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In New York, Local Elections Heat Up, Amid New Moves Against Criminalizing Sex Work

The Appeal: Political Report’s February 11 newsletter

Feb. 11, 2021: Donald Trump’s impeachment trial has begun, which is a reminder that the 2020 cycle is in the rearview mirror. But already local elections that are happening in the spring of 2021 are demanding our attention.

  • New York: BLM activist shakes up the sheriff race in a county known for deadly jails
  • Marijuana: Virginia rolls toward legalizing marijuana, but South Dakota is on the brink of voiding its legalization measure
  • California and Louisiana: The New Orleans DA steps away from longer sentences over repeat offenses, while a judge blocks some of the Los Angeles DA’s reform on this issue
  • New York takes two steps against the criminalization of sex work
  • The politics of prosecutors: New essays interrogate the role of DAs in changing the system
  • New York: Manhattan DA candidate lays out how she would cut the DA’s budget by half and stop prosecuting dozens of charges

You can subscribe to the Political Report newsletter here. In case you missed it, catch up with last week’s newsletter. You can also visit our interactive tracker of legislative developments and our interactive tracker of the latest reforms being implemented by prosecutors nationwide.

New York: BLM activist shakes up the sheriff race in a county known for deadly jails

Many people have died over the last decade in the Erie County jails, but as usual the people who run the jails have faced little if any accountability. Will there be space in this year’s sheriff race for candidates and advocates to push for real change? 

Raina Lipsitz reports in The Appeal: Political Report on the county’s dire situation and why the 2021 elections matter, and also on the shake-up that took place in the election last week: A Black Lives Matter activist who made national news last year when he was tackled by the police during a protest against police brutality has jumped into the sheriff’s race. 

Read Lipsitz’s full story here.

That activist, Myles Carter, is now making a case for reform. “I’ve been exposed to the criminal justice system my entire life,” he told Lipsitz. (If he lived in California, Carter would not be able to run because of the state’s ban on people without law enforcement credentials running for sheriff. A new bill introduced in the legislature would change that, as Katie Fernelius reported in the Political Report last week.)

Marijuana reform: Virginia rolls toward legalizing marijuana, but South Dakota is on the brink of voiding its legalization measure

A South Dakota judge has struck down the 2020 ballot initiative that legalized marijuana, ruling that the initiative was too complex to count as a single measure. Proponents of the measure will appeal to the state Supreme Court. 

South Dakota was one of four states where voters approved legalization referendums last year, a clean sweep that confirmed the issue’s wide popularity with the public. This is not matched among public officials, however: Legalization remains far more controversial in congressional debates.  So far, only two states have legalized marijuana via the legislative route, as opposed to 13 states that have done so via popular initiatives meant to circumvent politicians’ opposition.

Still, Virginia may very soon become the third state to legalize marijuana legislatively. 

The state Senate and House each passed measures to legalize marijuana last week. (In 2020, after Democrats took full control of the state government, the legislature decriminalized marijuana, but the politics of the issue have shifted even since then.)

Virginia’s legislative fight is not done yet, though: The chambers must resolve the differences between their respective bills. Governor Ralph Northam has indicated he supports legalization.

See also: Other states that are considering legalization legislation this year include Connecticut, New Mexico, and New York. In Idaho, though, Republican lawmakers are pushing a constitutional amendment that would preemptively block a ballot initiative on the issue.

California and Louisiana: The New Orleans DA steps away from longer sentences over repeat offenses, while a judge blocks some of the Los Angeles DA’s reform on this issue

An emerging policy staple for reform-minded prosecutors who wish to reduce incarceration is to say they will not charge people under sentencing enhancement statutes that trigger harsher prison terms—often decades long. That’s the subject of two major developments over the last week.

New Orleans DA Jason Williams tackles “multi-bill” prosecutions

This was a major issue on the campaign trail in 2020: Activists demanded that candidates pledge to not use the state’s “multi-bill” statute that leads to long sentences for people with repeat offenses. Jason Williams, who ended up winning the DA race in the fall, said during the campaign that he would never use it.

The Lens, a local publication, reports that he is sticking to that promise so far. This is a big break, The Lens explains, from the more punitive practices of past New Orleans prosecutors.

Separately, this week Williams hired G. Ben Cohen as his chief of appeals. Cohen is an attorney who has fought prosecutors, including by defending Evangelisto Ramos in the case that led the U.S. Supreme Court to strike down the constitutionality of non-unanimous juries. 

Los Angeles judge blocks some of DA George Gascón’s reforms

A California judge issued a ruling this week against the reform rolled out by the Los Angeles district attorney in December that instructed prosecutors in his office to not seek some enhancements for repeat offenses, in particular under the state’s “Three Strikes” system. The judge ruled that prosecutors lack the discretion to dismiss those enhancements. 

“We can no longer afford—morally, socially or economically—to justify tough-on-crime policies in the name of victims when a majority of the survivor community supports rehabilitation over excessive sentences,” DA George Gascón, who won in 2020 on a vow to reduce incarceration and who then rolled out a wave of reforms in December, wrote in response in a Twitter thread

The ruling, which Gascón says he will appeal, came in the context of a lawsuit brought against his reforms by the Association of Deputy District Attorneys (ADDA). Piper French reported on the ADDA and its lawsuit in The Appeal in January, and found a “longstanding pattern of ideologically motivated advocacy and commitment to tough-on-crime policies.” 

New York takes two steps against the criminalization of sex work

New York activists have been pushing for the state government to decriminalize sex work, but they have not been successful at getting lawmakers to push that through. Two new developments represent steps in that direction, however.

First: The state last week repealed a statute that gave police officers broad authority to arrest people for “loitering for the purpose of prostitution,” Bryce Covert reports in The Appeal

Advocates have long said the police have used the statute, often called the “walking while trans” ban, to disproportionately target trans people of color. Beyond ending this authority, Covert writes, the new state law also “automatically seals any previous arrest records under the statute.” But similar statutes exist elsewhere in the country, Covert finds. 

Second: Brooklyn DA Eric Gonzalez, who has pushed some criminal justice reforms in his first term, announced last week that he was dropping hundreds of open cases against sex workers, and that he would decline to prosecute future prostitution cases. Otillia Steadman reports in BuzzFeed that Gonzalez has been “rolling out” this approach over the last year, and some local activists said this is an important step to protect sex workers. 

But Gonzalez is not declining to prosecute all behaviors tied to consensual sex work, and he will continue to prosecute people who buy or promote sex work. Advocates for full decriminalization stress that this partial approach means continuing to expose sex workers to law enforcement and the criminal legal system. (See below for my interview with a Manhattan DA candidate who says she favors full decriminalization, and vows to act accordingly in the office.)

The politics of prosecutors: New essays interrogate the role of DAs in changing the system

“Can prosecutors help end mass incarceration?” Rachel Barkow, a law professor at New York University, asks in an article that is forthcoming in the Michigan Law Review, and which she shared on SSRN.

Barkow lays out why the wider ecosystem of criminal justice is essential. Lasting change will not come from DAs exercising power more wisely, but from long-term statutory and institutional reforms, which prosecutors can help bring about. “For this movement to be truly transformative, these prosecutors will need to do more than seek to exercise the vast discretion of their offices more wisely than their predecessors,” Barkow writes. “They will need spearhead institutional changes, including changes that limit the leverage prosecutors have over defendants.”

The Appeal pays attention to the systemic pushback that some prosecutors’ decarceral reforms have received, and to the calls to slash the footprint and budget of prosecution. We also invite you to check out our interactive tool, “The Politics of Prosecutors,” that tracks new policies some prosecutors are releasing, especially if they go beyond emphasizing prosecutors’ case-by-case discretion.

In addition, Katrina vanden Heuvel wrote a column in the Washington Post this week on recent changes brought about by progressives elected as prosecutor. And Marc Levin published a commentary on Law360 about declination policies, with which prosecutors presumptively say they will not charge entire categories of cases. He notes that this is nothing new: “In about half the states, adultery or fornication remain crimes, but prosecutions are unheard of. Reflecting the consensus that such conduct is not worthy of the criminal sanction, no district attorney has been criticized for ignoring these laws.” Declination policies are also the topic of this newsletter’s final section, below.

New York: Manhattan DA candidate lays out how she would cut the DA’s budget by half and stop prosecuting dozens of charges

As more district attorneys win elections on promises to reform the criminal legal system, demands are mounting for them to not just tinker with its edges but directly downsize it. The goal, for many activists, isn’t only for this system to treat people differently, but to ensure people never encounter it in the first place.

Last week, Tahanie Aboushi, a candidate for DA in Manhattan’s 2021 election, rolled out a list of more than 40 offenses she says her office would not prosecute because they criminalize poverty, mental health issues, and substance use. Her new policy proposal builds on an earlier promise to end the prosecution of a shorter, and more qualified, list of charges.

If she is elected, she would not file criminal charges over drug offenses, sex work, driving without a license, disorderly conduct, some theft charges, fortune telling, and many more, in cases where these would be the top charge. Such cases would be outright dropped when brought to her by the police.

I spoke to Aboushi last week about why she wishes to reduce criminalization. She explained why she extends her declination promise to drug sales and why she is proposing to fully decriminalize sex work.

New York should “stop over-relying on the DA’s office and the police to respond to everything that goes on in society,” Aboushi said. “Interaction with the justice system is destabilizing.”

This would substantially reduce the “footprint” and also the budget of the DA’s office, Aboushi vows. Her memo says she would reduce the budget by half. “When we clean those cases out,” she said, “we’re going to see we don’t need an office of this size, with so many different moving parts, all contributing to the very issues we’re fighting against.” In the course of the Q&A, she also addressed sections of her policy that call for reducing convictions and incarceration over offenses that aren’t in her declination list, including higher-level offenses that involve violence, saying she aims to reduce the footprint of the system in all cases “without exception.”

Aboushi is one of eight candidates in the Democratic primary to replace DA Cy Vance, who has not yet said whether he will seek re-election.

A number of her opponents have also said they would decline to prosecute some offenses that feature on her list, as I detail in my article.

Although the scope of these declination policies varies, the very notion that DA candidates would be competing to see who will most reduce their office’s jurisdiction would have sounded strange as recently as 2018, back when Rachael Rollins released a list of 15 offenses she would not prosecute on her way to winning the DA race in Boston. Her decision to propose a blanket declination policy, as opposed to saying she would treat these charges differently, less harshly, or less frequently, was heralded by reform advocates for pushing the boundaries of what was being debated in DA elections.

You can read my full Q&A with Aboushi here.