Criminal justice reform was on the ballot across the country in 2020. From referenda to district attorneys, voters helped to shape the future of our nation’s criminal justice system. Arnold Ventures was deeply invested in many of these races and kept an eye on other elections that will have a direct impact on policing and incarceration.
Like many of the races this year, results were mixed, and we’re still waiting for all the votes to be counted.
Action In California
In a blow to the criminal justice reform movement, California’s Proposition 25 failed at the polls. The state’s sheer size and expanded voter access can mean that the process of counting all the ballots won’t be complete for up to a month, but the early results show Prop. 25 trailing 45%-55%.
Proposition 25 was an effort by the for-profit cash bail industry to revoke legislation that would eliminate wealth-based pretrial detention in California. A “yes” vote would have saved the underlying law — Senate Bill 10. In addition to opposition from the bail industry and “tough-on-crime” groups, left-leaning organizations were also skeptical about the reform’s use of risk-assessment and increased funding for probation departments.
With this loss, the movement to fix the broken and discriminatory system of cash bail will suffer a major setback. Californians will still be held in jail simply because they don’t have enough money. Wealthy defendants who pose a legitimate danger to public safety will be able to buy their way out. The for-profit cash bail industry will likely be emboldened and continue to oppose reforms across the country. Politicians in California and other states could begin to see criminal justice reform as a losing issue and shy away from pushing new legislation.
Meanwhile, California advocates for criminal justice reform who opposed Prop. 25 are expected to make another attempt at eliminating cash bail.
“These critics also believe they can do better for pretrial justice in court challenges or with alternative legislation,” the LA Times editorial board wrote on Wednesday. “Let’s hope so. It would be tragic to allow an unattainable perfect reform defeat an achievable good one.”
In a victory for the reform movement, California voters rejected Proposition 20. If it had passed, the referendum would have authorized felony charges on certain theft or fraud crimes currently chargeable as misdemeanors. It would also have restricted the number of incarcerated citizens eligible for parole by adding drug, theft, and other crimes to the list of violent crimes that are excluded from parole review. California voters also approved Proposition 17 to restore the right of parolees to vote.
And voters in Los Angeles passed Measure J, which bolsters local funding for alternatives to enforcement. Under the measure, known as Reimagine LA County, the county is required to spend at least 10 percent of its discretionary general fund — at least $360 million — on policies such as job training, substance abuse programs, and other social services. The county will be specifically prohibited from spending that money on law enforcement, jails, or prisons. Passage is viewed as a major victory for the national movement to reimagine the role of police and backers have discussed it as a model for change and racial equity in other cities and counties.
“The passage of Measure J is a true step in changing structures that have denied our communities of color from being the priorities they deserve, and need, to be,” said Eunisses Hernandez, co-chair of Yes on Measure J, in a statement. “For far too long the needs of our Black and Brown communities fell on the budget chopping block and as a result these communities have paid the price. Measure J will now change that by making direct community investments and implementing alternatives to incarceration.”
A Good Night For Drugs
The War on Drugs was also on the ballot — and it overwhelmingly lost. Arizona, New Jersey, Montana and South Dakota all voted to legalize marijuana for adult use. Voters in Mississippi approved an initiative to legalize medical marijuana.
Efforts to end the criminalization of marijuana may at times elicit a chuckle or eye-roll, but these new laws are no laughing matter. Removing adult drug use from the duties of the criminal justice system marks a major shift in thinking about the responsibilities of law enforcement and the best ways to reduce harm. Over the past 40 years, the War on Drugs vastly expanded the footprint of policing and fed a growing system of mass incarceration. States are finally beginning to roll back these outdated and harmful policies.
The changes didn’t stop at marijuana.
In Washington D.C., voters approved Initiative 81, which effectively decriminalized personal use of hallucinogenic mushrooms and mescaline. And Oregon’s twin Measures 109 and 110 legalized medicinal use of psilocybin and decriminalized other drugs, including opioids, while redirecting tax revenue from legalized marijuana to fund evidence-based treatment and recovery services for substance abuse disorder.
“Measure 110 is arguably the biggest blow to the war on drugs to date,” said Kassandra Frederique, Executive Director of the Drug Policy Alliance, in a press statement. “It shifts the focus where it belongs — on people and public health — and removes one of the most common justifications for law enforcement to harass, arrest, prosecute, incarcerate, and deport people.”
Other Criminal Justice Referenda
Beyond drugs, voters also had other opportunities to rein in the criminal justice system. Michigan voters approved Proposal 2, which will require law enforcement to get a search warrant before obtaining someone’s digital record or communications.
In Oklahoma, a sentencing reform campaign — Yes on 805 — failed to get enough votes. Oklahoma has the nation’s second highest incarceration rate, and the reform would have ended the practice of adding time to a sentence for a nonviolent crime due to prior nonviolent convictions. Despite the loss, supporters of Yes on 805 viewed the campaign as a successful step in starting a critical debate about Oklahoma’s prison system.
“State Question 805 has already achieved success by opening up an entirely new chapter in Oklahoma’s long journey toward ending mass incarceration,” wrote Taylor Pendergrass, a Senior Campaign Strategist for the ACLU Campaign for Smart Justice.
Cities Create and Expand Police Oversight
The killings of George Floyd, Breonna Taylor, Eric Garner, and so many others at the hands of police have driven local governments to strengthen local checks on law enforcement. On Election Day, voters in Columbus, Ohio took the first step and created a review board to investigate police misconduct with subpoena power and manage an inspector general. Until now Columbus has been the largest city in the United States without this kind of outside oversight of law enforcement.
"For the first time Columbus residents were able to speak on police reform, and they have spoken loudly and clearly," Mayor Andrew J. Ginther said after the election.
Portland voters approved an initiative to replace the city’s current police review board with an oversight committee that has power not only to investigate police misconduct, but also to discipline and fire officers.
And in Pennsylvania, voters in major cities strengthened civilian oversight of local law enforcement. With nearly 80 percent of the vote, Pittsburgh approved a new charter amendment mandating that officers participate in investigations by the city’s Citizen Police Review Board. The change was viewed as necessary because the local police union had been successful at thwarting the board’s subpoena powers.
On the other side of the Keystone State, Philadelphia approved Question 3, which created a new police oversight board with subpoena powers and authority to retain legal counsel. Voters approved this reform a week after Philadelphia police fatally shot Walter Wallace Jr., whose family had called 911 seeking help. Wallace had a history of mental illness and body-worn camera footage shows a woman warning police that he was having a mental health crisis.
However, supporters of Question 3 have pointed out that mere voter approval of this new board won’t be enough to create real police accountability. Proper funding, direct access to police information and data, and true independence are all necessary components of an effective oversight board. Those decisions will be up to City Council.
“Philadelphia doesn’t need another tired rebrand of an oversight board,” the Philadelphia Inquirer editorial board wrote. “It needs a police department that is accountable to the people of Philadelphia.”
Reformers Elected to Office
Local prosecutor races don’t usually attract attention beyond the county line, but activists and politicians across the nation focused on Los Angeles County where a challenger calling for far-reaching change faced off against a longtime leader of the country’s largest prosecutor’s office. With votes still being counted, the challenger, former San Francisco District Attorney George Gascón, holds an advantage over incumbent District Attorney Jackie Lacey. While in office, Lacey embraced some less-controversial reform items such as vacating marijuana convictions. In contrast, Gascón’s campaign has embodied the national movement to entirely rethink the criminal justice system. He has earned endorsements from U.S. Sens. Bernie Sanders (D-Vermont) and Elizabeth Warren (D-Mass.).
Gascón was just one of many pro-reform candidates who ran to change the criminal justice system from within.
While all eyes were on Arizona’s 11 votes in the electoral college, pro-reform advocates in Maricopa County may pull off a major upset by replacing incumbent County Attorney Allistair Adel. Challenger Julie Gunnigle, a former prosecutor, holds a narrow lead as votes continue to be counted. Gunnigle ran on a promise of shrinking the county’s incarceration rate by 25 percent. The Maricopa County Attorney’s office is the third largest prosecutor’s office in the nation, and has been condemned for disproportionately giving longer jail sentences and higher criminal fines to Black and Latino defendants.
In Austin, Tex., Jose Garza, the former Executive Director of the Worker’s Defense Project, won his race for Travis County District Attorney on a platform of ending racial disparities and reducing the number of people behind bars suffering from substance abuse disorder.
And in Orlando, Fla., Monique Worrell, a former defense attorney, won a heated race after her predecessor was attacked by the governor and law enforcement organizations for refusing to pursue the death penalty. Worrell hasn’t staked out a similar position on capital punishment, but she has said she plans to reduce the prosecution of prosecution of low-level offenses associated with poverty.
The runoff election to fill former Georgia Sen. Johnny Isakson’s term in the U.S. Senate won’t be held until January, but the results could have major implications for criminal justice reforms at a federal and state level. The Election Day results saw Sen. Kelly Loeffler overcoming Rep. Doug Collins in the state’s jungle-style primary, joining Democrat Raphael Warnock among the top two candidates. In contrast to Collins’ support for criminal justice reforms, Loeffler has resorted to harsh attacks on Black Lives Matter and any support for criminal justice reforms in Georgia. Her success threatens to undermine the bipartisan nature of the reform movement.
But in Washington State, a down-ballot race gives reason to hope for the future. Tarra Simmons won her race for the state House, making her the first formerly incarcerated person to be elected to the Washington Legislature. Simmons served 20 months in prison on felony drug charges. After leaving prison she enrolled in law school. The state bar originally denied her right to practice law due to her criminal charges, but the state Supreme Court unanimously overturned that decision.
“I think the whole mission I have in life is to break down stigmas and barriers,” Simmons told The Appeal. “So people who have similar life stories and paths have hope and opportunity when they come back from a mistake.”