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November 10, 2016

Did death penalty initiatives make it easier for significant prison reforms to pass in California and Oklahoma?

The sets of death penalty initiatives on state ballots this year received lots of attention, and the pro-death-penalty side received lots of voter support in both "red states" like Nebraska and Oklahoma as well as in the in "blue state" of California.  (And I am very excited, as previewed here, that tomorrow at Northwestern Law I be part of a symposium that will be seeking  to sort out what this means for the future of the death penalty in the US.) But, as Randy Balko notes in this Washington Post piece headlined "Believe it or not, it was a pretty good night for criminal-justice reform," the death penalty outcomes should be looked at in the context of other criminal justice reform measure that also got significant support from voters in both red and blue states. Here are excerpts from his piece with one word highlighted by me for commentary to follow:

The death penalty was on the ballot in three states last night, by way of four separate initiatives. In all of them, the death penalty won.... But it wasn’t just in red states. California voters weighed in on two death penalty initiatives — one to repeal it, and one to speed it up. The former failed, the latter passed.  This is a state that Hillary Clinton won by 28 points. Americans still revere the death penalty....

But there was also a lot of good news last night. Marijuana won in 8 of the 9 states in which it was on the ballot — including outright legalization in California, Massachusetts and Nevada. Those states all went blue in the presidential race, but red states Montana, Florida, Arkansas and North Dakota all legalized medicinal marijuana. The lesson here appears to be that pot has finally transcended the culture wars, but the death penalty hasn’t.  [My other blog, Marijuana Law, Policy and Reform, is where I obsess on this reality.]

There are a couple of other important reform measures that passed.  Ironically, both were in states that strengthened the death penalty.  California voters approved Prop 57, which expands parole (as opposed to prison) and time off for good behavior for nonviolent offenses, and lets judges (instead of prosecutors) determine whether juveniles should be tried in adult courts.  And in Oklahoma, voters approved of a measure to reclassify certain property and drug possession crimes from felonies to misdemeanors.  They also approved a measure that would use the money saved from reclassifying such crimes to fund rehabilitation, mental health treatment and vocational training for inmates. New Mexico voters passed a bail reform measure that, while poorly drafted, at least indicates that there’s an appetite in the electorate for such reforms.

As the question in the title of this post is meant to suggest, I do not think it "ironic"  that the very different states of California and Oklahoma with very different voters acted in the same way here.  Indeed, I think it quite sensible for voters to be eager to, at the same time while voting, express support for tougher sentencing for the very worst criminals (terrible murderers) and for smarter sentencing for the lesser criminals (nonviolent and drug offenders).  I make this point to stress not only that (1) these results make perfect sense to "average" voters at this moment in our national criminal justice discourse, but also that (2) it was practically shrewd for politicians in California and Oklahoma to put prison reforms in front of voters at the same time they were considering death penalty issues.

1. As a matter of political mood, I suspect the "average" voter now is not too troubled by historic problems with the administration of the death penalty, largely because some recent big capital cases involve mass murderer with no concerns about a possible wrongful conviction or terrible defense lawyering.  High-profile capital cases like James Holmes (the Aurora movie theater mass murderer), Dzhokhar Tsarnaev (the Boston Marathon bomber) and Dylann Roof (the Charleston Church mass murderer) have all involved crimes in which guilt seems clear beyond any doubt and in which the defendants have had the benefit of spectacular defense lawyers.

At the same time, while the "average" voter is seemingly not keen on taking the death penalty completely off the table for mass murderers like Holmes, Tsarnaev and Roof, she seems to be growing much more keen on reducing reliance on incarceration for nonviolent and drug offenders.  National discussions of the expense and inefficacy of the drug war and other concerns about modern mass incarceration has, it seems, made prison reform for certain lower-level offenders politically popular even in a red state like Oklahoma.

2. As a matter of practical realities, especially in a state like California in which "tough on crime" prison initiatives have historically garnered vocal support from law enforcement groups and prosecutors and prison unions, I suspect having a death penalty initiative for the "tough-and-tougher" crowd to focus on created a window of opportunity for supporters of prison reforms to dominate the messaging for voters on "lower salience" issues like expanding parole eligibility or reducing some crimes to misdemeanors.  Though I was not in California or Oklahoma to experience their initiative campaigns directly, I know just from reading Crime & Consequences that Kent Schneidegger, a very effective tough-on-crime advocate, was much more focused on Prop 62 and 66 (the capital initiatives in California) than on Prop 57 (the parole initiative that he called "Gov. Brown's Jailbreak Initiative").

November 10, 2016 at 09:49 AM | Permalink

Comments

The population as a whole supports the death penalty but is wary about it. So, if totally getting rid of it is the choice, gather they would be against that. The average voter in Ohio, e.g., might be aware of concerns with application, but not be against it as a whole.

Not sure when there weren't high profile capital cases to cite where there was good lawyering involved back to the days of Clarence Darrow. As to focus, that's interesting. Perhaps, per your views, C&C was misguided in worrying more about the death penalty measures.

Posted by: Joe | Nov 10, 2016 1:40:55 PM

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