Sept. 6, 2018—Political Report

Daniel Nichanian

Massachusetts Democrats chose to transform Berkshire and Suffolk counties’ approach to criminal justice issues, selecting candidates who ran for district attorney on ambitious reform agendas. Today’s newsletter also profiles upcoming elections in Delaware and New York—as well a new tool launched by the ACLU:

  • Massachusetts: Transformative results in the Sept. 4 district attorney elections

  • National: ACLU releases state-specific reports on how to cut incarceration by 50 percent

  • DelawareAttorney general race could reshape state’s prosecutorial practices  

  • New York:   The Appeal reviews Andrew Cuomo and Cynthia Nixon’s platforms


Massachusetts: Transformative results in district attorney elections

Suffolk County: Boston voters selected Rachael Rollins as the Democratic nominee for district attorney of Suffolk County. In so doing, they shifted away from the record of outgoing DA Dan Conley, a Democrat who has resisted criminal justice reform. Rollins defeated Gregory Henning (the candidate endorsed by Conley) by 17 percentage points, even though this five-person race featured other candidates who like Rollins ran on reform platforms.

“We need to end mass incarceration and restore justice in our communities,” Rollins argued during the campaign. She ran on improving re-entry resources available to people released from incarceration. “There are currently 11 housing authorities in the United States that allow re-entering residents with felonies to live in public housing. As DA, I want to work on having Boston, Chelsea, Winthrop and Revere start pilot programs to increase that number,” she wrote in an ACLU questionnaire. Rollins also features on her website a list of offenses (such as drug possession, trespassing, and disorderly conduct) that she’ll adopt a default policy of not prosecuting; she says that she will instead dismiss these cases or treat them as civil infractions. She has committed to ending the use of cash bail for low-level offenses and to supporting the elimination of all mandatory minimum sentences for drug charges.

Rollins now faces independent Mike Maloney in November. If she wins, she would be the first Black woman to serve as DA of Suffolk County. Only 1 percent of all elected prosecutors in the U.S. are women of color, Matt Ferner writes in HuffPost.

Berkshire County: Rollins had company on Tuesday: Another candidate looking to transform her county’s criminal justice system also won, this time on the other side of the state. Andrea Harrington, a defense lawyer who ran on ending “tough-on-crime” prosecution and confronting “the impact of systemic racism,” defeated Berkshire County district attorney Paul Caccaviello. Also running was Judith Knight, who outlined a reform agenda similar to Harrington’s; together, Harrington and Knight received more than 60 percent of the vote.

Harrington talked with The Appeal’s Eoin Higgins in June about wanting to grow restorative justice. “The conversation over crime has been fear-based; to be a DA, you must run on being ‘tough on crime,’” she told him. “Now, I think because of the opioid crisis, the conversation has opened up and all people are seeing what communities of color have known for a long time: The system doesn’t work.” Harrington supports alternative approaches, including increased diversion programs and new specialized courts with a rehabilitative mission. She has also committed to ending the use of cash bail for low-level offenses and advocating the repeal of mandatory minimums. Harrington will be the only candidate on the November ballot.

Middlesex County: Marian Ryan secured her re-election as DA of Middlesex County, defeating her challenger Donna Patalano with approximately 54 percent of the vote. She will now be the only candidate on the November ballot. As I reported last week, Ryan campaigned on reforms she has championed: She highlighted her new policy of not seeking cash bail for low-level offenses and her support for a new law opposed by nearly all other state prosecutors that curbed mandatory minimums. But Patalano questioned the reliability of her reforms absent precise guidelines and absent the release of data to track implementation, and she pledged to go further on ending cash bail and mandatory minimum sentences. In addition, The Appeal‘s Jessica Brand reported in January that Ryan’s continued use of cash bail raised questions as to what her reform actually amounts to in practice—a matter to keep tracking in the future.


National: ACLU releases state-specific reports on how to cut incarceration by 50 percent

On Sept. 5, the ACLU released 24 state-specific reports on mass incarceration, the product of a two-year partnership with the Urban Institute. Each report details what factors are driving mass incarceration in a given state. And each proposes a roadmap for how that state can reduce racial disparities and cut incarceration by 50 percent.

“Mass incarceration is a national problem, but it is one that is rooted in the states and needs to be fought in the states,” Udi Ofer, the director of the ACLU’s Campaign for Smart Justice, told me. He added that national data can mask factors that play outsize roles in different places, leading people to understate—or overstate—the impact that a particular reform will have. For instance, these reports map out the wide range of effects that would result from a similar set of changes to how drug offenses are sentenced: These reforms would reduce the prison population by 23 percent in Oklahoma, 14 percent in Texas, and only 7 percent in Michigan. That’s because Oklahoma is more resistant to pursuing alternative forms of punishment for lower-level offenses, Ofer notes, while what distinguishes Michigan is that it responds to a category of crimes it calls “assaultive” with harsh sentences and few opportunities for early release.

Nationwide conclusions do jump out, however. The first is that reforms must incorporate racial justice as a stand-alone goal. “We found that reducing the prison population by itself does little to diminish racial disparities in incarceration—and in some cases would worsen them,” the reports warn. They recommend policies that would specifically target such disparities, like ending sentencing enhancement rules that disproportionately affect people of color, ending over-policing, and holding prosecutors accountable for biases in charging decisions.

The second lesson is that any one area of reform will only go so far. The goal espoused by some politicians of cutting incarceration by half demands a broad array of changes that go beyond tackling low-level offenses. “Reaching a 50 percent decarceration goal will require transforming the way the criminal justice system responds to offenses involving violence,” Ofer told me, a statement illustrated in each of these reports by a chart forecasting to what extent different reform would reduce a state’s prison population. Many politicians who advocate criminal justice reform stop short of this step. This makes it striking for Andrew Gillum (Florida Democrats’ nominee for governor) to not exclude such offenses from his proposed overhaul of the sentencing code, as I noted in last week’s newsletter.

Rachael Rollins, Democrats’ nominee for Boston district attorney as of Tuesday, also talks of changing how prosecutors approach all offenses. “We can’t exclusively focus on nonviolent offenders,” she said during the primary. “We need to start having hard conversations about violent offenders and what we are doing to make sure that when they return to the community they have the tools necessary to re-enter successfully.” According to the ACLU’s Massachusetts report, more than two-thirds of criminally sentenced individuals detained in Massachusetts prisons were convicted of an offense involving violence. The report specifically flags the state’s harsh sentencing guidelines and its limits on opportunities for parole and early release.

Alongside these reports, the Urban Institute has launched a forecaster tool whose users can input policy changes to see what impact they would have on a state’s incarceration rate.


Delaware: Attorney general race could reshape state’s prosecutorial practices

Delaware is a rare state that does not elect prosecutors, instead entrusting its attorney general to appoint them. This year’s incumbentless attorney general race is thus crucial for the state’s criminal justice system. In the Sept. 6 Democratic primary—the first contested primary in 20 years—the four candidates are Kathy Jennings, Chris Johnson, Tim Mullaney, and LaKresha Roberts. All except Johnson (a defense attorney) have worked in Delaware’s Department of Justice (DOJ); Mullaney has also worked at the national Fraternal Order of Police. Jennings, who supervised criminal prosecutions while at the DOJ, had raised more money than all her opponents combined as of mid-August.

The campaign has mostly broken the mold of “tough-on-crime” campaigning, according to the Delaware News Journal’s Xerxes Wilson. The candidates agree that the state incarcerates too many people—and too many Black people in particular—and all talk about bail reform and stronger diversion programs. “There has not been this public discourse around structural racism and its impact on the black community and the relationship to law enforcement in the legal system,” said Raye Avery, president of the Committee of 100 Black Women Delaware chapter.

That said, the candidates’ agendas differ significantly, as is visible in their responses to this ACLU questionnaire or in debates. For one, Mullaney’s platform is less progressive. He is the only candidate to support reinstating the death penalty for certain crimes. (Delaware’s Supreme Court ruled capital punishment unconstitutional in 2016, but many lawmakers favor overturning that decision.) He is also the only candidate to reject “the elimination of the automatic issuance of warrants for failures to pay fines” and to oppose legalizing marijuana.

Meanwhile, Johnson says that his “top priority is to end mass incarceration.” “Mass incarceration is bankrupting Delaware, in both a moral and fiscal sense,” Johnson wrote in an op-ed that draws policy lessons from a 2017 prison riot. He argues that the riot resulted from “systemic problems” that must be addressed through decarceration. “Rather than putting more officers into dangerous working conditions … I propose that we manipulate the other side of this equation: We must rapidly and dramatically reduce our prison population.” He has said elsewhere that, with his reforms, “Delaware could see a 10-20% decrease in its prison population by 2020.” In the op-ed, Johnson specifically commits to ending prosecutors’ habit of overcharging and to not prosecuting some nonviolent cases. He is the only candidate to tell the ACLU that no one under the age of 18 should be prosecuted as an adult, to support repealing all mandatory minimum sentences (Jennings and Roberts do say that they favor scaling them back), and to pledge that he would instruct prosecutors to not seek death sentences even if the legislature reinstates it.

In August, people incarcerated at the Vaughn prison—the site of the 2017 riot—engaged in a hunger strike as part of the nationwide protest movement. “This is the second time in two months that Delaware inmates have refused to eat in protest,” the Delaware News Journal’s Esteban Parra reports.


New York: The Appeal reviews Cuomo and Nixon’s criminal justice agendas

Governor Andrew Cuomo’s attitude on criminal justice has swung wildly in recent years. In 2016 he vetoed bipartisan legislation that would have strengthened New York’s public defense system, and he has rarely used his clemency powers. But this year Cuomo announced that he would restore the voting rights of tens of thousands of people by issuing pardons, and signed a bill establishing an independent commission to investigate prosecutorial misconduct.

In the Sept. 13 Democratic primary, Cuomo faces Cynthia Nixon, who has claimed credit for pushing the governor leftward—including over his use of pardons. Nixon’s campaign has emphasized criminal justice reform. She “made legalizing recreational marijuana the first policy plank of her campaign for governor, framing it as a necessary step toward reducing racial inequities in the criminal justice system,” Vivian Wang reported in the New York Times in April.

In August, The Appeal published an in-depth article by Emma Whitford on Cuomo and Nixon’s agendas. In exploring their views on policing, pretrial detention, discovery rules, clemency, and other criminal justice issues, Whitford notes important areas of agreement (closing Rikers Island, for one). But she also details divergences in the scope of their proposals. For instance, Nixon is running on eliminating all solitary confinement via executive order. And while Cuomo proposes “ending cash bail for people charged with misdemeanors and nonviolent felonies,” Nixon wishes to end it “regardless of the arresting charge.” In addition, some reform advocates are urging both candidates to be more ambitious in some areas, for instance on guidelines they are proposing for clemency and for parole review. “We have 10,000 people serving life sentences, and that’s where the governor has to zero in on,” says Steve Zeidman, a professor at City University of New York School of Law.


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