The most contentious US presidential campaign in modern history produced a mixed win for criminal justice reform. Votes on Tuesday on several key statewide ballot measures — and in a smattering of local races — affirmed that support for a more just, and less intrusive, legal system transcends even the most divisive partisan politics.
As proof that justice reform remains a bipartisan effort, several states that went to Donald Trump also passed initiatives easing penalties for non-violent offenders and moving the needle toward retrenchment in the war on drugs.
In solidly red Oklahoma, for instance, voters overwhelmingly supported State Questions 780 and 781, which will reduce the charge of drug possession to a misdemeanor and raise the monetary threshold for felony theft and forgery from $500 to $1000. And ballot initiatives approving or expanding the use of medical marijuana passed by strong margins in Montana, Arkansas, Florida and North Dakota.
However, disappointing reversals on the issue of the death penalty suggest that America is not quite ready to give up its status as a global outlier on the issue of state-sanctioned executions.
Perhaps the closest watched referendum this year on the issue of crime and punishment was in Nebraska, where a fight over the future of the death penalty fractured the Republican electorate and stirred emotions across the cornhusker state.
The long and contentious battle began in the state assembly last year when an unlikely coalition of evangelical conservatives and liberal Democrats (joined by a handful of fiscal hawks) succeeded in passing a bill banning capital punishment.
Republican Gov. Pete Ricketts vetoed the bill, which led to a historic showdown in which the Nebraska Senate voted narrowly to override. Ricketts fought back, and with tens of thousands of his own dollars managed to get a referendum on the ban on the 2016 ballot.
In a devastating blow to abolitionists, voters in Nebraska sided with Ricketts, re-condemning the state’s ten death row inmates after a brief period of reprieve. Voters in Oklahoma and California also approved measures in support of the death penalty. In Oklahoma, voters supported a change to their constitution affirming the state’s right to carry out executions that included a caveat that “death sentences shall not be reduced because a method of execution is ruled to be invalid.” Voters in California rejected a proposal banning the death penalty in the state (Proposition 62) in favor of one speeding up appeals (Proposition 66).
The prospect of a Trump presidency, meanwhile, threatens to derail, or at least slow down, the momentum toward reform. As the self-proclaimed “law and order” candidate, Trump has promised to begin deporting up to 11 million undocumented immigrants from American soil, which would require the greatest expansion of the police state since start of the drug war.
In the four years since Barack Obama began his second term, national sentiment has trended overwhelmingly toward a more progressive understanding of crime and punishment, sparking a retreat from the culture of law-and-orderism that has permeated both political parties since the 1980s.
Ironically this transition can be traced, in part, to some of the same forces that gave rise to the phenomenon of Donald Trump. The anti-establishment strain of right-wing populism that came to prominence ahead of the last presidential election, in 2012, gave an imprimatur to some of the nation’s leading fiscal conservatives to acknowledge that our criminal justice system had become the embodiment of Big Government run amok.
Since 2011 more than two dozen states have walked back knee-jerk crime policy in favor of more sensible and cost-effective solutions to public safety. These include Republican strongholds such as Texas, Utah and South Dakota — which have taken the lead in passing some of the most sweeping prison reform measures we’ve seen in decades.
Meanwhile bipartisan efforts in Washington D.C. have laid the groundwork for a more thoughtful approach to law enforcement and the scourge of drug addiction.
During the 2016 campaign cycle a crisis of opioid abuse forced Americans of all stripes to confront the paltry return on investment they have received from a costly and seemingly endless drug war. A breakdown in trust in law enforcement led to a national dialogue on police reform, and new constitutional guidance from the Supreme Court put to rest any questions about the constitutionality of mandatory life-without-parole for minor offenders.
But while Trump was able to ride the Tea Party’s anti-establishment coattails to national political prominence, he remains largely tone deaf to the shifting consensus on criminal justice and the factors driving it.
His solution to the opioid crisis? More enforcement at the border. Trump’s apparent willingness to subvert civil liberties in the name of security is cause for even greater concern.
The good news: On Tuesday, Republican and Democrat voters joined together to deliver a strong message about what kind of justice system they’d like to see. Here’s what they said.
With the exception, perhaps, of jaywalking, it’s hard to imagine an criminal law more universally ignored than the prohibition on marijuana consumption. The past three presidents have admitted to smoking pot, as have at least 15 of the presidential hopefuls who joined the 2016 campaign. Yet tens of thousands of Americans continue to be arrested and incarcerated every year thanks to marijuana prohibition. According to the American Civil Liberties Union, more than half of all drug arrests over the past decade have been for marijuana, and nearly 90 percent of those for mere possession.
Pro-pot advocates worked overtime to sell marijuana measures to voters in nine states in 2016. They succeeded in California, Nevada and Massachusetts — where voters approved measures regulating and taxing the sale of pot for recreational use. Ballot initiatives approving marijuana for medical use — or easing current restrictions on it — also passed in Montana, Arkansas, Florida and North Dakota.
The normalization of marijuana has yet to reach a tipping point, but we are closer than we’ve been in decades today, with recreational marijuana now legal in six states and the District of Columbia and medical pot available to patients in more than half the country.
California, which continues to lead the nation in sheer numbers of incarcerated individuals, passed Proposition 57 — which would offer additional sentencing credits to felons convicted of nonviolent crimes. The measure, which passed by a large margin, comes five years after the Supreme Court mandated the state cut its prison numbers to reduce unconstitutional levels of overcrowding.
Prop 57 follows on the heels of Proposition 47 (passed by voters in 2014) — which reclassified a number of “non-serious, nonviolent” felonies as misdemeanors, leading to the early release of more than 7,700 inmates. Prison reform advocates estimate that an additional 7,500 inmates will be eligible for early release under the latest measure.
Perhaps more importantly, Prop 57 would also allow judges, not prosecutors, to decide whether to try certain juveniles as adults in court. Youth advocates estimate that as many as 250,000 juveniles are tried, sentenced or incarcerated each year as adults, with little uniformity among states as to who qualifies for criminal prosecution or why. Legal experts say trying children as adults is not only bad policy, but it raises serious competency and due process issues.
More than a third of incarcerated juveniles between the ages of 11 and 13 exhibit poor reasoning about trial-related matters, and children under 14 are less likely to focus on the long-term consequences of their decisions.
Removing the decision to try youth as adults from the discretion of prosecutors will ensure more juvenile offenders receive rehabilitation instead of institutionalization in California’s already bloated prison system.
New Mexico voted overwhelmingly in favor of reforming its system of cash bail, continuing a trend that gained speed over the past several years as cities confronted rising jail populations.
Ninety-five percent of jail growth since 2000 is attributed to an increase in pretrial detainees, according to the Department of Justice. Depending on the jurisdiction, between 60 and 90 percent of inmates in county jail at any given time are pretrial detainees who can’t make bail. Most are accused of relatively minor, non-violent offenses that would require a cash payment of under $500 to secure release.
The New Mexico Denial of Bail Measure, also known as Constitutional Amendment 1, makes it unlawful to hold someone on cash bail if they are not a flight risk or a danger to the community.
But the initiative is still far from from perfect. Originally designed to reduce the burden of cash bail on poor nonviolent offenders, a backlash from the bail bond industry sent legislators back to the drawing board.
They emerged with a redesigned version that now requires defendants to take the additional step of filing a motion for relief from bail. This satisfied the bail bondsmen but prompted the New Mexico Criminal Defense Lawyers Association to withdraw its support for the bill. The ACLU, which had supported it, dropped its position to “neutral.”
Maricopa County Sheriff
After six terms spanning more than two decades, America’s “toughest sheriff,” Joe Arpaio, is in need of a new job. Voters in Maricopa County threw their support behind Democratic challenger Paul Penzone who beat Arpaio by double digits. Sheriff Arpaio, an ally of Donald Trump, has been a wildly divisive figure since he first took office in the 1990s, and is perhaps most known for his crackdown on illegal immigration and for forcing jail inmates to wear pink underwear. Maricopa County has shelled out more than $40 million in lawsuits for Sheriff Joe’s antics, and Arpaio is currently facing criminal contempt charges for defying a judge’s order to stop targeting Latinos in massive traffic patrols.
While Penzone, a retired Phoenix police officer, has promised a tough on crime stance against drug smuggling and human trafficking, he has vowed to reverse his predecessor’s unconstitutional immigration policies, proving that Trump-style immigration policies are eyed with suspicion by many Arizona voter.
Chris Moraff is a Philadelphia-based freelance writer and contributor to The Crime Report. He welcomes readers comments.