Last week, Americans in several states came out in droves to show historic support for criminal justice reform at the ballot box. A progressive ideological shift in our approach to harsh criminal justice policies has gained momentum in recent years, and this year's election revealed a desire to put that ideology into practice.
By coming out to support marijuana legalization in Colorado and Washington, medical marijuana in Massachusetts, revising California's three strikes law, and liberating New Mexico's Public Defender system from the state's executive branch, many Americans expressed that they are done waiting for change.
The lack of attention paid by Gov. Mitt Romney and President Barack Obama to criminal justice reform in their campaigns did not stop voters at the state level from prioritizing these issues.
It should send a clear message to the President as he embarks on his second term.
There were criminal justice losses as well. In Oregon and Arkansas, voters did not approve state-regulated marijuana sales and medical marijuana, respectively. In California, a measure to replace the death penalty with life without parole sentences was narrowly defeated.
Nevertheless, the landmark victories of 2012 are reason enough for reform advocates to embrace a cautious optimism about the road ahead.
With our struggling economy as the centerpiece of this campaign season, our re-elected President has an opportunity to rethink government spending in a way that specifically addresses our costly and dysfunctional criminal justice system, and its devastating disparate impact on poor communities of color.
Taxpayers have spent billions of dollars on the failed War on Drugs, and are left with nothing to show for it but our shocking incarceration rate and expensive prisons teeming with nonviolent drug offenders.
In an otherwise polarized political climate, Republicans and Democrats alike are finally working together in numerous states to pass meaningful reforms that tackle the fiscal and human waste of mass incarceration.
These criminal justice reformers understand the relationship between our economy and the costly failure of mass incarceration and the Drug War. Now, it's time for the President and Congress to put two and two together.
The unprecedented taxation-and-regulation of recreational marijuana approved in Colorado, Washington and three Michigan cities, and the decision to make it the lowest enforcement priority in yet another, as well as the passage of medical marijuana in Massachusetts, are further proof that the fear-based rhetoric that has driven our country's drug policy since the 1970s is on its way out.
With last week's vote, Massachussetts joined 17 other states and the District of Columbia that have already legalized medical marijuana.
The success of these initiatives offers an opportunity for these states to divert already scarce resources away from the needless pursuit of recreational marijuana users by law enforcement and prosecutors, and instead generate revenue for education and health programs.
In doing so, the rest of the country, and our President, will witness the positive impact of ending marijuana prohibition, and hopefully follow suit.
As a U.S. Senator, Barack Obama referred to the War on Drugs as a failure and even advocated for marijuana decriminalization. He publicly acknowledged the recreational drug use of his youth, setting him apart from past presidents who may have dabbled but “didn't inhale.”
This encouraged anti-prohibition activists, many of whom believed Obama had the potential to become a powerful ally in ending the drug war. But over the last four years, the President's drug control budgets, as well as the increase in raids of medical marijuana dispensaries by the Drug Enforcement Administrationunder his leadership, suggested that those who considered him a potential drug policy reform ally may have been overly optimistic.
As more and more states pass marijuana legalization laws, President Obama once again has a chance to be true to his word, and return to the anti-drug war stance from his 2008 campaign.
Meanwhile, California's notorious “Three Strikes Law” was limited by the success of Proposition 36, representing a shift in voters' attitudes toward harsh sentencing policies. For 18 years, the state has locked up third-time nonviolent offenders for life following convictions for such petty crimes as forging minor checks or stealing socks.
Now, Proposition 36 removes the possibility of a life sentence for most nonviolent third strikes (some offenders who have a history of violent or sexual crime can still get life sentences for a third nonviolent offense).
The passage of Proposition 36 will save the state an estimated (and much-needed) $150 million per year, and reflects a step toward more humane sentencing policies.
Just a week before the election, the Federal Bureau of Investigation released its annual Uniform Crime Statistics report for 2011, which revealed a continual decline in violent and property crimes in the U.S. This decline has occurred alongside our incremental decrease in state prison populations, suggesting that the passage of more lenient sentencing policies that reduce the number of people entering jails and prisons does not have a negative impact on our crime rate.
The next four years of Obama's presidency have the potential to make a pivotal impact on the failed War on Drugs and over-incarceration in general, but only if the President heeds the movement that has been percolating for years at the state level.
Although neither the President nor Romney prioritized criminal justice, the Democratic and Republican party platforms suggest potential for bipartisan collaboration and consensus on these issues.
Focusing on these reforms is critical not only for President Obama's legacy, but for the communities of color who have suffered most severely from our draconian crime and drug policies, and for our country as a whole.
Vanita Gupta is Deputy Legal Director of the American Civil Liberties Union (ACLU). Ezekiel Edwards is Director of the ACLU Criminal Law Reform Project. They welcome comments from readers.