What Pennsylvania’s DA Association Stands for, Spotlight on Disenfranchisement in Nevada, and More

In This Edition of the Political Report

December 20, 2018:

• Pennsylvania: Spotlight on the Pennsylvania District Attorneys Association

• Missouri: How activists helped change St. Louis

• Nevada: State prepares to reform its disenfranchisement rules, but will it go further?

• New Jersey, New York, Oregon: Reviewing legislative debates

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

Pennsylvania: Spotlight on the Pennsylvania District Attorneys Association

Philadelphia District Attorney Larry Krasner announced in November that he was leaving the Pennsylvania District Attorneys Association (PDAA), an organization that brings together the state’s prosecutors and assistant prosecutors and that lobbies in their name in the state capital.

Krasner, who has implemented ambitious reforms since taking office in January, explained his departure by denouncing the policies advocated by the PDAA as regressive. “They have been claiming that Philadelphia supports this absolute nonsense, this throwback set of policies, and we do not,” he said in a speech. “The [PDAA] will not claim legitimacy of its most important criminal justice jurisdiction and try to take us back 40 years.”

As a growing number of reformers take office as prosecutors, they have increased awareness of the wide range of policies that DAs can enact and have blurred expectations that there is such a thing as the prosecutors’ side in criminal justice debates. But the PDAA’s public role and rhetoric don’t bear significant traces of these changes.

What policies has the PDAA supported?

The PDAA plays a major lobbying role in Harrisburg, the state capital, advocating for or against legislation and policy changes that touch on law enforcement practices. “I have found that Democrats and Republicans listen to them very closely,” said Elizabeth Rosol, the legislative director of the ACLU of Pennsylvania. “There is an ever-present concern about not wanting to rankle the DA’s association.”

The association took a public position on 16 bills and two specific policy debates in 2017 and 2018, based on my review of all press releases that it issued during those two years.

It championed a series of measures to make the law more punitive or criminalize a new action. These include reinstating mandatory minimum sentences, reinstating requirements that people convicted of sexual offenses sign up on a registry, increasing the gravity of offenses that involve fentanyl, and making it a misdemeanor to record courtroom proceedings. The PDAA typically presents such measures as essential to public safety. “Mandatory minimum sentences work to improve public safety: they help to keep the most dangerous offenders off our street,” the PDAA writes in one press release.

Conversely, it objected to bills that facilitated post-conviction relief and DNA testing, denounced a report critical of the death penalty, and raised concerns about proposed prison closures. It has also issued more generalized warnings about the goals of criminal justice reformers and about viewing the criminal justice system as structurally flawed. “We cannot… let one individual under very unique circumstances indict an entire system,” the group wrote in response to a press conference held by Governor Tom Wolf and the rapper Meek Mill after the latter’s release. “We caution against the wholesale elimination of appropriate consequences and accountability in the criminal justice system cloaked in the concept of reform.”

Who does the PDAA speak for?

In the media, PDAA pronouncements often get reified as the perspective of law enforcement writ large, as the view that reflects the experience of striving for safety and caring for victims.

Take a September article in the Morning Call about a report released by the Abolitionist Law Center against Pennsylvania’s use of life without parole sentences. The author turned to the PDAA for a perspective rebutting the study, and quotes its executive director as saying that murder “warrants the most severe sentence.” The article characterizes the pushback as follows: “[The report’s] conclusions were panned by law enforcement, which has long maintained that life without parole fulfills a promise made to the families of countless murder victims.” But this characterization is contradicted by the reforms that Krasner was concurrently putting in place in Philadelphia to change the approach of his DA’s office to homicide cases and minimize life sentences.

“Because they’re speaking as the association, my strong belief is that legislators often assume that it’s all DAs saying that to them—and that matters,” said Rosol. “Some of their power derives from the assumption that their positions are held uniformly and unanimously by all district attorneys who remain in the association, but I don’t know if that’s true.”

Montgomery County District Attorney Kevin Steele, the legislative chairperson of the PDAA, told me in an email through a spokesperson for the organization that “legislative and policy issues are discussed and decided upon through the PDAA’s Executive Committee.” The committee is a subset of the state’s district attorneys. “All of Pennsylvania’s 67 district attorneys are invited to participate in statewide business meetings twice each year,” Steele added. “These discussions help inform the Executive Committee’s decisions.”

When asked whether a PDAA statement is meant to reflect the view of all DAs, Steele said that “positions taken by the PDAA reflect the views of the Association. As with other associations, District Attorneys are free to disagree with such positions.”

This nuance can get lost in press coverage, as mentioned above, as well as in some PDAA pronouncements. In 2017, for instance, Bucks County District Attorney John Adams (who was then the PDAA president) delivered a testimony on behalf of the PDAA position calling for more severe sentences for fentanyl offenses. “We are in a crisis,” Adams said. “Pennsylvania’s district attorneys ask that you help us respond to it.” In another testimony, Cumberland County District Attorney and PDAA communications chairperson Dave Freed also spoke on behalf of his peers. “As prosecutors, our experience is that sex offender registries work and represent good policy,” he said. And in a press release calling for mandatory minimums to be reinstated, the association wrote that “law enforcement and prosecutors in Pennsylvania have seen a difference on the streets and in the courtroom without [longer sentences].”

Turahn Jenkins, who is challenging Stephen Zappala in Allegheny County (Pittsburgh) in 2019, told the Appeal: Political Report that if he wins he may emulate Krasner and leave the PDAA.

“The views and policies of the [PDAA] are partly responsible for many of the issues that plague our criminal justice system; their desire to restore mandatory minimum sentences & their failure to adopt innovative approaches to case dispositions being the most problematic,” Jenkins said in a statement emailed by a spokesperson. “Once elected, I will not seek inclusion in the PDAA unless the organization demonstrates a willingness to reconsider their policy positions and the negative impact they have on the citizens of the Commonwealth.”

You can find a standalone version of this story here.

Missouri: How activists helped change St. Louis

Wesley Bell ousted St. Louis County Prosecuting Attorney Bob McCulloch in August, four years after protesters assailed McCulloch’s actions after a police officer killed Michael Brown in Ferguson. Defeating McCulloch, who had been in office since 1991, involved years of sustained organizing on the part of activists who participated in the Ferguson protests. Last week, I talked to Reverend Dr. Cassandra Gould, the executive director of Missouri Faith Voices, about her work in St. Louis County and about what toppled the longtime prosecutor. You can read the full conversation here. Below is a brief excerpt:

Bob McCulloch had been in office since 1991. What do you think made his loss possible in 2018 when he had been winning for so long?

Our bet was that if we focus specifically on increasing the electorate by having conversations with voters of color and Black voters who don’t normally vote, we could increase turnout, and not just for the sake of one election. People could start taking ownership of their own community. We were knocking on doors and talking to young people, particularly in Ferguson, and asking them what they wanted to be different. We discovered that there was a sense of hopelessness in the situation. They felt that the system was completely against them and that they didn’t have an opportunity to change it. But we talked to people and we listened; people really started to come on board and to re-imagine what their community could look like. We made this big bet to do something different. Most campaigns focus on white swing voters, but we decided we wanted this to be the people’s campaign. We hired people who understood the criminal justice system. We had a young man run our canvassing campaign who was a formerly incarcerated person. We wanted people who had a stake in the game and understood the criminal justice system from the inside out.

What were the main messages you heard in your conversations during the campaign?

Particularly among young African Americans, it was about feeling harassed. I would say 98 percent of the people we talked to had some personal involvement with police, with traffic stops, with fines and fees, or if it wasn’t them it was some family member who was impacted by the system in very negative ways. We heard a lot about the amount of time they spent in jail waiting for a hearing or trial. Some people don’t know that, they don’t know what happens behind the curtain. Having people share those stories in public spaces made a tremendous difference…. People who are impacted know it’s not just their stories. But rarely do they get to tell their story, and rarely do people care enough to listen to their story, and many of them are not accustomed to the power of their story. Using their voice and engaging in a democratic process, it’s also a way to lift their voice. We were able to connect the story of their pain to their opportunity to make something different happen, as opposed to keeping it to yourself but not ever bringing it to light.

You can read the rest of our interview with Cassandra Gould here.

Nevada: State prepares to reform its disenfranchisement rules, but will it go further?

Nevada, which has some of the country’s strictest felony disenfranchisement laws, is changing its rules in January. But it will still retain a system that is harsh by national standards and will disenfranchise large numbers of residents.

These exclusionary rules will soon become the responsibility of state Democrats, who are set to take full control of Nevada’s government in 2019 for the first time since 1992.

Nevada is one of 12 states where people are still disenfranchised after completing a sentence. The upcoming reform (Assembly Bill 181) will keep Nevada on that list. While it will expand the groups who qualify for automatic rights restoration, anyone convicted of a higher-category felony and anyone with multiple convictions of whatever severity will remain disenfranchised even after serving a sentence. (AB 181 is thus weaker than Florida’s Amendment 4, which was adopted via referendum in November and does not contain the latter exception.)

All Nevadans who are incarcerated, on parole, or on probation will also remain disenfranchised. Other states are more inclusive on this front as well. Of the 13 states other than Nevada that will be under full Democratic control in 2019, seven enfranchise some or all such individuals.

AB 181 does make it easier for people to regain the franchise post-sentence if the reason they are barred from voting is a failure to meet the financial costs of probation or parole. That’s because it eliminates the rule that grants automatic eligibility to regain voting rights only to people who receive a so-called honorable discharge from probation or parole. “It’s a lot easier for people with money to finish their sentence honorably,” said Blair Bowie, a Campaign Legal Center fellow who has helped Nevadans regain their rights as part of the Restore Your Vote campaign. A dishonorable discharge can stem from many reasons, including an inability to pay court fines and fees.

By breaking the link between voting and honorable discharges, which Bowie calls a “hidden wealth barrier,” AB 181 will reduce the financial disparities in disenfranchisement.

That alone will cut into Nevada’s high rate of disenfranchisement. Four percent of Nevadans and 12 percent of African American Nevadans were disenfranchised as of 2016, a racial disparity is line with the vast inequality in the state’s incarceration system, according to a report by the Sentencing Project.

But Nevada will still disenfranchise tens of thousands come 2019.

“There’s definitely a movement toward getting rid of these outdated and punitive laws,” Bowie told me. “It’s great that Nevada is taking a small step in that direction, but there’s a lot more that they could do.”

According to Bowie, of the Nevadans whom Restore Your Vote assisted in 2018 only to discover that they were ineligible to have their rights restored, more were barred from voting because they had multiple convictions on their record than because of a dishonorable discharge. These people will still be disenfranchised under AB 181. Importantly, a wide range of offenses result in felony convictions; for instance, Nevada has a low threshold for when theft counts as a felony.

Those whose rights are not automatically restored have some other paths available to them, such as petitioning for an individual pardon. But those paths are “cumbersome and opaque,” according to Lauren Kaufman, an attorney at the ACLU of Nevada. “The process is so rare and obscure that no one really knows how to do the petitions,” Bowie agreed. Nevada restored the right to vote to less than 300 individuals over two decades through such post-sentence mechanisms, according to the Sentencing Project.

Nevada advocates also say that rules regarding who can vote are confusing enough that many people do not know that they actually are eligible, especially in the absence of adequate communication by the state’s public authorities. “We need a law that is so simple and so clear that you don’t need to get legal advice,” said Lonnie Feemster, the state director of the NAACP National Voter Fund.

Feemster called on Nevada to be bolder than just tweaking rights restoration rules or making the process easier to comprehend. “We shouldn’t try to make a law that’s essentially a holdover from the Jim Crow period into a law that’s understandable,” he told me. “We should get it eliminated, it shouldn’t be in the books.”

What are the prospects of future reform? AB 181’s legislative history signals political support for further steps. An early version introduced by Democratic leaders in 2017 automatically restored the rights of those who completed their sentence; restoration was to be immediate for most and to happen after two years for those convicted of more severe offenses. But the governor was Brian Sandoval, a Republican who had vetoed a similar bill in 2011, and so lawmakers weakened AB 181 to ensure passage. Sandoval signed it in June 2017. In January, Democrat Steve Sisolak will replace Sandoval.

None of the Democratic sponsors of AB 181 responded to requests for comment about whether they would push for more expansive reforms in the next session. Feemster said that he is advocating for Nevada’s legislature enfranchise everyone not presently incarcerated. He added that his own conversations with lawmakers made him optimistic that the state would “correct the really grievous wrong that has been done to citizens of Nevada and to African Americans in particular.”

If the legislature does not act, or even if it does while not going as far as voting rights advocates would like, Nevada allows for popular initiatives. In November, for instance, Nevadans enabled automatic voter registration by approving an initiative for which organizers had collected signatures.

You can find a standalone version of this story here.

Nationwide: Reviewing legislative debates

New Jersey: The legislature adopted a bill (Senate Bill 1036) that requires that all cases of people who are killed by police officers or who die while in custody to be investigated by the attorney General’s office rather than county prosecutors. “This bill is needed because like every institution where human interaction is at the forefront, there is a susceptible element of perceived corruption that can exist,” said Assembly member Britnee Timberlake. SB 1036 now needs Governor Phil Murphy’s signature; Attorney General Gurbir Grewal, an appointee of Murphy, testified against the bill.

New York: Governor Andrew Cuomo has announced that he now supports legalizing marijuana for recreational use in New York. Cuomo’s position, a turnaround from his past views, comes as Democrats take control of the legislature for the first time since 2010. In his speech, Cuomo also advocated a range of bills strengthening voting rights but did not address reforming felony disenfranchisement. Reverend Al Sharpton published an op-ed in the New York Daily News two weeks ago calling for the state to confront the issue. “Restoring a person’s right to vote restores their most basic level of personhood and citizenship in this country,” Sharpton wrote.

Oregon: The death penalty is inscribed in Oregon’s state Constitution, which prevents its outright abolition via regular legislation. But Oregon Public Broadcasting reports that some Democratic lawmakers are pushing to shrink its scope. Possible changes include creating a higher standard in jury deliberations and shrinking the definition of aggravated murder (the only homicide charge that can result in the death penalty in Oregon) so it covers fewer circumstances. (See also: our coverage of the prospects of death penalty repeal in New Hampshire.)

Thanks for reading. We’ll see you in 2019!