Conflicts over Prosecution and Policing Ramp Up in California

Feb. 18, 2021: A flurry of legislative activities this week has advanced major criminal justice reform bills around the nation. In Virginia, the legislative session is already winding down and the time is coming for lawmakers to make their choices. Elsewhere, bills that would restrict punitive statutes enjoyed success in some conservative states.

• California: Newsom vetoed a bill that would have reduced the police’s footprint. Now the bill is back, but what is next?

• Massachusetts: A new law opens the door to pushing police out of schools

• Kentucky and Utah: Lawmakers adopt bills to restrict the adult prosecutions of children and mugshot releases

• Virginia: On high-profile issues, the legislative chambers must resolve their differences

• California: George Gascón quits the state’s DA association over its opposition to his reforms

• Criminal justice and COVID-19: Houston DA and Missouri judge draw attention for harsh decisions linked to the pandemic, and the New Jersey Supreme Court keeps people detained pretrial

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

California: Newsom vetoed a bill that would have reduced the police’s footprint. Now the bill is back, but what is next?

Last fall, California Governor Gavin Newsom vetoed legislation that would have set up a pilot program for health professionals to respond to some emergency calls instead of the police. The bill’s chief sponsor, Assemblymember Sydney Kamlager, vowed at the time to keep pressing for its goals. “We will continue to pursue community alternatives to police response that are not controlled by law enforcement,” she said in a statement.

Kamlager has now reintroduced the bill, known as the CRISES Act, in California’s 2021 session. To push it through, she and her allies have to navigate Newsom’s resistance, and also the broader demands that policing reform be run by, and within the purview of, law enforcement agencies. 

Piper French reports in The Appeal: Political Report this week about the  Community Response Initiative to Strengthen Emergency Systems Act, and about the larger battles it encapsulates.

This dispute, French writes, “will give Californians another opportunity to confront the debate around whether alternatives to incarceration should originate within police departments—a compromise that seems to be acceptable to law enforcement itself, but one that activist groups have firmly resisted, maintaining that the institution of policing needs to be transformed rather than merely tweaked.”

Massachusetts: A new law opens the door to pushing police out of schools

Massachusetts adopted a sprawling legislative package on policing in December The law, although it was largely watered down, included an important component that has garnered little attention but may jump-start further activism: It repealed the mandate that there has to be police presence in Massachusetts schools.

Rachel Cohen reports in The Appeal: Political Report that a coalition of advocates formed over the summer to press for this change. The law enables them to take their case against police presence directly to local school superintendents. Some activists are already pressing forward. (State advocates, however, were hoping that the power to decide whether there is police in schools would be placed in the hands of local boards, which are more directly accountable than superintendents.)

With Massachusetts’s reform, Florida and Maryland are the two remaining states that mandate some police presence in schools, and legislative efforts to change that are ongoing.

Kentucky and Utah: Lawmakers adopt bills to restrict the adult prosecutions of children and mugshot releases

New Mexico’s House moves to restrict felony disenfranchisement

In 2019, state advocates made a major push against felony disenfranchisement and thought they had momentum, but legislative leaders ended up not bringing a bill expanding voting rights to the floor. The issue has already gone further this year: New Mexico’s House adopted a bill last week that would enable anyone who is not incarcerated to vote. (The bill now moves to the Senate.)

The measure would enfranchise people who are on parole or probation. (People who have completed their sentences are already allowed to vote in New Mexico, unlike in some other states.) More than 10,000 people were barred from voting in New Mexico last year because of restrictions that would be lifted by this bill, according to the Sentencing Project.

But the bill would continue to disenfranchise people who are incarcerated over a felony. In 2019, a New Mexico lawmaker introduced a bill that would enable people to vote from prison as well. “Prior nationwide reforms have chipped away at the disenfranchisement system rather than eliminating it altogether,” I wrote at the time. “Can New Mexico break that incremental mold and provide a new model for ambitious reform?” That bill subsequently did pass one legislative committee and drew national advocacy before derailing. Since then, the political landscape around prison voting has changed dramatically—with an endorsement from U.S. Senator Bernie Sanders, similar bills introduced in about 10 states, and historic success in Washington, D.C. last year.

Kentucky bill would end the mandatory adult prosecutions of children

Last week, Kentucky’s Senate passed Senate Bill 36, which would end the mandatory transfers of minors into adult court. (The bill now needs to be passed by the state House.) According to WKU, Kentucky currently automatically sends children age 14 and older to adult court when they are charged with offenses involving firearms. 

As I reviewed in 2019, when Oregon adopted a similar bill, the vast majority of states allow mandatory transfers into adult courts.

But this bill would not bar the adult prosecution of children, a practice that disproportionately targets Black youth. Still, it would at least require that judges approve a transfer, as opposed to giving prosecutors sole discretion to order it. 

Utah advances bills that would restrict release of mugshots, but also roll back bail reform

Utah’s House overwhelmingly adopted House Bill 193 last week: The legislation would bar the public release of the mugshots of people who are arrested until there is a criminal conviction, with some carve-outs such as if law enforcement is trying to find and re-arrest the individual.

Route Fifty reported on the bill earlier this month. “The reality is today, in doing so, we hang a virtual scarlet letter around the one that’s been accused or arrested that, indeed, has a constitutional opportunity and right to be presumed as innocent until proven guilty,” said Representative Keven Stratton, the Republican lawmaker who is sponsoring the bill.

But another bill is moving through the Utah legislature that would affect the odds that someone is convicted in the first place: The House adopted legislation this month that would roll back the bail reform that was adopted just last year and implemented in October. The rollback’s chief sponsor is pointing to a specific case in which someone was released pretrial, though that person is not accused of committing offenses while released. Studies show that pretrial detention makes it likelier that people end up pleading guilty.

Virginia: On high-profile issues, the legislative chambers must resolve their differences

The flurry of criminal justice reforms moving through Virginia’s legislative process have been a major topic for this newsletter so far in 2021. This month, many bills—including death penalty abolition, marijuana legalization, restrictions on felony disenfranchisement and mandatory minimums, and many more—were passed by one or both legislative chambers. 

But differences between the two chambers’ versions must now be resolved before the bills are sent to the governor.

On the marijuana legalization front, Marijuana Moment reports on significant policy questions to be resolved. They include whether a local jurisdiction will have the power to ban the retail sale of marijuana within its borders, and whether marijuana possession will be legalized before sales are authorized. 

The chambers are further apart when it comes to mandatory minimum sentences, the Virginia Mercury reports. The Senate version would repeal mandatory minimums attached to all sentences other than capital murder of a police officer (which carries a mandatory life sentence); the House version would end mandatory minimums mainly for drug offenses and some lower-level offenses.

On voting rights, Virginia Democrats are debating the scope of their bill against felony disenfranchisement, DCist reports. Many advocates are pushing for abolishing disenfranchisement altogether, but the measures that lawmakers have passed so far take a more incremental step: They would restore the right to vote to anyone who is not presently incarcerated. (Virginia law currently requires lifetime disenfranchisement over any felony conviction.) The governor’s initial proposal in January was even more restrictive; it would have also kept disenfranchised tens of thousands of people who are not incarcerated.

California: George Gascón quits the state’s DA association over its opposition to his reforms

The ranks of prosecutors are continuing to fissure, weakening one of the strongest forces against criminal justice reforms: prosecutors’ statewide associations.

George Gascón, the new district attorney of Los Angeles County, announced on Tuesday that he is leaving the California District Attorneys Association ( CDAA), which for the last month has been supporting a lawsuit meant to block some of Gascón’s criminal justice reforms. The “CDAA continues to be a member organization solely for those willing to toe the ‘tough on crime’ line,” he wrote in a public letter. “For the rest of us, it is a place that fails to support us, our communities, or the pursuit of justice.”

Jerry Iannelli reports in The Appeal: Political Report this week on Gascón’s decision, how it fits into the changing politics of prosecution nationwide, and how it could change state politics.

Gascón is the second sitting DA in California to quit the CDAA, a powerful organization that lobbies on behalf of the state’s prosecutors, typically in favor of harsher laws and against measures that would reduce sentences and incarceration. His decision comes at a time when the conventional expectation that prosecutors will defend “tough on crime” policies against criminal justice reform proposals is already weakening because of the recent electoral successes of progressives running for this office.

Criminal justice and COVID-19

As the pandemic continues to wreak havoc, many public officials have made ill use of the tools of criminal justice and law enforcement. The Political Report tracked their actions comprehensively over the first three months of the pandemic with our interactive tracker, but of course incarceration and aggressive prosecutions continues to be a source of major concerns. 

Missouri: A judge in St. Charles County granted an eviction against a tenant who was barred from entering the courtroom because she had COVID-19, even though the judge was informed that the tenant had come to the courthouse in time and was denied entry. Local advocates note that the story is illustrative of the vast powers of local judges. (See also: Last year, New Orleans activists used the city’s judicial elections to shine a spotlight on judicial discretion when it comes to evictions, and to demand that courts better tackle the housing crisis.)

New Jersey: Thousands of people are detained pretrial in New Jersey because jury trials have been delayed during the pandemic. State advocates have sought to get them out, making the case that these people are being subjected to “indefinite” detention, but the state Supreme Court refused to order their widespread release in a ruling this week.

Texas: The New York Times shined a national spotlight on the case of Texas doctor Hasan Gokal, who administered vaccine doses to people who were not on the priority list, including his wife; he said the doses would otherwise have gone to waste. The office of Harris County (Houston) DA Kim Ogg has charged him with theft, and Gokal has been fired. In January, local judge Franklin Bynum dismissed the charge and starkly criticized Ogg for filing it, though Ogg still wants to move forward. “Both the Texas Medical Association and the Harris County Medical Society recently issued a statement of support for physicians like Dr. Gokal who find themselves scrambling ‘to avoid wasting the vaccine in a punctured vial,’” the Times reports.