October 19, 2016
Terrific Marshall Project review of notable (but lower-profile) criminal justice initiatives going to voters in various states
The always great work done by the folks at The Marshall Project continues be especially helpful for election-season coverage through its "Crime On The Ballot" series which keeps tabs on the "ballot measures and races — beyond Washington — that could shape criminal justice." And this week brought this new piece on state ballot initiatives headlined "It’s Not Just Pot and the Death Penalty: Four important ballot measures you probably haven’t heard of." I recommend the extended piece in full, and here are excerpts:
High-profile state ballot measures on contentious issues like the death penalty, guns and pot are closely watched as indicators of the national mood. But this election season also brings less-noticed proposals that may have more far-reaching effects. Here are four ballot measures in six states that could serve as laboratories for other states.
Shortening Time Served for Nonviolent Felonies: California
California has a long history of putting criminal justice policy on the ballot: the state’s infamous “Three Strikes” law was strengthened by a ballot initiative in 1994; then, with voters’ appetite for mass incarceration on the wane, the law was partially repealed by another initiative in 2012. In 2014, voters downgraded several major felonies to misdemeanors — most notably, possession of heroin and other illegal drugs. Now, with the state under a federal mandate to reduce its prison population, Californians will consider a constitutional amendment to make certain prisoners eligible for earlier release.
Under the current law, sentences for many felonies can be “enhanced” with additional prison time if the person committing the crime is classified as a gang member, for example, or has other felony convictions on his record. Under the state’s “determinate sentencing” provision, prisoners must serve their entire term, enhancements and all. Proposition 57 would undo that requirement for those whose crimes are classified as “nonviolent,” making prisoners eligible for parole after they’ve served the full term for their primary crime. The proposition also creates a system of early-release credits that inmates can earn by participating in education and rehabilitation programs....
Bail Reform: New Mexico
When someone is accused of a crime in New Mexico, the law requires he or she be sent home under “the least restrictive conditions necessary to reasonably assure both the defendant’s appearance in court and the safety of the community.” In other words, jail should be a last resort, reserved for the most dangerous defendants or those most likely to flee. But that’s rarely what happens, says Charles Daniels, Chief Justice of the state’s Supreme Court. “Everybody has just grown so used to this notion that if you are accused of a crime, you have to pay somebody some money to get out of jail. Our judges have just gotten so used to putting a price tag on your presumption of innocence,” he says.
Research from around the country shows that tens of thousands of people are routinely held in jail for low-level offenses because they don’t have small sums of money to make bail. Daniels has spearheaded an effort to overhaul the state’s bail system; a ballot measure this November would amend the state constitution to include a rule that no one should be held in jail solely because they can’t afford bail — and would make it harder for defendants to get out if they are dangerous. In almost every state, people accused of crimes have a “right to bail”: Regardless of how dangerous the defendant, or how serious a flight risk, a judge can’t hold anyone outright. Instead, judges who want a defendant held set a too-high bail amount that they hope the defendant can’t afford. “It’s a shell game,” says Daniels. The ballot measure would remove “right to bail”, and the constitution would be amended to say judges can deny bail if, after a hearing, they feel someone is too dangerous to be released....
Writing Victims' Rights Into the Constitution: North Dakota, South Dakota, and Montana
Three states this November will vote on an almost identical ballot measure that would create sweeping new protections for crime victims. Called “Marsy’s Law,” “this is an equal rights campaign to strengthen victims’ rights so they’re equal to rights that criminal offenders have,” according to Jason Glodt, a former prosecutor managing the campaign in South Dakota. Marsy’s Law is named for Marsalee Nicholas, who was killed by her boyfriend in 1983. A week after her murder, her mother “walked into a grocery store after visiting her daughter’s grave and was confronted by the accused murderer. She had no idea that he had been released on bail,” according to the Marsy’s Law website.
The amendments would require that victims be notified at every major step of the criminal justice process, one of more than a dozen new rights, including the right to withhold records, the right to refuse to be deposed or interviewed, and the right to speak at hearings. The amendments would also broaden the definition of “victim”; in some states, like North Dakota, current victim protection laws are only triggered in the case of a serious crime like assault or murder. Under Marsy’s Law, “victim” would include those who had their purses snatched — and their “spouse, parent, grandparent, child, sibling, grandchild, or guardian, and any person with a relationship to the victim that is substantially similar to a listed relationship."...
De-Felonizing Drug Possession: Oklahoma
By its own count, Oklahoma has the second-highest incarceration rate in the country (after Louisiana), and the highest rate of incarcerated women. Seventy-five percent of those behind bars are there for nonviolent offenses — most commonly, drug offenses. Two ballot measures poised to pass this November aim to change that. The first, SQ 780, would downgrade simple drug possession from a felony to a misdemeanor, and raise the “felony theft threshold” —the dollar value of a stolen item that triggers felony rather than misdemeanor charges — from $500 to $1000. A corresponding measure, SQ 781, directs cost savings generated by SQ 780 into a special fund that would pay for mental health and substance abuse services. The measures are backed by a coalition of both right- and left-leaning organizations, including the ACLU and the Family Policy Institute of Oklahoma.Local sheriffs and prosecutors warn that without the threat of felony charges, prosecutors lose the leverage they need to compel people to participate in drug court, accept plea deals, or to testify in other cases. Sheriffs fear that all these new misdemeanor arrests will simply shift overcrowding in prisons to the jails.
The measures come at a time when Oklahoma has been contemplating criminal justice reform (spurred, in part, by a budget crunch caused by falling oil prices). In April, Gov. Mary Fallin signed a package of bills aimed at shrinking the prison population, including one that reduces mandatory minimums for drug possession and one that broadens the use of drug courts and community sentencing. The state is also undergoing a Justice Reinvestment process; a task force researching the drivers of the state’s incarceration rate will submit an additional series of recommended bills next year. The success of those bills is staked, to a certain extent, on these ballot initiatives.
October 19, 2016 at 08:37 AM | Permalink
I actually intend to vote against bail reform. Daniels is as crooked as judges come. I very worried that it will pass because most people don't pay attention to these kinds of issues.
It is true enough that NM has had a problem with locking up indigent defendants and if that was all the constitutional amendment did I would be a cheerleader for it. What Daniels doesn't tell you however is that there is a poison pill in the amendment. Namely that it would give a judge free reign to deny bail entirely to anyone the judge considered a "danger to the community". That's a big deal because under the current system the judge must give everyone bail, he can't deny anyone bail. So the quid pro quo is that the state will let the little fish go in order to keep the big fish for as long as they want. The rub is that the courts *and the courts alone* will determine who the big fish are.
It's worth noting in this regard that the NM chapter of the ALCU has come out AGAINST this amendment for precisely the reason I identified.
Posted by: Daniel | Oct 19, 2016 6:58:51 PM