Justice

Why Tuesday’s Election Was Not Just Huge For Pot, But The Entire Criminal Justice System

CREDIT: Shutterstock

Last night wasn’t a good night for Democrats. But when asked instead to vote on issues that many Democrats care about, voters backed progressive ballot initiatives around the country. This is particularly true in the area of criminal justice, which has become a rare point of bipartisanship among some Democrats and Republicans. In a spate of ballot initiatives around the country, voters sent a signal that they are ready to reform a system that has sent more people in the United States to jail than in any other country in the world.

Each of these initiatives embraces a notion known as “Smart on Crime.” The phrase is a replacement for the old adage of “tough-on-crime” and means that, rather than threatening heavy punishments for a long list of so-called crimes, jurisdictions focus instead on doing what actually, empirically, makes communities safer. In reducing or eliminating penalties for some actions that would be better addressed through public health or rehabilitative policies, jurisdictions can focus more resources on serious, violent crimes. Or, as U.S. Attorney General Eric Holder put it last year, “Too many people go to too many prisons for far too long for no good law enforcement reason.”

Marijuana

Alaska, Oregon, and Washington, D.C. put pot legalization on the ballot, and all three passed it. As of last night, there are now more than double the number of jurisdictions that have legalized marijuana for recreational use, even as it remains federally prohibited. In Washington, D.C., where African Americans make up almost half the population, the margin of victory was staggering, with voters supporting the measure by a ratio of 7 to 3.

Alaska and Oregon were not as certain to pass the initiatives. But both passed by margins of several points ballot initiatives that don’t just legalize possession and growth of pot, but also its sale and taxation. (Washington, D.C. is not permitted to tax and regulate by ballot initiative, and lawmakers plan to follow up with a bill to achieve this).

In each of these jurisdictions, different messages dominated. In libertarian-heavy Alaska, where pot policy was already liberalized, the focus of the campaign was that marijuana is no less safe than alcohol, and those who use it shouldn’t be penalized differently. In Washington, D.C., by contrast, a significant population of very liberal gentrifiers mixed with longtime African American residents who are sick and tired of criminal justice policies that arrest African Americans for pot at eight times the rate of whites.

Majorities also voted in favor of medical marijuana. In Guam, a measure to pass medical marijuana passed early in the day. And in Florida, a medical marijuana ballot initiative that became heavily politicized with a well-funded opposition movement failed, but only because it required a 60 percent vote to amend the Constitution. Despite the initiative’s failure, a solid majority — 58 percent — voted in favor of the measure. The initiative’s loss is still a bit of a surprise, because polls have shown that support among Florida residents for the idea of medical marijuana is as high as 90 percent. In fact, lawmakers passed a much narrower medical marijuana provision last year that, remarkably, had the support of almost every state lawmaker. If their goal in passing it was to pick off support for the more expansive measure on the ballot, they succeeded.

Rounding off the evening, two cities in New Mexico — Santa Fe and Bernalillo — voted to decriminalize pot.

The statewide initiatives won’t go into effect today. There will be months of policy-making, political wrangling, and pushback from Congress. But majorities in every jurisdiction where the question was posed voted to reduce the penalties for marijuana.

Proportional Penalties

In California, voters passed an initiative that embraces that Smart on Crime notion in a more comprehensive way. Proposition 47 reduces the penalties for low-level nonviolent offenses including many drug and property crimes, on the notion that locking people up who haven’t done anything dangerous doesn’t do anybody any good. The initiative changes a number of offenses from felonies to misdemeanors, meaning the sentence for conviction is much lower, and that the impact on an individual’s criminal record won’t be as significant. Many job and voting restrictions, for example, only apply to felonies. Offenses that will be affected by the measure include drug possession offenses, as well as shoplifting, credit card fraud, and forgery.

The initiative also means that some 10,000 individuals already behind bars will be eligible for re-sentencing. This is particularly relevant for California, which has been struggling to reduce its prison population since the U.S. Supreme Court declared its prisons so overcrowded that they violate the Eighth Amendment prohibition against cruel and unusual punishment.

With a passage rate of 58 percent, the initiative may serve as a model for other states. The state already decriminalized marijuana possession several years ago, and has seen arrests go down without significant adverse consequences.

Bail Reform

In New Jersey, Democrats and Republicans have joined forces over the past year to pass a package of measures that ensure those behind bars are those who pose a greater danger to society, not the ones who can’t afford to pay bail. Lawmakers took up the issue after a study found that some 40 percent of those who are jailed after they are arrested but before their trial or conviction are there simply because they were poor.

The idea behind bail is that individuals who are charged with a crime put up a bond of significant value to increase the likelihood that they will return for future court dates. But the system creates a class divide. Many are charged with bail under $2,500 — a sum that many wealthier individuals can pay, but is completely out of reach for low-income defendants. Those who end up stuck behind bars pending their trial do not have the same capacity to defend their case. They are more likely to eventually plead guilty, and many have called pretrial detention “ransom” intended to extract such guilty pleas.

Two companion bills were passed by the New Jersey legislature to make the bail system less about how much money defendants have, and more about whether they pose a danger to the public. One bill passed by the legislature took income out of the equation for less dangerous offenders by conducting risk assessments of defendants, and allow those not deemed dangerous to participate in a monitoring program until their trail, rather than to sit in jail. A second bill put Tuesday’s ballot initiative before the voters. That ballot initiative asked voters to give judges power to hold the most dangerous offenders behind bars before their trial — even if they could afford bail. By passing this measure Tuesday, the bail reform package is now fully in effect.

Gun Violence

The idea of “Smart on Crime” initiatives is to eliminate the counterproductive criminal policies and re-allocate resources toward those policies that actually reduce violent crime. To that end, some might also consider it a win that in Washington State (where pot is already legal), voters both approved a measure to close a loophole in firearms background checks, and rejected a competing ballot initiative that would have narrowed the state’s gun laws. The measure means that gun sellers and buyers can’t get around limitations on who can own a guy by selling them in private online sales or at gun shows.