Prosecutors announce new pot policies, & Massachusetts organizers push to expand voting rights

In This Edition of the Political Report

February 7, 2019:

• Massachusetts: Lawmakers consider restoring voting rights, but organizers are not waiting

• Illinois, Maryland, Missouri: Three prosecutors announce new marijuana policies

• Legislative round-up: South Carolina mulls sentencing reforms, New Jersey adopts police accountability bill, death penalty repeal moves forward in Wyoming, and more

You can visit the Appeal: Political Report website to read our latest analyses of the local politics of criminal justice reform and mass incarceration. While the Political Report focuses on local and state-level politics, you can read the first installments of the new series “The Contenders 2020: Criminal Justice in the Race for President,” written by my Daily Appeal colleagues. 

Massachusetts: Lawmakers consider restoring voting rights, but organizers are not waiting

Massachusetts moved away from universal suffrage in 2000, stripping incarcerated individuals of their right to vote through a constitutional amendment. Nearly two decades later, organizers inside and outside state prisons are working for the state’s now-disenfranchised residents to have a say in the electoral process.

The Emancipation Initiative, a group that advocates restoring suffrage to all people in prison, has been running a project called #DonateYourVote since 2016. The idea is to pair an incarcerated person and a free person who commits to voting according to his or her disenfranchised partner’s preferences. More than 140 such pairs formed in the 2018 elections, according to project organizers.

In January, Senator Adam Hinds introduced a proposed constitutional amendment that would restore incarcerated individuals’ voting rights. “It’s scary to me that the ability to have a voice in a democracy and the laws that impact the democracy can be removed,” he told me.

If this measure passes, Massachusetts would repeal the practice of barring people from voting because of a felony conviction. The proposal has a long road ahead, though, since it would need to be adopted by lawmakers in two separate legislative sessions and then by voters, which could not occur before 2022 at the earliest, and a regular bill must also pass.

Neighboring Maine and Vermont already have no such disenfranchisement, and Massachusetts was like those states until Republican Governor Paul Cellucci and other state politicians pushed for restrictions in an era known for its tough-on-crime politics and harsh sentencing schemes. In 1997, a group incarcerated at the Norfolk state prison attempted to create a political action committee that would spread information about elected officials’ positions on criminal justice issues, encourage people to vote while in prison, and change the state’s carceral policies. “Our whole point now is to make prisoners understand that we can make changes by using the vote,” Joe Labriola, a member of that group, said at the time. “We have the ability to move prisons in a new direction.” In response, Cellucci proposed stripping incarcerated people of their political rights. He issued an executive order banning certain organizing activities within prisons and he targeted their vote, too. “It’s outrageous that these prisoners have these voting rights,” he said. “We should be thinking about the victims.”

The Democratic-run legislature then twice passed a constitutional amendment to bar people convicted of a felony from voting while incarcerated. The amendment was placed on the ballot in November 2000. State voters approved it by a large majority.

Senator Pat Jehlen, who opposed this measure at the time, recalled a desire to block political activism when I asked her what had spurred its adoption. “It really was that there were people in some of the prisons that were organizing,” she told me. “There was that, and there was the argument which I don’t believe was true that they would overwhelm the local community” by all registering in the place they were incarcerated, she added. Legislative debates also bear the trace of some politicians’ hostility toward anything short of strict custodial control. “We decide when they get up and when they go to bed,” Representative Francis Marini said of incarcerated people during the 2000 convention according to transcripts posted online by the Emancipation Initiative. “We won’t let these people run their own life. They should not be allowed to run ours.”

Jehlen added that she had heard little about this issue since 2000, but that much is changing—in Massachusetts and elsewhere in the country.

Bills that altogether abolish felony disenfranchisement have been introduced in at least six states in current legislative sessions, and a legislative committee advanced one such bill in New Mexico in January. Last week, 20 national civil rights organizations sent a letter to New Mexico’s legislature in support of ending felony disenfranchisement.

“To have this network of folks who are also working hard on this issue is really exciting,” said Rachel Corey, an organizer with the Emancipation Initiative. “To see this energy come up in different parts of the country is like, ‘OK, we’re not on this island alone.’” She added, “Let’s move to the next level and restore the right to vote to anyone who is impacted by the criminal justice system.”

The Emancipation Initiative has been organizing Bay Staters inside and outside prisons around this goal. Derrick Washington, who is serving a life sentence without parole, founded the organization in 2012 while incarcerated. He said he has focused on suffrage ever since noticing that the Thirteenth Amendment, which abolished slavery and involuntary servitude, makes an exception for punishment of a crime. “It opened my eyes to the reality of my situation,” he said on the phone. “I was a 21st-century slave to a system that is not catering to me or to anyone from the neighborhood that I came from.”

“I can’t impact the people who have designed the environments I’m detained in or are designing the policies that impact me,” he added. “In order to change the fabric of my situation, I would need to have a voice and reshape my environment with the vote. … You have a whole pariah class that are excluded from the process, yet those people are most affected by the laws that are put in place by legislators.”

Today this exclusion disproportionately impacts communities of color. According to a report released by the Sentencing Project, 26 percent of the people that Massachusetts disenfranchised as of 2016 were Black, even though only 7 percent of the state’s voting-age population was Black. A separate Sentencing Project report found that Massachusetts had the country’s largest inequality between the incarceration rates of Hispanics and whites—measures that are tied with each group’s disenfranchisement rate. Outcomes experienced in the criminal justice system inform these disparities. One study of Massachusetts conducted by the Council of State Governments in 2016 found that, among individuals who were convicted, a higher share of Black and Hispanic defendants than white ones received a sentence that included incarceration—as opposed to other forms of punishment that do not induce disenfranchisement. The study did not isolate type of offenses for which people were convicted.

“When you walk through what we’re seeing in the disproportionate arrests of African Americans and how this is targeting people of color in prison, it feels that the original racialized motivation is still what is keeping this in place,” said Hinds, the sponsor of the proposed amendment. Hinds traced the country’s present disenfranchisement statutes to their spread in the decades after African American men secured the right to vote. He called on the state to be “meticulous and deliberate in dismantling forms of discrimination” and to reject “laws that had nefarious intent.”

You can read the rest of this article, including more on #DonateYourVote and on the current positions of lawmakers who voted on disenfranchisement in 2000, in its full version here.

Illinois, Maryland, Missouri: Three prosecutors announce new marijuana policies

In 2017 and 2018, the chief prosecutors of Philadelphia, Manhattan, and Houston, among those of other jurisdictions, announced that they would adopt more lenient policies toward marijuana. Then, in November, marijuana and the vast inequalities involved in its prohibition were a major issue in local elections. So far in 2019, at least three prosecutors have announced new policies:

Cook County, Illinois: State’s Attorney Kim Foxx announced a shift to treating drug possession writ large (beyond marijuana cases) as a public health matter, with a default of no incarceration. “Incarceration is not treatment, and the Cook County State’s Attorney’s office will no longer address the public health crisis of drug addiction in our criminal justice system,” she said in a Jan. 24 speech. “Diversion will be the presumption in drug possession cases.” In the same speech, Foxx launched a program to “pursue the expungement of all misdemeanor marijuana convictions.” What this means according to the Chicago Citizen is that people will be able to apply for expungement with her office’s assistance without paying an expungement fee, instead of going through the existing process that requires a payment. “Failing to take action that provides relief to those who already have a marijuana conviction is not justice,” she said. Illinois lawmakers are mulling legalizing marijuana, and advocates are pushing for such legislation to contain an automatic expungement process.

Baltimore City, Maryland: Marilyn Mosby, the Baltimore state’s attorney, announced on Jan. 29 that her office would no longer prosecute marijuana possession no matter the quantity. She also said that she would act to vacate thousands of old convictions. In a 14-page white paper, her office laid out her rationale, detailing the “crisis of disparate treatment of Black people for marijuana possession and other offenses without any seeming regard for the possible adverse public health effects resulting from such enforcement.” Interim police commissioner Gary Tuggle said he will still arrest people. “If you are arrested for having and being in possession of a marijuana you will then be released without charges,” Mosby told NPR in response.

St. Louis County, Missouri: St. Louis County’s new prosecutor, Wesley Bell, issued a policy of no longer prosecuting the possession of under 100 grams of marijuana; he will still prosecute larger quantities if he is also accusing a defendant of an intent to sell. Bell’s decision echoes that announced in June by Kim Gardner, the chief prosecutor of the city of St. Louis.

One outstanding question is the persistence of modes of enforcement besides prosecution. In these Missouri jurisdictions, municipal officials can still issue citations that remain on one’s record and result in fines; this has limited the impact of local steps toward decriminalization in the past. When St. Louis made the possession of less than 35 grams of marijuana into an offense for which the police should issue citations in 2014, this has made no dent in the racial disparities in police enforcement. According to the Riverfont Times, 85 percent of people who were either arrested or issued a citation in the ensuing years were Black. This mirrors Baltimore’s past dynamics. In 2014, Maryland as a whole decriminalized the act of possessing under 10 grams of marijuana. But Black residents received 94 percent of the marijuana citations subsequently issued by the Baltimore Police Department between 2015 and 2017, according to the white paper from Mosby’s office; that is virtually identical to the share of people charged with misdemeanor marijuana possession in Baltimore during that period who were Black (96 percent).

Scott Hechinger, senior staff attorney and director of policy at Brooklyn Defender Services, warned more broadly that, absent legalization, marijuana will remain a pretext for heavy-handed policing. “The larger issue is that as long as marijuana is a crime on the books, it will be used by law enforcement as a justification to hurt people,” he said. “Marijuana is one of the primary justifications that allows law enforcement to approach, stop-and-frisk our clients. The claimed odor of marijuana is what makes already-pretextual car stops into full-blown car searches.”

Another matter for continued scrutiny is the manner in which prosecutors will implement their own stated policies. Raven Rakia reported in The Appeal in November that the Brooklyn district attorney, who had announced he would stop prosecuting most marijuana possession cases, was still prosecuting people caught with vaping marijuana oil. Hechinger, who works in Brooklyn, said that one issue is the mismatch between rhetoric and practices on the ground, but also that prosecutors often leave “exceptions and carve-outs” in their decline-to-prosecute policies such as the amount possessed, whether the person stopped has a record, and the form of possession. The latter was at issue in Rakia’s article. Hechinger said that if the reason prosecutors adopt decline-to-prosecute policies is the “known disproportionate law enforcement impact on communities of color, then it shouldn’t matter who you are and how much you have” because “these carve-outs tend to replicate pre-existing racial disparities” in the prosecution of marijuana possession. “It’s worth always questioning the rationales behind the carve-outs,” he added.

A standalone version of this article is available here.

Legislative round-up: South Carolina mulls sentencing reforms, New Jersey adopts police accountability bill, death penalty repeal moves forward in Wyoming, and more

New Jersey: On Jan. 30, Governor Phil Murphy signed Senate Bill 1036 into law. SB 1036 requires that all cases of people who are killed by police officers or who die while in custody be investigated by the office of the state attorney general rather than county prosecutors. The bill passed the legislature in December. The first death that will be investigated under this law is that of a man shot in Passaic on Jan. 31.

New York: New York politicians face calls to address criminal justice issues. The #Freenewyork coalition wrote to Governor Andrew Cuomo asking him to strengthen his existing proposals to curb pretrial detentions. In addition, Corey Johnson, speaker of the New York City Council, and Michael Waldman, president of the Brennan Center for Justice, wrote an op-ed in the New York Daily News on the court fees that people are required to pay upon any conviction: They ask the legislature to abolish these fees or else to tailor to a person’s financial circumstances.

South Carolina: A bipartisan coalition of South Carolina lawmakers is pushing a range of sentencing reform contained in House Bill 3322. The bill’s provisions include new avenues for incarcerated individuals to obtain sentence revisions or reductions, for instance by lowering the percentage of a sentence one needs to serve before being eligible for early release from 85 to 65 percent. The bill would also eliminate some mandatory minimums. Of the bill’s 16 sponsors as of Feb. 4, nine are Democrats and seven are Republican. One of them is Peter McCoy, the House Judiciary Committee chairman. The committee held a hearing on the legislation in late January. “More prison time is not the answer,” Erica Fielder, the founder of Hearts for Inmates, a group that has started a petition in favor of sentencing reform, said at the hearing.

Tennessee: Nashville voters approved the creation of an independent police oversight board in November. On Feb. 4, GOP lawmakers introduced a bill (House Bill 658) to limit the powers of oversight boards; it would block aspects of Nashville’s initiative. As described by the Times Free Press, the legislation would strip such oversight boards of subpoena power and prevent the requirement that a certain share of members belong to specific demographic groups. “We as Republican leaders want the state and our communities to know that we support the men and women in blue on the front lines fighting crime and protecting us as we sleep safe at night,” said House Speaker Glen Casada, who is co-sponsoring the legislation. Theeda Murphy, an organizer with Community Oversight Nashville, told me in October that subpoena power was essential to ensuring a “full and complete and independent investigation.” She also explained the requirement that four board members come from “economically distressed neighborhoods” as a way to achieve “significant representation from people who are left out.”

Wyoming: On Feb. 1, the Wyoming state House approved legislation to abolish the death penalty (House Bill 145) on a vote of 36 to 21. The chamber had rejected similar bills in each of the past five years. I wrote last week that this year’s effort had more co-sponsors than in the past, including that of Speaker Steve Harshman, a Republican. The bill now moves to the state Senate.”

You can visit the Political Report’s legislative round-up page for more on legislative debates in states.

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