Debates Around Criminal Justice Reform Take Center Stage in a Slate of Red States

March 11, 2021: 

• Pennsylvania: Larry Krasner and his reforms face their first test in Philly’s DA primary

• New York: A candidate in Manhattan’s DA race explains why he would stop seeking life sentences

• Roundup from GOP-controlled legislatures: Utah may walk back its bail reform; Wyoming mulls ending the death penalty and expanding Medicaid; the North Carolina GOP wants to help ICE; and Kentucky takes a step to restrict the death penalty

• Oregon: The legislation to enable voting from prison gains new allies

• The politics of prosecutors: Ann Arbor prosecutor cuts ties with ICE, Westchester DA strengthens conviction review, Houston DA works to keep people in jail, an Iowa prosecutor targets a journalist, and California DAs seek to speed up executions

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.

Pennsylvania: Larry Krasner and his reforms face a first test in Philly’s DAy primary

The district attorney Democratic primary in Philadelphia is two months away, and it looms large as the biggest test yet for reform-minded prosecutors. On May 18, incumbent DA Larry Krasner faces Carlos Vega, a former prosecutor who was fired when Krasner took office in 2018 and is now running with the support of the local police union.

In the Appeal: Political Report this week, Maura Ewing writes a probing look at the election’s stakes for mass supervision. 

Pennsylvania has among the nation’s highest rates of people on probation and parole—a situation that is burdensome in itself and also fuels incarceration—but Krasner has cut Philadelphia’s number by a third during his first term. Vega opposes Krasner’s decision to cap probation terms—and Ewing explains why this contrast matters for what this would mean for the city over the next four years.

New York: A candidate in Manhattan’s DA race explains why he would stop seeking life sentences

Governor Andrew Cuomo’s handling of nursing home deaths in New York now threatens to derail his job, but his COVID-19 record had already been under fire in another area. He has defied calls to release incarcerated people and stalled on vaccinating them, compounding the deadly risks they face. And in New York City, where Mayor Bill de Blasio downplayed risks at the Rikers Island jail complex last year as infections were spreading rapidly inside, the jail population has been rising, subjecting thousands to dangerous conditions

Assemblymember Dan Quart, who is running to be Manhattan’s next district attorney, visited a state prison with two other lawmakers in February to assess the crisis that incarcerated people are facing. In an interview with the Political Report, Quart faults the “systemic breakdown” in state and city officials’ response to COVID-19.

It speaks to a “level of indifference” by public authorities toward people detained in prisons and jails, he says.

Last week, I talked to Quart about how he would challenge this culture of indifference. Quart is one of eight candidates in the June Democratic primary to replace the incumbent Cy Vance, who has yet to indicate whether he is running for re-election.

Quart vowed to change the DA’s office’s approach to punishment and rehabilitation by not seeking sentences of life in prison. “That’s capital punishment by a different form,” he explained. He says he would presumptively not seek sentences of more than 20 years, though he would consider longer sentences in “extreme cases, such asmass shootings and domestic terrorism.”

And he expressed support for proposals that would strengthen the rights of people while they are incarcerated, including by halting the use of solitary confinement and enabling them to vote.

Read my interview with Quart here.

Roundup from GOP-controlled legislatures: Utah, Wyoming, North Carolina, and Kentucky

Utah | Pretrial detention

Utah lawmakers adopted a bill last week that mostly repeals the bail reform the state adopted last year, just months after its implementation. The 2020 law encouraged judges to release people pretrial, and to opt for the least restrictive mode of detention they deemed adequate, but some lawmakers have since made the case that the reform is too lax. 

“While lobbyists, sheriffs, and police try to sway legislators, thousands of people in Utah are subjected to the violence of incarceration during a deadly pandemic,” the Salt Lake Community Bail Fund tweeted last week. 

But all hope is not lost for the 2020 law. The governor has indicated that he may veto it. And a coalition of public defenders and county attorneys, including the chief prosecutors of Utah’s three biggest counties, have been speaking up against the legislation.

Utah’s legislature has also adopted House Bill 193, which would bar the public release of the mugshots of people who are arrested until there is a criminal conviction, with some carve-outs if law enforcement says it is trying to find and re-arrest the individual. Route Fifty reported on the bill in February. Its proponents have explained it is important to promote the presumption of innocence, even though the legislature’s moves on bail rules belie that concern.

Wyoming | Death penalty, marijuana legalization, and Medicaid

A slew of reforms often associated with progressive politics is under consideration in Wyoming’s conservative state legislature. 

First, a legislative committee this week advanced a bill that would expand the Medicaid program as provided under the Affordable Care Act. Wyoming is one of 12 remaining states where GOP politicians have refused to expand Medicaid, but the new federal relief bill that Joe Biden is set to sign into law provides new incentives to push these states over the line. When neighboring Idaho voted in a referendum to expand Medicaid in 2018, the state’s sheriff’s association endorsed the initiative, making the case that it would bolster a public health approach to addiction.)

Second, a committee advanced legislation that would abolish the death penalty. Abolition came very close to passing in 2019 but derailed in Wyoming’s Senate. 

Finally, lawmakers will also consider a measure to legalize marijuana. Its champions are trying to keep expectations low, but the bill has many Republican co-sponsors.

North Carolina | Immigration

North Carolina’s biggest counties elected new Democratic sheriffs in 2018 who ran and won on promises to restrict local cooperation with ICE, including not abiding by so-called ICE detainers, which are warrantless requests that the agency sends to jails asking them to continue detaining people beyond their scheduled release. This infuriated state Republicans, who in 2019 passed a bill that would require that sheriffs help ICE. Governor Roy Cooper, a Democrat, vetoed the bill. North Carolina Republicans introduced a similar though slightly narrowed bill last month, setting up new showdowns. 

One looming question is whether Democratic officials will change their attitudes toward cooperating with ICE now that Joe Biden has replaced Donald Trump. There are early hints of such shifts, even though the Biden administration is still instructing ICE to target some immigrants.

Kentucky | Death penalty

Kentucky’s state House passed a bill to bar the death penalty against people with a documented history of certain mental illnesses. (Ohio adopted a similar law this year.) Daniel Desrochers reports in the Lexington Herald Leader on the advocacy that went into the bill and the predictable opposition of the prosecutors’ association.

Oregon: The legislation to abolish felony disenfranchisement gets new allies

The proposal to enable Oregonians to vote from prison, which Kira Lerner reported on in The Appeal: Political Report in January, has now received two legislative hearings. Prominent public officials have offered testimony in favor of the legislation. In the February hearing, those supporters were Multnomah County (Portland) DA Mike Schmidt and Oregon Secretary of State Shemia Fagan. 

On Tuesday, they were joined by Deschutes County DA John Hummel and Oregon Attorney General Ellen Rosenblum, who became the second statewide official to endorse the measure.

“My constituents who have been convicted of felony crimes have valuable perspectives that are unique to their circumstances in life,” Hummel wrote in a letter he submitted to the committee. “Certainly their lived experiences of being investigated, charged, convicted, and sentenced for crimes offers them insight into the functioning of our criminal justice system. Additionally, … people who have been convicted of crimes care about education, the economy, transportation, parks, and all the public policy issues that contribute to healthy and thriving communities.”

“I believe adults in custody with felony convictions should be able to participate as voters in elections,” Rosenblum wrote in her testimony. “Voting is a fundamental right.”

If the bill passes, Oregon would be the fourth jurisdiction with no felony disenfranchisement, joining Maine, Vermont, and Washington, D.C. Officials from those places testified in favor of Oregon’s legislation, including Maine’s secretary of state at the February hearing, and D.C. Councilmember Robert White (who championed a similar reform in 2020) this week.

The politics of prosecutors: from Michigan, New York, Texas, and California

Washtenaw County, Michigan

Eli Savit, who ran on a progressive platform in 2020 to become prosecutor of Washtenaw County (Ann Arbor), rolled out a flurry of reforms when he took office in January, including no longer seeking cash bail and no longer prosecuting sex work. 

Two weeks ago, Savit announced new policies meant to protect immigrants. “The Prosecutor’s Office also will not assist in any way with federal immigration enforcement related to noncitizen civilians, crime survivors, witnesses, or defendants,” states a lengthy memo.

Savit instructs his staff to take into account the immigration consequences of plea deals and sentences, with an eye to protecting defendants from deportation when “appropriate” shifts to the length of a sentence, the number of counts, or the language used in charging documents would make a difference: “In every case involving a noncitizen defendant, [assistant prosecuting attorneys] should assess whether a reasonable alternative conviction exists that would help the defendant avoid immigration consequences.” Savit also bars prosecutors from verifying a noncitizen’s record for ICE, or reporting any individual to the agency.

Polk County (Des Moines), Iowa

Andrea Mashouri, a reporter with the Des Moines Register who faced a trial after being arrested last year for disobeying police officers while covering a Black Lives Matter protest, was acquitted on Wednesday. The decision to prosecute Mashouri, which was widely denounced as an attack on the freedom of the press, was made by the office of Polk County Attorney John Sarconne, a Democrat who has routinely run for re-election since 1990 without facing any opposition. 

Westchester County, New York

Westchester County DA Mimi Rocah, who ousted the incumbent prosecutor last year, has hired public defender Anastasia Heeger to lead her office’s Conviction Review Unit. This breaks with her predecessor’s practice of having a prosecutor review past convictions, George Joseph reports.

Harris County (Houston), Texas

Jerry Iannelli reports in The Appeal this week that law enforcement and prosecutors in Harris County are operating as normal even as COVID-19 continues to spread and the local jail is cramped. This includes undercover stings and prosecutorial requests of no-bond detentions. 

“Harris County Sheriff Ed Gonzalez had for months been proposing lists of people his office believed were safe enough to release early from the jail to reduce overcrowding amid the pandemic. But in virtually all cases, [DA Kim] Ogg’s office objected,” Iannelli writes.

California

Three California prosecutors—San Mateo County DA Steve Wagstaffe, Riverside County DA Michael Hestrin, San Bernardino DA Jason Anderson—are looking to intervene in legal proceedings to speed up executions, the San Francisco Chronicle reports. The state ACLU says the DAs are barred from playing a role in a statewide legal case.

Their positions are in marked contrast with that of Los Angeles County DA George Gascón, who announced in December that his office would no longer seek death sentences and that he would seek to review past sentences to get people off of death row.