The filing period for candidates to run for prosecutor closed in five states over the past month, adding clarity to the question of where the midterms may shake up the criminal legal system’s status quo. With primaries looming as early as May, criminal justice reformers are pressing their case from North Carolina’s biggest cities to Omaha and the Portland suburbs.

Public defenders and legal aid advocates are running in Arkansas, Nebraska, and Oregon, enlivening proceedings in places like Little Rock and Salem that have not seen a contested election in decades. In North Carolina, where racial justice protests drew thousands into the streets in 2020, challengers are now running on reform promises. And Utah brings the uncommon sight of a Republican reform incumbent who faces a tough-on-crime challenger. 

But away from those fireworks, the filing deadline is more often than not the end of the road for a prosecutor election, as most races only drew one candidate. In Oregon, whose filing deadline passed on Tuesday, just two of 15 DA elections feature multiple contenders. 

The situation is only slightly less desolate in Arkansas and North Carolina, where filing deadlines passed last week. Roughly one-third of their elections will be competitive this year. In each of Nebraska and Utah, the two most populous counties at least will have contested elections. (In Texas, as Bolts reviewed last month, 76 percent of elections are uncontested this year.)

Still, those elections that will be contested offer rare opportunities to confront local injustices. Arkansas, for instance, has a unique law that criminalizes falling behind on rent, empowering local prosecutors who choose to use it. And North Carolina allows children to be prosecuted at an unusually young age, though the state reformed its statutes last year. 

Below is Bolts’s preliminary guide to the prosecutor elections in those five states.

Arkansas

Larry Jegley has been the prosecutor in the state’s most populous judicial district (Perry and Pulaski counties, home to Little Rock) since 1997, and yet he has never faced an opponent—not once, over eight elections. This year Jegley is retiring, and voters will get a choice for the first time in decades. And it may be a historic election: Alicia Walton is running to become the first Black prosecutor in the history of a district whose population is 37 percent Black.

Walton, a public defender, vows to reform what her website calls a “fundamentally flawed” criminal legal system. Her opponent Will Jones is the chief deputy prosecutor in a neighboring district who worked under Jegley for more than a decade. 

Another public defender, Sonia Fonticiella, is running for prosecutor in the eastern part of the state, in a district that covers Clay, Craighead, Crittenden, Greene, Mississippi and Poinsett counties. She will face deputy prosecutors Martin Lilly and Corey Seats. And in Northwest Arkansas (Madison and Washington counties), incumbent Matt Durrett faces Stephen Coger, who says incarceration is too high in the district and that he would change bail and jail practices, though Coger also attacks Durrett for being too lenient toward people accused of higher-level crimes.

The state has five other contested races, all in smaller jurisdictions (twenty districts drew only one candidate). The full list of candidates is available here.

These are nonpartisan elections scheduled for May 24.

Nebraska

Each of Nebraska’s 93 counties will elect its prosecutor this year, but stakes are highest in the only two counties with at least 100,000 residents with a contested election.

Both races pit a Republican incumbent against a Democratic challenger who proposes some reforms in counties that went for Joe Biden in 2020. In Lancaster County (Lincoln), County Attorney Pat Condon faces Adam Morfeld, a former lawmaker who founded the progressive organization Civic Nebraska and helped lead efforts to expand Medicaid in the state.

But the state’s premier battle is in Omaha: Douglas County Attorney Don Kleine switched to the GOP two years ago after the Democratic Party accused him of furthering white supremacy; he had brought no charges against the man who killed James Scurlock, a Black protester. In November, Kleine will face Democratic challenger Dave Pantos, the former director of Legal Aid of Nebraska, whose platform is largely centered on reform themes.

North Carolina

Mecklenburg (Charlotte) and Wake (Raleigh) counties, each jurisdictions of more than one million people, mirror one another this year. 

In each, a Democratic DA is seeking re-election but must face a defense attorney in the May primary. In Charlotte, challenger Tim Emry has been part of the local coalition Decarcerate Mecklenburg, which has sought to reduce jail population during the COVID-19 pandemic; he faces DA Spencer Merriweather. In Raleigh, Demon Cheston, whose criminal defense practice involves capital punishment cases, is challenging DA Lorrin Freeman. Cheston and Emry are each running on progressive platforms that include never seeking the death penalty and accountability for police officers who lie or commit misconduct. During the Black Lives Matter protests of 2020, Charlotte and Raleigh drew thousands of protesters who demanded action against racial injustice and more accountability for the police. 

Other populous North Carolina districts are hosting competitive DA elections as well.

In Forsyth County (Winston-Salem), the race will come down to the November general election. In this county that voted for Biden by 14 percentage points, Republican DA Jim O’Neill will face Democrat Denise Hartsfield, a retired judge who is also a former prosecutor and attorney with the Legal Aid Society.

There are also Democratic primaries to watch in Buncombe (Asheville), Durham, and Guilford (Greensboro) counties, though some of the candidates who filed do not appear to be running active campaigns as of publication. In Buncombe, the incumbent faces tough-on-crime attacks from at least one challenger.  In Durham, two defense attorneys filed to run against DA Satana Deberry, who has built a reformer profile, rolling out bail reform and clearing thousands of old fines and fees. Deberry testified in Congress earlier this week on behalf of progressive prosecutors. “Stop pretending reform is the real threat to public safety,” she said.

The North Carolina primaries are on May 17th. The full list of candidates is available here.

Oregon

Even by low national standards, Oregon has a striking problem with democracy when it comes to its DAs. It has long been marred by a pattern of DAs resigning shortly before their terms conclude—with governors filling the resulting vacancies by appointing deputy prosecutors who then get to face voters as incumbents. That dynamic struck again in 2022, though only in one county. What’s more shocking is that only two elections out of 15 drew multiple candidates.

At least both of those races offer voters a real choice on the direction of local criminal justice policy.

Populous Washington County, right next to Portland, features a clear-cut divide between DA Kevin Barton and challenger Brian Decker, a public defender who is active in various reform drives and advocates for investing in programs that fall outside the criminal legal system. Barton is attacking Decker’s views as “dangerous” and holding up neighboring Portland, which is led by a reform-minded DA, as a boogeyman. (Barton’s 2018 election featured a similar contrast, and he won with some ease after an uncommonly expensive campaign.) Further south, in Marion County (Salem), public defender Spencer Todd is challenging DA Paige Clarkson, saying he wants to turn the page of “tough on crime” policies. Marion County has not had a contested DA race since at least the 1990s.

Oregon’s DAs are notoriously active in opposing criminal justice reform legislation, making these elections meaningful for statewide policy as well. However a coalition of three reform DAs formed in the wake of the 2020 elections, with the new DA of Multnomah County (Portland) banding together with those of smaller Deschutes and Wasco counties to defend reform bills. But the group is set to lose one of its three members as Deschutes County DA Jon Hummel is retiring. He will be replaced by Steve Gunnels, a longtime prosecutor who is the only candidate who filed. (The Multnomah and Wasco DAs are not on the ballot this year.) 

Oregon’s DA elections are nonpartisan elections that are scheduled for May 17. The full list of candidates is available here.

Utah

David Leavitt is the rare Republican prosecutor who grabs headlines for championing criminal justice reform. As county attorney of Utah County, he established new diversion programs after he came into office, and last fall he announced he would no longer seek the death penalty. “It simply demonstrates our societal preference for retribution over public safety,” he said of capital punishment in a public release. 

Leavitt’s re-election race will test the GOP’s appetite for such changes. He faces Jeffrey Gray, an assistant Utah solicitor general who touts his ties to law enforcementand promises to bring back the death penalty if elected. 

Over in Salt Lake County, Democratic prosecutor Sim Gill triggered a national furor during the Black Lives Matters protests of 2020, filing gang enhancements against protesters accused of spilling red paint in front of his office, which threatened sentences of up to life in prison (the charges were later amended). Protestors were criticizing Gill’s decision to decline charges against officers who killed 22-year-old Bernardo Palacios-Carbajal earlier that year. But Gill is in relatively good shape in his reelection bid this year; he drew no challenger in the Democratic primary, which can be decisive in this blue-leaning jurisdiction. Republican challenger Danielle Ahn has no campaign website or campaign account as of publication.

Utah only has two other contested prosecutor races: one in Washington County where a GOP incumbent faces a Libertarian challenger, and one in the very sparsely populated Grand County.

The primaries will be held on June 28, followed by the November general elections. The full list of candidates is available here.

The post Public Defenders Shake Up Key Prosecutor Races from Arkansas to Oregon appeared first on Bolts.

Update: The governor signed the repeal legislation into law on March 31.

Utah is on the verge of either rolling back or reaffirming a bail reform law that passed in 2020 with an unusual amalgam of supporters. Lawmakers from both parties—alongside prosecutors, public defenders, and advocates—backed the reforms, which passed the GOP-controlled legislature last spring and curtailed the use of cash bail. But almost immediately after the bill took effect in October, some Republican lawmakers and sheriffs began criticizing the changes as a threat to public safety, and the legislature passed a bill to repeal the measures this month.

Now the repeal will either be signed or vetoed by Governor Spencer Cox, a Republican, who has indicated that he’s on the fence about what to do.

The outcome will have implications for Utah residents awaiting trial, where cash bail has long been the most widely used pretrial tool. Nationwide, advocates have faulted the cash bail system for the disproportionate pretrial incarceration of poor people, especially people of color, who often face further consequences like job loss as a result. 

State Representative Stephanie Pitcher, a Democrat, says she has pushed to reduce the use of cash bail in Utah out of frustration that people charged with crimes either remain in jail or go free based solely on whether they have means to pay. “This came from my own experiences in court and realizing it’s such a nonsensical system that we decide pretrial release based on wealth,” said Pitcher, who is a prosecutor.

At the start of 2020, Pitcher introduced the bail reform—House Bill 206—which required judges to set the “least restrictive” conditions to ensure a defendant comes to court. In effect, the bill transitioned Utah’s judiciary away from the bail schedule courts had long used, which assigned a specific dollar amount to every offense. Cash bail could still be used under HB 206, but judges would have more discretion and obligation to consider other factors. The bill gained traction in the legislature, which was and remains Republican-controlled, and ultimately passed; it took effect Oct. 1.

Utah’s bail reform did not go as far as states like Illinois and New Jersey, which in recent years have sought to virtually end the use of cash bail. Pitcher did not clarify if she supported eliminating cash bail but told The Appeal: Political Report that she does not see that happening in Utah  “anytime soon” because of the influence of the bail bond lobby. Still, local activists have said that despite its limitations, the new law is having a positive effect. Founders of the Salt Lake Community Bail Fund said they were able to free far more people after HB 206 took effect because bail sums dropped from the “astronomically large” amounts that defendants were held on before. 

HB 206 wasn’t the first time cash bail came under scrutiny in Utah. In 2015, a group of prosecutors, judges, defense attorneys, sheriffs, bail bond agents and academics prepared a report for the Utah Judicial Council on pretrial release best practices. A Republican state senator introduced a bill similar to Pitcher’s in 2016, though it didn’t make it out of committee. There have also been several legislative audits of Utah’s pretrial system over the last few years. And Shima Baradaran Baughman, a criminal law professor at the University of Utah, has been urging bail reform in her state since 2010.  She said she made the case that “conservative states should rely on bail reform to save money” to the Utah Commission on Criminal and Juvenile Justice. “Less people in jail means less money spent on jail beds. Since Utah ha[d] a problem with jail beds … this was compelling,” Baughman said.

Sim Gill, a Democrat who is the district attorney of Salt Lake County, has spoken against repealing the new bail law and pointed out that Utah has a history of embracing criminal justice reforms, particularly when they encourage fiscal savings. In 2019, Utah became the second state to pass a bill that would automatically clear criminal records of people convicted of low-level crimes, and taxpayer savings was one benefit of the law that proponents touted. 

Troy Rawlings, the chief prosecutor for Davis County,  has also vocally opposed the repeal. Rawlings, a Republican, told the Political Report he grew interested in tackling cash bail about four years ago, when he started to learn of civil lawsuits in other states brought by individuals who argued they had been unconstitutionally detained because of their inability to pay for release. These judgments prompted conversations among people in Rawlings’s office about cash bail-related issues.

Despite the growing bipartisan support for bail reform, criticisms started pouring in when HB 206 took effect—not just from those who opposed the new law, but also from advocates who say that it left too much room for prosecutors and judges to continue locking people up. Ben Aldana, a public defender in Utah County, said he noticed judges began holding more people without bail, even for low-level offenses. Although Aldana doesn’t inherently oppose holding people without bail, he says everyone should be afforded a hearing to call witnesses before any decision like that is made. “When my clients were denied the right to bail I was told to go pound sand and prosecutors would later come to them with a plea agreement if they pled guilty,” he said. “I was and still am very upset about this; it flies in the face of a fair system.” 

Leaders with the Salt Lake Community Bail Fund, which launched in September, say that although the monetary amounts of the bail requests they received decreased significantly after HB 206 took effect, the law was not applied retroactively, and it still allowed judges to include a lot of challenging stipulations for defendants, like electronic monitoring and requirements to show up at police departments at unusual times. “Yes, we saw more lower bails, but we still see high bails sometimes in excess of $5,000,” Emily Lyver, a co-founder, told the Political Report. “It’s purely discretionary.”

Meanwhile, a vocal campaign against the reforms emerged, led by the Utah Sheriffs’ Association and House Majority Whip Mike Schultz, who introduced a bill to repeal HB 206 in January. Opponents argued that the reforms had failed and resulted in too many violent offenders going free, though they had no credible data to back up their assertions. Some of the actions they complained about, like judges issuing penny warrants to keep jail populations low, were actually driven by COVID-19 concerns. “Penny warrants are 100 percent COVID-related and not at all anything to do with House Bill 206,” an assistant state court administrator testified in January.

Although no state-level data is yet available, Gill said data from his county showed the reforms were working as intended, with more low-level offenders released without cash bail and more violent offenders detained. Gill, Rawlings, and David Leavitt, the Republican chief prosecutor for Utah County, represent the state’s three most populous counties; they called efforts to repeal HB 206 “bad faith.” The executive director and president of the Utah Sheriffs’ Association did not respond to multiple requests for comment.

One Republican state senator, Todd Weiler, sponsored a bill this winter to amend HB 206 rather than repeal it. He convened a working group of stakeholders to craft agreeable language. Aldana was involved and supported the “fix-it bill,” which among other things would have ensured bail hearings. “That resolved a lot of the issues I had had, because instead of just willy-nilly denying someone the right to bail, a judge would have to really think about it and say well if I deny this person bail, the defendant will now have the right to subpoena witnesses,” Aldana said. Pitcher and the ACLU of Utah also supported the fix-it bill, but instead Schultz’s repeal bill passed and is now awaiting the governor’s signature.

Rawlings suspects that proponents of full repeal are doing the bidding of the bail bond industry, which has stayed conspicuously quiet this year. “Everyone knows it,” he told the Political Report. “They’re propping up sheriffs as surrogates, and it will be very interesting to see the campaign contributions to legislators who voted in favor of repeal.”

Governor Cox has said he is “not crazy” about approving the bail reform repeal bill, and is interested in convening a special session to address the issue. His deadline to make a decision on whether to veto is Thursday.

Supporters of HB 206 say one problem with repealing the bill is that the courts have already spent a year updating their rules and procedures, and eliminating the statute now would cause confusion. “It’s like unscrambling an egg,” said Aldana. “You can’t do it and you’ll be left with a mess.”

Rawlings said he thinks it would be tough to get consensus in a special session for a new bail reform bill, though he believes the judiciary will continue to consider risk factors and ability to pay regardless of what the governor decides. “We’re hearing from judges that they think this is the right thing to do, too,” he said.

Activists with the Salt Lake Community Bail Fund opposed the repeal effort, but say if it succeeds, then they will make every effort to be at the table for the next bill. “In some ways it would be a unique opportunity for us to be invited to the idea table,” said Lexie Wilson. “We want reforms to help build towards eliminating cash bail and not adding other carceral obligations.”

The post Utah’s Hard-Won Bail Reforms Are in Jeopardy appeared first on Bolts.

Criminal convictions have ramifications far beyond the explicit sentences imposed on individuals, impeding their access to housing and blocking them from jobs for the decades that follow. Different states open the door to varying degrees for people to have their records cleared, but even for eligible individuals, the process is so difficult—and costly—that few people take advantage of it.

Reform advocates have had recent success targeting both sides of that problem. Last year, Pennsylvania expanded who is eligible to have their records sealed, and made the process automatic for some. (The latter step is in the implementation phase.) The state may soon have company.

Earlier this month, the Utah Legislature passed a “Clean Slate” bill, similar to Pennsylvania’s, to automate some of its expungement process. And reformers in Delaware are working to increase people’s eligibility for expungement in the first place; state law currently provides adults no opportunity short of a pardon to have past convictions expunged.

“If you address mandatory minimums, and sentencing reform, and prison conditions but neglect to address barriers of re-entry, then people are going to be trapped in cycles of incarceration and reincarceration where they don’t have job opportunities on the other side,” said Rebecca Vallas, the vice president for the Poverty to Prosperity Program at the Center for American Progress, a liberal think tank.

Delaware’s proposed legislation (Senate Bill 37) would delineate cases in which expungement petitions must be granted (arrests where there was no conviction and some lower-level convictions). It would also delineate other situations, including some felony convictions, where expungement is at the discretion of courts. SB 37 intends to “protect persons from unwarranted damage which may occur when the existence of a criminal history continues indefinitely,” according to a draft provided to the Political Report.

State Senator Darius Brown, a sponsor of the bill, told me that removing the “barriers and impediments” that people with convictions will promote “economic opportunity and economic justice,” and provide “opportunity for upward mobility.” “I don’t think that someone’s criminal record should be a life sentence,” Brown said. A new study conducted at the University of Michigan found that Michiganders who received an expungement saw their wages go up by more than 20 percent within a year, boosted by an easier time navigating the job market.

This bill is part of a larger package of proposals announced last week by a coalition of legal, legislative, and associative actors. Proposals include lowering charges for drug offenses, limiting the treatment of minors as adults, and constraining the stacking of charges. Some would codify into law Attorney General Kathleen Jennings’s new guidelines for state prosecutors.

SB 37 would expand eligibility for expungement in Delaware, but individuals would have to take action to benefit. Brown told me that the coalition pushing the bill would need to continue its work to ensure “that people are informed and educated” and organize events to promote access.

Unlike Delaware, Utah already allows adults with misdemeanor or felony convictions to petition for expungement after a set period of time.

But people hoping for expungement must file petitions and face multiple fees and filing requirements. In Utah, as elsewhere, many people do not apply or face obstacles when they do. The University of Michigan study found that 90 percent of eligible Michiganders do not apply for reasons ranging from cost and bureaucratic complexity to insufficient information. These are issues in Utah as well. Noella Sudbury, director of the Salt Lake County’s Criminal Justice Advisory Council, asked impacted individuals why they had yet to apply during an “expungement day” her office organized last year. “The two top reasons were that it’s too overwhelming and complicated, and it’s too expensive,” she said.

Vallas, who helped develop the original Clean Slate bill in Pennsylvania, emphasized the procedural maze that individuals need to surmount to benefit from expungement in nonautomated systems. The point of an “automatic clearing of criminal records,” she said, is for people to not “have to go through that one-off process of having to figure out a bunch of complicated legal documents, going in front of a judge, filling court dockets.”

Utah’s Clean Slate legislation (House Bill 431) would create such an automatic process. It would apply to people who were acquitted and to people who were convicted of some misdemeanor offenses after waiting periods of up to seven years after sentencing. The bill “shifts the burden away from the individual to the government,” said Sudbury, who advocated for the legislation alongside its sponsor, state Representative Eric Hutchings, and a coalition of Utah groups.

“It just says we have the technological tools to identify who you are and give notice to all those agencies that your record is expunged, and if after a period of time, you would have your record expunged anyway, then we will expunge it for you,” Sudbury said.

The bill has passed both legislative chambers unanimously and is now on the governor’s desk.

Major avenues for further reform remain. Pennsylvania’s Clean Slate bill automated the process to seal rather than expunge records, which would still be accessible by some parties such as local law enforcement. Access to Utah’s expunged records would be more restricted. Utah’s legislature also adopted House Bill 212, which bars employers from asking about expunged convictions. In addition, Sudbury said Utah should revisit the connection between debt and expungement. “If you have open debt you wouldn’t be eligible,” she said. Paying off court fines and fees hinges on an ability to gain a stable income, and this is hindered as long as people retain a record.

Clean Slate bills that would automate existing expungement processes have been introduced in a number of other states, including in California, where it is championed by San Francisco District Attorney George Gascón. In January, California began implementing a law that automates the initiation of the expungement process for marijuana-related convictions.

Update: The original article has been corrected to reflect that the Utah legislature passed House Bill 212.

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