Mandatory Minimum Reform Derails in Virginia but Legislature Tackles Other Bills

March 4, 2021: 

• National: The U.S. House votes down a measure to enable voting from prison

• Missouri: In St. Louis mayoral election, the candidates who vowed to change criminal justice and policing advance to a runoff

• Virginia and Oregon: Mandatory-minimum reform derailed in Virginia at the 11th hour. Can other states pick up the mantle?

• Virginia: Legislature also tackles marijuana, trial rules, and voting rights, but legislation to restrict solitary confinement fails

• New York: Manhattan’s DA election could effectively decriminalize sex work

• Longer reads: On police, on mayors, on prosecutors, and on ICE

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.

National: The U.S. House votes down a measure to enable voting from prison

The movement to entirely enable all U.S. citizens to vote, including in prisons, has picked up tremendous momentum. In the wake of the prison strikes of 2018, bills eliminating felony disenfranchisement were introduced in many states, and activists around the country forced an issue that had been largely invisible from mainstream political debates on the table. And in the most recent presidential election, just one presidential candidate embraced that position. 

On Tuesday, that movement reached Congress. The U.S. House voted on an amendment that would provide voting rights to people in prison. 

The House defeated the amendment, with 328 representatives voting against it and 97 approving it. A majority of the Democratic caucus opposed, as did all Republicans.

The bad news for voting rights, of course, is that the measure lost so decisively: It signals how much work is left for the issue to become more of a default among Democrats. Because Democrats say they are the party that will improve voting rights and racial justice, it is striking to see so many of them oppose a measure that would end a practice that was created with racist and dehumanizing intent, and would finally establish universal suffrage in the country.

The better news, though, is that the vote happened at all, testifying to the transformed horizon on the issue. And that 97 members of Congress voted for it is itself a significant improvement to Senator Bernie Sanders’s isolation over the issue during the presidential campaign season. And similar bills have stalled so far in all jurisdictions in which they have been introduced, other than Washington, D.C., which made history by ending disenfranchisement in 2020 (Maine and Vermont never practiced it in the first place), so there was already no question that support for the position is still in the growing stages.

On Tuesday, Jerry Iannelli spoke to Cori Bush and Mondaire Jones, the two U.S. representatives who championed the amendment, on what they think of the vote. “We may not have made the mark we wanted to have made today, but the fact is that we are working to dismantle this unjust, Jim Crow era policy,” said Bush. “That is work we have to continue to do.”

There were also signs last week that the politics of the issue have changed in Oregon, which may be the likeliest state this year to enable people in prison to vote. Prominent officials including Portland’s new district attorney and Oregon’s new secretary of state testified in support of the state bill in a legislative hearing. “This bill stands for the simple proposition that when someone is incarcerated they don’t stop being a citizen,” said Secretary of State Shamia Fagan. On Tuesday, two of the state’s four Democratic members of Congress voted for the federal amendment.

Missouri: In St. Louis mayoral election, the candidates who vowed to change criminal justice and policing advance to a runoff

St. Louis was rocked on Tuesday with yet another election night triumph for candidates who’ve run on upending the local status quo on criminal justice and policing.

In the four-way mayoral election, the two more progressive candidates clinched the top two spots and moved on to a runoff. City Treasurer Tishaura Jones and Alderperson Cara Spencer will now face off for the win on April 6. 

In her preview of the stakes of the race for public safety and incarceration on Friday, Meg O’Connor reported in The Appeal: Political Report that Jones and Spencer split off from their two opponents. They both support closing the infamous Workhouse jail, for one. Jones also ran on decriminalizing sex work and she has said she supports reducing the police budget; she faced attacks on both fronts during the campaign, but came out well ahead on Tuesday.

(See also: O’Connor also reported on the policy debates on housing and evictions in the mayoral election.)  

On one hand, the result is a surprise: City Council President Lewis Reed, who came in third and was eliminated, is a fixture in local politics and was viewed as a front-runner. 

On the other hand, this is but the latest in a string of similar results in the St. Louis area in recent years, testifying to the extraordinary success of local organizers who have fought to transform practices and policies, especially since the Ferguson protests of 2014. 

With Jones and Spencer advancing to the runoff, this mayoral race is at least the fourth local election that has seen wins for candidates in the field who have gone furthest on criminal justice reform. In 2016, Kim Gardner won the prosecutor election in the city of St Louis against the candidate backed by the police union; in 2018, Wesley Bell ousted the prosecutor of St. Louis County, who was a target for activists pressing for police accountability; and in 2020, Cori Bush ousted an incumbent member of Congress in the Democratic primary. 

This year, local activists have responded to the historic uptick in murders by demanding changes that would strengthen other community and public services. “We need to divest from harmful systems like the criminal justice system that has been used to cage, control, and surveil communities, largely Black communities … and put that money into resources that make communities safe,” Jae Shepherd, an organizer with Action STL, told O’Connor. “Obviously arresting and incarcerating people isn’t working.”

Virginia: Mandatory-minimum reform derails at the 11th hour. Can other states pick up the mantle?

A major push to end mandatory minimum sentencing derailed in Virginia last weekend when the two legislative chambers deadlocked on which version of the bill ought to pass the legislature. As a result, the 2021 legislative session ended on Saturday with no action, dooming the reform for the year.

Advocates who back the reforms stressed that mandatory minimums fuel higher incarceration rates, and that they grant prosecutors more leverage to pressure defendants into guilty pleas. And their efforts were in promising shape throughout the legislative session. Still, the Virginia Mercury reported in February that the bills passed by the Senate and the House, which are both run by Democrats, had vastly different levels of ambition. The Senate version would have repealed mandatory minimums attached to nearly all sentences, whereas the House version would end mandatory minimums mainly for drug offenses and some lower-level offenses. The conference between the two chambers did not yield a version that both accepted.

In a commentary in the Washington Post, Bradley Haywood and Kelly Haywood, advocates for Justice Forward Virginia, faulted Delegate Mike Mullin for blocking the stronger version of the reform. Mullin, a Democrat, works as an assistant prosecutor when the legislative is not in session. “Mandatory minimums are a racial justice issue and a human rights issue, and they are an insult to civil liberties, and we will not stop fighting until the General Assembly ceases allowing this injustice to exist,” they write.

Other states may still reform their mandatory minimum statutes this year. Both chambers of the New Jersey legislature adopted a bill in recent weeks that would end mandatory minimum sentences, though only for nonviolent offenses.

And in Oregon, lawmakers have filed at least four bills that would roll back Oregon’s harsh mandatory minimum sentences, which voters approved in a referendum (Measure 11) in 1994. Many DAs and their statewide association are mobilizing against these proposals. But Mike Schmidt, who became the DA of Multnomah County (Portland) in 2020, and two other DAs are speaking up in favor. This is in keeping with Schmidt’s campaign promise. Mandatory minimums, he told me while running last year, give prosecutors too much leverage and too much power: “In an otherwise adversarial system of justice, that doesn’t make sense.”

Virginia: Legislature also tackles marijuana, trial rules, and voting rights, but legislation to restrict solitary confinement fails

Marijuana

Virginia’s state legislature adopted and sent to the governor legislation to legalize marijuana, one year after adopting separate legislation to decriminalize it. 

But criminal justice reform advocates and their legislative allies have harshly criticized these bills for delaying legalization until 2024 (a prolonged timeline compared to recent reforms in other states), for creating new criminal offenses linked to marijuana, and for jettisoning the criminal justice reform outlook that they said was indispensable to addressing the harms of racist law enforcement. “Lawmakers paid lip service to the communities that have suffered decades of harm caused by the racist War on Drugs with legislation that falls short of equitable reform and delays justice,” the ACLU of Virginia said  in a statement.

Trial rules 

Last weekend, Virginia’s legislature adopted House Bill 2047, sending it to the governor’s desk. If signed, the legislation would allow defendants to present evidence of mental illness or autism spectrum disorder in court. They are currently barred from doing this, which can significantly complicate some people’s ability to mount a defense that reflects what happened. 

Elizabeth Weill-Greenberg reported on the legislation in The Appeal last week. She writes that the bill is inspired in part by the case Matthew Rushin, who was sentenced to 50 years in prison over a car crash.

Voting rights

Virginia is on track to adopting a measure this year that would enfranchise anyone who is not presently incarcerated after both chambers of the legislature advanced such legislation in time by the end of the session on Saturday. However, since this provision is a constitutional amendment, it must be adopted again by the legislature next year and then submitted to voters in 2022.

Virginia is one of only three states where, according to the states’ constitutions, anyone convicted of any felony loses the right to vote for life. This exceedingly harsh punishment has been tempered in recent years by executive orders in each of the three states, but advocates want to change the law to entrench voting rights on more solid ground. And there is movement in the other two states as well: In Iowa, a constitutional amendment to restore the right to vote to people who have completed a sentence passed its first legislative hurdles in February. In Kentucky, a new poll found that 68 percent of respondents supported automatically restoring people’s rights at that stage, with only 27 percent opposed. 

Solitary confinement

Virginia will not restrict solitary confinement this year. The House failed to take up a bill that passed the Senate in February and would end long-term solitary confinement. 

Elizabeth Weill-Greenberg reported on this legislative effort in February, writing about the harrowing case of a man who was held for more than 600 days in solitary confinement in a state prison. “During his more than 600 days in isolation—from 2016 to 2018—he lost more than 30 pounds,” she writes. “His food was sometimes covered in maggots, dirt, and insects.”

The bill derailed in part because the Virginia Department of Corrections claimed it would take $23 million to implement the legislation because of its requirement that incarcerated people be evaluated before being placed in solitary confinement, the Richmond Times-Dispatch reported. “They must be confused with the bill that I’m introducing next year to build an Olympic-sized pool in every DOC facility,” said Senator Joe Morrissey, a Democrat who sponsored it. Another senator, Scott Surovell, complained that state agencies use budgetary projections to make criminal justice reform harder.

This bill joins other failed reforms in Virginia’s 2021 session, most notably the proposal to end qualified immunity and the bills to restrict or repeal mandatory minimums (see above).

Death penalty

As I wrote in last week’s newsletter, the legislature has sent to the governor legislation to abolish the death penalty. The governor, who supports abolition, has yet to sign the reform.

New York: Manhattan’s DA election could effectively decriminalize sex work

In 2019, when progressive candidate Tiffany Cabán vowed to not prosecute sex work while running for district attorney in Queens, it was a promise heard around the country. A wave of national publications zeroed in on her promise, and what it meant for debates around decriminalization. At the time, New York organizations had newly coalesced into a statewide coalition that demanded that the legislature decriminalize sex work statewide.

Fast-forward two years: Most of the candidates running for DA in Manhattan this year are vowing to never prosecute cases involving consensual sex work, a newfound consensus that testifies to the changing tide on the issue. 

Sam Mellins reports in the Political Report this week on how the prosecution of sex work is playing out in the Manhattan DA race, and on the remaining fault lines between the contenders.

This is the third installment in our series on the Manhattan DA election, in partnership with the publication New York Focus. The first two concerned the war on drugs and statewide advocacy.

Longer reads: On police, on mayors, on prosecutors, and on ICE

Amelia Thomson-Devaux, Laura Bronner, and Damini Sharma write in The Marshall Project on the opaqueness and the lack of accountability that surround the giant settlements that cities are continually paying out over police misconduct. 

Udi Ofer makes the case in the Hastings Journal of Crime and Punishment that reducing the budget of DA offices is a crucial step against mass incarceration. 

Jacob Kang-Brown and Jack Norton write in the New York Review of Books on the vast system of financial incentives that ICE has created to get local sheriff’s departments to turn their jails into immigration detention centers, and how advocates are adapting.

Ted Alcorn writes on the proposals on policing that New Mexico lawmakers are tackling right now, in a comprehensive piece that offers a window into the political dynamics around the issue in legislatures around the nation.

J. Brian Charles writes in The Trace on the new mayor of Baltimore and the new approach to public safety that he wishes to champion by promoting violence intervention programs.