“We hold that the decision to terminate a pregnancy rests upon the utmost personal and private considerations imaginable, and implicates a woman’s right to privacy,” Justice Kaye Hearn wrote in the lead opinion, pointing to language embedded in the South Carolina Constitution.

The six-week ban was passed in 2021 by the Republican legislature, which saw it as an invitation for the U.S. Supreme Court to overturn Roe v. Wade. After the court’s Dobbs ruling in June, the ban briefly came into effect until the state supreme court blocked it in August. At the time, the justices left unresolved whether they thought that the law violated the state constitution’s privacy-rights protection—but they settled that question with their ruling this week.

The ruling is fragile since one of three justices in the majority is leaving the court next month, and another must retire by 2024. But advocates for abortion rights were quick to cheer the ruling, the latest showcase of the extraordinarily heightened stakes of state courts since last summer.

“The court’s decision means that our patients can continue to come to us, their trusted health care providers, to access abortion and other essential health services in South Carolina,” Jenny Black, the president of Planned Parenthood South Atlantic, one of the plaintiffs in the case, said in a statement on Thursday.

After the Dobbs decision overturned federal protections for abortion and triggered bans around the country, abortion rights advocates turned to state courts, asking them to shield abortion access by affirming it as a right under their state constitutions. States are required to abide by the minimum protections recognized by the U.S. Constitution, but their courts are free to recognize a greater level of protection—and more rights—based on state constitutional provisions. 

The ruling from the South Carolina supreme court marks the first time since Dobbs that a state supreme court has rewarded that strategy and struck down an abortion restriction on state constitutional grounds.  

A dozen supreme courts had already affirmed by 2022 that their state constitutions recognize abortion rights, a state-by-state analysis by Bolts found in July. These rulings, like South Carolina’s, relied on interpreting language like an equal protection clause and privacy protections. In August, Kansans voted down a measure that would have overturned such a ruling; in November, voters in California, Michigan, and Vermont approved referendums that added explicit protections for abortion rights into their constitutions, becoming the first states to do so. 

The South Carolina Supreme Court flirted with that step on Thursday, though whether it actually affirmed a constitutional right to abortion is a matter of some confusion—even to its own members. Two of the justices in the majority wrote that the state constitution contains the right to an abortion. But the third, Justice John Few, took pains to distance himself from that conclusion, even while writing that abortion access falls under the constitution’s right to privacy. Justice John Kittredge, in his dissent, notes that Few’s opinion is “less clear, at least to me.”

Those nuances do not change the immediate fate of the 2021 law, said Jace Woodrum, executive director of the ACLU of South Carolina. 

“Although it is rare for… all the justices to write separately, the result is the same: the Legislature’s six-week ban is struck down as unconstitutional, and abortion in South Carolina remains legal up to 20 weeks,” he told Bolts.

In other states, lawsuits appealing to the state constitutions have seen some initial success but few courts have reached final decisions. On Thursday, though, the Idaho Supreme Court held that its state constitution does not protect abortion. The conservative court handed down an opinion steeped in originalist philosophy that concluded “the relevant history and traditions of Idaho show abortion was viewed as an immoral act and treated as a crime.”

The South Carolina court’s ruling hinged on interpreting the state constitution’s clause against “unreasonable invasions of privacy.” That provision, embedded in its Declaration of Rights, generally relates to “searches and seizures,” and so opponents of abortion in South Carolina argued that the protection is limited to the context of criminal procedure. But the state supreme court on Thursday rejected this argument, holding that this right to privacy applies to abortion even if “the words used do not specifically mention medical care or bodily autonomy.” 

Because the six-week ban “leav[es] no room for many women” to exercise their choice to continue a pregnancy, Hearn wrote, it “prohibits certain South Carolinians from making their own medical decisions.” This “cannot be deemed a reasonable restriction on privacy.” 

Hearn also drew on a broad history of privacy-rights protection in the United States to make that case, including the decisions of other state supreme courts, including Alaska, Florida, Minnesota, Montana, and Tennessee, that also applied the right to privacy to abortion rights. 

The majority’s decision came with limits, though. Hearn’s lead opinion states that the abortion right protected by the state constitution “is not absolute.” It emphasizes that a six-week ban limits abortion access “before many women . . . even know they are pregnant” and “severely limits” or “completely forecloses” its availability. And Few’s concurrence outlines seemingly weaker standards of scrutiny and pushes against the notion that the right to seek an abortion is “fundamental” in the state constitution. These leave open the possibility that the same justices would uphold other types of abortion restrictions in the future.

Still, Woodrum, of the ACLU, said the differing opinions that make up the majority are a sign of strength for the position that abortion bans are unconstitutional. “There are many different paths to take that arrive at the same conclusion.”

“There is no doubt in my mind that some of our legislators will respond to this decision with more misguided attempts to ban abortion,” Woodrum said. “For months last fall, some legislators attempted to pass a complete ban on abortion, arguing that even the extreme six-week ban wasn’t enough. They weren’t successful, but we remain concerned that some of our elected officials will continue to ignore the Constitution and push to limit the reproductive rights of South Carolinians.”

Plus, the court’s composition will soon change, which could also change its approach to abortion rights. Hearn, who wrote Thursday’s lead opinion, is leaving the court in February because she has reached the mandatory retirement age of 72. Chief Justice Donald Beatty, who joined her in the majority, must also retire within the next two years. 

Members of South Carolina’s supreme court are elected by the legislature, which has a large Republican majority. But the legislature does not have absolute autonomy. The Judicial Merit Selection Commission considers prospective candidates and presents a slate of options to the legislature, which can elect one of the nominees or reject the entire slate and start the process over again.

Conservatives in red states have expressed frustration at such arrangements for preventing them from nominating politically reliable jurists on state courts. South Carolina’s process is built on informal but entrenched customs, which have historically included pledges of support for judicial candidates and vote-trading among legislators. The creation of the merit-based selection process in 1996 eroded some of these practices, but informal jockeying still takes place. 

Still, for advocates in other states who are fighting similarly harsh abortion bans in the state courts, the outcome in South Carolina is encouraging and shows that even courts dominated by Republican appointees may be unwilling to sanction near-total bans on abortion.

The post South Carolina Supreme Court Recognizes that Privacy Rights Protect Abortion Access appeared first on Bolts.

Republicans lost sheriff’s elections last week in populous Southern counties that have been close ICE allies. This is likely to bring an end to prominent ICE contracts in Georgia’s Cobb and Gwinnett counties and in Charleston County, South Carolina. 

These results are major wins for immigrants’ rights advocates who have long worked to change policies in these jurisdictions, which are home to more than 2 million residents combined.

“We celebrate the ouster of the sheriffs who were responsible for the targeting of community members, working in collusion with ICE,” Azadeh Shahshahani, legal and advocacy director of Project South, told The Appeal: Political Report. “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.” 

Charleston, Cobb, and Gwinnett are all members of ICE’s 287(g) program, which deputizes local law enforcement to act like federal immigration agents within jails. The program has put thousands of people each year on ICE’s radar. Local officials justify this policy as a way to target people who commit violent crimes, though the vast majority of people affected were booked for lower-level offenses or were never convicted. As a result, people can be funneled into deportation proceedings and find themselves locked up in detention centers that are known for inhumane conditions. Project South is among the organizations suing ICE for failing to respond to a whistleblower complaint alleging that women in Georgia’s Irwin Detention Center were forced to undergo gynecological surgeries that could result in sterilization.

Participation in the 287(g) program is up to the sheriff—much like many other forms of cooperation with ICE—and the Democratic nominees in each of these counties ran on terminating it, a stance they reiterated in interviews with the Political Report in September and October. The Republican nominees favored the 287(g) program, by contrast. The three Democrats prevailed.

Cobb County’s longtime sheriff, Neil Warren, lost to challenger Craig Owens. In Gwinnett County, a sheriff with notoriously aggressive policies toward immigrants retired, and the resulting open race was won by Kebo Taylor. 

And in Charleston County, Sheriff Al Cannon lost to Kristin Graziano, who told the Political Report in October that the 287(g) program is “contradictory to what we’re trying to accomplish in Charleston,” namely “building our communities back up and building trust.” Charleston has a separate agreement to help ICE detain people the agency arrests elsewhere, and Graziano indicated to the Political Report she opposed detaining people on noncriminal grounds.

These results add to a series of recent wins by candidates who pledged to cut ties with ICE. 

In 2018, North Carolina was the epicenter of that surge, driven by extensive grassroots activism. Five of its most populous counties elected new sheriffs who ran on no longer assisting ICE, including by terminating 287(g) contracts. They promptly did so after entering office. All five of the new North Carolina sheriffs who ran on improving immigrants’ rights are Black, as are Owens and Taylor in Georgia, even as sheriffs nationally are overwhelmingly white.

Then, in 2019, Democrats took over Prince William County, Virginia’s second most populous jurisdiction, and used their newfound power to quit the 287(g) program this year.

A broader blue shift also contributed to last week’s results in Charleston, Cobb, and Gwinnett counties. Joe Biden carried each county by more than any Democratic presidential candidate since at least 1976. The two Georgia counties, in particular, are longtime conservative bastions that have seen tremendous change in their population and politics. For instance, more than two-thirds of Gwinnett County residents were white in 1996, when Butch Conway was elected sheriff and made his county a national leader in targeting immigrants. Now, it’s about a third.

Still, advocates emphasize that it took a lot of work to get these partisan flips to translate into policy commitments by candidates. 

Aisha Yaqoob Mahmood, director of the Asian American Advocacy Fund, which has opposed cooperation with ICE in Georgia, told the Political Report in August that, “four years ago, nobody knew what this [287(g)] program did,” whereas this year it was a core campaign issue. “The last few years of organizing were very important for us to make sure that 287(g) becomes a top issue in this election, and it really has become that way,” she said. 

Other organizations, such as Mijente, Project South, the Georgia Latino Alliance for Human Rights, and SONG Power, fought to curtail ICE’s reach through these sheriff’s races, and through protests and community events. And in a project sponsored by the Georgia NAACP, the group Informed Georgians for Justice sent questionnaires to all Georgia sheriff candidates, inviting them to clarify their views on immigration and other issues. 

Georgia organizers had already scored a win in the June Democratic primary. Sheriff Ira Edwards lost in Athens to challenger John Williams, who took issue with the incumbent’shis record of helping ICE. Athens is not part of 287(g), but Edwards had honored ICE detainers, which are requests that he detain people beyond their scheduled release to give federal agents time to arrest them. 

Williams said he would not honor ICE detainers. “It’s almost a level of terrorism when people are living in fear to the point that they will not ask for help,” he told the Political Report in June, right after his primary win. Williams also won the general election last week.

Graziano and Owens, the incoming sheriffs in Charleston and Cobb, also said during their campaigns that they would oppose ICE detainers. But Taylor, the incoming Gwinnett sheriff, left the door open to assisting ICE in ways beyond the 287(g) program. Advocates have said they will push local officials to be bolder to protect immigrants.

Graziano told the Political Report she has learned from organizers in Charleston’s Latinx community, whom she wants “sitting at the table making the decisions that affect their lives.”

Elsewhere in the country, two Republican sheriffs who have championed ICE and who joined 287(g) won in counties that narrowly went for Biden in the presidential race. Bill Waybourn in Texas’s Tarrant County (Fort Worth) and Bob Gualtieri in Florida’s Pinellas County (St. Petersburg) defeated challengers who had pledged to terminate these contracts. 

But many candidates who called for winding down local relationships with ICE prevailed. Charmaine McGuffey won a heated sheriff’s race in Ohio’s Hamilton County (Cincinnati); earlier this year, she secured a primary win against a Democratic incumbent who had honored ICE detainers, which McGuffey vowed to oppose. In Massachusetts’s Norfolk County, voters ousted a GOP sheriff who had championed greater ICE cooperation.

And in Florida’s Miami-Dade County, Democrat Daniella Levine Cava flipped the mayor’s seat from the GOP. Cava ran on curtailing cooperation with ICE, which has been spearheaded by the retiring Republican incumbent Carlos Giménez, and on opposing a new state law that mandates that local law enforcement assist the federal agency. 

Change will be most swift in the three 287(g) counties that elected new Democratic sheriffs.  Since Election Day, the incoming Cobb and Gwinnett sheriffs have confirmed to the Atlanta Journal Constitution that they plan to exit the program. And Graziano told the Political Report in October that she would terminate the 287(g) contract “immediately” upon taking office. 

She confirmed her plans through a spokesperson this week. “It will be a simple process, and I intend on keeping my promise to rescind the contract with ICE,” she said.

The post ICE Suffered Blows in the South in Last Week’s Elections appeared first on Bolts.

Immigrants’ rights activists have been protesting local officials that help ICE arrest and deport immigrants, pressuring them to end those ties, and candidates for these offices have felt the heat. 

Most significantly, their work has upended the usually quiet landscape of sheriff’s races, helping drive upset losses for longtime incumbents in places such as Minneapolis and Charlotte, North Carolina, in 2018, and already this year—in spring primaries—in Cincinnati and in Athens, Georgia.

Will November’s general elections add to that trend? 

The GOP’s declining fortunes in longtime conservative bastions that have soured on President Trump—who has made hostility to immigration one of his defining rallying cries—have opened the door to political turnover in areas such as Atlanta’s northern suburbs. Those areas were long impregnable to Democrats and any candidates running on cutting ties with ICE. Elsewhere, some Democratic-leaning jurisdictions face a reckoning over their ICE-friendly policies.

Below I look at 12 of the most important state and local elections on the ballot this fall that will affect ICE’s reach and local immigration policy.

The list covers different sorts of offices. But the lion’s share are races for county sheriff. These officials have tremendous discretion on whether and how to respond to or collaborate with ICE. That’s because most sheriffs are responsible for running local jails, which hundreds of thousands of people go through every year, often with little to no oversight from other public officials. And these jails are a major funnel into the country’s deportation machine, especially when a sheriff is keen on making them so, as The Appeal: Political Report explained in July. 

For one, most sheriffs have sole authority over whether their county joins ICE’s 287(g) program. This partnership directly implicates sheriffs in harming immigrant communities by authorizing their deputies to act like federal immigration agents. Only 145 counties in the nation have 287(g) contracts at this moment, but that pool includes very populous jurisdictions—and that’s precisely where Nov. 3 could upend the local landscape: In counties that cover millions of residents—in Florida, Georgia, South Carolina, and Texas—candidates are running this fall on a promise of terminating existing 287(g) contracts. And that’s just the tip of the iceberg. Sheriffs also decide whether they will agree to detain ICE prisoners in exchange for payments; and whether to honor so-called ICE detainers, which are warrantless requests asking sheriffs to keep jailing a person past their scheduled release to give federal agents time to arrest them. 

All of these arrangements are on the line on Election Day, and with them the prospect that voters may slash ICE’s reach, as they did in 2018, regardless of what happens in the presidential race.

Arizona | Maricopa County (Phoenix) sheriff

No local official is as closely associated with repressive immigration practices as Joe Arpaio, Maricopa County’s sheriff from 1993 to 2017. Arpaio ran a detention facility known as Tent City that he himself called a “concentration camp,” and he engaged in racial profiling in defiance of a court order. Arpaio was ousted in November 2016 by Democrat Paul Penzone, who subsequently closed Tent City, and Arpaio fell short in his attempted comeback this year, narrowly losing to Jerry Sheridan in the Republican primary. But Sheridan is Arpaio’s former lieutenant, and could carry on Arpaio’s legacy if he beats Penzone in November. Writing in the Political Report, Jerry Iannelli stresses that Penzone has disappointed immigrants’ rights activists over his first term. But he also reports that Republican nominee Sheridan is directly implicated in the racial profiling of the Arpaio years and he has vowed to reopen Tent City.

Florida | Pinellas County (St. Petersburg) sheriff

Bob Gualtieri has been an enthusiastic champion of ICE, both through his powers as the sheriff of Pinellas County and through his leadership role in the state’s Sheriffs Association. He helped design a new arrangement for Florida sheriffs to circumvent legal concerns and keep detaining people when ICE requests it; and he has contracted his office into ICE’s 287(g) program. Gualtieri, a Republican, faces Democratic challenger Eliseo Santana who has vowed to terminate both of these partnerships if he is elected sheriff and to reject forms of discretionary assistance with the agency. “I will not have my agents be the agents of destroying families in our community,” Santana told me in a Q&A last week. “These types of agreements are hurting our community, are destroying the family, and it’s anti-American.”

Florida | Miami-Dade mayor

In January 2017, as President Trump entered the White House and took aim at “sanctuary cities,” Miami-Dade County’s Republican Mayor Carlos Giménez announced a major policy reversal that has helped ICE target undocumented immigrants: The county, Florida’s most populous, would honor ICE detainers by holding people in jail beyond their scheduled release if federal agents request it. (Local governments typically leave the discretion on this matter to sheriffs, but Miami-Dade is the only jurisdiction in the state that does not have one.) 

The candidates vying to replace him, Republican Esteban Bovo and Democrat Daniella Levine Cava, have long been on opposite sides of this change. Both were county commissioners in February 2017 when the commission ratified Giménez’s order, despite hundreds of residents demanding a return to sanctuary policies. Bovo voted to approve the order, and Cava opposed it. Cava is now running on curtailing cooperation with ICE, including fighting a new state law that mandates that local law enforcement assist the federal agency. “I think it’s overreach and a pre-emption on how we take care of our people,” Cava said at a summer forum.

Georgia | Cobb County sheriff and Gwinnett County sheriff

Cobb and Gwinnett, two counties in the Atlanta suburbs that have a combined population of over 1.5 million, have undergone a similar transformation. Longtime Republican bastions with harsh policies toward immigrants, they voted Democratic in the 2016 presidential election for the first time since 1976, a change fueled in part by a significant rise in the local Latinx population. Now these counties’ legacy of tightly helping ICE will be tested, Timothy Pratt wrote in the Political Report in September. The Republican sheriffs of Cobb and Gwinnett have both joined ICE’s 287(g) program. And in each county, the November election pits a Democrat who has committed to terminating the 287(g) contracts against a Republican who wants to stay in the program. But even if the program falls, advocates say, far more policy upheaval will be needed to stop the repression of the region’s immigrant communities.

Massachusetts | Norfolk County sheriff 

Jerry McDermott and Patrick McDermott, no relation, are facing off on Nov. 3. Jerry, the Republican incumbent, was appointed by the governor two years ago. Patrick, a Democrat, is the county’s registrar of probates. The incumbent championed a ballot initiative last year that would have undone a state court ruling and authorized sheriffs to honor ICE detainers, which come without a judge’s signature. He did not respond to a request for comment on how he would partner with ICE if elected to a full term. By contrast, and as I reported in the Political Report in August, his challenger says sheriffs should not honor ICE requests that a federal judge has not signed, and that he would not enter into new contracts like a 287(g) agreement. “These contracts make it harder to ensure that all members of the communities … feel safe and secure,” he said.

Michigan | Oakland County sheriff

Sheriff Mike Bouchard, a Republican in a county that may be poised to reject President Trump in November, has honored ICE’s detainer requests, and as a leader in the Major County Sheriffs of America, he has worked to extend that practice throughout the country. “If ICE is coming after someone in the jail, it’s for a criminal charge,” he told Detroit News in 2017, downplaying the fact that most people in jail have not been convicted. In November, Bouchard faces Democratic challenger Vincent Gregory, a former state senator who told the Political Report that he would break with Bouchard’s policy on detainers. “I would NOT honor the request from ICE to hold the prisoners without a Court Order,” he said in an email. But Gregory also volunteered that immigration has not been central to conversations he has had during the campaign, and he does not feature the issue on his website.

North Carolina | Governor

In 2018, buoyed by the activism of advocacy groups such as Comunidad Colectiva, Action NC, El Pueblo, or Siembra NC, North Carolina saw a wave of wins by sheriff candidates—all Black Democrats—who ran on cutting ties with ICE in five of the state’s most populous counties. They promptly did just that upon entering office. This enraged Republicans, who run the state legislature. Last year, they passed a bill to require that sheriffs collaborate with ICE. But Democratic Governor Roy Cooper vetoed the legislation, effectively protecting sheriffs’ ability to not do ICE’s bidding. Cooper is up for re-election against Republican Lieutenant Governor Dan Forest. If Forest wins, it would likely hand the GOP control of the state government, enabling them to revisit the 2019 bill. But the state could also swing in the other direction; a Cooper win may be accompanied by legislative gains for his party, strengthening the new sheriffs’ hand.

Ohio | Hamilton County (Cincinnati) sheriff

This is the only election featured here that has a candidate who wants to scale back collaboration with ICE, and one who wants to ramp it up. The incumbent sheriff, Jim Neil, is a Democrat who attended a Trump rally in 2016, honors ICE detainers, and has faced protests from activists. He could not overcome that record in the Democratic primary, losing to Charmaine McGuffey, a former sheriff’s deputy who is running a reform-minded campaign, as Teresa Mathew reported in the Political Report. McGuffey told Mathew that she would no longer honor detainers if elected. 

Now McGuffey faces Republican Bruce Hoffbauer, a police lieutenant who has said the county should be even more active in partnering with ICE than it has been under Neil; he did not respond to a request for comment on how he intends to partner with ICE, though. (Neil has endorsed Hoffbauer since his primary defeat.) Hoffbauer is also running on increasing enforcement against what he calls “street-level crimes” such as drug offenses, which could increase arrests and jail bookings. This approach to policing, combined with a goal of helping ICE arrest people held in the local jail, could lead to even more people being funneled into deportation proceedings.

South Carolina | Charleston County sheriff

Charleston County may have voted for Democrats in the last three presidential elections, but it also has a Republican sheriff, J. Al Cannon, who has made it one of ICE’s closest allies in the state. Charleston is one of only four South Carolina counties in ICE’s 287(g) program, enabling deputies to facilitate defendants’ transfer into ICE custody. Cannon also has an agreement to detain people that ICE arrests elsewhere, including during raids, which has drawn protests. This record is on the line in November. Cannon, who has been in power since 1988, faces Kristin Graziano, a sheriff’s deputy he put on leave when he learned that she was running against him. 

Graziano, a Democrat, told me this week that she would “immediately” terminate the 287(g) program. “It’s contradictory to what we’re trying to accomplish in Charleston,” she said, namely “building our communities back up and building trust.” She added that she would not honor ICE detainers, and would “end completely” agreements that involve detaining people on non-criminal grounds. Graziano, whose website takes the rare step of laying out her views in both English and Spanish, said she has “learned” from “dialogue” with advocates from the Latinx community, whom she wants “sitting at the table making the decisions that affect their lives.”

Texas | Tarrant County (Fort Worth) sheriff

In this county of nearly two million residents, Republican Sheriff Bill Waybourn has been a vocal cheerleader for Trumpian immigration politics. Speaking at a White House event in 2019, he praised ICE for “standing on the wall between good and evil for you and me,” and defended jailing people who face criminal charges on immigration grounds because otherwise “these drunks will run over your children and they will run over my children.” But Tarrant County has rapidly shifted toward the Democratic Party during the Trump era, and this has made Waybourn vulnerable to Democratic challenger Vance Keyes, a former police officer who says he is running to end the incumbent’s “fear mongering tactics.” The ICE out of Tarrant County coalition has fought Waybourn’s participation in ICE’s 287(g) program. Keyes has vowed to terminate it if he is elected. 

Tarrant is by far the most populous Texas county in 287(g). There are only two other 287(g) counties that were carried by a Democrat in a federal race in either 2016 or 2018, a mark of potential competitivenss: Williamson County (Georgetown) and Nueces County (Corpus Christi). In each, the incumbent sheriff is a Republican with a Democratic opponent; but neither of the challengers answered my requests for comment on their views on immigration and 287(g), nor do they indicate a position on their website, in a stark contrast with Keyes’s willingness to tackle the issue in Tarrant. 

Texas | Travis County (Austin) district attorney

Travis County may elect as its next DA a candidate who describes himself as an “immigrant rights activist.” José Garza, a former public defender and leader of the Workers Defense Project, an organization focused on labor and immigration law, ousted the incumbent DA by an overwhelming margin in the Democratic primary. He is now favored against Republican candidate Martin Harry, given the county’s large Democratic lean. Garza told me in June that he wants to avoid immigration consequences for people facing criminal charges or convictions. “A simple proposition for me is that no one should face a more severe punishment simply because of their status,” he said, noting that for some cases it would be a matter of keeping the penalty for a crime under one year, which is a threshold that triggers deportation. 

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This is not an exhaustive list of every local election whose result will shape immigration policy; there are thousands of elected offices that will be decided on Nov. 3. I have selected elections in counties that are at least somewhat politically competitive, as well as elections that pit candidates with clear political differences.

The post These Twelve Elections Could Curb ICE’s Powers appeared first on Bolts.

In and around Charleston, South Carolina, this summer of nationwide protests has compounded grievances and Black Lives Matter activism that have been building for years against racial injustice.

The protesters who gathered after George Floyd and Breonna Taylor’s deaths also remembered Walter Scott, a Black man killed by a North Charleston police officer in April 2015. Two months later, in June 2015, a white supremacist shot nine African American church-goers in Charleston.

Residents are also speaking up about the persistence of Confederate monuments at the expense of Charleston’s Black history, and against the towering inequalities of the local criminal legal system. Recent studies found African Americans likelier to be prosecuted over marijuana and to be struck from the jury pool, for instance. The state also faces litigation for suspending driver’s licenses over court debt, a practice that disproportionately affects Black South Carolinians.

Earlier this month, I talked to Ben Pogue, who is running to be the chief prosecutor of the Ninth Judicial Circuit (home to Charleston and Berkeley counties), about how he would confront these issues. He replied that we cannot confront the criminal legal system’s “systemic racism” without also addressing the region’s wider inequalities.

“If we continue thinking about justice as criminal justice, it’s not really justice,” he said.

Pogue wants to launch a “racial audit” of law enforcement that can connect the decisions made by police and prosecutors to broader socioeconomic discrepancies. Absent that comprehensive outlook, he argues, programs that are meant to divert people from conviction or incarceration are setting them up for failure. “We can come up with a prearrest diversion program,” he said, “but if we don’t know that the kid who’s involved in it doesn’t have any transportation resources, and his mom’s only transportation resource is a vehicle used for two jobs, then what are we doing?”

Pogue is the Democratic nominee against Solicitor Scarlett Wilson, a 13-year GOP incumbent. (Of South Carolina’s ten prosecutorial elections this November, this is the only one with more than one candidate on the ballot.) The Ninth Circuit split nearly evenly in the 2016 presidential race, and Democrats are optimistic that they can score breakthroughs in the state this fall. Jaime Harrison, the party’s nominee against U.S. Senator Lindsey Graham, tweeted in June about this prosecutor’s race that “local elections are sometimes even more important than national ones.”

In the course of my Q&A with Pogue, he stated that he would not prosecute marijuana possession, nor would he prosecute cases of driving with a suspended license. He laid out how he’d fight racial discrimination in jury selection. But he also repeatedly stressed that he would approach reform incrementally—he said for instance that he would for now treat simple drug possession as a criminal issue, despite calls to approach it as a matter of public health—invoking a need to gain community “buy-in.”

Still, Pogue was quick to delineate a stark contrast with his opponent on sentencing policies and reliance on incarceration. Asked about Wilson’s call for lawmakers to toughen the state’s “truth in sentencing” rules, which severely limit early release opportunities, Pogue answered that such a proposal is indicative of a “mass incarceration mindset” that has failed at reducing crime. Locking people up longer and making it harder for people to re-enter their communities, he added, only compounds recidivism.

“We are consistently using our current incarceration system to turn out people who have no resources to do anything but reoffend,” he said. “We’re perpetuating the depletion of the resources that a lot of times gets people in the situation where they offend to begin with.”

The Q&A has been condensed and lightly edited for clarity.

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The renewed national calls for racial justice this summer resonate in the Charleston region, not just given its long history, but also due to the events of recent years. To what extent do you think the local criminal legal system has been responsive to the Black Lives Matter movement, and if elected how would your tenure advance the goals of this movement?

Our current criminal justice system has been inadequate, to say the least. Black Lives Matter should not be a controversial statement. We should be going to communities, especially communities of color, to listen, to understand what the issues are. This is of specific importance as it relates to people who look like me, people who are white folks who have lived in an environment of white privilege: We’ve got to make sure that we’re actively investigating where our blind spots are as far as racial bias is concerned. 

We need a racial bias audit—of the solicitor’s office, not simply the police department and the sheriff’s department. That needs to be done by an independent advocate and also needs some means of community input, because any racial bias audit has got to go to the community to hear what their complaints are. This is how we create community accountability, especially in an area in the South when we know that folks are marginalized, especially racially. What we’ve done is create our community action team: These are people who are connected to various networks in our community, and they’re a continual accountability measure. We want this to be part of the solicitor’s office.

Your opponent recently, in July, launched an initiative to collect demographic data and information about some charging and sentencing decisions. What is the difference between the racial audit that you were describing and that initiative? 

I think that a major issue that our community has with our current solicitor is an issue of trust. We need all cases to have all the data that is available to the public to the greatest extent possible.  But we’ve also got to be finding other data sources that we’re not even asking about: The huge problem when it comes to criminal justice in our area is that we’re not even asking the relevant questions. We’re not gathering the relevant data. It seems that we’re not really trying to find what the root causes of crime are, so that we can understand criminal behavior.

What is a relevant question that you think isn’t being asked, and how would the racial audit approach capture that?

It’s not enough to say, “OK, we’ve got racial bias in terms of our criminal procedure.” In every single step there’s racial bias: It’s why it’s systemic racism. We’re trying to keep people safe, reduce crime, increase people’s access to their rights. If we don’t have a real idea what their life is like, and we’re not gathering the data that reflects that, and not really interested in finding the root causes of crime, then we’re not really interested in what we’re communicating. Part of that is socioeconomic data, family situations.

An example is a teenager who is 15 years old and was caught for marijuana possession. How many parental figures do you have to watch you throughout the day? What kind of transportation resources does he have to go to after-school programs? What about how many vehicles does the entire family unit have access to? We can come up with a prearrest diversion program, but if we don’t know that the kid who’s involved in it doesn’t have any transportation resources, and his mom’s only transportation resource is a vehicle used for two jobs, then what are we doing? Before you know it, some ludicrous line prosecutor is going to suggest that we put this kid away for years and try him as an adult.

So you are saying, to audit the racial injustice of the criminal legal system, it’s essential to have information about other systems—housing, transportation, education are not separate.

Precisely. If we continue thinking about justice as criminal justice, it’s not really justice. 

It’s interesting to hear you bring up transportation resources as this is an issue that has deep ties to a prosecutor’s discretion: Advocacy groups are suing South Carolina for suspending people’s driver’s licenses when they cannot afford paying off their court debt. This is an issue that disproportionately affects Black South Carolinians, who are more likely to be pulled over, and people face prosecution if they then drive with a suspended license. Some prosecutors around the country, for instance in Nashville and Memphis, have announced they will not prosecute cases for driving with a suspended license. Would you?

The presumption needs to be that we’re not going to criminally prosecute those cases. A disportionate share of Charleston’s African American community is at or below the poverty line. What are we doing when we prosecute cases for not having a driver’s license? We’re taking people who are in a deep resource-starved hole, and we’re putting them in an even bigger hole. We’re eliminating their transportation resources. 

What other prosecutorial tools do you think have been wielded in a way that’s too punitive?

I think it’s easier to answer your question when we look at some of the things that more progressive prosecutors are doing: seeking lighter sentencing; making sure that we don’t use unethical charging procedures like adding charges that you’re going to drop anyway and creating leverage of time in jail to get somebody to plead guilty to something that they may not have done in the first place; trying to really eliminate or reduce cash bail at every opportunity; making sure that people are represented during bond hearings. And we need an additional community relationship aspect to it, to build trust, to get the information flowing back and forth.

And there are funding issues, making sure that public defenders are more well funded.

Let’s look at marijuana. According to a recent study, in Charleston and Berkeley counties, Black residents were four times more likely to be arrested than white residents. Would you prosecute cases involving the possession of marijuana or would you not charge these?

No, not at all. 

What about cases involving possession of other drugs? On your website, you recommend a list of books for people to read, many of them about mass incarceration (with the caveat that you don’t agree with everything in them). One is “The New Jim Crow” by Michelle Alexander, who argues that the policies that have fueled the war on drugs are mechanisms of “racialized social control.” What lesson do you draw for how you would approach drug possession? Do you think the criminal legal system should be involved at all? And if you think it should, would you have a goal of avoiding incarceration and/or convictions?

I really don’t want to see convictions for those cases. But I do want to see data. The studies out there really show us that a great many of these crimes are either poverty or mental health crimes, and they should be treated as part of a larger health issue. But I think that if we’re going to take immediate steps to communicate to all law enforcement officers and all communities that we’re not even going to look at any of this kind of stuff, then we have really better make sure that we have the infrastructure to gather the data and address the health problem as well. An issue is that we don’t: We don’t have enough state funding to have a public health infrastructure. 

The goal is that within the span of one four-year term, we go from where we are now to no drug possession charges. But we can’t simply stop it right away because a key element of what we’re doing is trying to gain the trust of community members. 

Another proposal we hear nationwide, as to what prosecutors can do for accountability, is to maintain a public “do not call” list of police officers with a history of wrongdoing they will not rely on. Would you do so?

Absolutely. Having a do not call list is a great idea, and I know some good prosecutors around the country are doing it. And in Charleston we’re rife with a history of racial bias by law enforcement officers. 

Another book on your list is “Prisoners of Politics” by Rachel Barkow, who argues that on top of the moral and human injustice, the “tough-on-crime” practices or policies have been harmful in the sense that they haven’t promoted safety. What is your perspective on that?

This is a personal thing for me. I was held up at gunpoint back when I was living in Richmond, Virginia. It really affects your perspective. But ultimately, most victims and survivors who I’ve spoken to want to make sure that this does not happen to somebody else. If we look at things from a safety standpoint, are we going to put somebody in prison for an extended period of time, especially if they’re not an imminent threat to the community? Ninety-five percent of the people in jail or prison are getting out of prison. We know that prison actually makes people more likely to do crime, especially violent crime, increasing stress and decreasing personal growth and access to all kinds of resources. 

Your opponent, Solicitor Wilson, has spoken up for legislative proposals that would toughen some sentences. She has said for instance that the state’s “truth in sentencing” statutes (which require that people serve at least 85 percent of their sentence) be expanded to more cases. She has also proposed toughening penalties for unlawful carrying of a firearm. What do you make of these proposals, and how do they fit what you were just saying?

That’s not what we need. This so-called tough on crime stuff doesn’t work. It doesn’t reduce crime. It really perpetuates crime: It manufactures people who have no other perceived path. What we’re doing with these kinds of policies is we’re creating a floor, we’re creating a crime rate which we will never go below, because we are consistently using our current incarceration system to turn out people who have no resources to do anything but reoffend. We’re perpetuating the depletion of the resources that a lot of times get people in the situation where they offend to begin with. We create a gotcha system, that our law enforcement officers are incentivized to go along with. It’s oversensitizes police to waste time on bringing those people back into the system. 

We could save a whole lot of money and reduce crime substantially, like we are doing in other places around the country, if we just shut off the mass incarceration mindset, and said we’re gonna focus on what reduces crime. Mass incarceration, longer sentences and putting more people in jail just doesn’t do it.

An issue you’ve talked about in your campaign is the composition of the jury pool, and how many prosecutors are likelier to strike Black jurors from the jury pool. What exact policies would you implement to avoid this? I ask because it’s been, legally speaking, rather easy for prosecutors to get around rules against racial discrimination through excuse.

There was a study in 2016 — the study that was limited, and I understand criticisms — and it said that our solicitor, in the cases that were evaluated, struck African American jurors seven times more often than white jurors. We know that when juries are all white, or nearly all white, the chance that an African American defendant is going to be convicted is substantially higher. And that should be a major concern, especially with the backdrop of inequity in Charleston area.

It has to be a multifaceted approach here. First and foremost, don’t strike a juror because of the way that they’re dressed, or the way that their hair is, or because of what a white person thinks that their mood is. Another thing is that In South Carolina, you don’t have to be compensated for your time on the jury; jurors in Charleston county and Berkeley County get paid 25 bucks a day to be on the jury. Well, if you’re hourly and working a full day shift, you’re getting 80 bucks to 100 bucks a day. So you end up paying the court system for your jury duty time. So how are we going to get by that? I’ve started working with members of county council to have more juror pay or at least have the option of people being paid a full day of living wage for their jury service so they don’t have to worry about that. It also takes community involvement. It takes having a “community action team” that is primarily African American to say we’ve got members that are elevating your voice, and it takes hiring African American attorneys. 

A lot of what we’re discussing, in terms of charging levels and involvement in the criminal legal system, shapes people’s right to vote through felony disenfranchisement. How would you want that change, if at all, in South Carolina? 

In South Carolina, once you’re off probation and parole, your rights are automatically restored. But a lot of folks don’t know that. We don’t have any programs to let people know that they have these rights. They think if they’ve been arrested before, they can’t vote. They’re afraid to show up at the polls because they’re afraid they’re going to be harassed because they owe some fees. So the first part is, you should have your rights restored even as you are on parole and probation. 

As long as the law is not changed: There are cases nationwide where individuals who make a mistake and cast a ballot while on probation and parole are prosecuted and sent to prison. Would you ever file criminal charges against an individual who has cast a ballot while on probation and parole? 

I really can’t see that ever happening. We know also from data that actual voter fraud is such an extraordinarily rare occurrence. The data shows it time and time again that it’s not much of a concern and prosecuting those cases often has a chilling effect on other people voting. So no. 

A concern voiced about progressive prosecutors, writ large, is that they often end up pursuing law enforcement solutions to things best left outside of criminal justice. One book on your list, “Usual Cruelty” by Alec Karakatsanis, advances a version of that criticism, for instance. How would you, as solicitor, shrink the system’s foothold and through that your own authority?

I think that it’s not practical to think that you can absolutely completely overhaul a system if you want continued buy-in and investment and trust from your community. But the overall goal of a prosecutor should be to prosecute less crime, make his or her own position less necessary. And that’s what we should be doing. If we’re doing our job right, then we have less reason to have all these resources devoted to justice and all these biases. We can reduce the cost of the system. We can increase funding for education, for healthcare, for housing, for transportation.

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