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Prosecutors become unlikely line of defense against abortion bans


What you’ll read today

  • Spotlight: Prosecutors become unlikely line of defense against abortion bans

  • Wisconsin’s ‘constitutional crisis’ is forcing people to sit in jail without a lawyer

  • State trooper said man took bag from a Fentanyl supplier, but video showed that deal never happened

  • Border patrol agent accused of running a migrant down with his truck called migrants ‘subhuman’

  • New York public advocate openly discusses selling marijuana as teen

  • New report finds ICE puts thousands of immigration detainees in solitary confinement

In the Spotlight

Prosecutors become unlikely line of defense against abortion bans

Missouri passed a bill on Friday to ban abortions after a fetal heartbeat is detected, making it the eighth state this year to severely restrict abortion. Alabama’s new law bans abortions in nearly all cases. Georgia, Kentucky, Missouri, Mississippi and Ohio have passed “heartbeat bills,” which effectively prohibit abortions after approximately six weeks of pregnancy, when many women are not yet aware they are pregnant. In Alabama, doctors who perform abortions could face up to 99 years in prison, which is decades longer than the maximum penalty for second-degree rape.

These laws are seen by many as unjust, and people have taken to the streets in protest. Color of Change chose another tactic: The group circulated a petition calling on local prosecutors not to enforce these laws. “As a prosecutor, you have the power and responsibility to enact policies and infrastructure that would discourage police officers from making arrests,” the group wrote. “We are calling on you to take a proactive stand.”

Some prosecutors have already taken such stances. Salt Lake County Attorney Sim Gill said he will not enforce Utah’s measure banning abortions after 18 weeks. “I think that’s the only legal and ethical thing for me to do, which is not use the power of my office to violate the constitutional rights of my citizens when there is well-established precedent that says it is unconstitutional,” he said. “We cannot put people in jail for this.”

Georgia’s new statute prohibits abortion after six weeks, with a longer time frame in cases of rape and incest. “But district attorneys in the state’s four most populous counties—all in or around the Atlanta area—have pledged not to prosecute women under the statute, which is ambiguous about the criminal liability of those who undergo the procedure,” according to the Washington Post. “Two prosecutors said they would not bring charges of any kind under the new law.” DeKalb County District Attorney Sherry Boston said, “As district attorney with charging discretion, I will not prosecute individuals pursuant to HB 481 given its ambiguity and constitutional concerns. As a woman and mother, I am concerned about the passage and attempted passage of laws such as this one.”

Every day, prosecutors make enforcement decisions according to their discretion. It’s part of the job. But recently, as the horrors of mass incarceration have become better understood, prosecutors have begun to use their discretion to stop enforcing laws they consider unjust. In January, Marilyn Mosby, the Baltimore state’s attorney, announced 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,” writes Daniel Nichanian for The Appeal: Political Report. “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.’” Rachael Rollins was elected to be district attorney in Boston in part on a promise to decline to prosecute various low-level charges, such as trespassing, drug possession, and petty theft.

“The private beliefs of the prosecutor doesn’t matter,” Sam Gill, the Utah prosecutor, said. “Every prosecutor who is being asked to violate the constitutional rights of citizens … has the responsibility to say no.” It is clear, however, that the private beliefs of prosecutors do matter. In defending her decision not to enforce the abortion ban, Boston referred to Roe v. Wade, but she also invoked her role “as a woman and mother.” In explaining her decision not to enforce marijuana possession, Mosby discussed the disparate treatment of Black people in the system. These are principled stances that do not derive directly from written laws or constitutions, but rather from morality.

In the context of a clearly unjust law, such as the Fugitive Slave Act––which, in the years leading up to the Civil War, required officials and residents of free states to help return escaped slaves to their masters––refusal to comply is celebrated as an unalloyed good. But when the law is more ambiguous, or when it actually advances equality and inclusion, such principled resistance takes a different tone, such as when Kentucky clerk Kim Davis refused to issue any marriage licenses to same-sex couples because of her personal, religious opposition to same-sex marriage.

State attorneys general, too, over the last decade have begun refusing to defend divisive laws, especially laws championed by opposition party actors. “Until 2008, nondefense was almost unheard of,” write Neal Devins and Saikrishna Prakash for the Los Angeles Times. “That year then-California Atty. Gen. Jerry Brown refused to defend Proposition 8, which banned same-sex marriage in the state. Since then, 16 other attorneys general have refused to defend state laws. Democrats refuse to defend gun rights legislation and anti-same-sex-marriage laws. Republicans refuse to defend campaign finance restrictions, gun control laws and protections for gays and lesbians.”

In a perfect world, prosecutors would put aside politics and instead listen to experts, who would tell them that enforcing draconian criminal laws is counterproductive. They would also listen to directly impacted families, who will tell them that this kind of enforcement is cruel. Enforcement decisions could begin there.

And there are other opportunities for moral standards to help shape which laws get enforced. Prosecutors who enforce unpopular laws too severely may lose their jobs if voters educate themselves. And if they do enforce the new abortion bans, juries will be empowered to nullify. As the Washington Post notes, “A century ago, when abortion was a crime, juries regularly refused to convict.”

Stories From The Appeal

Illustration by Ariel Davis

Wisconsin’s ‘Constitutional Crisis’ Is Forcing People to Sit in Jail Without a Lawyer. At least two people have killed themselves in jail after waiting for more than a week to be appointed a lawyer. [Mario Koran]

State Trooper Said Man Took Bag From a Fentanyl Supplier, But Video Showed That Deal Never Happened. Trooper testimonies and misconduct among state and local law enforcement in New Hampshire and Massachusetts have caused at least 15 drug cases to unravel. [Zachary A. Siegel]

Stories From Around the Country

Border patrol agent accused of running a migrant down with his truck called migrants ‘subhuman’: According to court documents, Border Patrol agent Matthew Bowen sent text messages calling the people he apprehends “disgusting subhuman s— unworthy of being kindling for a fire” and asked the president to “PLEASE let us take the gloves off.” Bowen, a 10-year Border Patrol veteran, is accused of ramming his Border Patrol truck into a Guatemalan man in 2017, and then lying in a report about the incident. If a jury were to see the texts, his defense lawyer said he would argue that certain terms are “commonplace throughout the Border Patrol’s Tucson Sector, that it is part of the agency’s culture.” Bowen has also texted, “Guats are best made crispy with an olive oil from their native pais.” A federal grand jury indicted him on charges of depriving the Guatemalan man of his civil rights and falsifying records. [Curt Prendergast / Arizona Daily Star]

New York public advocate openly discusses selling marijuana as teen: In an op-ed yesterday, New York’s public advocate, Jumaane Williams, wrote that he sold marijuana as a teenager. “For a short time in high school, I’d sell a nick or a dime bag to teenagers with money and paper to burn. I wasn’t in poverty. I wasn’t desperate. I was just a kid looking for a way to make a little money to buy comic books or pizza or whatever.” Williams, unlike many who sold drugs, was not caught, and because of that, he has gone on to have a successful career in politics. “Over the years everyone, from family to advisers, has cautioned against discussing my story openly, saying that it could potentially stunt my career. We’ve moved from Bill Clinton being unable to admit ‘inhaling’ to Mike Bloomberg saying he smoked and ‘enjoyed it.’… But somehow usage is the only part of the process that it’s been okay to talk about.” [Jumaane Williams / New York Daily News]

New report finds ICE puts thousands of immigration detainees in solitary confinement: “ICE’s own directives say that isolating detainees—who under federal law aren’t considered prisoners and aren’t held for punitive reasons—is ‘a serious step that requires careful consideration of alternatives,’” reports The Intercept. Nevertheless, an investigation by The Intercept and the International Consortium of Investigative Journalists found that ICE uses isolation “as a go-to tool, rather than a last resort, to manage and punish even the most vulnerable detainees for weeks and months at a time.” The review of more than 8,400 reports of isolation found that ICE has used isolation cells to “punish immigrants for offenses as minor as consensual kissing, and to segregate hunger strikers, LGBTQ detainees, and people with disabilities.” In nearly a third of the cases, detainees were described as having a mental illness. “People were being brutalized,” said Ellen Gallagher, a supervisor in the U.S. Department of Homeland Security. For years, she has tried to sound the alarm about solitary confinement-related abuses. [Spencer Woodman, Maryam Saleh, Hannah Rappleye, Karrie Kehoe / The Intercept]

Thanks for reading. We’ll see you tomorrow.

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