6 ballot measures that could change the criminal justice system

Voters in several states have a chance to change the criminal justice system in 2020.

This November, six ballot measures in five states will give voters a chance to make significant changes to their criminal justice systems.

In Oklahoma, voters could ban harsh sentencing enhancements that can keep people in prison longer for nonviolent crimes. In California, voters will consider three measures: one to affirm the end of cash bail, another to let people vote while on parole, and a third to roll back recent criminal justice reforms. In Nebraska and Utah, voters could prohibit slavery as a criminal punishment, including forced prison labor. And in Kentucky, voters could approve a controversial crime victims’ rights law.

Not all of these are for reform as many people think of it today. Some of the initiatives, particularly in California and Kentucky, have been criticized by activists seeking to end mass incarceration and the war on drugs.

But depending on how voters take these initiatives, they could continue the broader work of the past decade to reel back America’s punitive criminal justice system. Galvanized by Black Lives Matter, other civil rights causes, and the high financial costs of mass incarceration, lawmakers and the public have become increasingly critical of the system, which has made America the world’s leader in incarceration and spawned a vast network of consequences, from oppressive voting laws for people convicted of felonies to the continued use of forced labor as a criminal penalty.

Coupled with always-important local and state races for sheriffs, prosecutors, and judges, and local ballot initiatives, Election Day gives Americans a direct say in this system. It’s also at the local and state level that voters can make the highest impact on the justice system: The vast majority of the country’s 18,000 police agencies are run by towns, cities, counties, and states, and about 88 percent of people in prison are held at the state level.

There are a lot of criminal justice measures on the ballot in 2020, ranging from marijuana legalization to drug decriminalization to local police reforms. But here are six of this year’s biggest statewide measures and what they could do to change the system.

1) Oklahoma State Question 805: Sentencing reform for nonviolent crimes

Over the past decade and a half, American lawmakers have increasingly moved to reduce the country’s massive prison population — the largest incarcerated population in the world. As part of that, they’ve aimed to reduce penalties for nonviolent crimes in particular.

Oklahoma State Question 805 is a continuation of those efforts. Under current law, Oklahoma prosecutors and judges can use previous nonviolent felony convictions to impose a longer sentence for a defendant. That includes several more years or even up to life in prison.

The ballot measure would prohibit that for nonviolent offenses — with an exception for anyone who has ever been convicted of a violent felony. It would also retroactively apply to people who received longer sentences due to such an enhancement, potentially reducing their punishment.

Supporters claim that the measure would help reduce overly punitive prison sentences and cut Oklahoma’s prison population, which was the largest in the country — and the world — as of 2018. That would make the criminal justice system not only more fair, supporters argue, but also less expensive, since locking people up costs a lot of money.

Opponents claim that reducing prison sentences, particularly for people with criminal records, would lead to more crime — reducing the potential deterrent of a long prison sentence and letting would-be repeat offenders out sooner. They say the higher cost of incarceration is worth the public safety gains.

The research suggests that shorter prison sentences, relative to the US baseline, don’t lead to more crime. In 2017, David Roodman of the Open Philanthropy Project conducted an extensive review of the evidence on longer prison sentences. He concluded that “tougher sentences hardly deter crime, and that while imprisoning people temporarily stops them from committing crime outside prison walls, it also tends to increase their criminality after release. As a result, ‘tough-on-crime’ initiatives can reduce crime in the short run but cause offsetting harm in the long run.”

In short, longer prison sentences can actually make people more likely to commit crimes in the long term.

At the same time, locking people up for long periods of time is very costly. There’s the actual financial cost of putting people in prison, which the Prison Policy Initiative estimated at $182 billion a year for the US in 2017. There’s also the social cost of people being ripped away from their families and communities; as one example, the New York Times calculated in 2015 that for every 100 Black women not in jail or prison in America, there are only 83 Black men — what amounts to 1.5 million “missing” men who can’t be there for their kids, family, or community while incarcerated.

It’s these costs that have driven reformers, now in Oklahoma, to cut back on mass incarceration.

It’s unclear what the initiative’s chances of passing are, due to a lack of good polling on it. But Oklahoma voters in 2016 approved two criminal justice reform measures — in the same year they voted for President Donald Trump — so there’s a history of voters there taking up reform.

2) California Proposition 25: A referendum on ending cash bail

In 2018, California lawmakers passed SB 10 to abolish cash bail. But within months, state activists gathered the signatures for a referendum on SB 10 before it could take effect — leaving it to voters to decide the future of cash bail in California with Proposition 25.

Right now, California courts can require defendants to pay to get out of jail, with a promise that they’ll get their money back when their trials are over. SB 10 would seek to replace that with a risk assessment system: Defendants would be released or kept in jail, depending on an evaluation of their risk to public safety and for returning to court.

Advocates argue that the new system would cut back racial and economic disparities, because the financial cost of cash bail today disproportionately impacts poor people — particularly low-income people of color — who have to stay in jail if they can’t afford to pay.

But critics claim that abolishing cash bail would let people released from jail commit more crimes, leading to an increase in crime. Bail bonds agents also oppose the measures, fearing that the reforms will put them out of business.

Other states, including New York (to some controversy), have already taken steps to reform and even abolish their bail systems.

In places that previously adopted cash bail reforms, they seem to be going well. In New Jersey, 2016 reforms led to a drop in the pretrial jail population of more than 40 percent, with defendants spending around 40 percent less time awaiting trial in jail. Almost 90 percent of defendants showed up at court appearances, and roughly a quarter of people awaiting trial committed new crimes — both of which were similar to the rates before the changed system. Overall, crime actually dropped in New Jersey after the reform’s passage.

But New Jersey’s system is also financially strained, showing the high potential costs of running a pretrial assessment system.

Now California voters will decide if they want to take similar steps. Right now, it looks like the issue could go either way, with one poll on the issue showing supporters of ending cash bail ahead but a whopping 29 percent of voters undecided.

3) California Proposition 17: Parolees seek the vote in California

On Proposition 17, Californians will decide if people on parole should be allowed to vote.

As it stands, California lets people vote even while they’re on one form of legal supervision after a crime: probation. But if they’re released early from prison and put on parole, they’re not allowed to vote.

Most states don’t let people vote while they’re in prison, on parole, or on probation. So California is already a bit more liberal on this issue than the majority of states. But reformers have tried to push the state — and the rest of the country — toward letting people vote after they complete their sentences. Some have pushed for letting people vote in prison, though only two states, Maine and Vermont, currently allow that.

California isn’t going that far, but merely removing one of these remaining categories of disenfranchisement: People in prison would still be unable to vote, but those released on parole would regain the right.

That could restore the right to vote to tens of thousands of Californians. According to the Sentencing Project, nearly 120,000 people this year will be disenfranchised while on parole in California.

Advocates of the change argue that people released from prison have already served the worst of their punishment. They’re being released on parole to reintegrate into society — and regaining the right to vote is a crucial element of doing that. And the experience of people on probation, which isn’t too different from parole, shows that this can work fine.

Opponents say that people convicted of felonies should lose their right to vote as part of their punishment. At the very least, people convicted of felonies shouldn’t regain the right to vote until they complete their sentences — including for prison, parole, and probation. With parole in particular, they claim that parole is an extension of prison time and some of the restrictions that prison entails.

The issue, then, comes down to a set of philosophical questions: Can someone at some point do something so terrible that they lose their right to vote? And if so, can they ever regain that right?

Where voters seem likely to stand is unclear right now, with no good polling on the issue in California.

4) California Proposition 20: Roll back criminal justice reforms

While much of the country, including California, works to reform its criminal justice system and make it less punitive, one ballot measure this year would actually roll back reforms.

California’s Proposition 20 would elevate several crimes, particularly types of theft and fraud, so they can also be charged as felonies, rather than only misdemeanors — in effect resulting in more prison time. It would also make several changes, such as classifying more crimes as “violent,” to make it harder for inmates to qualify for parole — keeping people in prison longer. And it would make it easier to lock people up for a probation violation — possibly resulting in more people in prison.

The measure largely targets reforms Californians have passed in recent years to reduce incarceration, which lawmakers and the public embraced after the courts, including the US Supreme Court, ruled that the state’s horribly overcrowded prisons amounted to cruel and unusual punishment.

The reform measures have been successful — cutting the state’s jail and prison population, all while crime continued to decrease throughout California.

Center of Juvenile and Criminal Justice

Supporters of Proposition 20, however, disagree with the reforms. They argue that the measure is necessary to crack down on crime — invoking many of the same arguments used by “tough on crime” advocates as they drove up incarceration in previous decades. They claim some of the crimes that are currently classified “nonviolent” under state law to allow parole are really violent or high-level offenses.

Opponents of the measure argue that it would move California’s criminal justice system backward. A report from the Center on Juvenile and Criminal Justice concluded that Proposition 20 would put thousands more people in jail or prison and cost the state $154 million to $457 million a year while failing to reduce crime further. It also found Proposition 20 “will particularly harm communities of color” — reflecting the racial disparities ingrained in the broader criminal justice system.

It’s really a representation of the broader fight about mass incarceration. Supporters of more incarceration, unshaken by the recent research disputing their claims, continue to push for a more punitive criminal justice system. Reformers, now on the defensive, insist more incarceration is costly and doesn’t actually make the public safer.

California voters will have a chance to decide which side they’re on this November. It’s not clear where voters stand now, due to a lack of good polling.

5) Nebraska Amendment 1 and Utah Amendment C: End slavery as a criminal punishment

America’s 13th Amendment abolished slavery, but it left a major exception: Slavery or involuntary servitude is allowed “as a punishment for crime whereof the party shall have been duly convicted.”

Some states have enshrined similar exceptions into their constitutions and laws, allowing slavery or involuntary servitude as a punishment for a crime. These exemptions are used to, for example, force prison inmates to work for no pay — which is still at times done by some prisons and jails.

Nebraska’s Amendment 1 and Utah’s Amendment C would change that, removing language in their state constitutions that allows slavery or involuntary servitude as forms of criminal punishment.

Supporters of the measures argue for them in moral terms. They say the ballot measures continue America’s long road toward righting its previous racial injustices, especially given that the criminal justice system disproportionately incarcerates and penalizes Black people. The change could also help block the prison system from profiting off the labor of inmates — a profit motive that could incentivize the perpetuation of mass incarceration.

To the extent that work can benefit people who are incarcerated, supporters say, inmates can voluntarily opt in to it, with existing incentives that can reduce prison sentences based on good behavior and rehabilitation.

There’s no official opposition to either state’s ballot measure. But it’s unclear how likely either is to pass due to a lack of polling.

6) Kentucky Constitutional Amendment 1: Another push for Marsy’s Law

Marsy’s Law aims to ensure that crime victims — often defined to include not just the direct victims of crimes but also their family members — are heard and protected throughout the criminal trial process. Named after the murdered sister of Marsy’s Law for All founder Henry Nicholas, the law gives victims the right to be told about criminal proceedings, be present at proceedings, be heard at proceedings, and be protected from the accused, among other changes.

According to the campaign, the law was inspired by the murder of Marsy Ann Nicholas. After her death, her mother, Marcella Leach, ran into the accused murderer while he was out on bail. The family had not been notified he had been released on bail — causing “pain and suffering family members of murder victims so often endure,” the campaign said. That led Nicholas, the billionaire co-founder of Broadcom Corporation, to create Marsy’s Law and launch a national push for it.

So far, the measure has been approved in 11 states. Kentucky voters approved Marsy’s Law in 2018, but state courts invalidated the measure due to problems with the ballot language. Now it’s on the ballot again in Kentucky as Constitutional Amendment 1.

Some criminal justice reformers, however, are critical of Marsy’s Law. A blog post by the American Civil Liberties Union argued the measure undermines due process protections and may end up unworkable. For example, Marsy’s Law may force governments to deprive defendants of some of their rights in order to respect the newly delineated rights of victims — even as the defendant, who may be wrongly accused of a crime, is facing the most serious consequences.

Jeanne Hruska, political director for the ACLU of New Hampshire, wrote:

There are ways of guaranteeing victim’s rights without making constitutional mistakes. For instance, in New Hampshire, our comprehensive victims’ rights statute preempts conflict between rights by stating that victims’ rights shall be enforced “to the extent . . . they are not inconsistent with the constitutional or statutory rights of the accused.” This language recognizes that victims’ rights may come into conflict with defendants’ rights and that our justice system works only if defendants’ rights against the state are upheld.

Marsy’s Law has no comparable language.

It’s not that the ACLU and other criminal justice reformers oppose legally protecting victims’ rights. Many states, in fact, have crime victim protections that reformers don’t object to. It’s that, in their view, Marsy’s Law is not the right way to protect these victims.

There’s no recent, good polling on the topic in the state. But given that Kentucky voters already approved a similar measure in 2018, it seems likely to pass.

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