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Filed 12:00 p.m.
11.12.2022
Closing Argument

7 Key Criminal Justice Takeaways From the Midterms

Sheriffs. Prosecutors. Abortion and slavery amendments. Here’s what you should know about this week’s results.

A light-skinned person, wearing a red hat and blue jacket, casts their ballot at a voting booth. An electronic voting machine can be seen on the left, in a different voting booth.
Voters at a polling location at Indianola Church of Christ on Election Day 2022 in Columbus, Ohio.

This is The Marshall Project’s Closing Argument newsletter, a weekly deep dive into a key criminal justice issue. Want this delivered to your inbox? Subscribe to future newsletters here.

As results from the midterm elections continue to trickle in, this week our team has a roundup on how some major criminal justice candidates and issues fared, and what the fallout from these races and ballot measures may look like moving forward.

Sheriffs remain hard to beat — but not impossible

Every incumbent has an advantage, but the power of sheriffs runs deep.

Take Jody Greene in North Carolina, who won this week despite having resigned two weeks ago after making derogatory statements about Black deputies. Or Chuck Jenkins in Maryland, who threatened to face down federal law enforcement at gunpoint, but fared better than his fellow Republicans. Kansas voters even decided to make it harder for county officials to oust a sheriff, while preserving voters’ power to do so.

“Sheriffs really emphasize their elections as one of the main sources of their authority,” said political scientist Emily Farris of Texas Christian University, with whom we surveyed sheriffs recently. “It really takes a lot to actually have a competitive sheriff election.”

Still, Farris pointed to two races that suggest the right ingredients — scandal, media scrutiny, grassroots organizing — can produce change. Voters in Bristol County, Massachusetts, ousted Thomas Hodgson, who hewed closely to former President Donald Trump, particularly on immigration, and faced criticism for abusive jail conditions. In Los Angeles, years of scandals are likely to end the reign of Sheriff Alex Villanueva, although news outlets haven’t called the result yet. (Update: Villanueva conceded defeat on Nov. 15.)

Progressive activists will keep looking for candidates to challenge sheriffs they see as especially abusive towards jail detainees and hostile towards immigrants. But it remains to be seen whether the alternative —progressive’ sheriffs” — can create lasting change.

— Maurice Chammah

A controversial bail measure passes

Ohio voters overwhelmingly approved a constitutional amendment that requires judges to consider public safety when setting bail amounts. The amendment was spurred by a January state supreme court ruling that found (as courts routinely do) that it’s unconstitutional for judges to set high bail amounts for the sole purpose of keeping an accused person in jail pretrial.

Ohio judges already had the ability to deny bail for people charged with violent crimes, but it required more steps than simply setting an unaffordable bail amount. Judges often use bail as a shortcut for this process, according to two judges who argued against the amendment. Under the new amendment, some worry that tension between the state and the U.S. Constitution will lead to increased litigation, clog up courts, and “delay justice.”

Alabama voters also approved an amendment that dramatically expands the list of crimes a person can be denied bail for. Previously, bail could only be denied for crimes that carried a possible death sentence.

— Jamiles Lartey

The “progressive prosecutor” movement advances

Hennepin County — home to Minneapolis and the epicenter of the 2020 protests around policing and criminal justice — elected a progressive former public defender as prosecutor. As a public defender, Mary Moriarty exposed police abuses, and she ran on a platform promising to launch a police accountability unit in the DA's office.

She wasn’t the only victorious “progressive prosecutor.” In Hays County, near Austin, Texas, incoming DA Kelly Higgins promised “a sea change” in the office. Kimberly Graham, who promised to stop requiring cash bail for many non-violent cases, won in Polk County, Iowa, which includes Des Moines. Columnist Chris Geidner noted that these wins should serve as “a counterpoint to lots of the national reporting on criminal justice politics,” like predictions of doom that followed prosecutor Chesa Boudin’s recall in San Francisco in June.

Speaking of Boudin, his replacement, Brooke Jenkins, appears to have held off a progressive challenger to retain her job, though the race has not officially been called.

In King County, Washington, which includes Seattle, the more progressive candidate Leesa Manion beat an opponent who had promised to roll back “overboard with social justice reform.” Several other closely watched prosecutor races remain too close to call — including in counties where Phoenix and Oakland, California, are located. But what’s clear is that the progressive prosecutor movement remains alive and well, despite discredited attacks attempting to link them to rises in crime.

— Jamiles Lartey

How will slavery amendments affect prison labor?

Voters in Alabama, Oregon, Tennessee and Vermont amended their state constitutions to prohibit slavery as punishment for a crime. A fifth state, Louisiana, rejected a similar amendment after the legislator who sponsored it realized that its language was potentially misleading, and asked voters to vote no “so that we can go and clean it up with the intent of bringing it back next year.”

The 13th Amendment to the U.S. Constitution — passed in 1865, after the Civil War — prohibits slavery or involuntary servitude “except as a punishment for crime.” Many state constitutions followed suit, and the provisions on Tuesday’s ballot sought to remove vestiges of that era. During Reconstruction, Southern states, no longer able to outright enslave Black people, created a system to convict former slaves of petty crimes and incarcerate them — and then lease out their forced labor to corporations.

Critics say the “convict leasing” system continues to this day, with prisoners in many states forced to work for pennies an hour — or for no pay — under threat of discipline. But the constitutional changes may turn out to be more symbolic than practical. Legal experts say the changes open the door for lawsuits against the states’ prison work systems. But prisoners in Oregon, Tennessee and Vermont are paid, if very little — possibly allowing officials to argue that the workers are not technically enslaved. (Of those three states, the highest-paying prison job is in Vermont, at $1.25 per hour, according to the Prison Policy Institute.) Prisoners in Alabama could have the strongest legal argument in the wake of the change there: Workers are not paid, which has led to several high-profile prison strikes.

After Nebraska voters passed a similar amendment to their state constitution in 2020, at least one jail that had previously not paid incarcerated people for their labor began to provide some minimal compensation. Other jails did not.

— Beth Schwartzapfel

No advances in the criminalization of abortion

With abortion bans across many states leading to possible criminalization of the procedure, voters in Michigan, California and Vermont approved measures to establish in their state constitutions the right to abortion and reproductive health services. Kentucky voters opted not to amend their constitution to deny the right to abortion (a legislative ban remains in place, but faces a challenge in the state’s Supreme Court).

In Montana, voters rejected a proposal that would have declared fetuses and embryos legal persons with a right to medical care if born prematurely or during an attempted abortion. The proposal would have also criminalized health care providers who didn’t try to save them.

Arizona remains somewhat in a state of chaos regarding abortion rights — a higher court judge temporarily blocked enforcement of a 1901 state law banning all abortions, and there are clinics still performing procedures. But it was the current state attorney general who agreed not to enforce any ban until 2023 — and the race to pick his successor remains too close to call.

— Cary Aspinwall

A new frontier in the legalization of marijuana

It might seem somewhat unremarkable that Missourians this week legalized recreational marijuana — after all, 19 other states and Washington D.C. had done so previously. But Missouri voters broke new ground, making it the first state to “pass an expungement measure for nonviolent offenses on a statewide ballot,” reports NPR in Kansas City.

That’s a huge deal because, according to progressive advocates in Missouri, about 20,000 people are arrested statewide for minor marijuana crimes every year. This week’s vote should help clear criminal records for many of them. But some legalization advocates were concerned that the “automatic expungement” doesn’t apply in all cases, and that there isn’t an appeal process for people who are denied.

Maryland voters also legalized recreational marijuana. Lawmakers there have yet to iron out how taxation and permitting will work, and the law won’t go into effect until after they do. Meanwhile, voters in North Dakota, South Dakota and Arkansas rejected marijuana legalization.

— Jamiles Lartey

On immigration, mixed impact across the country

The impact of immigration as an election issue varied sharply. Florida Gov. Ron DeSantis has drawn criticism nationwide for flying migrants from Texas to Massachusetts. But on election night he reaped the rewards of years of intensive voter outreach by Republicans to win Miami-Dade County, home to many Latino voters. DeSantis also won 56% of the Latino vote statewide.

Another Republican governor, Texas’ Greg Abbott, cruised to a third term over Democrat Beto O’Rourke, even though O’Rourke captured support from Latinos put off by Abbott’s aggressive law enforcement at the border.

But in crucial U.S. Senate races, Democratic Sen. Mark Kelly of Arizona defeated Blake Masters, a Republican with a harsh anti-immigration message. Kelly was buoyed by voters who also supported a ballot measure to allow undocumented students to pay the same discounted college tuition as other state residents.

The small but high-turnout Latino vote in Pennsylvania contributed to the pick-up of a Senate seat for the Democrats by Lt. Gov. John Fetterman, whose wife Gisele is an immigrant from Brazil who at one time was undocumented. In Massachusetts, immigrant activists celebrated a big win in a state that went decisively blue, as voters reaffirmed a law allowing undocumented immigrants to have driver’s licenses.

— Julia Preston

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