Prosecutor Sends Staff to Prison, U.S. Attorney General Attacks Reform DAs

In This Edition of the Political Report

August 15, 2019: 

• Vermont: Prosecutor sends staff to prison, to counter their reflex to incarcerate

• The politics of prosecutors: U.S. attorney general attacks reform DAs

• Colorado: Death penalty, prison gerrymandering, and ICE could be on the 2020 menu

• Legislative roundup: Connecticut improves prosecutorial transparency, Oregon keeps its nonunanimous jury verdicts, New Jersey may expand qualified immunity, and more

You can always visit our interactive tracker of legislative developments, our interactive tracker on the politics of prosecutors, and our portal on local elections. 

Vermont: Prosecutor sends staff to prison, to counter their reflex to incarcerate

Sarah Fair George, the state’s attorney of Chittenden County (home to Burlington) in Vermont, has instructed all prosecutors and staff members who work in her office to visit the St. Albans prison, also known as the Northwest State Correctional Facility. 

I talked to George on Wednesday about this initiative, and how it could change practices in her office. She said prosecutors often treat prison time “nonchalantly,” as something abstract, and get in the habit of “just throwing out numbers.” “We say six months or two years, and don’t really have to think about what it means for the person,” she explained. 

“It’s important to stand in that space and see it for yourself, and feel it for yourself,” she said. “My hope is that people recognize that six months is a long time to spend in jail. Maybe thirty days can be enough time, maybe no jail. Just being more cognizant of the space you’re sending people to when you put an arbitrary number on an offer sheet.”

She said this perspective should fuel shorter sentences, but also restrain prosecutors from seeking incarceration in the first place. “They spent an hour and a half there and were relieved to get out,” she said of the staff members who have already visited St. Albans as part of her initiative. “So let’s imagine how this might impact somebody who is there for six months or a year, and how this impacts them as a community member when they get back out. Is there a way that we can avoid that entirely, and not risk them coming out a more violent person, or with some type of trauma having been in jail? Can we find another way?”

I also asked George, who as prosecutor has implemented programs to divert people from prison, about reforms that lawmakers should adopt to further decrease reliance on incarceration. Among other measures, she endorsed a proposal to eliminate de facto life without parole sentences. That would be a national first. She also told me that Vermont must do more to ensure all incarcerated people have access to ballots.

The full interview with Sarah Fair George is available here.

The politics of prosecutors: Attorney General William Barr attacks reform DAs

In a speech at the Fraternal Order of Police conference on Monday, U.S. Attorney General William Barr delivered a wide-ranging attack laiden with martial imagery against efforts for police oversight and against reform-minded prosecutors, whom he called “anti-law enforcement DAs.”

Chris Geidner, The Justice Collaborative’s senior adviser for law and policy, and I fact-checked and annotated Barr’s speech with 22 replies that provide context and corrections. Read the annotated version of the speech in The Appeal.

In addition, Fordham Law School professor John Pfaff writes in The Appeal that “Barr is out of step with the data and the desires of the people who have elected progressive prosecutors.” Pfaff explains further that the speech reflects the Trump administration’s resistance to policing reform.

Colorado: Death penalty, prison gerrymandering, and ICE could be on the 2020 menu

Colorado’s legislative session ended in May with plenty of movement on criminal justice reform. The state narrowed disenfranchisement, defelonized most drug possession cases, required jails to provide free menstrual hygiene products, barred law enforcement from honoring ICE detainers, shielded some immigrants from facing deportation due to misdemeanors, and restricted cash bail.

But reform stalled on some major fronts, including the death penalty, prison gerrymandering, and ICE’s 287(g) program. Some advocates are now planning their next moves on these issues.

1. Capital punishment

While efforts to abolish the death penalty have long stalled, 2019 seemed promising given Democrats’ newfound control of the state government. But sponsors pulled the bill from consideration in the spring because of insufficient support in the state Senate. 

The ACLU of Colorado is now planning community-outreach events in the remainder of 2019 to persuade undecided senators to back abolition next year, according to Westword.

The Colorado Independent reported in March that 14 of the 19 Democratic senators support abolition, plus Republican Kevin Priola. That left the legislation three votes shy of a majority. Democratic Senator Rhonda Fields opposed it, while fellow Democrats Jessie Danielson, Joann Ginal, Tammy Story, and Nancy Todd were on the fence. None of these four Democrats answered a request for comment on what they are looking to hear on this issue to decide whether they will support abolition. Opponents of the death penalty need to persuade three of them, or else they need to secure more Republican support.

There has been no execution in Colorado since 1997. But David Sabados, executive director of Coloradoans for Alternatives to the Death Penalty, told me that abolition would tangibly impact future cases. Prosecutors still seek the death penalty, he said, “which is time-intensive, which is incredibly expensive, which can be an extra trauma to victim family members watching these long cases play out.” Sabados also faulted the death penalty’s disproportionate application. The three people on Colorado’s death row are all African American.

2. 287(g)

A new law restricts local law enforcement’s cooperation with ICE, but it was narrowed after Democratic Governor Jared Polis warned he would veto it over a provision banning counties from joining ICE’s 287(g) program, which deputizes local officers to act like federal immigration agents. The Trump administration’s harsh policies toward immigrants are only growing more visible, and some lawmakers like Senator Julie Gonzales want to return to the issue and strengthen the “bright line” between ICE and local law enforcement.

3. Prison gerrymandering

Time is running out for states to eliminate prison gerrymandering, the practice of counting incarcerated people where they are detained rather than at their last address for purposes of redistricting. This skews power toward disproportionately white and rural areas. With the next round of redistricting around the corner, states must act within the next two years, and there is now movement afoot in Colorado.

Representative Kerry Tipper told the Colorado Independent that she may introduce legislation to end prison gerrymandering next year. Tipper, a Democrat, is working on this bill with Common Cause Colorado, the state chapter of an organization that supports voting rights. “When you have folks that are being counted in the area they’re being incarcerated in,” she said, “how is it fair to bloat numbers for purposes of redistricting, when these people can’t vote?” 

Indeed, people incarcerated over a felony conviction cannot vote in Colorado, unlike in Maine and Vermont. Colorado enfranchised people on parole this year, but it did not altogether abolish criminal disenfranchisement. Representative Leslie Herod, a Democrat who sponsored that reform, told me in May that she was open to advocating for that next step. She also told me this week that she thinks that “prison gerrymandering should be a thing of the past.”

There are many other issues for Colorado to address next year. 

The most immediate include extending its new restrictions on cash bail to more categories of offenses, and expanding its new law that reclassifies drug possession as a misdemeanor by lifting the carve-outs and making defelonization retroactive (Oklahoma did the latter this year). Herod also said she wished to reduce incarceration, and specifically target “the increase of the female prison population,” by “providing more in-community treatment” for people who are currently being incarcerated for issues related to addiction and mental health.

Legislative roundup: Connecticut improves prosecutorial transparency, Oregon keeps its nonunanimous jury verdicts, New Jersey may expand qualified immunity, and more

Connecticut: Prosecutorial decisions typically function as a black box, which makes it difficult to assess fundamental matters like the extent of racial disparities in a given office. Connecticut is set to change this. Last week, Governor Ned Lamont signed legislation that WNPR says is the “first in the nation to mandate the collection of prosecutorial data statewide.” Prosecutors will now need to collect demographic data pertaining to charging and sentencing decisions, the use of diversion, and their plea offers. Connecticut is one of the only states in the country that does not have elected prosecutors.

New Jersey: While calls to improve police accountability have intensified nationwide, New Jersey is heading in the opposite direction. The Appeal reported this month on a bill that would expand qualified immunity, the doctrine that largely protects law enforcement officers from legal accountability, to police officers at private colleges and universities. The bill, which is sponsored by Democratic Assemblymember Roy Freiman, was adopted by the Assembly but has yet to be considered in the Senate. “They’re trying to protect themselves from the fallout of police violence rather than trying to make sure police violence never happens in the first place,” Micah Herskind, an activist who opposes the bill, told The Appeal. 

Oregon: Since Louisiana’s 2018 referendum, Oregon is the only state where people can be found guilty by a nonunanimous jury. And the state took no action this year to end this anomaly. Reform looked to be on the way when even the Oregon District Attorneys Association endorsed changing the state Constitution, and when the House passed a bill to put the matter on the 2020 ballot. But the Senate adjourned without adopting it. The Associated Press reports the issue is sure to return next year. The U.S. Supreme Court is set to consider a case involving a nonunanimous conviction, and some advocates say they will press the issue in the legislature once more.

Rhode Island: Samantha Michaels reports in Mother Jones that in Rhode Island, anyone who is serving a life sentence is considered to be “civilly dead,” and therefore deprived of all civil rights. This includes the right to complain in state court about mistreatment. Rhode Island is the only state where the status of “civil death” is applied so literally, but legislation to end it has failed every year since 2014. Will 2020 change this? A related bill that failed this year would have abolished life without parole for people under 18.

Thanks for reading. We’ll see you next week!