Brown explained that eligible voters in the jail could request and mail ballots, since confinement in jail is one the few situations that allow people to vote absentee in Texas. “Some people would have you think that we’re not allowing people to vote,” the Democratic sheriff continued. “Such is not the case. They are voting. It’s just that they’re not doing so at a polling station.” 

A few months after Brown’s video, in the November midterms, just one person voted from jail via an absentee ballot, according to county data obtained by Bolts, which is in keeping with the historical trends. Roughly 6,000 people are held inside the massive jail on the edge of downtown Dallas. The vast majority are incarcerated pretrial and many are likely eligible to vote, but few actually do. Only two people voted by mail from the jail in the 2016 presidential election. That number rose in the 2020 presidential election but remained a tiny share of the jail population, with 34 people returning a mail ballot.

Dallas activists had asked for a polling place to be installed at the jail for last year’s midterm elections, but faced pushback from some officials, including a county commissioner who called the issue “less than last on my list.” In her message posted to social media last summer, Brown questioned the feasibility of a polling place at the jail and claimed that adding one could compound short staffing at her lockup. 

But activists got their wish this past spring, when officials quietly approved a jail polling place for the May 6 municipal elections. “This is something we have actively been working on for some time,” Brown said in another post. “We are pleased to be able to expand voting for our inmates in Dallas County Jail.”

Twenty people voted in person at this new polling place on May 6. An additional ten returned an absentee ballot from the jail. While an increase from November, especially for generally low-turnout local elections, the numbers are still pale compared to the county’s immense jail population. Brown said in her announcement that her office would use the spring’s low-profile elections to iron out any logistical issues. “The municipal elections afford us the opportunity to do a trial run to fill these gaps,” she said. 

As far back as 1974, the U.S. Supreme Court has affirmed voting rights for people held in pretrial detention who, unlike people in state prisons, haven’t been convicted of a crime. But whether people in local lockups can actually exercise that right often depends on county sheriffs, who run the majority of county jails. 

Nearly all jails make incarcerated people who want to vote request an absentee ballot through the mail and then send it back, which can be tricky given tight deadlines and mail delays. This system also misses people who enter the jail after the deadline to apply for an absentee ballot. In 2020, for instance, the 6th U.S. Circuit Court of Appeals ruled that Ohio officials were not required to help eligible voters incarcerated after this deadline, even though election officials provide voting options for people hospitalized after that deadline. 

“There are a lot of issues with absentee ballots as the primary means for ballot access in custody,” Nicole Porter, senior director of advocacy for the Sentencing Project, told Bolts. “People in mailrooms don’t know how to treat ballots properly… And the jail facility itself lacks training and accountability.”

Activists have played a vital role expanding voting access behind bars by visiting local jails to register eligible voters and provide election day information. But in recent years they have also started pushing for election-day polling sites in lockups.

 In 2020, the Cook County jail in Chicago became the first jail system in the country to install a polling place for eligible voters incarcerated on election day, and voting there continues to rise, with turnout at the jail surpassing the citywide turnout in the June 2022 primaries. The Harris County jail in Houston, the largest in Texas, followed suit with an election day polling place in 2021 after a long campaign from local activists to expand ballot access to eligible voters detained there. Dallas this spring became the second jail in Texas with an election day polling place. 

Still, emails from the Texas Secretary of State’s Office obtained by Bolts under an open records request show how jail and elections staff across the state often question how and even whether to let people vote from jail, a dynamic Bolts has covered elsewhere in the country. The state discouraged at least one large urban county from setting up a jail polling place after Harris County established one; when a county attorney in Bexar County, home to San Antonio, reached out for guidance last summer, an attorney with the secretary of state’s office wrote them back saying, “a jail would not be a permissible polling location.” 

This year, Texas Republicans, ever hostile to expanding ballot access, filed a bill to prohibit polling places in a jail or any other detention facility, but it never advanced. Voting rights activists say changes to voting laws that Texas lawmakers already passed in recent years could compound the problems people face trying to vote from jail, pointing to new absentee voting rules that resulted in more than 20,000 rejected mail ballots during the 2022 midterm primary elections. 

Alex Birnel, advocacy director with MOVE Texas, a voting rights group that pushed for a polling place at the Dallas County jail, told Bolts that, in addition to working with the county sheriff, activists also had to persuade other county officials. “While sheriffs deal with the logistics, you’ve got to be in conversations,” Birnel said. “It cannot be done solo. You need the commissioners’ court and county institutions to be involved.”

Dallas’ Democratic county executive, County Judge Clay Jenkins, eventually backed the idea, and last year he started pushing other county leaders to support putting a polling place inside the jail for the November 2022 midterm elections. “Most Texans agree that voting should be safe, easy, and accessible to all, and while Dallas County has taken several steps to ensure access to the ballot box, there is, unfortunately, one group of eligible voters who have been denied their right to vote for far too long: the over 5,000 pretrial inmates at our Dallas County jail,” Jenkins wrote in an op-ed last September. “Denying thousands of Dallas County voters the opportunity to cast their ballot, as we have done for so long, is wrong, and we need to fix it.” 

A coalition of advocacy groups, including the ACLU of Texas and the Texas Civil Rights Project, kept up the pressure, writing a joint letter to the sheriff after she publicly dismissed the possibility of election-day voting at the jail. “Despite your claim that people in the Dallas County Jail already vote by mail, voting by mail on its own is insufficient to provide people in jail with the opportunity to vote,” the groups wrote in a Sept. 27, 2022 letter. 

“Because people of color are disproportionately incarcerated, denying ballot access to people in jail disproportionately disenfranchises Dallas County’s voters of color,” the groups argued, writing that failing to facilitate election day voting for eligible detainees “may give rise to liability under Section 2 of the Voting Rights Act.” The letter also pointed to the county’s continued reliance on cash bail for determining who is jailed pretrial and said, “because many pretrial detainees are incarcerated solely because they cannot afford to pay bail, there is effectively a poll tax—wherein they must pay bail to vote.” 

While they resisted the idea before the midterms, Brown and other county officials ultimately agreed to election day voting at the jail by the time they were determining polling locations ahead of this year’s municipal elections. When asked if the jail will continue to host a polling place in future elections, the sheriff’s office told Bolts, “Yes, the plan is to continue having a polling location at the Dallas County Jail for inmates and one outside for the public as we did in May.”

As Dallas shifts on the issue, and while Republican lawmakers in Texas continue to create barriers to voting, Porter urged other local officials to prioritize expanding ballot access where they can. “Democracy should be a priority for everybody and access to the ballot should be a priority for anyone who has influence and concern for liberty,” Porter said. “It should be a priority for sheriffs and county officials to guarantee ballot access for people to be eligible to vote during custody. They are humans and eligible.”

The post Dallas County Jail Adds Election Day Polling Place After Pressure from Activists appeared first on Bolts.

Jean’s killing cast a harsh national spotlight on the long legacy of violence by Dallas cops and bolstered demands for police reform in the city. Local activists urged officials to revamp Dallas’ toothless, decades-old system of police oversight: a citizen review board with members appointed by city council and tasked with hearing citizen complaints about police. That board was created in the 1980s, when Dallas was home to the highest number of police killings per capita among large cities, and it never issued any recommendations to improve policing. It also never had a budget for investigations. 

While the police union fought changes in the wake of Jean’s murder, activists and members of the review board asked the city to create an independent investigative arm with the budget and staff needed to seriously review citizen complaints and publicize findings and policy recommendations—a model employed by Austin since 2001. In April 2019, seven months after Jean’s murder, the Dallas city council voted for a version of those changes. 

The newly revamped board has been a source of contention practically ever since. Its powers to press for accountability remain weak, and board members have been dogged by accusations that they aren’t doing enough to be the watchdog activists fought for. 

Officially titled the Community Police Oversight Board, the new body is part of the city’s Office of Community Police Oversight, which is itself staffed by a “monitor” who collects citizen complaints and reviews completed police internal investigations into complaints or critical cases, like police shootings. This person then reports any findings to the oversight board. The board is comprised of 15 council-appointed volunteers whose day jobs include everything from law to real estate; they have a budget and the ability to recommend investigations, two key departures from its previous iteration. 

But at a heated, four-hour meeting in mid-November, activists pointed to the case of Michelle Spencer as a recent example of the board failing to do its job. Spencer was injured in a 2021 arrest she says cost her two jobs and a pile of medical bills. Although she was ultimately cleared of wrongdoing, Dallas police took no action on her complaint after an internal affairs investigation, and the board voted against an independent investigation. 

“This office was supposed to be a solution” and a “source of checks and balances,” noted local activist Dominique Alexander. Instead, Alexander said, the oversight body sides too often with a police department they are tasked with keeping in check.  

Even members of the revamped police oversight board seem frustrated by the limitations of the reforms that Dallas passed nearly four years ago. Under the ordinance that created the police monitor and oversight office, the board can only initiate an investigation after a civilian files a complaint, receives an official response from the police department, and then appeals that response to the advisory board—which critics argue makes the board too reliant on whatever information or cooperation police provide. 

Further, even when the board gets an appeal and launches an investigation, they have no subpoena power over city employees or officers, and thus can’t make police cooperate; the board has conducted 18 investigations since their inception, but officers haven’t agreed to be interviewed for any of them. During the November meeting, member Jose Rivas said the board had been “stonewalled,” “marginalized” and “put in a corner” by an uncooperative police department. 

In an interview with Bolts, Jesuorobo Enobakhare Jr., the board’s chair, pointed to a use-of-force review that the board asked the police monitor to conduct two and a half years ago, but that still hasn’t happened, into officers who fired tear gas and pepper balls into a nonviolent crowd of protesters in the summer of 2020. 

“If there aren’t enough staff to get things done, that needs to be put at the feet of the city council,” Enobakhare said. “Government is complicated, and a lot of times it’s complicated for no reason.” 

He added, “It’s almost as if some of these things created at the federal, state or local level are supposed to be exercises in futility.”

Some activists who fought for the revamped oversight board have pledged to protest its meetings until Enobakhare resigns, according to the Dallas Morning News, criticizing him for meeting alone with Dallas police Chief Eddie García, which they say undermines the oversight office. García told the paper that oversight board members need to do more to gain officers’ trust and called Enobakhare an “outstanding advocate.” 

Enobakhare defended his board’s work and said members have managed to influence police policy despite serious limitations. He pointed to a new policy directing officers to take people to a hospital instead of lockup if they suspect a mental health condition, which he says was a result of the board asking police to revise the way they treat people exhibiting symptoms of a psychotic episode.

Police oversight boards are often focal points for policy change after tragedies and scandals involving police violence, particularly after a police reform task force set up by Barack Obama’s administration recommended them as a best practice for building trust between communities and police. There are more than 200 such boards across the country, according to the National Association of Civilian Oversight of Law Enforcement. Still, those boards are often volunteers who hold little to no official power over investigating police actions.

Perhaps unsurprisingly, community police oversight boards rarely play any meaningful check on police power and often resemble little more than a thin gesture by police agencies to work with the public without really working with the public, according to Barry Friedman, an attorney and scholar who published a national study on such boards last year. 

“To be blunt, we didn’t find many successful boards, because they were hamstrung,” Friedman told Bolts. “Very often they’re created because the community is angry, so it’s ‘Let’s give them something.’”

“Something is created out of hope and promise,” he added, “but people end up being disappointed.”

Friedman’s research, which was published by the Policing Project at New York University’s law school, emphasizes the importance of boards being well-resourced and staffed. Friedman points to the board in Oakland, California as a well-resourced body, while San Francisco has both a police commission and a network of 10 advisory boards: one for each police station. 

Yet adequate staffing and budget matter little if a community oversight body isn’t heard or empowered to influence police policy. In Austin, where activists have fought for years to expand the scope of the city’s police oversight office, police have pushed back to try and limit the office’s ability to proactively and aggressively investigate citizen complaints. 

As a result, local activists last year gathered enough signatures to put the Austin Police Oversight Act on the ballot for the city’s May elections. The act would remove the oversight office from the purview of the city’s labor contract with its police union, giving it access to more police records and allowing the city’s police oversight commission to recommend discipline in cases of police misconduct. Activists pushing for the measure claim a group of opponents has been posing as them to sow confusion about the May ballot measure and circulate another petition for a plan with less oversight.

Police critics of oversight bodies often insist that people from outside law enforcement appointed to oversight boards know little about policing and shouldn’t be tasked with judging the actions of officers. As a result, according to Friedman’s study, police often send board members to a citizen police academy for ‘shoot-no shoot’ drills on a simulator. 

Complaints that police oversight boards are too close to police and offer little more than the window dressing of accountability are not unique to Texas. Buffalo, New York, a city fraught with tension between the community and a troubled police department, offers another example of an ongoing tug-of-war between activists and the board they fought for. The Buffalo city council last year dissolved the board it created after a series of resignations from board members fed-up with red tape and in-fighting. A month later, local activists announced plans to form a dueling board whose members would be elected by the community and not local government.

In Dallas, the same activists who helped push for the creation of the city’s police oversight board have chafed at its members for being too cozy with police since its very first meeting in October 2019, where the police chief was invited to address the public. They also took issue with one city council member appointing someone who had previously called for the very board to be disbanded. Police eventually broke up the crowd of activists who had gathered and demanded to speak at that first community oversight board meeting, an altercation serious enough for officers to file a use-of-force report over the incident. 

Activists are still pushing for more oversight for the city’s cops, which oversight board members admit they can’t really provide without more power. Changa Higgins, a local activist and former city council candidate who pushed for the revamped oversight body, is asking city officials to expand its powers, including the ability to initiate investigations without waiting for a formal complaint to make its way through the police department’s internal affairs process. Activists are also asking for more police cooperation with the board, including access to police data; the department still makes the oversight office submit open records requests when seeking information, according to Higgins.  

Higgins called the police oversight body a “work in progress” that will still take both more time and pressure from the community to really create the watchdog activists want over the police department. He also said some of the language in the ordinance empowering the current oversight board was left intentionally vague or weak to overcome police union opposition and secure enough votes for its passage. 

“We wanted to get a vote quickly, and we thought if we were too granular with the policies, that it would cause too many problems with the council and we would’ve missed their voting window,” Higgins told Bolts. As a result, the ordinance “leaves some room for interpretation by the PD and the city manager and sometimes the board, and those gray areas were never resolved.”

“It takes institutions in this city and boards like this a long time to be fully formalized,” Higgins said.  “We need people to tap in and hold folks accountable.”

Just a half-hour drive away, in the neighboring city of Fort Worth, attempts to even start a police oversight board have sputtered. While a city task force on race relations recommended creating a board years ago to give communities of color an official forum to air grievances about policing, the 2019 police killing of Atatiana Jefferson inside her own home fueled more demands for one. Even with the potential board’s powers whittled down during months of negotiations, Fort Worth’s city council still shot the idea down in a 5-4 vote in early November. The vote came just before the long-delayed trial of Aaron Dean, the officer who shot Jefferson and was convicted of manslaughter last month and sentenced to more than 11 years in prison.  

“This is the most watered-down police board in America, because we tried to come to some type of consensus, to some type of compromise,” said Chris Nettles, a council member who pushed for the board, after the final vote rejecting it. “And even with a board, a snaggletooth board with no teeth . . . you still cannot support it?”

Correction 1/12/23: Enobakhare says the board is waiting on the police monitor, not police department, for a use-of-force review from 2020.

The post “Exercises in Futility”: Dallas Police Oversight Board Mired in Frustration and Inaction  appeared first on Bolts.

Many states hold their local elections on odd-numbered years—a schedule that depresses turnout and that some places are fighting to change. That means that, if you’re interested in the shape of your criminal legal system, critical storylines are already taking shape: These local and state offices enjoy the brunt of the discretion to shape incarceration and policing. DAs and sheriffs, in particular, decide which cases to prosecute and with what severity, exercise nearly unfettered control over jail conditions, and choose how they partner with federal immigration enforcement.

There are nearly 500 elections for prosecutors and sheriffs scheduled for 2023, a Bolts analysis finds—and the first filing deadlines are coming up in just weeks. 

These elections are largely concentrated in Louisiana, Mississippi, New York, Pennsylvania, and Virginia, with just a few sprinkled in Florida, New Jersey, and Washington State. (The full list is available here.)

Other local offices that shape criminal punishment and policing are also on the ballot next year, including three governorships, at least two supreme court justices in Pennsylvania and Wisconsin, and hundreds of state lawmakers, local judges, and mayors.

Local elections are often very late to take shape, so in most cases the field remains undefined. At this time, the likeliest elections to draw the stark contrasts we have seen in recent cycles—with candidates disagreeing on whether to intentionally aim to reduce incarceration, or what goes into advancing public safety—include prosecutor races in New York City and upstate New York, Pittsburgh and the Philly suburbs, and Northern Virginia, as well as mayoral races in Chicago, Philadelphia, Denver, and across Texas. Sheriff races across Louisiana, Mississippi, and Virginia may draw some scrutiny to immigration and detention conditions.

Bolts will follow these races throughout the year. Today, I am kicking off our coverage by laying out six big questions that will define the cycle: 

1. Can reform-minded prosecutor candidates hold their ground in Virginia, and make inroads elsewhere?

The last time the counties that are electing their prosecutors in 2023 voted for these same officials, in 2019, the results made for a striking split screen. Virginia saw one of the widest set of wins to date for candidates who campaigned on reducing incarceration. After winning  in a string of populous suburban counties,  they formed a statewide coalition called Virginia Progressive Prosecutors for Justice—at the time an unprecedented step—that advocating for lawmakers to abolish the death penalty and mandatory minimums, among other reforms. But their positions drew heavy heat from the right, including judicial pushback and failed recalls as well as criticism from the left over false promises. 

Now, those first-term incumbents are up for election again. They include Arlington’s Parisa Dehghani-Tafti and Fairfax’s Steve Descano, both in Northern Virginia, who drew attention in 2019 for ousting a pair of incumbents in Democratic primaries, as well as Albemarle’s James Hingeley, Loudoun’s Buta Biberaj, and Prince William’s Amy Ashworth. Several of these incumbents are now facing challengers, intra-party strife, or conservative anger, and the results of the 2023 cycle will determine the political strength of the state’s reform prosecutor coalition  going forward.

In New York and Pennsylvania, though, the 2019 DA elections saw advocates of criminal justice reform largely stagnate due to the sky-high number of uncontested elections and some high-profile losses. 

Pennsylvania’s marquee election in 2023 is likely to be the DA race in Allegheny County (Pittsburgh), where longtime Democratic DA Stephen Zappala is a vocal critic of criminal justice reforms amid significant racial disparities in his office. In 2019, Zappala beat multiple progressive challengers, though progressive organizers have made major progress in Pittsburgh in the intervening years, including winning a ballot measure meant to curtail solitary confinement and electing decarceral judges in 2021. 

Other DA races in Pennsylvania include counties like Cumberland and Lancaster that took a distinctly punitive approach to the opioid crisis, and populous Philly suburbs like Chester, Delaware, and Montgomery. Philadelphia’s reform DA Larry Krasner is not up after cruising to re-election in 2021; he has remained relatively isolated so far among DAs in the state, a far cry from the dynamic in Virginia, and 2023 will be the next test of whether his allies can change that.

In New York, where most prosecutors have been relentlessly critical of a landmark package of pretrial reforms, at least two former presidents of the state’s DA association are up for re-election this year—in Monroe County (Rochester) and Onondaga County (Syracuse). Another DA who has battled against state Democrats’ bail reform, William Grady of Dutchess County (Poughkeepsie), has said he is retiring after 40 years as DA.

Bronx DA Darcel Clark has drawn a reform challenger who says she is running to “end mass incarceration” four years after securing re-election unopposed. Also on the 2023 calendar: Queens, the site of the extraordinarily tight 2019 race that saw Melinda Katz become DA after defeating socialist organizer Tiffany Cabán.

In Mississippi, I have my eyes on the Fifth District, which covers seven counties in the central part of the state: DA Doug Evans drew national opprobrium and condemnation from the U.S. Supreme court for his decadeslong effort to prosecute Curtis Flowers six times for the same crime—a crusade exposed in the podcast “In the Dark.” Even with that exceptional spotlight, Evans ran unopposed in 2019 and remains in office, with little accountability, today. 

2. Will sheriffs and jailers face accountability?

The 2022 midterms showcased once again that, with some exceptions, sheriffs tend to secure re-election even when they link up in far-right networks, signal their eagerness to disrupt the federal government, or prepare to disrupt local elections. Next year will bring a different cast of characters to the forefront. There’s Sheriff Adam Fortney of Snohomish County, Washington, in the Seattle suburbs, who faced a recall effort in 2020 for quickly disregarding statewide COVID rules even while ramping up other arrests.

There’s Sheriff Sid Gautreaux, in East Baton Rouge, Louisiana’s most populous parish, who runs a jail with infamously dangerous conditions. Or there’s Sheriff Mike Chapman in Loudoun County, Virginia, who has drawn scrutiny for accepting campaign donations from private contractors that work with his office, a common practice among jailors. The vast majority of sheriffs in Louisiana and Virginia will be elected in 2023, creating a window for local jails to draw more public attention.

Note that Pennsylvania sheriffs have far more limited powers than elsewhere as they typically do not run local jails, which are managed directly or indirectly by other local offices, many of which are on the ballot in 2023. A string of deaths at the Allegheny County jail, located in Pittsburgh, and complaints that the lockup is violating a voter-approved ban on solitary confinement are now issues set to define the race for the county’s next chief executive.

3. Will immigrants’ rights advocates continue to curtail local collaboration with ICE?

When Donald Trump was president, voters in Democratic-leaning counties ousted public officials who cooperated with Immigration and Customs Enforcement. But ICE forged new relationships with Southern jails to make up for it, and sheriffs rushed to profit off renting vacant jail space for ICE to detain migrants and asylum-seekers. In 2023, nearly all sheriffs will be on the ballot in Louisiana and Mississippi, states that  proved to be difficult terrain for critics of those ICE arrangements four years ago.

Still, immigrants’ rights advocates have opportunities in some blue-leaning areas to build on their 2022 successes and elect new officials who oppose collaborating with ICE.

Just four counties with 2023 sheriff races participate in ICE’s 287(g) program, which deputizes local law enforcement to act like federal immigration agents in jails. Three of them voted for Joe Biden over Trump: Duval County (Jacksonville), Florida; East Baton Rouge Parish (Baton Rouge), Louisiana; and Rensselaer County (Troy), New York. (The fourth, which voted for Trump, is Culpeper County, Virginia.)

Still, recent history suggests that efforts to curtail cooperation with ICE will be tricky in all three blue-leaning counties. Republicans defended the sheriff’s office in Duval in a special election just last month. In East Baton Rouge, the GOP sheriff easily prevailed in 2019 with endorsements from prominent Democratic officials. And in Rensselaer, the only county in all of New York State that’s part of the 287(g) program, the Republican incumbent ran entirely unopposed four years ago.

4. Will there be more interest in city halls to reform policing?

Since the Black Lives Matter protests of 2020, the most ambitious electoral platforms for changing or reducing policing have emerged at the municipal level—but so has the most stringent backlash. In the absence of federal elections, 2023 may be the year those dynamics again take front stage with many of the nation’s biggest cities set to hold mayoral races, including five cities of more than one million: Chicago, Dallas, Houston, Philadelphia, and San Antonio. Many others will vote for their city councils.

These elections will feature incumbents who have tended to clash with protesters, such as Chicago’s incumbent mayor Lori Lightfoot; Democrats with a tough-on-crime reputation, such as John Whitmire, a Texas state senator running for Houston mayor; and candidates who have championed shifting resources from policing to other social services, such as Leslie Herod, who is running for mayor in Denver, or Cabán and other left-leaning council members who are up for re-election in New York. Watch out for whatever contrasts emerge around police budgets and ordinances that criminalize homelessness.

5. Will reform initiatives survive state elections in the South? 

In 2023, the elections that may change who runs state governments will largely be concentrated in the South, and the GOP has room to extend their power in what’s already their strongest region. 

In Virginia, the GOP governor and attorney general’s tough-on-crime posturing have run into the Democratic-run state Senate, which has rejected the former’s appointments to the parole board and killed the latter’s proposal to crack down against the state’s reform prosecutors. Should they flip the Senate in 2023, the GOP would gain full control of the state government and could press forward on those matters. 

In Kentucky, Democratic Governor Andy Beshear will seek a second term in difficult conditions given the state’s conservative bent. On his third day in office, he issued an executive order enabling hundreds of thousands of Kentuckians with felony convictions to vote; his re-election bid may decide the fate of his initiative since the GOP has reversed a similar one in the past.

The GOP also hopes to gain full control of Louisiana’s government; Democratic Governor John Bel Edwards cannot run for a third term, in a state where a short-lived bipartisan agreement to lower incarceration shattered within years of him signing a landmark reform package in 2017. 

6. How will judicial elections shape criminal punishment in Pennsylvania and Wisconsin?

In 2021, Pittsburgh and Philadelphia progressives made the unusual choice of organizing around local judicial races, and it paid off with a wave of wins by candidates who ran on curtailing bail and reducing incarceration. Next year, there will be more elections for the local bench in both places. 

Also in 2023, all Pennsylvanians will get to vote in a supreme court election to replace Max Baer, a Democratic justice who died this fall. The court, which is sure to retain a Democratic majority, has vacillated on criminal justice matters. One of Baer’s final opinions came in a September ruling that brought relief to defendants with mental illness, though the court has also disappointed reformers by rejecting cases challenging the death penalty or felony murder statutes. 

While Pennsylvania’s election won’t be resolved until November, one of the year’s most important races looms in April: A state supreme court seat on the ballot in Wisconsin may hand the majority to the liberal wing. Such a flip would affect criminal justice cases that have long divided Wisconsin justices, but the fate of the state’s 1849 abortion ban also looms large. Wisconsin’s staunchly GOP legislature is locked into place by aggressive gerrymanders; unlike neighboring Michigan, there is no mechanism for citizens to put a popular initiative on the ballot. That leaves state litigation, and April’s judicial election, as a rare path for Wisconsinites to curtail the policing of reproductive rights. 

The post What Off Year? Hundreds of Local Elections Will Define Criminal Justice Policy in 2023 appeared first on Bolts.

For years, Mason McCormick thought he might never leave the Dallas County jail. His partner, Tammy Hinton, says that McCormick tried “to stay in good spirits,” but that grew increasingly difficult as he approached year four of being incarcerated for drug charges inside a facility that is not designed or staffed to hold people long-term. At the height of the pandemic, Hinton spent every day waiting for McCormick’s call just to know he was still alive. 

“The uncertainty can make you start to wonder if anyone really cares if you live or die,” said McCormick, who was finally transferred to a federal facility in early October. “It takes a toll on you financially, because phone calls every day aren’t cheap, but mostly it takes a toll on your mind.” 

Degrading conditions have long plagued Dallas County Jail but have been exacerbated by both the pandemic and a dangerously high population. As a result, people like McCormick have been stuck in carceral purgatory while a backlog of felony cases grinds its way through the courts. Advocates and people inside the jail say the situation has only worsened in recent years, and the state agrees: The jail failed multiple state inspections in 2021 and 2022, and after an incarcerated person died inside the jail earlier this year, a state review revealed that officers weren’t conducting the required rounds. 

As of this writing, more than 1,350 of the roughly 6,200 people incarcerated inside the jail are either waiting for transfer to a mental health facility or are pretrial detainees whose charges have not yet been filed. Another roughly 2,400 people are awaiting their day in court and are legally innocent. The average length of stay for people who enter the Dallas jail is now 46 days, up from 15 days in 2018. During that time, the city has fought multiple lawsuits: one against the county alleging its bail practices violate the rights of poor and vulnerable people; and another against the sheriff’s office alleging the jail’s current conditions and COVID-19 protocols put its occupants at further risk. 

This slow and bloated legal system persists in Dallas County despite a district attorney voted into office four years ago on a reform platform that promised to “end” mass incarceration. John Creuzot vowed to try and divert people from jail, including by simply refusing to charge people for certain low-level crimes that often stem from homelessness and drug addiction. 

Now running for re-election, Creuzot is sticking to a similar script, pitching himself as a Democrat and reformer. He faces the same Republican opponent as in 2018, former DA Faith Johnson, though her tough-on-crime rhetoric has only grown as the Texas GOP slides further right.

In the intervening years, Creuzot has acted on some of his promises, but Dallas’ jail population is at a six-year peak—and those who get locked up spend even more time behind bars. This record may indicate the limits of Creuzot’s reforms, but also the complexity of upending the court system in a red state like Texas, where power is divided between a plethora of public officials, many of them actively hostile to decarceration.

“The incarceration issue is impacting thousands of individuals in such a harsh way, from loss of job and family to loss of housing,” said Jill Curtis, an organizer with Faith in Texas, a racial, economic and social justice organization that raises money to post bail for incarcerated people. “There hasn’t been a focused effort at the city or county level to reduce this population in Dallas, and the way we see it, it’s at crisis level.”

Sheriffs are ultimately responsible for jail conditions in Texas, and judges are often the final arbiter of whether to detain someone and how to set bail. But prosecutors do get to decide whether to pursue criminal charges and can request certain bail amounts or conditions for pretrial release, says Nick Hudson, a policy strategist with the ACLU of Texas. 

“The DA can reduce the backlog by cutting down on prosecutions, particularly for minor offenses,” Hudson told Bolts. But, he added, “It is going to take everyone working together to reduce the backlog in felony cases. Judges, prosecutors and the defense need a plan to ensure all defendants get access to speedy resolution of their cases.”

Curtis compared the official response to the longstanding jail problems to the Spider-Man meme wherein each iteration of Spidey points fingers at someone else. “The answer we always get is, ‘I’m not an expert,’” she said. “No one is an expert in the jail: Not the sheriff, not the DA, not the county judge. No one.”

“It’s time for real criminal justice reform in Dallas County,” Creuzot said in 2018 when he won the DA race over Johnson, the sitting DA who had been appointed by Governor Greg Abbott after the previously elected Republican prosecutor resigned. (After her loss, Abbott appointed Johnson to the board governing the state’s deeply dysfunctional prison system.)

During that campaign, Johnson trumpeted her record of convicting a local cop with murder for killing a teenager. But local reform groups rallied behind Creuzot, a one-time local judge who had pushed for programs to divert people charged with drugs into treatment instead of jail, making Dallas a key battleground in the growing movement to elect reform-minded prosecutors.

After entering the DA’s office, Creuzot pushed for multiple police reforms; his office says he played a role in the negotiations over a new law requiring cops to keep their body cameras turned on during the entirety of an investigation. He has pressed police brutality cases against local officers, drawing hostility from police unions.

Creuzot also announced early in his term that he would no longer prosecute most first-time charges for marijuana possession, that he would reduce bail requests, and that he would decline the prosecution of crimes related to poverty and addiction, such as theft of items under $750 stolen out of personal necessity.

His reforms echoed similar policies championed by reform-minded DAs elected in San Antonio and Austin, and Creuzot quickly earned favor with some local organizers. “It was a good first set of policies,” David Villalobos of the grassroots political group Texas Organizing Project told The Atlantic in 2019. 

But his announcements also came under heavy fire from the state’s GOP leaders like Abbott and from law enforcement unions. Texas Republicans passed a new bail law last year that is likely to increase pretrial detention. 

Despite Republicans’ pushback, data shows that change has come in fits and starts.

After Creuzot’s marijuana announcement in 2019, pot arrests dropped quickly. Police referrals to the DA’s office declined by roughly one-third between 2018 to 2019, according to research from Southern Methodist University, though the racial disparity in those arrests actually increased. The Dallas police adopted a more formal policy of making fewer marijuana arrests in 2021. Creuzot is also declining most marijuana cases sent to his office; data shared by the office shows that his office dismissed 54 percent of arrests over marijuana possession last year.

Arrests over petty theft have also decreased substantially since 2018, some of it a product of the pandemic, but data provided by Creuzot’s office show the DA is still prosecuting nearly all cases referred by the police. For instance, in 2021 Dallas police filed 1,087 class B theft charges (theft valued between $100 and $750), a drop from roughly 2,900 cases in 2018, the year before Creuzot came into, and roughly 1,800 in 2020.  Creuzot says it rejected just 50 of the cases over those two years, and prosecuted the remaining 98 percent. 

Creuzot still has support from many reformers, though some activists and organizers say they’re frustrated he hasn’t done more to curb mass incarceration in Dallas. 

Curtis, her fellow Faith in Texas organizer Joe Swanson, and other advocates interviewed for this story have urged Creuzot to build a more comprehensive decarceration plan. They want him to refuse prosecution of non-violent offenses and dismiss cases for non-violent offenders currently in jail.

“It can’t just be marijuana. It has to be systemic change: a full-on reversal of what we’ve been doing,” Curtis said. She added that it’s, “very Dallas, and very Texas” to oppose reforms past a certain point (though, as seen with Creuzot’s policies regarding marijuana and theft, police and GOP leaders are quick to oppose any kind of reform).

Creuzot told Bolts in an interview that he is planning such a diversion program for some felony charges, although he didn’t say when it might be implemented .

“We are in the beginning stages of felony pretrial diversion for first-time, low-level offenders,” he said. His office implemented a similar effort for people arrested a second time for misdemeanor marijuana possession. “Once it’s fully up and running,” Creuzot says of the felony diversion program, “we expect many offenders will have a short period of monitoring and the case will be dismissed. Those cases will be eligible for expunction.”

This change would also lead to fewer people ending up in jail for probation violations. There are currently more than 250 people detained there over such violations, but Creuzot says the numbers used to be considerably higher and that he has made progress on this front, too. 

“Contrary to many decades of practice, this office no longer alleges violations of probation terms and conditions that do not impact public safety,” he said, adding that his office does not seek to bring people back to jail for failing to perform community service, for instance. 

When asked if his goals have changed since the 2018 race, Creuzot said they have not. But “circumstances beyond my control have changed,” he added. “For example, the state mental hospital is backed up, causing people in need of restoration of competency services to wait two years for a bed. Or, if the charge is a misdemeanor and either 180 days or one year has passed and no bed is available, we must dismiss the case. These individuals will be released just as ill as when they arrived.”

Ultimately, that increases the chance they’ll be back in the Dallas County Jail. 

Creuzot’s win over a Republican DA in 2018 underscored a long trend in Dallas, which has grown a deeper shade of blue over the past two decades. Running for re-election this year, Creuzot has staked his campaign in opposition to Republican policies, stating he would resist the criminalization of pregnancies and trans youth. 

Johnson seemed to distance herself from the GOP label during her 2018 run, but this year she has largely echoed her party’s criticisms of criminal justice reforms and tough-on-crime talking points. She says that, if elected, she will prosecute the petty theft charges Creuzot has occasionally dismissed. Johnson also blames Creuzot for the rise of murders in the city this year, and faults his decision to forego the death penalty in several high-profile murder cases. While Johnson has mentioned the high jail population in campaign mailers, she has spent much of the campaign pushing policies that would invariably put more people behind bars. 

The county’s commissioners court, which has a Democratic majority, has said that if the jail grows further, the county will send incarcerated people elsewhere. The Harris County jail in Houston, another hazardous and overcrowded Texas facility, recently sent some of its population to Louisiana. 

“They’re not disposing of enough cases,” JJ Koch, the only Republican member on the county’s Commissioners Court, told a Dallas TV station in reference to local judges. In recent months, Koch has floated the idea of cutting judges’ pay as a way to incentivize more movement on the county’s backlog of felony cases. He also said the backlog in trials has meant that prosecutors have been offering fewer plea deals, which resolve the majority of criminal cases.

Koch is running for re-election to the commissioners court in November against a Creuzot ally, attorney Andy Sommerman. In an interview with Bolts, Sommerman rejected criticisms that Creuzot hasn’t done enough to reduce the jail population.

“He is hamstrung to some extent by the statutory requirements of bail,” Sommerman said. “And if we could have a system more similar to New Jersey, where people are incarcerated not on their ability to pay but on their risk to society, then we’d see the actual reform Dallas needs.” 

Civil rights advocates have fought for years to force changes to the bail system in Dallas, as they have in Houston and other Texas cities. In 2018, the ACLU of Texas and Civil Rights Corps sued Dallas County judges, magistrates who set bail, and the county sheriff on behalf of several people detained at the jail, arguing that the county’s bail practices regularly violated people’s constitutional rights. A district court judge agreed and ordered county officials to consider a defendant’s ability to pay when setting bail. But earlier this year, the Fifth Circuit Court of Appeals vacated the lower court’s ruling over procedural issues. 

Meanwhile, people like McCormick wait a long time—sometimes years—inside an overwhelmed system. McCormick himself was detained pretrial in the jail for over a year before entering a guilty plea, and then remained in the jail for more than two years before being transferred to a federal prison this week. 

He was in the Dallas jail as the pandemic spread, and he himself contracted COVID-19. He was also in the jail during the ice storm that devastated the Texas power grid in 2021 and led to a days-long power outage at the lockup. He cannot vote in the November election, but he says he has learned plenty about how incarcerated people are treated and worries about the effect these long years have had on him.

“It’s stress every day like you wouldn’t believe,” he says. “There’s nothing worse than waiting for answers that don’t come.”

The post As Election Nears, Dallas Politicians Have Few Answers for Their Jail Crisis appeared first on Bolts.

Last week, Garza’s office announced indictments against 19 Austin cops accused of assault and deadly conduct during the 2020 protests, including an officer who’s currently running for a Texas House seat. The indictments have rocked the local police department, and come on the heels of other charges Garza filed against law enforcement officers in his first year on the job.

The raft of indictments were also a reminder for Texas voters of the potential for DA elections to quickly change the landscape on policing and other criminal justice policies, just as early voting started for the state’s March 1 primary. Fifty districts are electing their next prosecutor across the state this year.

How these DA elections affect the criminal legal system in Texas will largely come down to races in four populous counties—Bexar (San Antonio), Dallas, Hays, and Tarrant (Fort Worth). In Bexar and Dallas counties, a pair of Democratic incumbents are seeking a second term after drawing conserative ire for reforms they’ve rolled out since winning in 2018. 

In Hays, a Republican incumbent is retiring after overseeing an explosion in the local jail’s population. In Tarrant County, the GOP’s last urban stronghold that has been drifting blue, a right-wing lawmaker notorious for pushing book bans looks to replace a retiring Republican DA whose selective enforcement of election laws led to lengthy prison sentences for Rosa Ortega and Crystal Mason—women who mistakenly thought they could vote, and whose convictions have been cheered by the Texas GOP in the party’s crusade against voter fraud. 

The results of these elections —in the March 1 primaries, May 24 primary runoffs, and November 8 general elections—could have profound consequences on local policies such as bail, the severity of sentences, the death penalty, and prosecutions that target reproductive and voting rights. 

Despite this critical role, more than three-quarters of the state’s 50 DA elections this year only drew one candidate by December’s major-party filing deadline—most of them incumbents. (See the full list of elections and candidates.) That trend holds in the state’s most populous counties with DA elections. Besides Bexar, Dallas, Hays, and Tarrant, only four other counties with at least 100,000 residents drew more than one candidate, and reform stakes are not at the forefront, at least not yet. The vast majority of smaller Texas counties with DA races are also uncontested. (Most Texas DAs are on the ballot in 2024 rather than 2022.)

There is plenty more to watch in Texas besides DAs this year. While the state will only have a handful of sheriff’s races, other local offices with great influence on the criminal legal system are on the ballot. A prosecutor is deploying a tough-on-crime message to unseat a Republican incumbent on the state’s Court of Criminal Appeals, for instance. And Austin has several referendums in May, including one to decriminalize marijuana possession.

To kick off our midterm coverage in Texas, below is a guide to the year’s DA elections.

1. A dual rematch in Dallas 

Dallas County’s DA election is a replay of 2018 in more than one sense. The same three candidates who ran four years ago have filed again. In the Democratic primary, former felony court judge Elizabeth Frizell will again face John Creuzot, the sitting DA who beat Frizell by a mere 589 votes in the 2018 primary. Just like four years ago, the winner will then face Republican Faith Johnson, who was the incumbent at the time. Johnson, who had gained national attention for actually trying killer cops for murder, then lost to Creuzot in the general election by a wide margin of 20 percentage points.

But the script has also partly flipped this time. In 2018, local reform advocates largely backed Frizell in the Democratic primary, but Creuzot deployed reforms after winning. He started refusing to prosecute certain drug cases and changed how it handles low-level theft, criminal trespass and other charges often associated with poverty. These changes triggered major attacks against Creuzot, from a police union calling for his removal to Republican Governor Greg Abbott accusing him of stoking crime. Ahead of next week’s primary, Frizell has echoed some of those same right-wing talking points, calling Creuzot’s reforms “dangerous.” Johnson, meanwhile, has overseen one of the nation’s largest and most-scandal plagued prisons systems since Abbott appointed her to the Texas Board of Criminal Justice after her 2018 loss.

2. A family rematch in San Antonio

Bexar County DA Joe Gonzales made jail diversion and other criminal justice reforms the focus of his winning campaign in 2018. But he said it was a personal threat from the county’s former DA that first inspired him to run. As a defense attorney before becoming San Antonio’s top prosecutor, Gonzales claimed that then-DA Nico LaHood threatened to destroy his law practice after Gonzales confronted him about withholding evidence in a case. Gonzales unseated LaHood in the Democratic primary and then won the general election that year, while LaHood eventually faced probation and a fine by the state bar.  

Nico LaHood’s younger brother, Marc LaHood, is now running to unseat Gonzales. He is one of two Republican candidates vying to face the incumbent DA in the general election (Gonzales is unopposed in the Democratic primary). In a statement to the San Antonio Express-News, Marc LaHood delivered standard tough-on-crime attacks, like accusing the incumbent of “severing ties with law enforcement agencies.” LaHood must first face former prosecutor and local defense lawyer Meredith Chacon in next week’s GOP primary, and Chacon has also played up her proximity to law enforcement, saying she would stop treating police “as the enemy.” Gonzales has drawn predictable hostility from the local police union since taking office and expanding diversion programs meant to prevent arrest and convictions for people accused of minor offenses, like misdemeanor marijuana possession.

3. A race to the right in Tarrant County

Local DAs who espouse baseless claims of widespread voter fraud have become key foot soldiers in the Texas GOP’s efforts to police the vote. And Tarrant County DA Sharen Wilson, a Republican who announced her retirement this year, has been a prime example of how prosecutorial discretion can turn mistakes into “voter fraud” convictions that GOP lawmakers wield to justify stricter laws. 

The GOP primary for Tarrant County DA could push the office even further to the right. Donald Trump has waded into the race to endorse Phil Sorrells, a judge and former prosecutor who vows to targeted undocumented immigrants as one of his main campaign issues. 

He faces state Rep. Matt Krause, a member of the chamber’s “Freedom Caucus,” which has successfully pushed for arch-conservative legislation like the state’s near total ban on abortions. Krause helped spark the book-banning hysteria that has gripped school districts across the state. And he backed legislation, passed by Republicans in 2021, that created new voting restrictions and criminal penalties around voting and election administration—a notable record for a prospective DA in the county where Ortega and Mason were prosecuted. Mollee Westfall, a current felony court judge, is also running in the GOP primary for DA. 

The winner will face one of three Democrats competing in next week’s primary. Tiffany Burks, a former deputy prosecutor under Wilson until last year, faces Albert Roberts, a former prosecutor in a neighboring county who came within 7 percentage points of unseating Wilson in the 2018 election. Former judge Larry Meyers has not run an active campaign, according to the Fort Worth Report. Tarrant County has trended blue in recent cycles, but Republicans continue to dominate local politics. 

4. Hays County candidate takes pride in never having been a prosecutor

The two candidates in the open election in Hays County, home to one of the state’s public universities and the fastest-growing county in the nation, could not have introduced themselves to voters more differently.

David Puryear, the only Republican, puts his work as a staff prosecutor in various offices front and center. Kelly Higgins, the only Democrat, is a defense attorney who does the opposite. “I submit that not having been a prosecutor is, in this county at this time, a blessing,” Higgins writes on his website. “I’ve always been the guy who insists on the protection of the Constitution.” 

Higgins vows to bring a “sea change” and “progressive vision” to the DA’s office and faults the retiring DA, Republican Wes Mau, for leaving cases to drag pretrial. The number of people detained pretrial in Hays has more than doubled since Mau became DA in 2015, according to data supplied by the county. 

Higgins told Bolts that, to reduce the volume of criminal cases and trials, he would seek to grow the availability of diversion programs and review the legal basis for arrests and charges more rigorously; this is to stop what he describes as the cynical prosecution of cases “based on the calculation that there is enough evidence to proceed.” Higgins also said he would consult reformers elsewhere in Texas, noting that “Travis and Bexar Counties have elected progressive DAs.”

Higgins and Puryear, who did not reply to a request for comment on his own platform, will face each other in November.

5. Heated primaries in McLennan, Hidalgo counties 

Only four other Texas counties with a population of at least 100,000 have contested DA races, and at this point in the campaign none of them are defined by major contrasts on criminal justice policy. It is still very early in Galveston County, which won’t see a contested race until the general election. 

But in Kaufman, Hidalgo, and McLennan counties, primaries will likely decide the next DA. That may explain the acrimony unfolding in some of those races.

McLennan County DA Barry Johnson faces challenger John Tetens in the Republican primary, with both ratcheting up fearmongering rhetoric about crime. Tetens has support from local police associations and promises to pursue harsher punishments. Johnson has responded to the criticism in unusually strong terms. 

“There is always an element of law enforcement that wants a rubber stamp in the DA’s office, and I am not going to do that,” Johnson told the Waco Tribune-Herald. But he has also turned to one of the uglier staples of “tough-on-crime” campaigning: attacking Tetens over his work as a criminal defense attorney, which Johnson says has contributed to putting “criminals back on the streets of McLennan County, where they can continue to prey on you and your family.” The GOP nominee will face Democrat Audrey Robertson in this conservative-leaning county.

Another DA candidate is attacking an opponent’s defense work in Hidalgo County, where Democratic DA Ricardo Rodriguez is retiring. One of the Democrats looking to replace him, Nereida Lopez-Singleterry, has blamed rival Toribio Terry Palacios for securing plea deals for his clients as a defense attorney. Palacios has also questioned his opponent’s ethics. Neither replied to Bolts’s questions about their policy platforms or their dispute. The winner of this Democratic primary will then face Republican Juan Tijerina; Hidalgo is a blue county, but Republicans are hoping to make gains in South Texas this year.

In Kaufman County, finally, the only challenger to Republican incumbent Erleigh Norville Wiley is Republican Rob Farquharson, who is emphasizing a traditionally tough-on-crime platform.

6. Most still run unopposed

In much of the state, there will be DA elections on the ballot but no contested races. Of the 50 districts with DA elections this year, 38 of them drew only one candidate, according to a Bolts analysis.That means 76 percent of the state’s DA elections are uncontested in 2022, the exact same rate as in 2020, when there were many more prosecutorial elections.

In 13 counties with at least 100,000 residents, only one candidate filed to run. Incumbents are completely unopposed in Brazoria, Comal, Collin, Denton, Fort Bend, Lubbock, Randall, Rockwall, Smith, Taylor, and Wichita. In Gregg and Jefferson counties, candidates who aren’t even incumbents effectively won just by filing to run, though John Moore and Keith Giblin have each worked for their respective DA offices in the past. (All of these unopposed candidates are Republicans other than in Fort Bend.)  

These counties have a combined population of 4 million. Some are undergoing massive upheavals—Denton, for instance, swung toward Democrats by a net 24 percentage points between the presidential elections of 2012 and 2020.  Public scandals around the criminal legal systems have swirled in other counties with uncontested DAs. But voters in these places won’t get a chance to weigh in on an office that largely drives criminal justice policy for another four years.

The post The DA Elections That Will Shape Prosecution in Texas This Year appeared first on Bolts.

In a ruling issued earlier this month, a federal court left a Black man on death row despite the emergence of new documents that suggest prosecutors sought to eliminate Black people from the jury pool. 

The decision reveals the length to which judges will go to permit prosecutors’ maneuvers,  and underscores the urgency of political solutions that could create meaningful constraints on prosecutors.

It’s well-established that the rule barring race discrimination in jury selection is inadequate, bordering on useless. The rule, established in the 1986 Supreme Court case Batson v. Kentucky, is so narrow and its burden of proof so high that prosecutors have had little trouble devising ways around it. Finding a Batson violation—that prosecutors struck a potential juror because of race—ultimately requires finding that prosecutors intentionally discriminated and that any acceptable reason they gave for removing a juror was a lie, knowingly offered to conceal the racism driving their conduct. 

Part of Batson’s deficiency is that it leaves judges, a great many of whom are former prosecutors themselves, wide leeway to defer to prosecutors. In most cases, a judge simply taking the prosecutor at their word is all it takes to kill a Batson claim. And prosecutors have developed training manuals on how to get all-white juries while going through the hollow motions of legal compliance. 

The ruling by the Fifth Circuit Court of Appeals this month, along with the 2019 district court ruling it affirms, exemplifies judges’ extraordinary deference to prosecutors, and the contorted reasoning they use to avoid holding prosecutors accountable for even the most obvious racism. 

The Fifth Circuit denied relief to James Garfield Broadnax, in a decision written by Edith Jones, a conservative judge who once complained that a last-minute appeal in a death penalty case made her miss a birthday party. Broadnax was sentenced to death in 2009 in a case where prosecutors tried to exclude every Black person from the jury pool. Prosecutors even highlighted each potential Black juror on written documents that they then withheld and that only recently surfaced. The Dallas district attorney’s office, where they worked, has a long history of racial discrimination; it had “for decades, followed a specific policy of systematically excluding blacks from juries,” the Supreme Court found in 2005.

But rather than face the discrimination staring at them, the district court and the Fifth Circuit panel recast much of this evidence as the prosecution’s good-faith efforts to comply with Batson. 

At Broadnax’s murder trial, prosecutors used their peremptory strikes—which allow lawyers to remove potential jurors for virtually any reason or no reason at all—against all seven Black potential jurors and one Latinx potential juror. They pointed to factors that disproportionately affect Black people in the United States, for instance striking one potential juror because she had relatives in jail. The trial judge initially permitted this tactic before reseating the last Black juror, offering a make up of sorts for the racism he had allowed before then: “I’m going to grant the Batson challenge and I’m going to do so because of the fact that there are no African-American jurors on this jury and there was a disproportionate number of African-Americans who were struck,” he said. 

That ruling gave Broadnax 11 white jurors and one Black juror whom the prosecution had tried to remove.

In addition, prosecutors had marked the names of each Black juror—and only the Black jurors—in bold font on a spreadsheet. Prosecutors had withheld this document for years, until after Broadnax had finished his state court appeals and filed his habeas petition in federal court. 

This spreadsheet was the focus of the Fifth Circuit’s opinion. The court had to decide whether the rules governing federal claims of unlawful imprisonment would allow Broadnax to submit the spreadsheet as new evidence of race discrimination, or if, as the federal district court had decided, the document must be excluded, effectively dooming Broadnax’s claim. 

In other cases, prosecutors have tried to spin such evidence into a positive, claiming they marked the Black jurors they eventually struck from the jury pool as part of their efforts to avoid discrimination. 

In Foster v. Chatman, this drew the rare wrath of the U.S. Supreme Court. In that 2016 case, prosecutors in Butts County, Georgia, had a list of potential jurors with the names of all four Black jurors highlighted in bright green (a legend indicated that the highlighting “represents Blacks”), and then struck them from the jury. The state of Georgia later argued that, while this may look bad, it reflects how the prosecution was “thoughtful and non-discriminatory in [its] consideration of black prospective jurors,” and worked “to develop and maintain detailed information on those prospective jurors in order to properly defend against any suggestion that decisions regarding [its] selections were pretextual.” 

The Supreme Court didn’t buy it. “The focus on race in the prosecution’s file plainly demonstrates a concerted effort to keep black prospective jurors off the jury,” the Court wrote, and any suggestion to the contrary “reeks of afterthought.” 

But in Broadnax’s case, both the federal district court and the Fifth Circuit declined to follow the Foster ruling’s lead. They announced that marking Black jurors on a list and then trying to strike all of them could have indicated benevolent race-consciousness intended to comply with Batson. 

They reasoned that the DA’s office’s history of racist jury selection may actually count in its favor. Since prosecutors have been caught discriminating before, the courts explained, they should be tracking the race of potential jurors to better protect people of color, and judges could assume that was their intent with the spreadsheet.

The district court said “it would have been professionally irresponsible for the Dallas County District Attorney’s Office (in 2009) to have failed to identify the members of the remaining jury venire who were members of a protected class and against whom it might have been preparing to exercise a peremptory challenge.” The Fifth Circuit echoed this, explaining that, given its history, the “office would have had considerable motivation to identify which jury venire members belonged to a protected class when preparing to defend its use of peremptory challenges.” 

Absent from this analysis is the fact that prosecutors attempted to strike every single juror they were supposedly trying to protect. 

Looking at the evidence this way, the Fifth Circuit found that the spreadsheet was, at best, unimportant—certainly “no smoking gun,” it wrote—and affirmed the district court’s decision not to consider it. In a system that routinely holds people’s history of misconduct against them, prosecutors got a free pass, and James Broadnax remains sentenced to die.

There is some chance that the Supreme Court will intervene, as it did in the high-profile case of Curtis Flowers, decided in 2019. But that would only underscore how slow and nearly random securing justice under Batson can be. Flowers sat on death row for decades and was tried six times for murders he almost certainly didn’t commit. Over that time, 61 of the 72 jurors who decided his fate were white. And although Flowers won, the Supreme Court declined the opportunity to use his case to strengthen Batson, instead emphasizing that its ruling was limited “to the extraordinary facts of this case.” Moreover, the prosecutor in Flowers’s case, Doug Evans, has so far evaded accountability, and a civil lawsuit against him was dismissed last year. 

But elected lawmakers don’t have to wait for judges to battle discrimination. Last year, California passed legislation that targets how implicit bias and racial stereotypes often influence jury selection, accounting for racism that is hard to detect and can infect jury selection even when prosecutors do not intend it. This can allow relief without defendants having to prove that prosecutors were intentionally discriminating against potential jurors of color. Among other things, the law presumptively bars an enumerated list of reasons that prosecutors have often used to exclude Black jurors, including “having a negative experience with law enforcement” and “expressing a belief that law enforcement officers engage in racial profiling or that criminal laws have been enforced in a discriminatory manner.” The Washington Supreme Court adopted a similar rule in 2018. 

Such a law may have helped Broadnax, had it been in place in Texas at the time. It certainly would have made it harder for prosecutors to get away with striking one juror because she had relatives in jail, and another because she had children but no employment and “desperately wanted to sound intelligent” — both “race neutral” explanations that prosecutors used to defeat Batson challenges in his case. 

When he authorized most of prosecutors’ requests to exclude jurors of color, the trial judge in part blamed  Batson’s exacting standard of intentional discrimination. “The problem … is that if you grant a Batson challenge it implies some sort of nefarious intent on the part of prosecutors … you’re essentially saying that the prosecutors are lying,” he said. While Broadnax argued at trial and throughout his appeals that he proved Batson violations, a law like California’s would have also enabled the judge to grant the defense team’s objections without finding “nefarious intent.”

But reforms to jury selection require courts to enforce them, and they will not be enough as long as judges excuse even overt, documented discrimination, giving prosecutors every benefit of the doubt. That’s why there’s a growing chorus to abolish peremptory strikes altogether, and allow lawyers to strike only those jurors who are not qualified to serve. That’s what Justice Thurgood Marshall argued when he concurred in Batson itself. The “inherent potential of peremptory challenges to distort the jury process by permitting the exclusion of jurors on racial grounds,” he wrote, “should ideally lead the Court to ban them entirely from the criminal justice system.” 

In the meantime, Broadnax remains on Texas’s death row, his legal challenges nearly exhausted. Now only the U.S. Supreme Court can vindicate his right to jury of his peers, selected without the taint of racial discrimination.

The post Prosecutors Excluded Black Jurors in a Death Penalty Case. They’re Getting Away With It. appeared first on Bolts.