Midterm Elections Deliver Some Good News for Criminal Legal Reform

by Elizabeth Weill-Greenberg, Nick Wing, Jerry Iannelli, and Meg O’Connor

Civil rights were under assault this midterm election cycle, as political campaigns sought to capitalize on fear-mongering crime coverage to turn out voters in support of tough-on-crime policies.

But the results so far signal that the bad-faith “crime wave” narrative pushed by conservatives and some Democrats failed to con a critical mass of voters, who instead largely favor a less draconian police state.

In the first nationwide election after the U.S. Supreme Court invalidated Roe v. Wade in June, several states voted to protect reproductive rights and prevent abortion from being further criminalized.

Voters in a handful of states also had the opportunity to buck the nation’s deeply unpopular drug war by voting to legalize marijuana. And in Colorado, a proposition to decriminalize possession of natural psychedelics like psilocybin and mescaline was also put to the test. The measure currently maintains a slim lead, with 51 percent of the vote as of Wednesday morning.

Bail reform was perhaps the biggest test of the false and exaggerated crime panic messaging. In recent years, the nation has succeeded in paring back harmful cash-bail policies. But after years of Fox News, local TV stations, and other news outlets pummeling the public with disingenuous stories about crime, some states, like Alabama and Ohio, passed ballot measures that may make it harder for people to make bail. And while Democrat Kathy Hochul won the New York governor’s race over anti-bail zealot Lee Zeldin, Hochul also campaigned on toughening bail laws.

District attorney races across the country have shown mixed results, with candidates who support ending cash bail both winning and losing across the country. While there was plenty of cause for optimism in the midterm elections, it’s clear that progressives and reformers must redouble their efforts if they want to put an end to this country’s excessively harsh criminal punishment system.

Here’s a summary of the major races yesterday that impacted the legal system:

Abortion

When the U.S. Supreme Court overturned Roe v. Wade, it gave states control over the legality of abortion. Since June, at least 13 states have banned the healthcare procedure, forcing people to have children against their will and thrusting many more people into the criminal legal system. Several elections across the country last night had a significant impact on protecting the legality of abortion.

The Maricopa County Attorney’s Race: Abortion is currently legal up to 15 weeks in Arizona. But that is likely to change next year when the current case blocking a near-total abortion ban from taking effect makes its way to the state Supreme Court, where every justice was appointed by a Republican governor. The Phoenix-based Maricopa County Attorney has jurisdiction over the lives of 4.5 million of Arizona’s 7.3 million residents—it’s one of the most populated counties in the entire country. One candidate, Democratic challenger Julie Gunnigle, has vowed never to prosecute people who provide or obtain abortions. The other, Republican incumbent Rachel Mitchell, has said she will “enforce the law” when it comes to abortion, whatever that law ends up being.

The results: As of Wednesday morning, November 9, Mitchell had a four-point lead over Gunnigle, though votes are still being counted over the next couple of days.

Ballot initiatives: Michigan, California, Vermont, Kentucky, and Montana all voted on initiatives that will greatly affect the legality of abortion in those states.

• In Michigan, voters decided to enshrine the right to “reproductive freedom” in the state constitution, granting Michigan residents the right to “make and effectuate decisions about all matters relating to pregnancy,” including abortion care.
• Voters in California and Vermont passed similar measures that also amend the state constitution to protect abortion access.
• In Kentucky, voters rejected a measure to change the state constitution to say that nothing in the state constitution creates a right to an abortion, a victory for reproductive justice supporters that could make it easier to make abortion legal in the state again further down the line.
• In Montana, voters are leaning toward rejecting a measure that purports to give legal personhood rights to infants (which they already have in the state), but actually would have simply criminalized healthcare providers and families. The measure stated that healthcare providers who allow newborns with fatal prognoses to die (instead of prolonging their lives as long as possible) could face 20 years in prison. The race has yet to be called, but votes against the measure are five points ahead.

Drug Policy

Voters in six states and a handful of cities had a chance on Tuesday to further chip away at the nation’s war on drugs. As in years past, most of the action was centered around marijuana, with voters in five states—including four that are solidly red—deciding whether to join the 19 others that have already legalized cannabis for recreational use. Advocates have kept an especially close eye on the campaigns in Republican strongholds, where victories would signify further bipartisan momentum in favor of marijuana legalization.

The burgeoning psychedelics movement also faced a significant test in Colorado, where voters considered an initiative to decriminalize possession of natural psychedelics such as psilocybin, the psychoactive compound found in magic mushrooms.

Cannabis Legalization: Residents of Arkansas, Maryland, Missouri, North Dakota, and South Dakota all voted Tuesday on whether to legalize the possession of marijuana for people over the age of 21.

• In Arkansas, Maryland, and Missouri, people voted on measures to enshrine into their state constitutions the right to possess small quantities of cannabis for personal use—and in some cases the right to grow weed.
• In Maryland, state lawmakers passed legislation tied to the passage of their ballot measure, which will provide a pathway for expunging many past marijuana convictions and allowing people incarcerated for such offenses to file for resentencing.
• Missouri’s proposed measure also allows those convicted of similar offenses to apply for expungement or resentencing.
• North Dakotans voted on a measure to create a law legalizing possession of up to an ounce of marijuana after rejecting such a measure four years ago.
• And in South Dakota, residents voted a second time on whether to legalize pot possession, after a lawsuit invalidated a successful “yes” vote two years ago.

The results:

• Marylanders voted overwhelmingly in favor of legalizing marijuana. Prior to Tuesday’s vote, Maryland had been the darkest blue state not to have legalized weed, going by the results of the 2020 presidential election.
• Voters in Missouri also voted in favor of legalization, which means the U.S. is now one step closer to having a contiguous strip of legal-weed states that spans the country. (Kansas and Kentucky could take a while, but still!)
• Elsewhere, in Texas, voters in five cities passed local ordinances to decriminalize marijuana possession.
• Meanwhile, in Arkansas, voters rejected their legalization measure by a significant margin. If successful, it would have been just the second Southern state to approve recreational marijuana, after Virginia.
• North Dakota also rejected their initiative.
• South Dakota’s looked likely to fall short as well, though the results are not yet official.

Psychedelics: A decade ago, Colorado voters passed a proposition that made their state one of the first to legalize recreational marijuana. A measure on the ballot this year—Proposition 122— once again puts Colorado at the cutting edge of drug policy by decriminalizing the personal use, possession, growth, and transport of natural psychedelics including psilocybin, dimethyltryptamine (DMT), ibogaine, and mescaline. Proposition 122 also creates a program for licensing and regulating so-called “healing centers” that could administer the natural substances covered under the measure.

The results: As of publish time, Proposition 122 was maintaining a slim lead—around 51 percent of the vote, with 80 percent of ballots counted. The results have not yet been made official.

Bail Reform

This election season, bail reform was on the ballot across the country, whether it was a topic at candidate forums or a talking point in campaign ads.

If bail reform is rolled back, more people who are accused, but not convicted, of a crime will be incarcerated as they wait for their case to resolve. During that time, they may lose everything—their jobs, their homes, their children, and their lives. But this bleak reality for millions of people, many of them people of color, is not what dominates the headlines. Instead, Republicans and tough-on-crime Democrats falsely claim that bail reform drives up crime.

In some states, constitutional amendments on the ballot will likely have major implications for those accused of crimes and their loved ones:

Alabama: Voters were asked to amend their state constitution to allow judges to deny bail for a number of first-degree offenses, including robbery, kidnapping, rape, sodomy, and domestic violence. Under the current Alabama state constitution, judges can only deny bail for people charged with a capital offense. If voters approve the measure, significantly more people could be held in jail pretrial.

• The results: As of Wednesday morning, with 78 percent of precincts reporting, voters have overwhelmingly approved the measure allowing judges to deny bail.

Ohio: A Republican-proposed constitutional amendment would require judges to consider public safety, a person’s criminal record, the likelihood a person will return to court, and “any other factor the Ohio General Assembly may prescribe” when deciding to set bail. Critics have noted that the measure appears to be mostly redundant, as judges can already consider many of those factors at a pretrial detention hearing. The amendment would also remove the requirement that the the Supreme Court of Ohio set procedures for establishing the amount and conditions of bail.

• The results: As of Wednesday morning, with 94 percent of precincts reporting, voters have overwhelmingly approved the measure.

And in several states, local races, from head prosecutor to governor, will help determine the future of bail reform and how many people may be detained in already overcrowded and dangerous jails.

New York Gubernatorial Race: In New York State, bail reform has been a punching bag for both the Republican and Democratic candidates for governor. In one campaign ad for the incumbent, Democrat Kathy Hochul, the narrator says Hochul “passed a comprehensive crime plan [that] toughens bail laws to keep repeat offenders off our streets.” Republican candidate Lee Zeldin had promised to unilaterally suspend New York’s bail reform law if elected.

• The results: Hochul defeated Zeldin and was elected governor of New York.

San Francisco District Attorney: After Chesa Boudin was ousted by a well-funded recall campaign that trafficked more in feelings than facts, Mayor London Breed chose Brooke Jenkins to replace him. She’s running against several challengers to serve out a full term. After she took office, she reversed Boudin’s policy of not requesting cash bail in any cases. Less than a week before Election Day, Mission Local reported that as an Assistant District Attorney, Jenkins sent police reports and a person’s criminal record to a colleague’s personal email address, in possible violation of state law. She and her colleague, former prosecutor Don du Bain, used the materials as they campaigned to recall Boudin.

• The results: As of Wednesday morning, the race hadn’t been called, but Jenkins had a significant lead over her main opponent, former police commissioner John Hamasaki.

King County (Seattle), Washington Prosecuting Attorney: Neither candidate—Leesa Manion or Jim Ferrell—supports ending cash bail. However, Manion, the current county prosecutor’s chief of staff, has criticized the cash bail system and believes there are effective alternatives to ensure someone returns to court. Jim Ferrell’s position has no such nuance. Ferrell, who is backed by police organizations, told Real Change News that he believes cash bail protects victims.

• The results: As of Wednesday morning, Manion had a sizable lead over Ferrell, with just under a third of ballots counted.

Alameda County (Oakland), California District Attorney: Civil rights attorney Pamela Price and longtime prosecutor Terry Wiley are running to replace District Attorney Nancy O’Malley. O’Malley is also the president of the California District Attorneys Association, an organization that tends to oppose criminal justice reforms. Price supports ending cash bail, Wiley does not.

• The results: Wiley is ahead of Price by a margin of 5,000 votes.

Hennepin County (Minneapolis), Minnesota District Attorney: Neither candidate supports eliminating cash bail. But candidate Mary Moriarty, former head of the public defender’s office, supports laws that would restrict “wealth bias” in the legal system, including restrictions on money bail. Martha Holton Dimick, a former prosecutor and retired judge, has said Moriarty is not qualified to be County Attorney because she “has just worked with criminals.”

• The results: Moriarty won a decisive victory over Dimick.

ICYMI — from The Appeal

Bryce Covert reports on ballot initiatives to close loopholes in state constitutions that allow the forced labor of incarcerated people.

Pamela Price is running a progressive campaign to change the Alameda County District Attorney’s Office in Oakland. Her opponent is trying to cut into her apparent lead by painting her as the next Chesa Boudin, Akintunde Ahmad reports.

In Virginia, people who menstruate are forced to remove tampons and menstrual pads in front of corrections staff during strip searches, currently and formerly incarcerated women tell Elizabeth Weill-Greenberg.

This may come as a surprise, but it looks like drug dealers did not, in fact, give out any free fentanyl to kids on Halloween. Jerry Iannelli breaks down the origins of this sensational “news” story and the forces that benefited from manufacturing a panic.

That’s all for this week. As always, feel free to leave us some feedback, and if you want to invest in the future of The Appeal, please donate now and your donation will be tripled here.