New Orleans Result Could Increase Reformers’ Focus on Sheriff Elections

    Since 2015, both Big Philanthropy funders and progressive grassroots activists have targeted local district attorney elections, seeing these once-sleepy affairs as an efficient way to cut carceral law enforcement practices without dealing with state legislators’ political cowardice on crime policy. Enemies of these efforts are currently seizing upon an increase in homicide rates in most cities around the country.

    But while the future of the so-called progressive prosecutor movement is in question, sheriff’s offices could become the next frontier for reformers. The potential value of focusing on sheriff races has perhaps never seemed more palpable than when progressive candidate Susan Hutson defeated incumbent New Orleans Sheriff Marlin Gusman in a runoff election on December 11.

    The stakes of the race were high. In 2012, Sheriff Gusman’s office was placed under a federal consent decree, due to “dangerous and unacceptable” conditions he maintained in the Orleans Parish Prison. The original OPP building was shuttered after the city spent $150 million on a new jail, the Orleans Justice Center. Yet less than a half a year later, experts contended that many of the same problems at the original facility were present in the new one, and it would still be recognized as the third-deadliest jail in the state. Nominally to address the issues that brought his jail under the consent decree, Gusman has been a major proponent of what he called Phase III of the Orleans Justice Center—an expansion project that would let the facility house more people with mental health issues.

    Hutson was unequivocal about opposing the expansion project. Originally an attorney by trade, she has also built a career in law enforcement oversight. She served as the independent police monitor over the federal consent decree signed by the New Orleans Police Department, leading to positive evaluations from reformers. Before that, she worked as the acting police monitor in Austin, Texas and as an assistant inspector general monitoring the Los Angeles Police Department.

    In many ways, a new sheriff determined to try to mitigate severe problems in the New Orleans criminal justice system could be exactly what the city needs. During a 2020 court hearing, Sheriff Gusman, a local Democratic Party establishment figure who has held his office for 17 years, quipped that court-appointed monitors did not want a fixed jail, but a “jail utopia.”

    Beyond Hutson, there are broader reasons for reform advocates to temper their expectations of a “progressive sheriffs” movement.

    On her campaign website, Hutson announced her support for myriad other reforms aimed at reducing the suffering of incarcerated people. She signaled a desire to end phone call fees for poor prisoners, ensure gender-conforming housing, and more.

    At least one news outlet has called Hutson the “first progressive sheriff.” That is arguably an exaggeration. In the last few years, seven Black sheriff candidates running on progressive positions—like protecting undocumented immigrants from unnecessary deportations—won elections in counties across North Carolina. Hennepin County Sheriff David Hutchinson, who serves in Minneapolis, Minnesota, was elected in 2018 on a similarly progressive platform, though his job is now in jeopardy due to a drunk driving crash.

    There are some clear limits to Hutson’s desire to change the system. Asked about her stances on the issues, she said, “You’ve seen me say anything about defund or eliminating the jails? That’s my opponent saying that. If you are a person who is anti-law enforcement, that’s not me. As a police auditor for 17 years, we help our police departments serve our communities better.”

    And beyond Hutson, there are broader reasons for reform advocates to temper their expectations of a “progressive sheriffs” movement.

    The power of sheriffs is quite limited compared to that of elected local prosecutors. They have no control over who is charged with crimes, which crimes people are charged with, or the sentences people receive after they are convicted. Sheriffs’ band of influence is sharp and narrow like a scalpel: They have a say over jail conditions, a handful of property rights issues, and the behavior of sheriff’s deputies, who share the power to arrest with police officers and federal law enforcement agents.

    In the Trump era, some scholar-advocates sounded the bell on how sheriffs could help push back against the president’s anti-immigrant agenda. Some sheriffs have so-called 287(g) agreements with the federal government, for example, which are named after Section 287(g) of the Immigration and Nationality Act. These agreements allow sheriffs to notify ICE whenever an undocumented immigrant is booked into the jail, regardless of the charge.

    However, the Biden administration issued guidance to ICE agents, who are now only authorized to make civil immigration arrests at courthouses under special circumstances, such as a national security threat, a risk of imminent death or harm to anyone, or a hot pursuit involving a public safety threat. But the return of Trump or a similar figure in 2024 would make sheriffs a key conduit of immigration policy one again—increasing focus on their election campaigns.



    Photograph by thepipe26 via Wikimedia Commons/Creative Commons 2.0

    • Rory is the founding attorney of Fleming Law LLC, an immigration law boutique in Philadelphia. He has worked for a variety of criminal justice and harm reduction nonprofits, including Law Enforcement Action Partnership and Harvard Law School’s Fair Punishment Project, and provided campaign services for over a dozen district attorney campaigns. His articles have appeared in the Atlantic, Slate and many other outlets.

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