While all eyes are on district attorney races in several states where reform-minded candidates are running on promises to end “mass incarceration,” further down the ballot voters will have a chance to decide on measures that will shape how millions of Americans interact with the criminal justice system.
A few themes emerge:
The Trump administration’s law-and-order messaging is trickling down to the states. In six states a controversial victims rights initiative, known as Marsy’s Law, is on the ballot. Proponents have built support for the measure by stoking fears in TV ads about rising crime and decades-old tragedies. In Oregon voters are grappling with eliminating a law that makes them the country’s only “sanctuary state.”
Out-of-state advocates have funneled millions into state criminal justice reform efforts. Mark Zuckerberg and George Soros donated to Ohio’s campaign to reduce drug penalties. A conservative organization funded by the Koch network ran ads in support of Louisiana's measure to eliminate non-unanimous juries. California billionaire, Henry Nicholas III, bankrolled ballot initiatives for victims’ rights in several states.
Several states are hoping to do away with relics of the Jim Crow Era. Laws banning people convicted of crimes from voting cropped up throughout the South after the ratification of the Fourteenth Amendment guaranteed civil rights for all Americans. And in 1898, the Louisiana legislature adopted a practice of allowing felony convictions with split juries, which was explicitly designed to cement white political power in the state. Voters could overturn both this election.
In Florida, organizers are working to engage black voters in the hopes they will seize the opportunity to elect the state’s first black governor, Andrew Gillum, and to restore voting rights to roughly 1.4 million Floridians convicted of a felony. Florida is one of three states that imposes a lifetime ban on voting for felons. The ban has disenfranchised 10 percent of adults in the state and 20 percent of black voters. Amendment 4 would automatically restore voting rights to anyone convicted of a felony, not including murder or a sex crime, once they have completed the terms of their sentence. There are no registered organizations opposing the initiative, which is polling above the required 60 percent approval rate in recent polls.
Only two states, Louisiana and Oregon, allow non-unanimous jury convictions in felony trials. Midterm voters in Louisiana will get to decide whether to end the practice some have called a relic of the Jim Crow Era. The measure has gained support from both parties in the legislature and from across the political spectrum, including Americans for Prosperity, the Koch network, the ACLU and singer John Legend.
A 2018 investigation by The Advocate found that 40 percent of nearly 1,000 jury convictions between 2011 and 2016 were a result of non-unanimous juries, making them invalid in 48 states. The practice, they wrote, “acts as a capstone to a trial system that becomes more tilted against black defendants at each stage: when jurors are summoned, when they’re picked for juries, and in deliberation rooms where voices of dissent can be ignored.”
In North Dakota voters will have the chance to decide on legalizing marijuana and expunging the records of roughly 180,000 people previously convicted of a marijuana crime that would be legal under the new measure. Measure 3 would make it legal for North Dakotans age 21 and up to grow, buy and use marijuana. Proponents are encouraged by the fact that residents voted to allow medical marijuana in 2016. Opponents argue the new law would create more problems for law enforcement.
Residents in Michigan will also vote on marijuana legalization. Proposal 1 would legalize, tax, and regulate the sale of marijuana to adults age 21 and up. In the final week leading up to the election, The Detroit News reported that legalization opponents spent heavily on last-minute advertising to defeat the measure, which is polling favorably with residents. Proponents of the initiative say marijuana arrests have “clogged the courts with pointless marijuana arrests,” while opponents caution the measure puts the lives of children at stake by allowing for potent marijuana candies and cookies to be sold legally.
Missouri has three marijuana initiatives on the ballot this year. Voters will decide on an amendment to the state constitution to allow doctors to prescribe marijuana to patients with 10 designated medical conditions, including cancer and chronic pain. A second initiative, Proposition C, is a statutory amendment to allow medical marijuana. The third initiative, known as the Bradshaw Amendment after the physician who self-financed the ballot measure, would allow the state to conduct medical research using marijuana.
Voters in Oklahoma, Nevada, Kentucky, Georgia, North Carolina and Florida will consider a controversial victims’ rights law known as Marsy’s Law. The campaign for victims rights was financed almost entirely by Henry Nicholas III whose sister was brutally murdered. If passed, the measures would grant an array of rights to victims, including broadening the definition of a victim to include “any spouse, parent, grandparent, child, sibling, grandchild, or guardian” of anyone directly targeted by a crime and notifying victims of any public hearing involving the crime. In states where the laws are already in effect some prosecutors and victims rights advocates say the laws can hamper investigations and divert services away from those in need. TMP’s Beth Schwartzapfel chronicles Nicholas’ one-man crusade on behalf of victims. Nicholas was recently arrested in Las Vegas on suspicion of drug trafficking.
Police Use of Force
Voters in Washington could alter the standard for police use-of-force. Police killings have been a point of tension within the state for several years. A 2015 investigation by the Seattle Times found that between 2005 and 2015, police killed 213 people, disproportionately black, but only one officer was charged. At the time, state law required officers to have “evil intent,” a standard that experts say makes it virtually impossible to indict officers who have shot someone while on duty. Initiative 940 would lower the standard to shield officers from criminal charges if they acted in “good faith” and in line with what a “reasonable officer” would do. The amendment would also require officers to have mental health and de-escalation training.
In Oregon voters will consider ballot measure 105, which, if passed, would overturn a 31-year-old law prohibiting state agencies from using their resources to find and arrest people in violation of federal immigration laws. Proponents of the measure argue laws that prohibit state agencies from cooperating with federal immigration agencies puts public safety at risk because they shield immigrants who have committed crimes and may be in the country illegally. Critics of the measure say the current law is the country’s first anti-racial profiling law that protects the civil rights of all Oregonians. TMP Context: The Trump administration repeatedly claims immigrants drive up crime rates. But TMP’s Anna Flagg found, using evidence from 200 cities and towns, that the premise is simply untrue and that, in fact, immigration tends to reduce crime.
Drug Crimes Sentencing
In Ohio, where the nation’s opioid epidemic has claimed thousands of lives, voters will consider a constitutional amendment to reduce drug penalties. Issue 1 would reduce the penalty for drug possession from a felony to a misdemeanor, punishable by up to six months in jail on the third offense. The measure received financial support from Soros and Zuckerberg among several other wealthy outside supporters, which is a point of tension for Ohioans who oppose the measure. Critics have argued the measure isn’t written by and for Ohioans and therefore can’t address the state’s unique needs. In particular, some say lowering penalties for drug possession from a felony to a misdemeanor takes away an important tool judges can use to compel people to seek treatment: a felony charge. Another sticking point for critics is that the law would reduce the penalty for the possession of 20 grams or less of fentanyl from a felony to a misdemeanor. Proponents of the measure say it would effectively decriminalize addiction and free up funding for addiction treatment.
For the second time, residents in Colorado will consider amending the state constitution to remove language that allows slave labor as punishment for a crime. The state constitutional language mirrors the Thirteenth Amendment, which outlawed “involuntary servitude, except as a punishment for crime” in the U.S. A similar measure was defeated in Colorado in 2016. So far the initiative has not received any concerted opposition, said Jumoke Emery, an organizer with Abolish Slavery Colorado, though some have argued the amendment would put court-ordered community service programs at risk.
In March, AL.com broke news that a sheriff in Etowah County, Alabama legally pocketed $750,000 from money leftover from the county’s budget for feeding inmates. The practice dates back to a 1939 law written “at a time when sheriffs’ wives sometimes cooked for their husbands inmates,” according to Mother Jones. But on Nov. 6 Alabama residents in Morgan and Cullman Counties will consider banning sheriffs from pocketing their tax money that is supposed to go towards feeding prisoners. If passed, the provision would restrict sheriffs in those two counties to spending the money only on feeding inmates or other law enforcement activities.