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Reform Prosecutors Respond to U.S. Attorney General, Announce New Drug Policies

Also today: Can Louisiana continue reducing its incarceration rate?

In This Edition of the Political Report

August 22, 2019: 

  • National: Reform prosecutors respond to U.S. Attorney General William Barr

  • Louisiana: Criminal justice reform is on the line in the governor’s race this fall

  • The politics of prosecutors: In California and Florida, two prosecutors announce new policies to dismiss simple drug possession case

  • Vermont, and beyond: Prosecutor who sends staff to prison makes waves

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

National: Reform prosecutors respond to U.S. attorney general

U.S. Attorney General William Barr attacked the country’s new reform prosecutors last week, calling them “anti-law enforcement DAs,” in a speech covered in the previous Political Report.

Fair and Just Prosecution, an organization that advocates for criminal justice reform, released a statement answering Barr signed by 30 current elected prosecutors, three attorneys general and two sheriffs, among others. After faulting Barr for “using rhetoric that harkens back to the parochial ‘tough on crime’ narrative of past decades that stoked fear and impeded progress,” the signatories say they joined “this public statement to make clear that a growing number of criminal justice, law enforcement and prosecution leaders reject AG Barr’s perspective; we do not view our jobs as waging a ‘war’ against ‘criminal predators.’” 

Separately, Parisa Dehghani-Tafti (a prosecutorial candidate who ousted a Virginia incumbent in the June primaries on a platform of reducing mass incarceration), as well as District Attorney Mark Gonzalez of Nueces County, Texas, and Prosecuting Attorney Wesley Bell of St. Louis County, Missouri, published a joint op-ed in the Washington Post responding to Barr. 

Their op-ed offers a manifesto of sorts for reform prosecutors. “We understand that our current criminal legal system throws away too many people, breaks up too many families, destroys too many communities and wastes too much money,” they write. “And we refuse to accept that a wealthy democracy cannot figure out how to keep its people safe without criminalizing as many things as possible, prosecuting as hard as possible and punishing people for as long as possible.”

This confrontation seems likely to recur, as the number and the ambition of reform prosecutors grows. The Appeal has reported on the hostile environment in which prosecutors like Kim Gardner in St. Louis, Larry Krasner in Philadelphia, and Rachael Rollins in Boston are operating, and on legislative attempts to dilute their authority.

And just days after Barr’s speech, U.S. attorney William McSwain escalated the attorney general’s rhetoric by blaming Krasner for a standoff in which a gunman wounded six police officers. “The crisis was precipitated by a stunning disrespect for law enforcement,” McSwain said. Sarah Lustbader writes in the Daily Appeal that a “pressing challenge” in response to an incident like Philadelphia’s is to “not to fall into McSwain’s trap of competing over who was less lenient and more incarceratory.” 

Louisiana: Criminal justice reform is on the line in the governor’s race this fall

Louisiana overhauled its criminal legal system in 2017 and soon shed its status as the country’s top incarcerator. That year, a package of sweeping reforms expanded alternatives to prison, and reduced mandatory minimums and some sentences. The Republican legislature adopted these measures by large majorities, and Democratic Governor John Bel Edwards then signed them into law. 

Despite this bipartisan pedigree, some of the state’s most prominent Republican officials are foes of criminal justice reform and use them to attack Edwards, who is up for re-election this fall. One of his main challengers, GOP Representative Ralph Abraham, is running firmly against the policies, which he says have “opened the gates” to crime.

This election will shape the viability of further criminal justice reform over the next four years. 

Louisiana’s legislature passed new measures this year, albeit smaller ones, and advocacy groups are championing more bold changes to overhaul the state’s reliance on incarceration. 

“Ten years ago, five years ago, you went to that statehouse, you talked about the people who were incarcerated and formerly incarcerated, and the tone was very negative. Now, we hear a very different tone,” Bruce Reilly, deputy director of Voice of the Experienced, an organization that advocates for criminal justice reform in Louisiana, told me. “The really positive part is how many people have come on board.” Reilly credits the advocacy of formerly incarcerated people, which his group champions, for changing the narrative.

A governor opposed to these shifts could use his veto pen to block new reforms, or pressure lawmakers to roll back existing ones.

Louisiana’s 2017 laws reduced the magnitude of incarceration in the state. Its prison population dropped by 19 percent between 2012, when it peaked, and 2018, according to a state report on the laws’ impact after a year in effect. This drop was fueled by a cut in the use of habitual offender enhancements, which provide harsher penalties for people with prior convictions, and in the length of sentences for drug convictions.

The same report found that this has saved $12 million originally allocated to incarcerate people. Louisiana is reinvesting the majority of those funds into programs meant to serve as alternatives to prison or to facilitate re-entry.

That said, sentencing schemes remain very harsh. Even the reduced 2018 incarceration rate was far higher than the national average: 50 percent higher, according to the Prison Policy Initiative.

And the number of people incarcerated in Louisiana is climbing again this year because ICE is contracting with local law enforcement to use now-vacant jail space to detain immigrants.

Still, Abraham is staking his gubernatorial bid on warnings that even the most consensual of criminal justice reforms threaten public safety. 

In December, he opposed the final passage of the First Step Act, the federal law that decreased lower-level sentences and curbed mandatory minimums. Three of Louisiana’s four other Republican representatives voted for it, but in voting against it Abraham invoked his home state. “We’ve seen the negative effects this kind of criminal rights activism is having in Louisiana, and I’d hate to inflict that mistake on communities elsewhere in our country,” he said in a statement

Neither his campaign nor his office answered a request for comment on which specific reforms he opposes, and on what negative effects he sees. 

His words echo a 2018 op-ed written by U.S. Senator John Kennedy and state Attorney General Jeff Landry, who cite two cases of recidivism as their evidence for the ill effects of Louisiana’s reforms, a familiar strategy that Adam Johnson of The Appeal has dubbed “emotionally charged anecdotes and a lack of meaningful statistics.”

“Before the ink was barely dry, critics of the reforms began denouncing them with overinflated claims and anecdotal evidence,” Daniel Erspamer, chief executive of the Pelican Institute, a conservative think tank that supported the 2017 laws, told me. “While it’s certainly too early to claim ultimate success or failure, the actual data suggests progress in reducing crime and recidivism while saving scarce taxpayer dollars,” he added, pointing to early data that finds that the rate of reincarceration is lower than it was before the laws went into effect. 

Edwards, unlike Abraham, describes reform as a boost to public safety. “Just like we did in Louisiana, Congress has … recognized that what this country is doing, as it relates to criminal incarceration, just hasn’t been working,” he said in a statement after the passage of the First Step Act. “We have been spending too much money on a system that is broken, and our communities have not been any safer for it.”

Edwards’s other main challenger is Eddie Rispone, a Republican businessman who has not taken a clear public position on the 2017 criminal justice reforms. His website does not have an issues page as of this week, and his campaign did not answer a request for comment.

Other matters related to the criminal legal system are also occasioning contrasts. Edwards used his clemency powers more frequently than his predecessors, though he slowed down the pace in the latter part of his term, The Appeal reported last year.

He also expanded the state’s Medicaid program shortly after becoming governor. Medicaid expansion can alleviate patterns of reincarceration by improving access to treatment for people with addiction and mental health issues. Abraham and Rispone have both sharply criticized the program, but have stopped short of saying they would fully rescind Edwards’s executive order.

The rapid growth in the detention of immigrants looms large as well. Counties throughout the state are entering deals to rent their jail space for ICE to detain immigrants it arrests elsewhere. And they reap substantial financial benefit. ICE pays counties considerably more money for detaining an immigrant than the state pays them for incarcerating someone with a criminal conviction, according to the Times-Picayune.  

Both Republicans say they would support or accelerate this trend. Rispone took out a full-page ad in the Times-Picayune in July to proclaim his alignment with the White House on the issue. “When I’m governor, Louisiana will stand with President Trump to protect ICE, build the wall, and end illegal immigration,” the ad says. “We’re getting tough on illegal immigration the second my hand comes off the Bible.” And Abraham says he would look to further enshrine cooperation with ICE via legislation to override local efforts to restrict it. The Edwards campaign did not respond to a request for comment on his views regarding local cooperation with ICE.

“This state is very willing to lock up as many immigrants as will come our way, and the progress we made in decarceration has been erased,” Reilly of Voice of the Experienced said. 

Comparing this dynamic to the federal incentives that drove punitive laws in the 1990s, he added: “People who didn’t want to be the number one incarcerator in the country have shifted their tune now that there are federal dollars behind it.”

You can find the standalone version of this article here.

The politics of prosecutors: In California and Florida, two prosecutors announce policies to dismiss simple drug possession cases

California: The office of Santa Clara County DA Jeff Rosen announced that it will decline to prosecute many cases of simple drug possession. Prosecutors will seek drug possession charges only if they deem it accompanied by other offenses, or if it is a person’s third offense within 12 months. In 2018, approximately 4,500 cases were prosecuted that fit the criteria of cases that will now be declined; that’s an impressive 13 percent of all cases charged in Santa Clara last year. “We are drawing the line between public health and public safety,” Brian Buckelew, a supervising deputy DA, told KPIX. “The people can get a higher degree of treatment without the stigma, without the conviction, without everything else.” 

Florida: Aramis Ayala, the prosecutor for Orange and Osceola counties, rolled out a policy in June aimed at reducing the number of people prosecuted for drug possession. Prosecuting drug possession “has failed to reduce levels of drug use, dramatically increased the number of individuals incarcerated and undermined public safety by diverting much-needed resources,” Ayala said in a statement. The policy sets up conditions for prosecutors to outright dismiss drug charges: People will need to complete a one-hour course for lower-level charges (possession of marijuana or drug paraphernalia, or offenses involving trace amounts of other drugs) to be dropped; for possessing drugs other than marijuana, people will need to complete a course and community service, and not be rearrested for six months. If someone doesn’t fulfill those conditions, or if Ayala’s office decides they need substance use treatment, they may still be diverted toward rehabilitative services. 

Prosecutors who over the last year have announced policies to not prosecute possession of some drugs other than marijuana include Kim Foxx (Chicago), Sarah Fair George (Burlington, Vermont), and Rachael Rollins (Boston). Implementation of such policies is always crucial since prosecutorial discretion remains strong. For instance, these policies generally apply to simple possession, which means possession is not accompanied by another offense. But a prosecutor could respond by making more frequent use of other charges to circumvent it. 

Vermont, and beyond: Prosecutor who sends staff to prison makes waves

Chittenden County State’s Attorney Sarah Fair George’s initiative to require that her staff visit a prison is making waves. The Political Report published a Q&A with George last week, in which she laid out her hope that such visits counter prosecutors’ reflex to seek incarceration.

Janos Marton, who is running to be DA in Manhattan on a decarcerative platform, tweeted his approval. “I commend @SarahFairVT for this, and would do the same in Manhattan. (Maybe have ADAs spend the night!),” he wrote.

I asked Marton why he would implement such a policy. “Jail has a visceral impact on all of the senses, and serves as a reminder of the callousness and racism embedded in our criminal legal system,” he said. “To experience that, even for 24 hours, even knowing that there are no collateral consequences on the other side, ought to shift some ADAs’ perspectives on what jail is and what purpose it serves. For example, is it morally appropriate to use pretrial jail detention to leverage plea bargain outcomes? Recognizing that jail and prison conditions are different, we would also want to better understand prisons as we interrogate the kind of sentences we seek, and when we seek prison sentences at all rather than another form of accountability.”

Justin Kollar, the prosecutor in Hawaii’s Kauai County, also tweeted in response to the Q&A that he and his staff “regularly visit Hawaii’s prisons and jails for minimum term hearings,” and that such visits can be “eye opening.” He told me that “seeing the bleak conditions of a jail environment firsthand really brings it home for most folks that we should only put people in that type of restricted environment if it is truly necessary to protect the citizenry from violence. The therapeutic and rehabilitation components are better administered, for most people, in the community.”

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