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As you head to the polls today, look out for ballot initiatives that would reform the criminal justice system. As Daniel Nichanian analyzed for The Appeal: Political Report, 14 states are holding 18 referendums on measures relevant to criminal justice and law enforcement practices. The outcome of these votes, particularly those in Florida, Louisiana, Ohio, and Washington, could have tangible, far-reaching effects on the way justice is meted out.
Below, we highlight some of the most promising initiatives on the ballot.
FLORIDA: Voters could overhaul state’s regime of mass disenfranchisement and open the door to retroactively applying criminal justice reforms
Voter disenfranchisement
No state disenfranchises as many of its residents as Florida. Ten percent of its voting-age population is stripped of the right to vote because of a felony conviction, according to a 2016 report by the Sentencing Project. More than 20 percent of Black adults are affected. Florida is one of four states that disenfranchise people even after they complete a felony sentence. Floridians must wait at least five years after the completion of a sentence to even apply for voting rights to be restored. The application process takes many more years, and culminates in a hearing in front of the governor and other statewide officials. The board only hears a few hundred cases a year, and it enjoys full discretion over what questions to ask and how to decide. They can even decide based on how they believe a given person will vote in the future.
Amendment 4 would overhaul this system. It would enfranchise an estimated 1.5 million people by automatically restoring people’s voting rights once they complete a felony sentence, except for people convicted of murder or a sexual offense. The amendment needs the support of 60 percent of voters, a threshold that polls suggest is realistic.
But the very people whose rights are being decided are barred from participating in this vote. This referendum is the culmination of organizing efforts led by the Florida Rights Restoration Coalition and its president Desmond Meade, who is himself disenfranchised. Mother Jones and the New York Times Magazine recently published in-depth profiles of the coalition’s work.
Retroactive criminal justice reforms
Florida’s “Savings Clause” bars the legislature from reducing sentences that people are already serving, meaning that no sentence reform can be applied retroactively. This prevents meaningful decarceration. Florida is the state that goes furthest in barring new legislation from applying retroactively, according to the state’s Constitution Revision Commission.
On Nov. 6, Floridians will weigh in on Amendment 11, a measure to repeal the “Savings Clause.” It was placed on the ballot by the Constitution Revision Commission, which notes that people who committed certain drug offenses before Florida modified its sentencing statutes in 2014 are serving far longer sentences than people convicted of the same offense today.
Some Florida newspapers, including the Miami Herald and the Tampa Bay Times, do not endorse Amendment 11 because they worry that the National Rifle Association might push for making the state’s Stand Your Ground law retroactive. Melba Pearson, deputy director of the ACLU of Florida, which supports Amendment 11, argues that this concern is “valid” but “outweighed” by the positive changes the measure would bring about. “Amendment 11 would be a great vehicle for reducing mass incarceration,” Pearson told The Appeal: Political Report. As examples of reforms that could be made retroactive, she mentions revising mandatory minimum sentences, the suspension of driver’s licenses, and legalizing marijuana.
LOUISIANA: Amendment 2 would require unanimous jury verdicts, as in 48 other states
The writers of Louisiana’s 1898 Constitution couldn’t ban Black people from serving on a jury, but they circumvented that limitation by enabling juries to convict over the objections of holdouts who would have acquitted. Today, Louisianans can be convicted of any felony (including murder) by non-unanimous juries: Only 10 out of 12 jurors need to vote for conviction to get a guilty verdict. This has made trials likelier to end in a guilty verdict in Louisiana than elsewhere, which contributes to the state’s high incarceration rate and may increase the pressure defendants face to accept a plea deal. The New Orleans Advocate has found that Black defendants are more likely than white defendants to be convicted by a non-unanimous jury, and Black jurors are more likely to be the holdouts than white jurors. This law effectively diminishes Black people’s power as jurors and as defendants.
Amendment 2, if adopted in November, would revise the Constitution and require unanimous jury verdicts for all felony convictions. The measure enjoys unusually broad support, including endorsements from both the Democratic and Republican parties. Its most prominent opponent is Attorney General Jeff Landry, who is preparing to challenge Governor John Bel Edwards in 2019. (Edwards supports the measure.) The Louisiana District Attorneys Association is staying neutral, and some of the state’s most prominent DAs have even endorsed it.
OHIO: Reform package would make drug possession a misdemeanor—retroactively
Issue 1 would cut incarceration by overhauling Ohio’s sentencing guidelines and probation system.
First, it would make possessing any drug a misdemeanor rather than a felony—at least for one’s first two convictions. People arrested for possession would generally no longer face prison terms. Five states have already reclassified drug possession as a misdemeanor, all since 2014. Second, it would bar reincarceration over minor probation violations that aren’t themselves a crime, such as missing an appointment. Third, it would allow people currently in prison to reduce their sentence by up to 25 percent by participating in rehabilitation programs. It would also make the new drug statutes retroactive: People currently incarcerated for drug offenses could petition for new sentences. Policy Matters Ohio, a group that backs Issue 1, estimates that these provisions combined would decrease the prison population by approximately 10,000.
TENNESSEE: Nashville considers an independent police oversight board
In the wake of a Nashville police officer shooting and killing Jocques Clemmons, a Black man who was running away, a community group, led by Clemmons’s mother, has pushed a referendum that would create an independent board empowered to investigate police misconduct. When the federal Department of Justice investigated Nashville’s broader policing practices in 2017, it recommended that the city consider creating an independent oversight board.
The Fraternal Order of Police and the Davidson County Republican Party are mobilized against the proposal; they argue that police officers are already held accountable through internal investigations and external offices like the district attorney. David Briley, Nashville’s Democratic mayor, says that he supports the idea of an oversight board but not this initiative, in part because of insufficient police input.
WASHINGTON: Ballot measure would change law that makes it nearly impossible to hold police officers accountable for excessive force
If voters approve Initiative 940, Washington would no longer be the only state in the country that requires prosecutors to meet the “malice burden,” a standard so high that it has made it nearly impossible to prosecute police officers for killing civilians. Current law protects officers from being held criminally liable for using deadly force if they act “without malice and with a good faith belief that deadly force is justifiable.” King County Prosecuting Attorney Dan Satterberg, who has complained about how difficult it is to get convictions in police shooting cases, has said the current law provides an “almost perfect defense to a mistaken use of force” and “has kept police officers out of court as defendants.” The Seattle Times compiled data in a special report on the 1986 malice law, finding 213 fatal police shootings in Washington between 2005 and 2014. The lone case in which an officer was criminally charged in the shooting of a driver resulted in a not-guilty verdict. [Steve Miletich / Seattle Times]
Initiative 940 would impose a two-part test to determine if an officer acted in good faith. One part requires proof that a reasonable officer would have used deadly force in the same circumstances. The other asks if the officer “sincerely and in good faith believed that the use of deadly force was warranted in the circumstance.” It would also require independent investigations into all police officers’ use of force that results in serious injury or death. Finally, it would mandate de-escalation and mental health training for all police officers, and create a duty for them to provide first aid. [German Lopez / Vox]
The initiative is supported by De-Escalate Washington, a coalition of civil rights groups, in addition to certain law enforcement groups and individuals, including King County Sheriff Mitzi Johanknecht and the Black Law Enforcement Association of Washington. Meanwhile, a group that supports local police officers has spent more than $111,000 fighting the initiative. The group laments that the initiative makes police “put greater emphasis on providing medical care to individuals instead of actually doing their job of protecting the community from crime.” They claim it would make communities less safe. Over half of the contributions to that group came from the Seattle Police Officers Guild and other police guilds have contributed significantly to fighting the initiative. [Kellen Browning / McClatchy]
OTHER CRIMINAL JUSTICE ballot measures to watch:
Florida, Georgia, Kentucky, North Carolina, Nevada, and Oklahoma vote on Marsy’s Law
These measures, which are broadly but not entirely similar, strengthen victims’ ability to testify at hearings, mandate that they be notified of certain developments, and often empower them to refuse to speak with defense attorneys; they also broaden who is classified as a victim. Critics argue that these measures promote punitive outcomes and harm defendants’ rights to be innocent until proven guilty and to due process, as Meaghan Ybos reported for The Appeal in March and Sophie Quinton for Stateline in October.
Michigan, Missouri, North Dakota, Utah vote on legalizing marijuana
Oregon’s 30-year-old ‘sanctuary’ law is under threat
Two Alabama counties might bar sheriffs from pocketing money designated for feeding prisoners
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