While this week's presidential election, as measured by the popular vote, showed the nation was as divided along partisan lines as ever, voters in many states proved themselves willing to take a more pragmatic approach to once-divisive criminal justice issues.
The majorities in favor of permitting medical use of marijuana—and in two states support for outright legalization—were examples.
Another was the passage of California's Proposition 36, which revised the long-controversial “Three Strikes” policy—one of the thorniest legacies from the “tough on crime” era—which mandates life sentences for a third conviction, even if it was for a non-violent offense.
After several unsuccessful attempts over the years to modify the policy, nearly 70 percent of Californians agreed that it was time to change.
“Californians were saying we shouldn't put shoplifters in jail for life, that's something that clearly most people agree with,” said Erwin Chemerinsky, dean of the University of California, Irvine School of Law, who unsuccessfully argued against the law before the Supreme Court several years ago.
The proposition approved by Californians mandates that life sentences only be given when a new felony conviction is “serious or violent,” and authorizes re-sentencing for offenders currently serving life sentences if their third strike conviction was not serious or violent, and if the judge determines that the re-sentence does not pose unreasonable risk to public safety.
However, the proposition maintains the current life-without-parole penalty for felons with non-serious, non-violent third strikes if prior convictions were for rape, murder, or child molestation.
At the same time, however, 52 percent of Californians narrowly rejected a referendum initiative (Proposition 34) which would have abolished the use of the death penalty in the state.
Chemerinsky blamed the defeat on an “aggressive” advertising campaign by opponents, adding that he expects death penalty opponents will continue to challenge California's law.
Shift on Marijuana?
Meanwhile, the votes in support of marijuana use suggest a major shift in popular sentiment on cannabis, according to Mark A. R. Kleiman, noted criminal justice scholar and author of Marijuana Legalization: What Everyone Needs to Know.
“There's been a huge change in public opinion and very little done legislatively,” Kleiman, told The Crime Report. “It looks as if at the moment, public opinion is winning out.”
Colorado and Washington became the first states to legalize recreational marijuana use, when voters approved Colorado's Amendment 64 and Washington's Initiative 502.
Under the measures, those 21 years of age and older will be allowed to purchase up to one ounce of marijuana. The amendments in Colorado and Washington each passed with 55 percent of the vote.
However, a similar ballot measure in Oregon was rejected, with 55 percent voting against.
The measures in Washington and Colorado conflict with federal statutes that bar the sale of marijuana, but Kleiman said it's too soon to tell how public officials will navigate the discord.
“We're not going to know what the administration's policy will be until after a new attorney general is named,” Kleiman said, referring to widespread speculation that Attorney General Eric Holder is planning to step down.
In three states—Massachusetts, Arkansas and Montana—ballots included referendums on medical marijuana. Voters approved the initiatives in Massachusetts and Montana, but Arkansas' Issue 5 was narrowly defeated.
In Arkansas, 49 percent of voters supported legalization—the closest any southern state has come to approving medical marijuana use.
“That's pretty impressive,” said Kleiman. “It suggests public sentiment is changing fast.”
Tough on Abortion
A markedly more conservative approach was taken by voters in opposite parts of the country to hot-button issues like abortion and assisted suicide.
Voters in Montana voted overwhelmingly in favor of LR-120, an act that requires “parental notification prior to abortion for a minor” at least 48 hours prior to the procedure.
Exemptions include in the case of a medical emergency and if a parent or guardian has previously waived that right.
The bill stipulates that any doctor who performs an abortion in violation of the act will be subject to criminal prosecution.
Stacey Anderson, a representative of Planned Parenthood of Montana, said she expects opponents of the measure — which passed with 70 percent of the vote — to challenge it in court.
“We think there are issues with this under Montana's constitution,” Anderson said. “It may violate the right to privacy and a provision for the rights of persons who are not yet adults.”
Anderson added that Planned Parenthood of Montana does not yet have plans to sue.
In Massachusetts, voters narrowly defeated Question 2, by a margin of 51 to 49 percent. The measure would have allowed physicians to provide end-of-life medications to certain terminally ill patients.
Supporters and opponents of the measure ran blistering campaigns in the lead up to Tuesday's votes, and statements published by organizations on both sides reflected the sometimes-hostile debate.
“In the end, the opponents’ enormous smear campaign based on fear and misinformation won the day,” the Massachusetts Death with Dignity Center wrote on its site.
No on Question 2, a group that campaigned against the measure, sounded a similar note in its own statement:
“This vote confirms that Massachusetts voters saw through the rhetoric and outright misinformation put out by those supporting assisted suicide.”
In North Dakota, voters roundly defeated Measure 5, which would have made it a felony to maliciously harm a dog, cat or horse, with exceptions for specific agriculture, hunting and scientific reasons.
North Dakota is one of the few states that does not currently classify animal cruelty as a felony.
Jason Zahn, president of the North Dakota Stockmen's Association, one of the groups that led the campaign against Measure 5, said a major source of contention was the inclusion of horses in the ballot language.
“I think that’s where the red flag was for us—(throwing) horses in with companion animals,” Zahn said. “Yes you take care of them, and they can be pets, but in North Dakota we consider them livestock.”
Crackdown on Sex Traffickers
Back in California, voter willingness to re-think the state's draconian Three Strikes law did not extend to charity towards sex traffickers and sex offenders.
Californian voted overwhelmingly (81 percent) in favor of Proposition 35, which increases prison sentences and fines for human trafficking convictions, and requires convicted human traffickers to register as sex offenders.
According to Chemerinsky, the battle may end up being decided in the courts.
“Who's going to vote against a law that's against sex trafficking?” he said. “But I think there's a strong case it's going to be found unconstitutional.”
In one interesting twist to the new measure—that may have right-to-privacy implications, registered sex offenders will also be required to disclose Internet activities and identities.
In Arizona and Florida, voters rejected measures that would have altered the structures of their judicial systems.
In Arizona, Proposition 115 would have increased the governor's options in choosing judges for the state Supreme Court, the Court of Appeals and the Superior Courts of Pima and Maricopa Counties. Currently, the governor of Arizona chooses from three finalists selected by a screening panel when choosing potential judges.
This Proposition would have allowed for eight finalists.
Florida's Amendment 5 would have given lawmakers control over changes to the rules governing the court system and contained a provision for Senate confirmation of Supreme Court justices.
Scott Boddery, a Florida lawyer currently studying judicial politics at the State University of New York at Binghamton, said voters are often suspicious of measures that award executives greater power.
“When the public sees legislative ballots like this, people kind of step back and say ‘wait a minute here,’ Boddery said.
“Public support of the state's executive seems to be irrelevant” when it comes to modifying judicial structures, he added.
Hard Line on Convicted Public Officials
Voters in Louisiana, Maryland and Nebraska gave landslide victories to amendments and questions concerning repercussions for public officials convicted of crimes.
Louisiana's Amendment 5 allows the state's legislature to deny retirement benefits to any public servant convicted of a felony related to his or her office. Maryland's Question 3 specifies conditions in which elected officials convicted of felonies can be removed from office; Nebraska's Amendment 1 makes any judgment of a misdemeanor committed in pursuit of office grounds for subsequent removal from office.
Doug Berman, professor of law at the Ohio State University Moritz College of Law, said measures like those in Louisiana, Maryland and Nebraska are easy calls for the public.
“It's hard to believe that anybody would be against being tough on politicians that break the law. It makes sure that public officials know we're keeping an eye on them,” Berman said.
In Oklahoma and Idaho, voters approved measures that changed the administration of parole in their states. In Oklahoma, State Question 762 abolished the state governor's role in the parole process for certain non-violent crimes.
In Idaho, SJR 102 affirms the State Board of Correction control over the management of felony probation and parole, while eliminating the department's control over misdemeanor parole.
In both cases, the approved measures are bringing the states in line with parole norms across the country, according to Martin Horn, a former Commissioner of the New York City Department of Correction and Department of Probation, and current distinguished lecturer at the John Jay College of Criminal Justice in New York.
“It's the rare state where the governor actually has a role in parole,” Horn said. “The parole board is that quasi-judicial body that should be in the hands of an independent body.”
Editors Note: to see at-a-glance results of the nearly two dozen criminal justice state ballot measures, please check out The Crime Report's interactive map HERE.
Graham Kates is deputy editor of The Crime Report. He welcomes comments from readers.