The Appeal: Political Report

Jan. 7, 2021: In a historic night on Tuesday, Democrats gained control of the U.S. Senate, winning the two runoff elections in Georgia. The news, of course, has tremendous implications for the criminal legal system. It greatly eases President-elect Joe Biden's ability to get judicial appointments confirmed, and somewhat boosts the viability of some federal legislation he ran on. In addition, U.S. Senator-elect Raphael Warnock has history when it comes to the issues this newsletter focuses on, including helping organize against New York City Mayor Rudy Giuliani in the 1990s and calling out Georgia’s attorney general for opposing the release of a young Black man. 

Local and state politics, though, do not pause for federal news. On the contrary, the holiday period saw plenty of upheaval around the country. So let’s dig in to get 2021 started:

• Michigan and Virginia: Two more prosecutors announce they won’t seek cash bail

• New York: State ends a practice that traps people in poverty

• Georgia and South Carolina: New sheriffs quit an ICE program on their first day in office

• The politics of prosecutors: DAs roll out new criminal justice reforms, and some face pushback

• Nevada: How public defenders rocked Las Vegas judge elections 

In case you missed it, catch up with the most recent Political Report newsletter, which contains our big retrospective of criminal justice reforms in 2020. You can also visit our interactive tracker of legislative developments, our tracker of the politics of prosecutors, and our portal on 2020’s elections.

Michigan and Virginia: Two more prosecutors announce they won’t seek cash bail

Two prosecutors rolled out new policies around the holidays of never seeking cash bail. In late December, Steve Descano issued a memo to this effect in Fairfax County, Virginia; Eli Savit, who was newly elected in Michigan’s Washtenaw County (Ann Arbor), did the same on Monday shortly after taking office.

Their decisions are big wins for national efforts to end financial conditions for pretrial release. People are jailed around the country because they cannot afford to make payments, which makes it more likely that they suffer big consequences for an arrest and that they plead guilty.

Rachel Cohen reports in The Appeal: Political Report this week on these two prosecutors’ new announcements. There are still few officials who have taken such measures, she explains. Earlier in 2020, three prosecutors—in Los Angeles, San Francisco, and Vermont’s Chittenden County—said they would oppose cash bail in all circumstances. “We’d love to see other elected and appointed officials follow suit, and ultimately what we want to see is the decriminalization of poverty, mental health and addiction,” Twyla Carter, national policy director at The Bail Project, told Cohen.

But Cohen also reports on some question marks about the scope of Savit and Descano’s policies and the extent to which they will restrict wealth-based detention, as well as the financial implications of other sorts of pretrial supervision.

New York: State ends a punishment that traps people in poverty

New Year’s Eve brought a major win for criminal justice reformers, Jonathan Ben-Menachem writes in The Appeal: Political Report. New York Governor Andrew Cuomo signed a law that will end the state’s practice of suspending driver’s licenses over unpaid fines. 

In taking away many people’s main mode of transportation, these suspensions cut off access to work and make it harder for people who are impoverished to pay off debt in the first place. And they disproportionately affect Black New Yorkers, who are more likely to be pulled over, and are more likely to face fines that can trigger suspension.

But Ben-Menachem also reports that Cuomo weakened the bill as a condition of signing it. The legislation, as originally passed by the legislature, would also have ended driver’s license suspensions when people fail to appear at traffic court hearings. “A failure to appear in court is connected to poverty as well,” Ben-Menachem writes. “People who can’t pay a traffic ticket may also not be able to take time off work to go to court, or may be unable to arrange child care.”

In addition, advocates are pressing New York to take other steps to wind down the imposition of fines and fees in the first place. “Until the state ends its reliance on fines and fees for revenue, we will continue to see the extreme harm that these regressive taxes cause to those least able to afford them,” Katie Adamides, of the Fines and Fees Justice Center, told the Political Report. (Ben-Menachem was employed by the Fines and Fees Justice Center until July of 2020.)

New York law adds to the growing momentum against driver’s license suspensions. It is the fourth to pass such a reform over the past year; others have restricted license suspensions in recent years as well. 

Georgia and South Carolina: New sheriffs quit an ICE program on their first day in office

The newly elected sheriffs of Gwinnett County, Georgia, and Charleston County, South Carolina, terminated their counties’ memberships in ICE’s 287(g) program on their very first day in office.

These two counties are notorious strongholds of anti-immigrant policies, largely due to their departing sheriffs. These policies with ICE were on the line in the counties’ 2020 sheriffs’ races, since Democrats Kebo Taylor in Gwinnett and Kristin Graziano in Charleston ran on terminating the 287(g) contracts, which deputize local law enforcement to act like federal immigration agents within jails and puts thousands of people each year on ICE’s radar

Both won in November, and as of this week both have kept their promise to leave this program. In addition, Taylor and Graziano confirmed this week that they would not honor ICE detainers, which are warrantless requests asking sheriffs to detain people past their scheduled release.

“These incredible victories are the culmination of more than a decade of fighting back by immigrants’ rights organizers against the devastating 287(g) program which led to untold numbers of families being torn apart,” Azadeh Shahshahani, legal and advocacy director of Project South, told me in November. Sonam Vashi reported in December for the Political Report on the immigrants' rights organizing that went into Georgia's November elections, helping bring about these changes. 

A third candidate was elected sheriff in 2020 on a platform of ending a 287(g) contact: Craig Owens in Georgia’s Cobb County. Owens, who took office on Friday, has yet to follow up on that promise but he reiterated his commitment to do so in November, after winning office.

The events of the last week mirror what has occurred elsewhere in the South in recent years. In 2018, five of North Carolina’s most populous counties elected new sheriffs who ran on no longer assisting ICE, including by terminating 287(g) contracts. In 2020, the newly Democratic county government in Prince William County, Virginia’s second most populous jurisdiction, quit the 287(g) program.

The politics of prosecutors: DAs roll out new criminal justice reforms, and some face pushback

California: The association of Los Angeles County deputy DAs is suing the county’s new DA, George Gascón, over the criminal justice reforms he announced upon taking office in December. They want a restraining order against his directive to not seek three-strike and other sentencing enhancements. “Enhancements and strike allegations have never been shown to enhance our safety,” Gascón responded, in keeping with his campaign platform. 

Florida: Aramis Ayala, Orlando’s departing prosecutor, launched new programs in December to divert people from convictions over charges of driving on a suspended license and prostitution. Other prosecutors in the country have opted to drop the suspended license charges altogether without additional conditions.

Georgia: Deborah Gonzalez, a progressive who won the DA race in Clarke (Athens) and Oconee counties in November, promptly unveiled a set of big reforms on Friday. The DA’s office under her leadership will not prosecute marijuana possession, will seek to cap probation terms, will never seek the death penalty, and will seek to release people charged for nonviolent offenses pretrial “on their own recognizance,” among a list of roughly 40 reforms.

Virginia: Steve Descano, chief prosecutor of Fairfax County, rolled out a policy of no longer using mandatory minimums in plea deals when it comes to cases where sentences are not constrained by state law. He also asked the legislature to repeal mandatory minimums altogether, saying that they “perpetuate mass incarceration that is felt predominantly by Black and brown Virginians,” a stance he had laid out in an interview with the Political Report when he was running for office in 2019. Descano also wrote a commentary in the Richmond Times-Dispatch in December making the case against mandatory minimums.

Virginia (2): The Virginia Progressive Prosecutors for Justice, an organization of reform-minded prosecutors that was created last summer, released its agenda for the state’s 2021 legislative session. Their letter calls on the legislature to abolish the death penalty, end cash bail, and repeal mandatory minimums, among other changes. 

Texas: José Garza, who won the DA election in Travis County (Austin), has appointed one of his primary rivals, Erin Martinson, to head the special victims unit. Martinson, who also ran on a reform platform in challenging the incumbent Margaret Moore, had centered her campaign on the DA office’s failure to take sexual crime allegations seriously. The Appeal reported on these accusations against the DA’s office in 2019.

Wisconsin: Kenosha County DA Michael Graveley announced this week that the police officer who shot Jacob Blake in the back seven times will not face criminal charges. (Graveley, a Democrat, ran unopposed in 2016 and then again in 2020, amid a generally desolate landscape for contested elections that may spur debates on law enforcement issues in Wisconsin.)

Nevada: How public defenders rocked Las Vegas judge elections 

Local judges are key cogs in the machinery of mass incarceration, ratifying punitive policies and using their own discretion to ratchet up carceral practices. Recently, some judges have also fought reforms put in place by progressive prosecutors. But 2020 bought rumblings of change around the country, from activism to some unexpected election results.

This fall, the Political Report dove into a slate of public defenders who ran for judge in New Orleans with an eye to “flipping the bench” (two won), into a different local election in New Orleans that exposed judicial discretion on housing and evictions, and into grassroots organizing in Cincinnati that helped judicial candidates with public defense or civil rights experience.

And this dynamic also reached Nevada, Sam Mellins reports in the Political Report. 

Seven public defenders won judicial races in Clark County (Las Vegas) in December after running campaigns that involved challenging mass incarceration and cash bail. The county will be implementing a new bail system after settling a lawsuit, which makes this a pivotal moment for the criminal legal system in Las Vegas. Below is an excerpt from Mellins’s piece.