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Lawmakers Address the Size of Policing, the Death Penalty, Sex Work

The Appeal: Political Report’s Feb. 4 newsletter

If you are keeping one eye glued these days on the congressional drama around the stimulus checks and on Senate maneuvers like reconciliation, you would be well advised to keep the other eye on state legislatures that have been rapidly moving forward important bills. In today’s newsletter:

  • National: Bills to reduce the reliance on policing are popping up around the country
  • Virginia: The Senate votes to abolish the death penalty, and other reforms advance, too
  • New York repeals its “walking while trans” ban
  • California: A new bill would significantly expand the pipeline for reform candidates
  • Legislative round-up: other developments from Arizona, Florida, and Montana

Also today, we will check in on some new prosecutors and DA elections that are on the horizon:

  • Louisiana and Texas: The new DAs in New Orleans and Austin lay out first reforms
  • New York: Some Manhattan candidates vow to break ranks with tough-on-crime DAs

In case you missed it, catch up with last week’s Political Report newsletter, which probed emerging policing reforms and new bills against felony disenfranchisement. You can also visit our interactive tracker of legislative developments and our tracker of the politics of prosecutors.

Legislation to promote alternatives to policing is popping up around the country

Since the Black Lives Matter protests of 2020, most of the interesting initiatives to reduce the footprint of police departments, including the creation of alternatives to policing and reductions in law enforcement budgets, have moved forward at the municipal level. Just last week, Austin’s City Council voted to use money diverted from the police department to buy a hotel to provide housing services for people who experience chronic homelessness; the Political Report also reported last week on a participatory budgeting initiative in Seattle to decide how to spend millions cut from the police department.

Proposals are now also emerging in state legislatures that would facilitate such local initiatives, Meg O’Connor reports this week.

“Lawmakers in at least nine states have introduced legislation to keep cops out of schools, disincentivize arrest quotas, civilianize traffic enforcement, and have health professionals respond to calls about people experiencing health crises instead of police,” O’Connor reports in her comprehensive look at the national landscape as 2021 sessions gets off the ground.

In particular, there is a wave of proposals that are meant to help local governments set up agencies of mental health responders that could respond to emergency calls, though only in Maryland does the legislation actively discourage the dispatching of police officers. Other legislation O’Connor reviewed, including once again in Maryland, would incentivize the use of law enforcement for traffic issues.

Virginia: The state Senate votes to abolish the death penalty, and other reforms are moving forward, too

Virginia took a decisive step on Wednesday toward becoming the first Southern state to abolish the death penalty, when the state Senate passed Senate Bill 1165.

The Senate voted 21-17 on the bill, which was carried by Democrats. Neither of the two Republicans who had supported it in committee ended up voting for it. The state House may vote on the bill later this week, though the legislative process may still take a while longer.

If Virginia were to abolish the death penalty, it would be a significant turnaround given the state’s predilection for capital punishment throughout U.S. history. But it’s also a turnaround from 2020, when the identical state legislature rejected similar legislation (see my Jan. 21 newsletter for more).

In Virginia, all bills face a Friday deadline to pass through at least one of the two chambers of the state legislature, or else they can no longer pass in this year’s legislative session.

Three other bills beat the deadline earlier this week. House Bill 2290 would end the enhanced penalties imposed on people who are repeatedly convicted of misdemeanor theft. HB 1936 would end the state’s draconian practice of punishing all felony robbery by at least five years in prison, though some robbery convictions would retain exceedingly long terms. (Theft of at least $1,000 is a felony in Virginia.) And HB 2038 would restrict incarceration over violations of probation.

Other measures that have passed at least one committee and are still under consideration to beat Friday’s deadline are bills to legalize marijuana, narrow disenfranchisement, and end mandatory minimums. (See last week’s newsletter for more details on the latter two measures.)

A poll released this week by Christopher Newport University found wide support in the state for two emblematic proposals, death penalty abolition (56 to 44 percent) and marijuana legalization (68 to 32 percent).

New York repeals its “walking while trans” ban

In a big win for New York activists who are pushing to both reduce the footprint of policing and to decriminalize sex work, this week the state repealed a statute that is known as the “walking while trans” ban.

The statute gave New York police officers wide discretion to arrest people for “loitering for the purpose of prostitution.” It enabled “police to decide, for instance, that a woman’s skirt is too short, or that she’s been lingering too long on one street corner, and to apprehend her,” Amanda Arnold wrote in an explainer in The Cut last year. Trans women were primary targets for arrests under this statute. “Trans women are often assumed to be sex workers, yet police officers don’t see them as victims worthy of protection,” Emma Whitford wrote in The Cut in 2018. “The stigma surrounding sex work is compounded by the stigma surrounding their gender identity.”

The new reform, signed into law by Governor Andrew Cuomo on Tuesday and sponsored by Democratic lawmakers Brad Holyman and Amy Paulin, comes out of sustained activism and litigation by sex worker advocates and by groups such as the Legal Aid Society, DecrimNY, and the New York Transgender Advocacy Group. There are broader efforts by New York advocates to fully decriminalize sex work.

California: A new bill would significantly expand the pipeline for reform candidates

It’s rare enough for anyone to challenge the local officials who run the criminal legal systems— judges, prosecutors, and sheriffs—let alone for candidates to run on a platform of meaningful change. In California, that dynamic is especially complex in sheriff elections because of a law enacted in the 1980s that requires that candidates have law enforcement backgrounds.

This instantaneously excludes anyone who does not already work within the system. Of course, outsider candidates are no panacea for criminal justice reform, and many may have no interest in change themselves. Still, a pipeline of people who are already focused on challenging mass incarceration and policing practices are barred from running.

State lawmakers have introduced legislation this week that would lift this ban, Katie Fernelius reported in The Appeal: Political Report on Monday, and enable many more Californians to run.

“The bill comes at a pivotal time,” Fernelius writes, “as the Los Angeles County Sheriff’s Department is under state investigation for potential civil rights violations. The department has a history of corruption and in recent years has come under fire for brutality, sexual assault, and gang activity within the ranks.”

Legislative round-up: other developments from Arizona, Florida, and Montana

Arizona: In recent years, Republican lawmakers in Arizona championed proposals to reduce sentencing and enable early release in recent years, but other powerful Republicans blocked those measures during the legislative process. Will that dynamic perdure in 2021? The Arizona Mirror reports that a staunch opponent of criminal justice reform who led a key committee has retired from the legislature; but his replacement is indicating he has little appetite to allow sentencing reforms to move through this year. Still, advocates vow to press ahead.

Florida: State Senator Jeffrey Brandes, a Republican, is proposing to exclude people with felony convictions from the minimum wage increase that Floridians approved in November, Jerry Iannelli reports in The Appeal.

Montana: The legislature is advancing a bill that would compensate people who are exonerated for each year they were wrongfully convicted. Importantly, lawmakers have so far rejected an amendment that would make this compensation conditional on the beneficiary dropping all legal action against the state, the Independent Record reports.

Louisiana and Texas: The new DAs in New Orleans and Austin lay out first reforms

Prosecutors elected on progressive platforms in 2020 have been rolling out reforms since taking office, including in Athens, Georgia, Ann Arbor, Michigan,, and Los Angeles. This week, eyes are on announcements in New Orleans and Austin.

Austin: José Garza, the new DA of Travis County (Austin), released a memo last week that jump-starts some of his reform commitments, including instructing prosecutors to seek no bail or “low” bail in more cases, and expanding diversion programs by removing some restrictions on access. Garza also confirms his campaign promise, which goes further than other progressives who have run for DA, of no longer prosecuting the low-level possession and sale of drugs.

New Orleans: Jason Williams replaced an exceedingly punitive DA in January, and last week he announced two breaks with his predecessor’s record. First, in all cases in which “juvenile lifers” are being resentenced, the DA’s office will no longer seek life without parole. (Many people who received a mandatory sentence of life without parole as minors are entitled to a resentencing hearing because of U.S. Supreme Court rulings from the early 2010s, but courts may still reaffirm the initial sentence.) Second, his office will no longer oppose any incarcerated person’s request for parole; some DAs have a policy of routinely opposing all parole requests. In addition, a 55-year-old man who was serving a life sentence for robbery was released this week after 24 years in prison, The Advocate reports, after Williams’s office agreed to have a court cut his sentence. Williams has appointed Emily Maw, who is the former director of the Innocence Project New Orleans, as the chief of his civil rights division, and who is now reviewing past sentences.

New York: Some DA candidates in Manhattan vow to break ranks with tough-on-crime colleagues

Prosecutors’ statewide associations are some of the staunchest foes of criminal justice reforms. They are ostensibly professional organizations, but they double as powerful political lobbies. These associations have begun to splinter in recent years, most notably in California, Pennsylvania, and Virginia. 

Will that splintering reach New York this year? It may through the DA race in Manhattan, Sam Mellins reports in The Appeal: Political Report and New York State Focus

Three candidates are vowing that if they are elected they would not join the District Attorneys Association of New York (DAASNY), an influential organization that just in recent years has fought bail reform and sued over a law against prosecutorial misconduct. They are civil rights attorney Tahanie Aboushi, public defender Eliza Orlins, and Assemblymember Dan Quart. 

The other five candidates said they would not leave the association, or they are undecided. Most vowed to promote change from the inside, however. But advocates warn it’s not so simple: DA associations often talk in the name of all prosecutors, even when decision-making is in the hands of a smaller group, which can foster a misleading perception that their position is the voice of law enforcement professionals.