North Carolina’s largest counties quit ICE program, what it means to run as a nonpolitical prosecutor, and more

In This Edition of the Political Report

December 13, 2018:

• North Carolina: State’s two largest counties quit ICE’s 287(g) program. Will a third follow?

• Washington: What does it mean to take politics out of prosecution? A look at Pierce County

• Wisconsin: Will anyone run for district attorney?

• Maryland, Pennsylvania, Tennessee: Brighter spotlight on life sentences and parole rules

You can visit the Appeal: Political Report website to read our latest analyses of the local politics of criminal justice reform and mass incarceration.

North Carolina: State’s two largest counties quit ICE’s 287(g) program. Will a third follow?

ICE’s prized 287(g) program took a hit last week. Two of the nation’s four largest counties with 287(g) contracts quit the program within days of one another; both are North Carolina counties that encompass more than one million residents each.

Gerald Baker and Garry McFadden promised to curtail cooperation with ICE in their successful bids against the sheriffs of Wake County (Raleigh) and Mecklenburg County (Charlotte) this year. And both terminated their counties’ 287(g) contracts shortly after entering office.

The contracts authorize local law enforcement to research the immigration status of people brought to the county jail. Mecklenburg and Wake’s participation led thousands to be deported over the last decade. Its proponents argue that these deportations improve public safety; Wake County’s departing sheriff, Donnie Harrison, described 287(g) as “a valuable tool that has identified some very dangerous individuals.” But Harrison’s participation meant that he was alerting ICE of people who were not yet convicted and who faced minor allegations. According to Indy Week, one of the last individuals to face deportation in Wake because of 287(g) is a man named Coronilla Loyola who was arrested in November for driving without a license.

Harrison’s policies shaped the very circumstances of Loyola’s arrest since Harrison rejected demands by immigrant rights’ activists that he support legislation enabling undocumented people to get driver’s licenses or that he recognize alternative forms of identification.

In addition, Durham County’s new sheriff, Clarence Birkhead, announced that he would stop honoring ICE requests to continue detaining individuals beyond their scheduled release. (Durham was already not part of 287(g).) Birkhead ousted Sheriff Mike Andrews, who defended such detainers, in the Democratic primary in May.

Mecklenburg and Wake’s departures leave four North Carolina counties in the 287(g) program.

One of these four, Henderson County, has a new sheriff who is publicly undecided about whether to remain in 287(g). Lawrence Griffin ousted Sheriff Charlie McDonald in the Republican primary, which took place right after high-profile ICE raids. Griffin expressed ambivalence toward 287(g) during the campaign. “I am going to have to look into [287(g)] in detail,” he told WLOS in May. “We have a lot of folks in this area that have come here looking for a better way of life. They are paramount to the economy of Henderson County as a whole, so I don’t want to use it as a punitive measure to intimidate anyone in the county.” Griffin indicated in November that he was still undecided and he pointed to the current contract’s June 30 expiration as a horizon for his decision. The immigrants’ rights groups Compañeros Inmigrantes de las Montañas en Acción and El Centro have been active in demanding change, and First Congregational United Church of Christ in Hendersonville launched a petition for the county to quit 287(g).

Cabarrus County is yet another 287(g) county with a new sheriff. Cabarrus joined the program in 2008 under the direction of Democratic Sheriff Brad Riley, who retired this year and endorsed Republican Van Shaw, the eventual victor. I found no public statements from Shaw about 287(g), and his office did not answer requests for comment regarding his position toward it.

The sheriffs responsible for 287(g) contracts in the remaining counties are still in office. Both secured new four-year terms in November. In Gaston County, Democratic Sheriff Alan Cloninger joined 287(g) in 2007, and his website boasts of the deportations that the program has enabled. In Nash County, Republican Sheriff Keith Stone joined 287(g) in March of this year. Despite the fact that this county is politically competitive, Stone secured a second term without facing a single opponent in either the primary or general election.

Immigrant rights’ organizers also scored a win in Alamance County, where Sheriff Terry Johnson dropped his application to rejoin the 287(g) program in November. The Obama administration terminated Alamance’s contract in 2012 after a Department of Justice investigation alleged discrimination and racial profiling by Johnson and his deputies. Groups including Siembra NC and Down Home NC organized numerous protests against Johnson’s bid for a new 287(g) contract this year. Andrew Willis Garces, the organizing coordinator for American Friends Service Committee, the group that launched Siembra NC, told me that this local mobilization was crucial to the sheriff’s decision to back down. “They’ve seen the level of opposition,” he told me. “It’s literally been evident on street corners. That has everything to do with it. This has been an unprecedented year of organizing, with different kinds of people who are not the usual suspects coming up against family separation locally. That is very inspiring.”

However, Johnson is still looking to reinstate a contract to house ICE detainees in exchange for payments. The 287(g) decision “is a victory in the sense that there will not be county employees doing ICE’s job, but there will still be ICE employees nearby,” Garces said of this other potential deal. “It’s still going to undermine public safety.”

You can find a standalone version of this story here.

Washington: What does it mean to take politics out of prosecution? A look at Pierce County

Mark Lindquist, the Democratic prosecuting attorney of Pierce County (a populous county home to Tacoma), suffered an uncommonly large defeat for an incumbent in November. He lost 63 percent to 37 percent to independent candidate Mary Robnett, an assistant attorney general.

Lindquist’s ethics were at the forefront of the campaign. In 2015, whistleblower complaints against Lindquist led to an external investigation that documented a toxic work environment within the prosecutor’s office and retaliation against critical employees and defense attorneys. This year, Lindquist received an admonition from the Washington State Bar Association for a separate complaint against remarks he made in 2016 on the TV program “Nancy Grace” about a murder trial that his office was prosecuting.

In her challenge to Lindquist, Robnett emphasized that prosecutors ought to be nonpolitical. Her website stated that she “strongly believes that politics doesn’t belong in the Prosecutor’s Office. Crime is not partisan. Justice shouldn’t be political.”

But Robnett’s campaign also illustrates the limitations of this commonly used trope.

For one, it ignores the policy decisions that actors involved in the criminal justice system are constantly making. Robnett’s platform has no statement regarding how she would exercise her vast discretion, for instance when it comes to charging decisions or bail; in fact, it displays no recognition of the policy freedom that prosecutors have. Moreover, in highlighting how the campaign is apolitical, Robnett’s website prominently features the support of police unions, as though these groups did not themselves have a politics. “Mary has received the endorsement of every police organization that is endorsing in this race,” says her website. But many of the organizations listed were simultaneously opposing Initiative 940, the referendum that lowered the threshold to prosecute police officers for using excessive force.

This trope reinforces the expectations that the main axis on which to differentiate within prosecutors is whether they are competent and exercise good governance, and that prosecution is mainly about obtaining convictions. The website’s main criticism of Lindquist’s prosecutorial practices are that he “has the highest number of overturned guilty verdicts”; and it highlights Robnett’s experience “handl[ing] some of Pierce County’s biggest cases and worst criminals.”

This framing also downplays the criminal justice system’s broader problems. Robnett pledged to transform the prosecutor’s office in terms of overcoming Lindquist’s tenure as a rogue public official. “We deserve a Prosecutor like Mary, a professional who is focused on crime, not image management and climbing the political ladder,” says her platform page. But Robnett skipped two of a trio of questions about how she would address the “epidemic of over-incarceration” in one candidate questionnaire; in answer to a third, she only mentions increasing the use of diversionary programs and drug court.  

But this question was an important one. Of Washington’s five most-populous counties, Pierce has the highest number of prison admissions per capita, according to statistics released by the state Department of Corrections. And in filing a class-action lawsuit in 2017 against the way in which the Pierce County Jail treats people with mental illnesses, the ACLU of Washington condemned the county’s “revolving door of incarceration.”

Whether the policies implemented by the incoming prosecutor reinforce or reverse these patterns of mass incarceration will be central to assessing Robnett’s tenure. But confronting these problems will require going beyond targeting a set of exceptionally rogue practices.

You can find a standalone version of this story here.

Wisconsin: Will anyone run for district attorney?

An obstacle to using elections to hold district attorneys accountable for their policies or their misconduct—let alone to transform the criminal justice system from the inside by getting candidates to pledge reform—is that elections for prosecutor rarely feature multiple candidates. A Political Report analysis earlier this year, for instance, found sparse competition in California, Minnesota, Oklahoma, and Utah’s 2018 elections.

Wisconsin’s elections are coming up in 2020. The Political Report reviewed all elections held in the state since 2008 to show the extent of this phenomenon.

Over this period, Wisconsin held three regular elections for district attorneys (in 2008, 2012, and 2016). But very few drew more than one candidate. Of the 71 district attorneys elected in 2016, only 23 faced an opponent in either the primary or the general election. And that was already a substantial increase over 2008 and 2012.

In fact, the majority of Wisconsin counties haven’t held a single contested DA election in the last 10 years. A near-majority hasn’t held one since before 2008.

Even those counties that did hold a contested election at some point were unlikely to pull off that feat twice. Just 10 counties held more than one contested election from 2008 to 2016.

This isn’t a pattern that primarily concerns small counties, where one might expect a smaller pool of candidates. In Wisconsin’s 10 largest counties, there were just four instances from 2008 through 2016 where the winner faced even a single opponent. (This means that these counties chose their district attorney in elections where the winner was the sole candidate on 26 out of 30 occasions.) None of these counties held two contested elections over this period.

Will the electoral pressure on Wisconsin’s district attorneys increase in 2020 in the wake of some of the recent successes for candidates who have run on overhauling the criminal justice system? The Political Report will keep an eye on this question as 2019 unfolds.

You can find a standalone version of this story here.

Maryland, Pennsylvania, Tennessee: Brighter spotlight on life sentences and parole rules

Excessively lengthy sentences were under the spotlight last week when the Tennessee Supreme Court ruled that Cyntoia Brown will be eligible for release after 51 years for a crime she committed at the age of 16. Writing in the Daily Appeal, Vaidya Gullapalli explains that Brown’s sentence should be understood in the context of Tennessee’s harsh sentencing laws and of the nationwide efforts to end life imprisonment. In the wake of U.S. Supreme Court rulings that have restricted life without parole sentences for minors, one issue is whether existing parole procedures provide a meaningful prospect for release. Gullapalli reviews recent court decisions that have denied relief to petitioners in Tennessee and in Missouri. (Tennessee legislators from both parties have pushed legislation to expand the parole eligibility for people convicted as teenagers in recent years, but such bills have not succeeded so far.) The Florida Supreme Court issued similar rulings this year, reversing a decision it had issued in 2016. And Maryland’s Supreme Court ruled in August that the state’s tight parole process was sufficient.

Rachel Cohen reported in The Intercept on Maryland’s strict parole rules this week. Since 1995, Maryland has required that governors personally approve parole requests for anyone serving a life sentence. This rule has restricted opportunities for release as Democratic and Republican governors have routinely rejected recommendations made by the state’s parole commission, including requests made by petitioners who were sentenced as minors. Cohen writes that advocates have launched a multipronged efforts to change parole rules and to pressure Governor Larry Hogan into approving more requests now that his re-election campaign is behind him.

Finally, Samantha Melamed reports in the Philadelphia Inquirer on the predicament of some Pennsylvanians who were sentenced to life without parole as minors. To seek new sentences based on the recent U.S. Supreme Court rulings, they must first drop their claims to innocence. “Stay in jail because you’re claiming you’re innocent, or bet on a chance at freedom now,” said Jules Epstein, a law professor at Temple University. “That’s a horrible choice.”

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