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Election Day is Tuesday, and in localities and states across the country, criminal justice is on the ballot. This week, we’re bringing you a roundup of some of the ballot measures and local races that will shape the system.
Reproductive Rights
Voters in 10 states will have the opportunity to approve measures to protect or expand legal access to abortion care. Since the Supreme Court struck down Roe v. Wade in 2022, similar efforts in other states have generally found electoral success.
In Nebraska, voters face dueling amendments. One would enshrine the current 12-week abortion ban in the state constitution, and another would protect access until the point of fetal viability, which is generally considered to be about 24 weeks. If both amendments pass, the one with the most votes will become law.
Florida’s measure, which would guarantee legal abortion up until fetal viability, has drawn the ire of Gov. Ron DeSantis. His administration has directed state funding to advertisements against the amendment and sent threatening letters to local television stations that aired ads in support of the proposal.
Marijuana Legalization
DeSantis has also directed state funding into his fight against Florida’s proposed Amendment 3, which would legalize recreational marijuana. The state’s largest medical marijuana company is also pouring money into the battle, turning it into the most expensive ballot initiative anywhere in the country. Legalization is also on the table in South Dakota, where voters previously approved it in 2020, but Gov. Kristi Noem successfully challenged that initiative’s language. A subsequent legalization attempt in 2022 was unsuccessful.
Voters in North Dakota also have a chance to legalize marijuana after a failed 2022 effort, while voters in Nebraska will decide whether the state will become the 39th to make marijuana available for medical use.
Slavery Exceptions
Voters in California and Nevada will consider removing language from their state constitutions that allow slavery or involuntary servitude as punishment for a crime. If successful, the pair will join states like Alabama, Oregon, Tennessee and Vermont, which all passed similar measures in 2022.
Most state constitutions include a clause similar to the 13th Amendment to the U.S. Constitution, which allows for forced labor as punishment for a crime. This has long served as the legal basis for compelling incarcerated people to work for very low or no wages.
Previous efforts have not always been successful in changing the nature of prison labor. Earlier this year, a group of people incarcerated in Alabama filed a lawsuit against the state arguing that people who refuse work assignments, or who are fired from work-release jobs, are routinely punished or threatened despite the changes to the state constitution. A judge dismissed the case in August, and it’s currently under appeal. In this case and others like it, much turns on whether prison administrators revoking certain privileges equates to coercion in a way that is similar to slavery.
In California, advocates for the constitutional amendment hope that it will give incarcerated people the right to pursue rehabilitative programming instead of being compelled to perform prison labor, and argue that it could lead to a drop in the rates at which people who are released commit new crimes.
Border Enforcement
Voters in Arizona will weigh the fate of Proposition 314, which would make it a state crime for foreigners to cross the border anywhere other than an official port of entry. Similar to the legislative effort in Texas known as SB4, the proposition would allow Arizona agencies to enforce immigration laws that have traditionally been the sole responsibility of the federal government. Arizona’s Republican-led Legislature passed a similar bill earlier this year, but it was vetoed by Democratic Gov. Katie Hobbs.
Even if Proposition 314 passes, its border enforcement provisions can’t go into effect until legal disputes over the Texas version are settled. Most legal observers expect that SB4 will ultimately be decided by the U.S. Supreme Court.
Critics of Proposition 314 note that it contains fewer guardrails than the Texas law. Unlike SB4, Arizona’s measure does not prohibit arrests in places of religious worship, schools and healthcare facilities. Many also worry that it will lead to widespread racial profiling of people who appear to be Latino. Supporters counter that under the measure, law enforcement has to see a person crossing the border to have probable cause for a stop.
Sentencing & Pretrial Detention
California voters will decide whether to stiffen criminal punishments for some theft and drug crimes. Currently, theft of less than $950 in value is a misdemeanor, but Proposition 36 would make theft of any amount a felony if a person already has two theft convictions. The initiative would also require people with multiple drug charges to complete treatment or serve time.
One criticism of that approach is that the proposition does not set out funding to expand access to mandated drug treatment programs. The San Francisco Chronicle’s editorial board noted last week, “you can’t pressure people into treatment that doesn’t exist. In 22 California counties, there are no residential treatment facilities. And there are long wait times almost everywhere else.”
The effort is largely aimed at rolling back reforms that voters approved a decade ago intended to reduce the state’s prison population. Viral footage of brazen smash-and-grab robberies and general feelings of disorder related to open-air drug use and homeless encampments have generated backlash on reforms for many in the state.
Other sentencing initiatives include an effort in Arizona to make life without the possibility of parole the mandatory sentence for people convicted of child sex trafficking. In Colorado, Amendment 1 would give state judges the ability to deny bail to people who are charged with first-degree murder.
District Attorney and Sheriff Races
Many of the same factors driving California’s Proposition 36 have also left the elected prosecutors in several of the state’s big cities fighting for their political lives. Take George Gascón, who swept into the Los Angeles County District Attorney’s office in 2020 with a wave of reforms aimed at making the justice system less punitive, mostly ending the use of cash bail and sentencing enhancements. Polling shows him far behind challenger Nathan Hochman, who has billed himself as a “hard middle” candidate, running to wind back what he describes as Gascón’s “pro-criminal” excesses. In Alameda County, home to Oakland, District Attorney Pamela Price is facing a recall effort and similar characterizations of her prosecutorial approach.
In Florida, former circuit attorneys Monique Worrell and Andrew Warren are both running for the prosecutor jobs they held before Gov. Ron DeSantis booted them from office. Legal battles over those moves are still ongoing, and DeSantis has left open the possibility that if they are re-elected, he’ll eject them once again.
There are thorny and fascinating district attorney and sheriff races around the country, and we recommend checking out this in-depth guide from Bolts Magazine to explore them in depth.
