Punitive turn looms on Florida court, New Jersey limits ICE cooperation while postponing some decisions, and more


In This Edition of the Political Report

December 6, 2018:

  • Florida: Looming appointments could alter Supreme Court’s sentencing outlook

  • Kentucky: Spotlight on felony disenfranchisement

  • New Jersey: Attorney general limits cooperation with ICE, postpones some decisions

  • Quick links: GEO Group poured money into the midterms, Steuart Pittman indicates Anne Arundel County will withdraw from ICE deal, and more

You can visit The Appeal: Political Report to read our latest analyses of the local politics of criminal justice reform and mass incarceration.

Florida: Looming appointments could alter Supreme Court’s sentencing outlook

In 2016, the Florida Supreme Court forced changes to the state’s death penalty statutes and signaled relief for hundreds who were first incarcerated as minors and have no realistic prospects for release.

The court’s politics could soon swing dramatically. Three of the court’s seven justices (Fred Lewis, Barbara Pariente, and Peggy Quince) must leave next month due to a mandatory retirement age. Incoming Governor Ron DeSantis will choose their replacements from a list of 11 nominees selected by the Judicial Nominating Commission. Nearly all eleven are Republicans. This is all on top of a replacement that occurred in late 2016, when Governor Rick Scott replaced the retiring James Perry with Alan Lawson.

This means that, come January, conservative governors will have appointed a majority of the court’s justices within a 25-month period, rapidly upending the odds of obtaining reform through the judicial system. Most of the outgoing justices sided with the petitioners in a series of major sentencing cases in 2016. Their replacements are unlikely to replicate these votes. “It will substantially change the focus and the rulings of the Florida Supreme Court,” Stephen Harper, the co-director of the Florida Center for Capital Representation, told me. “My overall outlook is very bleak.”



The impact of the transition from Perry to Lawson was felt this year in youth sentencing cases. Perry was in the 4-3 majority in Atwell v. State, a 2016 case in which the court held that the life sentence received by petitioner Angelo Atwell for a crime he committed at 16 offered him no meaningful chance of release even though it technically did include the possibility of parole. In her majority opinion, Pariente wrote that the “objective parole guidelines” that Atwell was sentenced under only made him eligible for release in 2130, and that this made his sentence “just as lengthy as, or the ‘practical equivalent’ of, a life sentence without the possibility of parole.”

But with Lawson’s arrival, the court flipped this year. In a 4-3 decision (Franklin v. State) issued in November, the court affirmed the lengthy sentences received by petitioner Arthur Franklin, who was 17 at the time of the crimes for which he was convicted. Pariente echoed the language of her own majority opinion in Atwell, except now it is the dissent she was writing. “The earliest Franklin could be released from prison based on existing parole guidelines is 2352,” she wrote. “There is no indication that Franklin has even a chance of being released before the end of his natural life expectancy.”

Once Pariente and Quince retire, just one of the four Justices in the Atwell majority will remain on the bench. “The Franklin case is an indicator that they will be far more conservative from here on even when it comes to kids,” Harper said.

Death penalty cases will be affected as well. In 2016, the court issued two 5-2 decisions (Hurst v. State and Perry v. State) holding that the determinations involved in a death sentence must be rendered by juries (not judges) and that these juries must be unanimous. The Legislature amended state law to conform to the court’s decisions, which does solidify their legacy. But the Supreme Court, in deciding how to apply these rulings to already-existing death sentences, decided to only grant the motions of people sentenced after June 2002. Critics have denounced the partial quality of this retroactivity. But none of the Justices who dissented in the 2016 decision that created this cutoff (Asay v. State) will remain by next month. Questions also exist about the fate of post-2002 sentences. When it did grant relief this year (for instance in Smith and Pagan), the court did so with 4-3 majorities. The three retiring justices were all part of these cases’ narrow majorities.

Harper predicted an increase in “the number of persons whose death penalty cases will be upheld.” But he also notes that the reforms codified by the legislature will still dictate sentencing in the future. “The good news is that given the requirement that now a unanimous jury makes the ultimate decision (and not a judge) there will be people who will not receive the death penalty whereas under the old sentencing scheme (pre-Hurst decisions) they would have,” he said.

You can find a standalone version of this story here

Kentucky: Spotlight on disenfranchisement in Kentucky

Florida’s Amendment 4, the initiative to automatically restore the voting rights of Floridians who complete most felony sentences, is making waves in Kentucky. “We love what Florida did,” Tayna Fogle, an organizer with the grassroots organization Kentuckians for the Commonwealth (KFTC), told me. “Florida was a big deal and it was a big deal in Kentucky because it leaves us with Iowa at the bottom of the justice barrel,” said Judy Johnson, a member of the League of Women Voters of Kentucky (LWVK) who has worked on disenfranchisement in the state.

Kentucky and Iowa are the two states that disenfranchise people convicted of all felonies for life. (Virginia law provides for this as well, but recent governors have mostly gotten around it with executive orders. Other states, like Mississippi, also permanently disenfranchise many people.) To get their rights restored, Kentuckians must apply to the governor, and few are enfranchised this way. Governor Matt Bevin restored no one’s rights during his first year in office in 2016, even though more than 300,000 Kentuckians lacked the right to vote that year, according to a report by the Sentencing Project. That’s over 9 percent of Kentucky’s voting-age population.

Alternatively, individuals convicted of some low-level felonies can apply to have their conviction expunged because of a 2016 law. But they must wait years and pay a prohibitive $500 fee, one of the country’s costliest expungement fees.

Kentucky also stands far and above all other states in terms of excluding African Americans. 26 percent of Black adults were deprived of the right to vote in 2016, according to the Sentencing Project. This colossal racial disparity is tied to Kentucky’s unequal justice system, documented in this article by Ashley Spalding for the Kentucky Center for Economic Policy (KCEP). One manifestation is in charging decisions. According to the state’s Department of Public Advocacy, a majority of juveniles charged with misdemeanor theft in 2016 were white; a majority of those charged with felony robbery were African American.

The latter charge comes with a lifetime ban on voting, but not the former.

“What kind of state is Kentucky, truly?” Fogle asked. “What kind of democracy, if you take away folks, black and brown folks?” Fogle herself lost her rights because of a felony conviction before getting them restored in 2006. “The hoops are just enormous,” she said of her experience. “We are a bunch of people who have made mistakes, and we got caught, but we are not mistakes. We had dreams before we were arrested, and we’re just trying to get back to our dreams.”

Kentucky advocates point to a range of reform paths.

Fogle and Johnson called on Kentucky to imitate Florida and enable automatic rights restoration for people who complete a sentence. (Their organizations, the KFTC and the LWVK, also work toward this goal.) But Kentucky, unlike Florida, has no initiative process. The Legislature would need to adopt a constitutional amendment, which would put the measure on the ballot for already-enfranchised Kentuckians to decide. When Democrats ran the House (until 2016), the chamber repeatedly adopted constitutional amendments to this effect with wide bipartisan majorities. The GOP-run Senate typically ignored them. In 2014, with U.S. Senator Rand Paul testifying in favor of some rights restoration, the Senate did pass a tighter version that had a five-year waiting period and excluded people with multiple convictions; the Senate’s Republican leader Damon Thayer has resisted broader reform. Democratic State Senator Morgan McGarvey said last month that he will introduce a new constitutional amendment providing for automatic rights restoration in the upcoming session.

A governor could also use his or her executive powers. In 2016, in the final weeks of his second term in office, Democratic Governor Steve Beshear issued an executive order that enabled an estimated 180,000 Kentuckians to get their rights restored upon filing a form. But a month later, just two weeks after he succeeded Beshear, Bevin rescinded the order.

Johnson mentioned “baby steps” that state officials could take absent more sweeping action, including eliminating the $500 expungement fee and making the “cumbersome” process by which individuals apply for an executive order streamlined and less arbitrary.

Some advocates are targeting what even counts as a felony in the first place. “In many cases Kentucky’s felony thresholds are quite low, too low,” Spalding told me. Many drug possession cases and thefts exceeding a value of $500 count as felonies, for instance. This has grave effects beyond disenfranchisement, driving incarceration upward. “Kentuckians can be locked up for years for relatively minor offenses—not to mention the collateral consequences they face as returning citizens,” Spalding said. Legislation reducing some felonies to misdemeanors failed in 2018, in part because of opposition by prosecutors.

To achieve reform, organizers are looking for ways to exert pressure on elected officials in a context where those most affected are stripped of direct electoral voice. “Some of the folks have lost the meaning that they work for us, and that’s because they have taken the power of the vote away,” Fogle said.

You can find a standalone version of this story here.

New Jersey: Attorney general limits local cooperation with ICE, postpones some decisions

New Jersey Attorney General Gurbir Grewal on Nov. 29 released a directive that curtails local law enforcement’s contact and cooperation with ICE. It bars police, sheriffs, and other public authorities from assisting ICE operations, inquiring into someone’s immigration status, and sharing with ICE space and databases that aren’t otherwise public. It also helps individuals know their rights before talking to ICE. “Folks might be speaking to [ICE] out of a belief that they are required to,” Alexander Shalom, a senior supervising attorney for the ACLU-NJ, told me. “No longer will immigrants … be duped into the conversation.”

“The document is going to go a long way to repairing trust in immigrant communities,” Shalom said. “The directive is an extraordinary step forward for immigrant rights in New Jersey,” Sara Cullinane, the director of Make the Road New Jersey, an advocacy group for immigrant and working-class communities, told me.

The document sidesteps or only partially restricts three forms of cooperation, which demand more attention.

1. 287(g): This program gives local officers the authority to research people’s statuses and notify ICE. Counties typically join 287(g) through a contract between their sheriff and ICE. Grewal’s directive does not terminate existing 287(g) contracts, nor does it conclusively prohibit new ones. It blocks counties from acting unilaterally, requiring the attorney general’s authorization if they wish to create or renew a 287(g) partnership.

Three New Jersey counties are in 287(g) agreements: Cape May, Monmouth, and Salem. All three have a Republican sheriff: Robert Nolan (up for re-election in 2020), Shaun Golden (up in 2019), and Chuck Miller (who was just re-elected and is up in 2021), respectively. Each county’s 287(g) contract expires June 30, 2019. So the question of what Grewal would do if the counties seek to renew their participation will come to a head next year. I asked Grewal’s office under what circumstances he would grant a renewal. “The directive does not list specific criteria. I am not going to go beyond what is in the directive,” a spokesperson responded via email.

“We were hoping that they would get rid of 287(g) completely,” Johanna Calle, the director of New Jersey Alliance for Immigrant Justice, said while praising the directive overall. “We’re going to have to be vigilant and pressure the attorney general to not allow [contracts] to be renewed.”

2. Detainers: According to a report by Erika Nava of New Jersey Policy Perspective, nearly all New Jersey counties voluntarily honor ICE detainers. These are warrantless requests for jails to detain people who are already in custody beyond their scheduled release dates, even if they post bail. Grewal’s directive prohibits counties from honoring detainers in many circumstances. It does make exceptions, for instance for individuals charged of “violent or serious offenses” (the directive contains an enumerated list) or individuals against whom a judge has issued a final order of removal. Counties can notify ICE of such individuals’ times of release and detain them for ICE through the end of the day. Nava told me that she wished the prohibition on detainers had no carve-outs, though “considering where we were before, it’s tremendous progress.”

3. IGSA contracts: Bergen County, Essex County, and Hudson County (three large counties in northern New Jersey, all of which are currently governed by Democratic politicians) have contracts with ICE to detain individuals that ICE has arrested in exchange for payments. Grewal’s directive does not address these contracts, which can remain in place..

There has been great debate in these counties about whether to maintain these contracts. I explore these debates in the full version of this article on New Jersey. You can read the longer analysis of the IGSA contracts specifically here.

Quick hits: GEO Group poured money into the midterms, Steuart Pittman indicates Anne Arundel County will withdraw from ICE deal, and more

Florida: Private prison companies shattered their prior national record of financial donations in a midterm election, Madison Pauly reported in Mother Jones. GEO Group spent $1.2 million just in Florida, where it is heavily implanted, boosting Republicans Ron DeSantis, Rick Scott, and Ashley Moody for governor, U.S. Senate, and attorney general, respectively. In addition, Politico reported that GEO Group has hired Joe Negron as general counsel, a week after Negron’s term as the Republican president of Florida’s Senate ended. GEO Group enjoyed a strong relationship with Negro during his time in office.

Maryland: Steuart Pittman confirmed in his inauguration speech as county executive of Anne Arundel County (the populous jurisdiction that contains Annapolis) that he planned to withdraw from ICE’s 287(g) program. “Immigration enforcement will be left to the feds,” he said. “We will issue a report on the impacts of 287(g) and then we will kiss it goodbye.” As I wrote in October, Pittman committed to leaving the program during his campaign against incumbent Steve Schuh, the Republican county executive who was responsible for joining it in the first place.

Utah: Utahns on Nov. 6 approved a referendum legalizing medical marijuana but state officials have since passed a law weakening its provisions. The law “removes home cultivation rights for patients, allows fewer dispensaries and adds a requirement that dispensaries employ pharmacists,” Kyle Jaeger explained on the website Marijuana Moment. TRUCE, a medical marijuana advocacy group, may file a lawsuit in defense of the initiative process and against the legislative involvement of The Church of Jesus Christ of Latter-day Saints.

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