Policing And Ties With ICE On The Menu In Norfolk County’s Sheriff Race
This Massachusetts special election, which starts with next week’s Democratic primary, will shape criminal justice reform prospects in this county—and in state politics.
Daniel Nichanian, | August 25, 2020
This article originally appeared on The Appeal, which hosted The Political Report project.
This Massachusetts special election, which starts with next week’s Democratic primary, could shape criminal justice reform prospects in this populous county—and in state politics.
Cooperation with ICE, qualified immunity, and drug policy have emerged as major flashpoints in the sheriff’s election in Norfolk County, Massachusetts.
In this populous county just south of Boston, a Republican incumbent is set to face voters for the first time this fall, two years after being appointed to the job. The Democratic primary will determine his general election opponent on Sept. 1, and it features three challengers with varying commitments to reforming the criminal legal system.
This special election, triggered by the resignation of Sheriff Michael Bellotti, is a dress rehearsal of sorts for the state’s 2022 elections, when all sheriffs’ offices will be on the ballot.
Massachusetts has a national reputation as a liberal bastion. But many of its jails make headlines for tight cooperation with ICE, a punitive approach to the opioid crisis, and abusive detention conditions. The sheriffs’ races in 2022 will provide new openings to put these issues on the table and to get sheriff candidates to be explicit about the policies they’ll implement.
The Appeal: Political Report reached out to all four contenders—Republican incumbent Jerry McDermott, and his three Democratic opponents—with questions on how they would handle matters ranging from immigration to voting rights and policing. McDermott did not answer the questions, but his three challengers replied at length.
On some issues, they shared a similar perspective. For instance, they all committed to allowing voting rights groups to enter the county jail in order to help detained people vote. Although most people held in jails are eligible to vote if they have not been convicted of a felony, in practice sheriffs often hinder their access. But contrasts arose from there on a set of major issues.
Legislative efforts to restrict or end qualified immunity, the legal doctrine that often shields law enforcement officers from civil lawsuits, have not succeeded so far in Massachusetts.
Only one of the four candidates—Democrat Bill Phelan, the former mayor of Quincy—said he wants the elimination of qualified immunity. The incumbent sheriff, meanwhile, has worked to preserve it.
Qualified immunity often makes it difficult to hold police accountable for wrongdoing by shielding officers if the rights they violated were not “clearly established.” Courts have used this doctrine to dismiss cases that don’t fit the exact factual patterns of prior cases. For instance, when a Massachusetts woman left a hospital where she had been admitted for bipolar disorder in 2013, she was tased by an officer looking to bring her back; courts granted the officer immunity from allegations of excessive use of force.
In June, Colorado eliminated qualified immunity in its state courts. But the bills debated in Massachusetts were weaker to start with, and law enforcement groups have fiercely lobbied against them. The head of a police union appealed to President Trump, warning that the proposals are a “complete assault on the people who are paid to protect the citizens.”
Jerry McDermott, Norfolk’s sheriff, joined that pushback in a Boston Herald article in July. He wrote that weakening qualified immunity “could cause unneeded confusion and lead to a hesitation to act” on the part of officers. He also downplayed the need for structural change: “The fact that the overwhelming majority of police officers and correction officers are capably and admirably serving their communities … is being overlooked.”
Phelan, by contrast, told the Political Report that qualified immunity “should be removed.”
“I do believe it is important to allow victims to bring such actions when they have been wronged and don’t believe the defense of Qualified Immunity should preclude them from doing so,” Phelan said in a written message.
But Phelan also added that it is the municipalities that employ these officers—rather than officers themselves—that should be on the hook for any civil judgment that would result from ending qualified immunity. His argument is that this would “protect” the families of police officers “from financial ruin” while enabling cases to proceed and making public authorities accountable.
Neither of Phelan’s two opponents in next week’s Democratic primary said they favored ending the qualified immunity defense.
Patrick McDermott, the county’s registrar of probates, replied that the question “requires a more comprehensive analysis and full discussion.” He instead stressed support for other policies such as implicit bias training and a civilian review board.
James Coughlin, a retired state police detective, said in a written message that he favors preserving qualified immunity as a “protection afforded to a group of public servants” who are put in situations where “a decision to act has to be made immediately.”
Coughlin added, “Qualified immunity is lesser than the absolute immunity afforded to the lawmakers who want to take it away from honest, hard working public servants.”
Massachusetts leaves its sheriffs a great deal of discretion as to how much to cooperate with ICE.
Each of the three Democrats committed to not contract with ICE, promising not to detain people whom ICE arrested elsewhere. Nor would they deputize local jail staff with the powers of federal immigration agents under the 287(g) program, which is surprisingly common in Massachusetts.
Jerry McDermott has not entered either of these types of contracts since he became the sheriff in 2018. In 2019, though, he championed a ballot initiative that would authorize sheriffs to honor so-called ICE detainers. (This initiative would have undone a 2017 court ruling that barred Massachusetts sheriffs from honoring detainers.) Detainers are ICE requests, not signed by a judge, that a sheriff keep holding someone beyond their scheduled release to give federal agents time to come and take custody.
Phelan and Patrick McDermott, unlike the incumbent sheriff, both said they opposed detainers.
Coughlin said his policy would be “to release [people] on their scheduled release date.” But he also went furthest among the Democrats in laying out how he would cooperate with ICE. He would “make sure ICE has at least 48 hours notice” before someone’s release, he said, so it can “make arrangements to take custody of that inmate prior to their scheduled release date.”
Patrick McDermott, by contrast, told the Political Report he would not notify ICE of people’s scheduled release, unless a federal judge were to require it. Phelan also said he would not but that he may make an “exception” if there is “a specific imminent risk of harm to an individual.”
Immigrants’ rights advocates have pushed for laws that ban sheriffs from notifying ICE.
Jerry McDermott, the sheriff, has joined a pilot program that enables people in the jail to access medication-assisted treatment for substance use issues. He has described it as a way to reduce overdoses, and to create a “continuum of care” once people leave the jail.
This program comes on the heels of heated legal disputes in Massachusetts over whether sheriffs should be required to provide such medication, which can lessen withdrawals and cravings.
McDermott’s three Democratic challengers said that they too would enable people to access medication-assisted treatment as long as they are jailed.
But each also stressed that fewer people with substance use issues should be detained in the first place, and that more should be done to divert them from incarceration.
“A person who is arrested and charged with possession of narcotics and has a non-violent history which indicates the person is suffering from substance use disorder, should not be sitting in a jail cell,” Coughlin said. To make the case against incarceration, Phelan cited data from the state’s Department of Public Health. “People recently released from custody are 120 times more likely to die of an overdose compared to the rest of the adult population,” he noted.
A disagreement emerged, though, over Section 35. That’s a state statute that enables a judge to order that someone be involuntarily committed for up to 90 days for substance use treatment.
Coughlin said that Section 35 can be a “necessity” or “a last resort,” though he emphasized that “voluntary treatment should always be tried first.” Patrick McDermott similarly called it a “last resort for families who are desperate in obtaining help for their loved ones.”
But Phelan took a different route: He made the case that Section 35 is not efficient, and that it should end. “Involuntary commitments have increased dramatically during the opioid crisis and because of a dearth of beds in treatment centers, many of those people end up in jail,” he said.
According to WBUR, Massachusetts may be the only state that uses correctional facilities to involuntarily commit people who have not committed a crime. There are growing voices demanding that addiction treatment be dissociated from law enforcement altogether. A commission recommended in 2019 that Section 35 not be used to commit people in jails and prisons.
Leo Beletsky, a professor of law and health sciences at Northeastern University who sat on that commission, says that many families do see this statute as a lifeline, but that this reflects the failure to properly build and fund treatment programs. People who do want to seek treatment are often unable to afford it or secure bed space, he said, which pushes families to turn to Section 35 as an only option.
“We need to build community treatment capacity, so that we can deflect and divert people into treatment when and if they’re ready, and we should lower barriers to treatment and have it be available on demand for free in every shape or form that people might want,” Beletsky said. “That would be the public health perspective.”
Phelan echoed Beletsky’s view. “We should have services for substance use disorders readily available and affordable for people when they need them in a hospital setting,” he told the Political Report. “To what extent do we perpetuate the problem by utilizing a less than optimum form of treatment to take care of people who are an imminent risk to themselves?”
Patrick McDermott also made the case for more investments in “long-term care” and in treatment programs, though adding that this should increase both “voluntary and involuntary” placements.
Phelan added more broadly that he would champion criminal justice reform by using the office’s “bully pulpit towards a goal of less incarceration for non-violent offenses,” including by advocating for “eliminating cash bail” and for decriminalizing some drug possession cases.
Beletsky said people who are involved in public health would assist in such efforts. “Look, we want to help [sheriffs] get out of the business of dealing with addiction,” he told the Political Report. “There are other people who are trained and equipped and funded to deal with addiction.”
Aug. 26: The article has been updated to reflect the latest fundraising information available from the state.