A Pre-Election Primer: Criminal Justice and the Midterms

By J. Gabriel Ware | October 17, 2018

Victims’ rights, firearms restrictions, civil rights for returning citizens, mandatory mental health training for police—and, once again, marijuana legalization— are all on state ballots for next month’s midterm elections.

While the list of criminal justice issues represents a lower number than in previous election cycles—they make up only a small percentage of the 157 initiatives presented to voters in 37 states this November—the outcomes could have a major impact on justice systems in some key states, such as Washington and Florida.

And some observers believe they could have national resonance in the political landscape shaping up for the presidential race in 2020.

“I can’t say [criminal justice] is playing a bigger role than previous elections,” said Robin Olsen, a senior policy associate who works on criminal justice reform at the Urban Institute. But, she adds, justice issues will continue to play a “big role” in many congressional and gubernatorial races as well as ballot initiatives across the U.S.

Unlike the 2016 federal election, when tough-on-crime rhetoric and warnings of a surging national crime wave stoked partisan battles, the pre-election debates on justice are more narrowly focused on issues of local concern—even as they reflect the same deep ideological divisions affecting the country over the past two years.

That underscores what is likely to be one key takeaway of the midterm vote.

While criminal justice remains fundamentally a state and local issue in the U.S., the midterm vote will shape and influence the bipartisan coalition for federal justice reform in the next Congress, according to Holly Harris, executive director of the Justice Action Network, a bipartisan national lobby group for federal and local justice reform.

Noting that widespread popular support has fueled justice reform initiatives in some 30 states over the past decade, Harris said “criminal justice reform issues poll very well,” with voters especially concerned with the rising number of opioid overdose deaths and mass incarceration.

“If I’m an incumbent in this election cycle, I would be concerned with not supporting criminal justice reform,” Harris told The Crime Report. “The American people are frustrated with Washington’s inability to move forward (on federal legislation), even as states have passed criminal justice bills.”

Here’s a snapshot of some of the most significant initiatives on state ballots next month, and why they matter.

Gun Control at the Grassroots

Probably the foremost example of the interplay between national justice concerns and local issues is gun violence, which some commentators have called the defining issue in many congressional races.

According to a poll conducted by Global Strategy Group for Giffords PAC, a group that backs stricter gun laws, Democrats’ advantage over Republicans in competitive swing House districts increases from a three-point lead to a 10-point lead when they focus on gun violence prevention.

That’s one reason why former New York Mayor Michael Bloomberg’s gun control advocacy group, Everytown for Gun Safety, is investing $5 million in a digital ad campaign targeting 15 “Red to Blue” House races. And, fueled by the widespread emotional sympathy for the student survivors of the Parkland, Fl., school shooting who have crisscrossed the country lobbying for greater restrictions on firearms, the issue continued to pick up traction this fall.

A bellwether battle is shaping up over Initiative 1639 in Washington State, which would ban people under 21 from buying semi-automatic assault rifles and increase background checks for those types of weapons. Background checks would include a local law enforcement check of the most up-to-date local court, criminal and mental health records, and the completion of a firearm safety training course.

The initiative, modeled in part on Connecticut’s strict gun laws, also proposes creating standards for holding gun owners accountable if children or other prohibited people injure themselves or others with an insecurely stored firearm.

The National Rifle Association (NRA), the country’s leading anti-gun control lobby group, has so far spent one-tenth of what it had spent during the 2014 midterms, according to the most recent filings with the Federal Election Commission,  but it has thrown its heavyweight support behind opponents of 1639.

The initiative is a “fraud being perpetrated on the good people of Washington State,” the Washington Arms Collectors, a member of the coalition fighting 1639 wrote in a statement provided to The Crime Report by the group’s director of operations, Wayne Rankin.

“They will tell you it’s about public safety, but it will do nothing to stop a single crime,” Rankin added. “This initiative has nothing to do with assault weapons and is directed only at our good citizens who already pass multiple background checks before owning a firearm.”

According to a mid-October poll, some 59 percent of registered voters now support the initiative.

Curbing Police Misconduct

Washington state is also the stage for another ballot battle fueled by concerns over police use of force. Initiative 940, which bears the ungainly title of “Police Training and Criminal Liability in Cases of Deadly Force,” would require law enforcement officers to obtain violence deescalation and mental health training to help officers resolve conflicts without using physical or deadly force.

The measure, if passed, would create a good faith test to determine when the use of deadly force by police is justifiable, and it would remove the requirement currently on the state books that prosecutors show that a law enforcement officer acted “with malice” to be convicted in a deadly force incident.

The so-called “Deescalate Washington” initiative has divided many former allies in the cause of police reform. Some community groups prefer to wait for what they hope will be more effective legislation under consideration by state lawmakers—effectively putting them in the same camp as police groups who oppose the initiative.

Although deescalation training is now widely accepted by national police organizations like the Police Executive Research Forum (PERF) and the International Association of Chiefs of Police, and is already part of the training for major city police agencies like the New York Police Department,  some police see such mandates as another step in efforts to handcuff  law enforcement.

“They purport that 940 is about training, which is nonsense,” Seattle Officer Mike Solan, president of the Council of Metropolitan Police and Sheriffs and the campaign manager for the Coalition for a Safer Washington, told local media.

“Its true intent is to make political prosecution of police officers.”

A poll in February showed more than two-thirds of Washington voters were in favor of an earlier version of I-940.

Supporters place it in the wider context of the national movement to hold police accountable and tackle implicit bias in law enforcement.

“We have heard so many stories of loss and violence over the years, particularly in communities of color and with people with disabilities, Tim Reynon and Kim Mosolf, members of the Deescalate Washington group, wrote in the Seattle Times.

“In Washington, African Americans and Latinos are killed by police at vastly disproportionate rates; Native Americans at a rate higher than any other group.”

Immigration Opponents Target Sanctuary Laws

Immigration is one of the most emotional issues of the midterm elections in the wake of President Donald Trump’s hardline stance on immigration and the separation of families at the borders. Almost 13,000 migrant children are detained in federally contracted shelters, reaching a record high, The New York Times reported last month.

Many states and cities have established themselves as “sanctuaries” where local enforcement refuses to assist federal immigration authorities in identifying and detaining undocumented immigrants. In response, Washington has threatened to cut off federal law enforcement funding to jurisdictions that don’t go along with its get-tough policies.

A major challenge to the sanctuary concept is now playing out in Oregon, where a proposed Measure 105 would axe a 31-year-old law passed with bipartisan support barring state and local police agencies from assisting in federal immigration enforcement.

“If Oregon’s sanctuary law gets repealed, it could become an even larger part of the Republican Party’s agenda as the GOP looks to the 2020 presidential race and beyond,” said Oregon media commentator Conrad Wilson.

Both supporters and opponents also see the measure, in effect, as a referendum on President Trump’s immigration policies, and commentators say the results could have national implications, according to governing.com.

“We need to win this campaign—and win it big—so we don’t see similar measures like it popping up [across] the country,” Peter Zuckerman, a spokesman for the “No on 105” campaign from Oregonians Against Profiling was quoted as saying. “By voting no, we can show that Oregon wants no part in the immigration policies of [U.S. Attorney General] Jeff Sessions and Donald Trump.”

A recent poll of likely Oregon voters from the Hoffman Research Group of Portland found that just 31 percent support repealing the sanctuary law, while 50 percent oppose repeal.

One group fighting against the proposal is Causa, an immigrant rights organization.

“Immigrants or people perceived to be immigrants would be especially harmed by [the proposal], but [it] would make us all less safe,” Andrea Williams said, Causa’s executive director.

“Trust is the foundation of good policing. But when police play the role of federal immigration agents, many immigrants will be too afraid to call them, cooperate with them or show up to testify.”

Oregonians for Immigration Reform—the organization that worked to get Measure 105 on the ballot—has been identified by The Southern Poverty Law Center as a hate group.

But Jim Ludwick, the organization’s communications director, rejects the designation.

“We support environmentally sustainable legal immigration,” Ludwick said. “We want to control crime and congestion in an already congested nation, but [opponents of the proposal] want open borders, and they call anybody who supports the rule of law as a hate group.”

Battling the Opioid Crisis

 Each day, more than 115 people across the nation die after overdosing on opioids, according to the National Institute on Drug Abuse, and a  recent analysis by the Wall Street Journal found that ads mentioning the opioid crisis have aired more than 50,000 times in congressional and gubernatorial races across 25 states, compared to 70 times just four years ago.

There has been an increased push to treat instead of punish those battling opioid addiction, as more Americans view prescription drug addiction as a disease.

In Ohio, which is among the top five states with the highest rates of opioid-related overdose deaths, a proposed amendment to the state’s constitution, placed on the ballot as State Issue 1, will provide a test case of whether such ideas have traction with voters.

State Issue 1 mandates that criminal offenses of obtaining, possessing, or using any drug such as fentanyl, heroin, methamphetamine, cocaine, LSD, and other controlled substances be classified as a misdemeanor rather than a felony.

The proposal also calls for reduced sentences for incarcerated individuals—except for those imprisoned for murder, rape, or child molestation—by up to 25 percent if they participate in rehabilitative, work, or educational programming.

A recent poll showed that a near majority of voters support the amendment. However, some of the measures most power opponents, including the chief justice on the state’s supreme court, warn that it could backfire.

“I believe as a result of this amendment, should it pass, people will die,” said Chief Justice Maureen O’Connor.

Supporters, however, say it’s long overdue.

“There is so much investment in punishing people and locking them up in prison cells and so little investment in the healing that people need to transform their lives,” said Stephen Johnsongrove of the Ohio Justice & Policy Center.

Marijuana, Again

Turning to other drug-related issues, the movement for marijuana legalization continues to gain traction. This fall, voters in Michigan and North Dakota will decide whether to legalize recreational weed, and Missouri and Utah voters will weigh in on medical marijuana use. If all four measures pass, it bring to 43 the number of states where some form of marijuana use is legal (32 medical marijuana and 11 recreational).

Missouri actually has three separate propositions related to medical marijuana on its November ballot, offering voters a menu of policy choices. The proposed constitutional Amendment 2 would allow state-licensed physicians to recommend medical cannabis to patients with qualifying condition, and exact a 4 percent tax (the revenue would be used for providing healthcare to veterans).

Amendment 3 would also legalize medical cannabis, but would carry a 15 percent sales tax on sales of the drug. Proposition C, not a constitutional amendment, would  legalize marijuana prescriptions to patients with qualifying conditions, with a tax of 2 percent.

The Utah medical marijuana initiative, spearheaded by the Utah Patients Coalition, has run into opposition from the Utah Medical Association, which warns it would become a gateway to recreational use.

“Foremost, citizen initiatives are a terrible way to decide what is and is not medicine,” Mark Fotheringham, the association’s vice president of communications, told The Crime Report.

The Rights of the Formerly Incarcerated

Since the last presidential election, a movement to champion the civil rights of returning citizens has expanded steadily from “ban the box” measures aimed at striking questions about former convictions from employment applications to ending employment and housing restrictions and restoring the right to vote.

One of the last holdouts to that movement has been Florida. Amendment 4 on the state’s ballot is an effort to rectify that.

But surprisingly it is running into opposition from both sides of the ideological divide.

The amendment would automatically restore the right to vote for people with prior felony convictions upon completion of their sentences—excluding those convicted of murder or a felony sexual offense.

The exclusions are one reason why some prisoner rights advocates are pushing back against it.

“We oppose these divide-and-conquer type tactics that single people out based on offense category,” said Paul Wright, editor of Prison Legal News and director of the Human Rights Defense Center, who was convicted of murder in 1987 and spent nearly 20 years in prison.

“If you look at other movements—like the LGBT Movement—they didn’t leave anybody behind. Right now, you can be a gay serial killer on death row and still be able to marry the person of your choice.”

Given that Florida’s vote in the national elections has historically been decided by a narrow margin of voters, the expected number of new voters—some 1.5 million people—has focused the attention of both parties.

That’s why, although Amendment 4 was originally backed by Republicans as well as Democrats, there are now signs of blowback from some GOP strategists who, thinking ahead to the presidential election in 2022, worry that it will put into play a large number of voters who are likely to vote Democratic.

A September survey shows that the ‘yes’ votes have a strong edge.

Politics and Crime

Taking a different tack entirely, a proposed amendment to the Louisiana constitution would prohibit convicted felons from seeking or holding public office until five years after the completion of their sentences, unless pardoned.

That would effectively tweak a 2016 court ruling in 2016 which allowed convicted felons unlimited rights to seek and hold a public office in Louisiana.

Supporters of the measure say it is intended to restore trust in the political system.

“I think there is a certain amount of integrity that is necessary in the political world to develop trust of the people,” said Republican state Sen. Conrad Appel, who sponsored the legislation that put the proposal on the ballot.

Some commentators say the prime motivating factor behind the amendment is to counter Louisiana’s notorious record for political corruption

“We as elected officials want the voters’ faith and trust,” Appel said. “We have to earn that trust, and if we violate it, we should not be in a position to throw it back in your face.”

The earlier court ruling in fact overturned a long-term precedent which required convicted felons to wait at least 15 years before seeking public office.

Ending Jim Crow Juries

But another Louisiana amendment is aimed at bringing the state’s court system in line with the rest of America. The proposed Constitutional Amendment 2 in Louisiana calls for jurors to reach a unanimous verdict, rather than just a majority 10 of 12 jurors, to convict people charged with felonies.

The current system represents a last holdout of Jim Crow-era laws that were passed across the south in response to the post-Civil War movements to enshrine full citizenship and voting rights for African Americans.

Critics say the “split jury” system continues to be a source of shame for the state, and a monument to white supremacy.

According to a review of nearly 1,000 Louisiana felony trials from 2011 to 2016, by the Advocate newspaper, about 40 percent of convictions by 12-member juries had one or two holdout jurors. Black defendants were about 30 percent more likely to be convicted in non-unanimous verdicts than white defendants, the newspaper found.

If the Louisiana measure passes, Oregon will be the only other state that doesn’t require a unanimous verdict for conviction.

Victims’ Rights

Florida, Georgia, North Carolina, Oklahoma, Kentucky, and Nevada are proposing to expand the rights of crime victims to their state constitutions in separate amendments. Some proposals would enshrine the right of crime victims to receive to receive timely notification of changes to the offender’s custodial status; others call for the right to be heard at plea or sentencing proceedings or any process that may result in the offender’s release; and the right to restitution.

The effort is aimed at expanding the reach of a 2008 California statute called Marsy’s Law, formally known as the Victims Bill of Rights Act, and it worries the American Civil Liberties Union, which argues that such statutes would undermine due process.

Marsy’s Law is named for Marsalee (Marsy) Nicholas, a University of California-Santa Barbara student killed by her ex-boyfriend in 1983. California legislators were moved to act after her mother, Marcella Leach, encountered the accused killer in a grocery store. Supporters said Leach should have been warned that he was released on bail.

Her story “is typical of the pain and suffering the family members of murder victims have endured,” says the website put up by supporters of the original California measure.

“She was not informed because the courts and law enforcement, though well-meaning, had no obligation to keep her informed.

“While criminals have more than 20 individuals rights spelled out in the U.S. Constitution, the surviving family members of murder victims have none.”

The ACLU says the law is well-intentioned, but ultimately unconstitutional.

“Marsy’s Law is premised on the notion that victims should have ‘equal rights’ to defendants,” the ACLU says on its website. “This…is a seductive appeal to one’s sense of fairness. However, the notion that victims’ rights can be equated to the rights of the accused is a fallacy.

“It ignores the very different purposes these two sets of rights serve.”

Some victims’ rights advocates have argued that victims would be better served by more funding for victims’ services, such as programs that help victims of sexual violence.