a new DA, too: Utica’s Holley Carnright is not running for reelection. In launching his bid to replace him, first assistant DA Michael Kavanagh cast himself as a continuity candidate and leaned into his experience as prosecutor. A Republican, Kavanagh now faces Democrat David Clegg, a former public defender who is emphasizing a need to change local practices. Besides Queens and Utica, three other counties are sure to have a new prosecutor next year: Broome, Hamilton, and Rockland.

You can read the full Political Report preview, including a look at how these DAs could deepen the state’s new reforms, here.

Virginia: An interview with Steve Descano, candidate for prosecutor in Fairfax

In Northern Virginia, numerous commonwealth’s attorneys are facing challengers who say that the criminal legal system needs reform. In Fairfax County, Virginia’s largest jurisdiction, Steve Descano is running against incumbent Raymond Morrogh in the June 11 Democratic primary.

The Political Report talked to Descano, a former federal prosecutor, about what he means when he calls for “ending mass incarceration.” In the interview, Descano explained that he wants to change charging practices to reduce the number of people with felony records, for instance by refraining from filing the highest allowable charges. He said he would not prosecute marijuana possession, but added that with other offenses he would “prosecute in a different way” rather than decline to prosecute. He said he would never seek the death penalty, and took issue with the politics of the Virginia Association of Commonwealth’s Attorneys (VACA), promising to build a “counterpoint” to their influence. 

Below is a lightly edited excerpt. The full interview is available here.

On your website, you state a goal of “ending mass incarceration.” I want to start by better understanding what you mean by this. What does the condition of “mass incarceration” mean to you, in terms of what you mean to capture by it, and what role do you think prosecutors play in relation to it?

When a lot of people think about mass incarceration, they think about the number of people in jail or prison at one time, and of course that is part of it. But also I like to think of it as a broader phenomenon that includes people who may not be in jail or prison at the moment but have been put on a path to jail or prison because of prior interactions with the criminal justice system. …. For me, it does all come back to the prosecutor. When we’re talking about the flow problem with pretrial detention, of course the prosecutor has the ability to ask or not ask for cash bail. On the stock problem, which is people who are in jail or prison for long sentences, that is an issue that comes down to charging, and that’s completely within the discretion of the prosecutor. So if you were to have a prosecutor who was committed to making a dent in mass incarceration and ending mass incarceration, it would be within their powers, just by simply changing the way that you charge crimes and no longer asking for cash bail on the pretrial detention.

Some of the positions you defend are at odds with those defended by the Virginia Association of Commonwealth’s Attorneys, the statewide group through which prosecutors lobby for certain policies. What role do you think the association has played in shaping of the state’s criminal legal system, and if elected would you be a member of the association?

Traditionally they have played a role to make our criminal justice system more conservative and more regressive than it needs to be. … They hold a lot of power in Richmond, and they exercise that. They’ve had a limiting factor on what we’ve been able to do. If I was elected commonwealth’s attorney, I would be a member of VACA. I would join because I would want my vote to be counted. But I don’t think that’s enough. Fairfax County is the most populous and in a lot of ways most powerful county in the commonwealth. In my mind, this is a bully pulpit position. The opportunity that we have is to be in the vanguard of criminal justice reform in the commonwealth. What I would commit to do is use that bully pulpit position to travel all around the commonwealth to create a coalition of progressive-minded prosecutors, attorneys, advocates, stakeholders to try to act as a counterpoint to VACA. I plan to be a member so that I can vote when I disagree with policies VACA is pushing. I will bring to bear the coalition I have built to go down and say, “Hey, legislators, you’ve heard this regressive view of the world, let me tell you a progressive view of what justice should be.”

You can read the rest of the interview, including Descano’s views on drug cases and sentencing, here.

The politics of prosecutors: Officials announce reforms in Texas, Virginia, Utah

Dallas County, Texas: Dallas County District Attorney John Creuzot announced a big package of reforms last week in an open letter. These include no longer prosecuting first-time arrests for marijuana possession and no longer prosecuting theft of “necessary items” whose value is under $750. He also said he will shorten probation and reduce incarceration for people who violate some of their probation terms. To cut pretrial detention, he instituted a presumptive policy of asking for people to be released without conditions when charged with misdemeanors and some low-level felonies. Christopher Connelly of KERA News has more details.

Portsmouth, Virginia: Portsmouth Commonwealth’s Attorney Stephanie Morales outlined circumstances in which she would no longer prosecute marijuana possession, as Scott Daugherty reports in the Virginian-Pilot. She said that she will still file possession charges when those are accompanied by higher-level charges, as well as against minors.

Utah County, Utah: Jessica Miller reports in the Salt Lake Tribune on reforms announced by David Leavitt, the new prosecutor of populous Utah County. Leavitt intends to create precharge diversion programs for lower-level offenses because he thinks existing approaches to diversion are too selective. “Leavitt calculated that it’s statistically more probable for an applicant to be admitted into Harvard University than it is for an arrested person to get into 4th District drug court,” Miller writes. He also intends to set up a conviction integrity unit within his office. Utah County officials considered creating an external review board last year but tabled that proposal.

Legislative roundup: New Hampshire legislature adopts death penalty abolition, Colorado House votes to expand voting rights, and more

New Hampshire: The legislature has adopted a bill abolishing the death penalty for the second consecutive year, but this time with veto-proof majorities. The Senate sent it to Governor John Sununu’s desk last week. While Sununu is expected to veto it again, the votes are there for both chambers to override this. The Political Report wrote in November about this legislation and why advocates deem it important even though the state has not executed anyone since 1939.

Colorado and Nevada: Two legislatures are moving to enfranchise anyone who is not presently incarcerated.

  • The Colorado House adopted legislation to enfranchise people on parole; the state already enables people on probation (let alone those who have finished their sentence) to exercise their voting rights. House Bill 1266, filed by Representative Leslie Herod and Senator Stephen Fenberg, moved to the Senate. It would affect an estimated 10,000 people.

  • A Nevada bill newly proposed by Speaker James Frierson gets to the same point through a bigger jump: Nevada has some of the country’s harshest laws, the Political Report wrote in December: It is one of 12 states where people remain disenfranchised after completing their sentence. Assembly Bill 431 would restore the voting rights of an estimated 89,000 people.

Neither bill would abolish disenfranchisement as in Maine, Vermont, and Puerto Rico. 

New Mexico: New Mexico adopted a law last month to restrict solitary confinement. The state has one of the country’s highest rates of solitary confinement, a practice that is tied to widespread deaths in the state’s carceral system, as The Appeal reported in January. The law bans putting pregnant women and minors in solitary confinement. It also restricts its use to 48 hours for people with “serious” mental disabilities. However, the original bill introduced in January went further: It restricted putting anyone in solitary confinement for more than 15 consecutive days. This would respect the United Nations’ “Nelson Mandela Rules,” which prohibit its use for longer than that. (Colorado’s Department of Corrections announced it would follow those rules in 2017.) Legislative leaders removed this language on the House floor.

Utah: The governor has signed into law the state’s “Clean Slate” legislation, which the Political Report wrote about in March. This law will create an automatic process to expunge the records of Utahns who have been acquitted or convicted of some misdemeanor offenses. Currently, most people who are eligible for an expungement do not apply because of the cost and complexity.

You can visit our legislative roundup page for more on legislative developments.

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