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November 16, 2012

"Americans Voting Smarter About Crime, Justice At Polls"

The title of this post is the headline of this lengthy commentary by Radley Balko at The Huffington Post. Here are excerpts, which close with an especially interesting quote about folks inside the Obama Administration being surprised by some of the election day criminal justice outcomes:

A headline from the Denver Post this week read: "Colorado Drug Force Disbanding." Another from the Seattle Times announced, "220 Marijuana Cases Dismissed In King, Pierce Counties." Just 15 or 20 years ago, headlines like these were unimaginable. But marijuana legalization didn't just win in Washington and Coloardo, it won big.

In Colorado, it outpolled President Barack Obama.  In Washington, Obama beat pot by less than half a percentage point.  Medical marijuana also won in Massachusetts, and nearly won in Arkansas.  (Legalization of pot lost in Oregon, but drug law reformers contend that was due to a poorly written ballot initiative that would basically have made the state a vendor.)

But it wasn't just pot. In California, voters reined in the state's infamous "Three Strikes and You're Out" law, passing a measure that now requires the third offense to be a serious or violent felony before the automatic life sentence kicks in.  The results don't negate the law, but they do take some of the teeth out of it.  And the margin -- the reform passed by more than a 2-to-1 margin -- has significant symbolic value.  Three Strikes was arguably the most high-profile and highly touted of the get-tough-on-crime policies of the 1980s and 1990s. It epitomized the slogan-based approach to criminal justice policy that politicians tended to take during the prison boom.

Eric Sterling served on the House Subcommittee on Crime in the 1980s.  Today, as president of the Criminal Justice Policy Foundation, he works to reform many of the laws he helped create. Sterling is encouraged by what he saw last week. "I definitely think we're seeing a shift in the public opinion," he says. "This election was really a game changing event."...

But Julie Stewart, president of the criminal justice reform group Families Against Mandatory Minimums, remains skeptical. "I think it’s too early and too easy to say that the electorate has moved away from its love affair with punishment," Stewart says.  "While it’s refreshing to know that voters in the initiative states understand that reforms were necessary and good, I hear from prisoners every day who are being sentenced to decades behind bars for nonviolent drug offenses.  We still have a very long way to go to reach the tipping point that will significantly change our national affection for over-punishment."

Another reason for putting too much emphasis on the election results: Even if the public mood has shifted, Congress is usually way behind.... Politicians at the state and local level have been more willing to embrace reform.  Both Stewart and Sterling say that's because they have no choice. "Governors need to balance budgets," Sterling says....

Stewart says the right will also need to come on board before there's any major changes to the federal system. "I don’t think significant reform could ever happen without conservative leadership," she says. "The crack cocaine sentencing reforms of 2010 would not have happened without Sen. Jeff Sessions (R-Ala.) support...."

The one thing the 2012 results may do at the federal level is begin to convince some politicians that advocating reform is no longer political suicide.  "This year’s initiatives in California, Colorado and Washington do indicate a changed public perception about punishment and marijuana in those states," Stewart says. "That should give legislators the freedom, if they choose to exercise it, to ease their tough-on-crime positions and not have to worry about surviving the next election."

Sterling agrees. "I think it could give some cover to political leaders who already thought these things but were afraid to say them.  My contacts close to the Obama administration say they were really taken aback by the results in those states.  They didn't expect the vote to be as lopsided as it was. I think they really don't know what to do right now. But when medical marijuana first passed in California 16 years ago, you saw (Clinton Drug Czar) Barry McCaffrey preparing his counterattack within hours.  I haven't heard of anything like that in the works this time around.  I think that's a good sign."

November 16, 2012 at 09:00 AM | Permalink


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You gotta love it when someone thinks that moving the score from 0-50 to 2-48, that means they've won.

I notice that the Oregon and Arkansas results get brushed off, and no mention is made of either Prop 19 or, this year, Prop 34, which was easily the most important public statement on the question of criminal punishment.

A partisan is a partisan. Balko and Julie Stewart were partisans before the election and are partisans now. And that's fine; nothing wrong with being a partisan. But all this talk of secret contacts inside the Administration -- people who never manage to get named -- is so much hot air. And if pot is on the march, why is it that the Hinchey Amendment, which used to be regular fare in the House, doesn't even get introduced anymore?

The whole Huffington Post piece is from that part of the political spectrum that never saw a crime they couldn't make an excuse for.

Posted by: Bill Otis | Nov 16, 2012 10:02:53 AM


Given the number of states that now have medical marijuana laws (my quick search say 18 plus D.C. and two that now legalize personal use (and more importantly I think purport to legalize non-medicinal commercial transactions) I do think you are being more than a bit silly to try and brush away the change in attitude that has occurred over the last couple decades. You could have tried saying the same 0 to 50 vs 1 to 49 when the first medical use law was passed, but it would be much harder to say that 18 vs 32 is just as irrelevant. Change has to start somewhere.

Over the time since the first of these state medical marijuana laws were passed has any state reversed course and eliminated the practice? (I'm not talking about changing the criteria for either qualification or possession limits, I am asking only about total reversal back to prohibition). If not then I would say the trend is even more striking.

Posted by: Soronel Haetir | Nov 16, 2012 1:31:08 PM

Soronel --

"You could have tried saying the same 0 to 50 vs 1 to 49 when the first medical use law was passed, but it would be much harder to say that 18 vs 32 is just as irrelevant."

I never said it was irrelevant. I said 2-48 is not a victory, and neither is 18-32. Thus it is the dopers' triumphalist tone, and not mine, that is silly.

Any time the feds want to wipe this out, they can. They don't because, as I keep saying, pot is de facto legal. The dopers just won't take yes for an answer.

Posted by: Bill Otis | Nov 16, 2012 2:22:03 PM

If marijuana is de facto legal, why are there over 800,000 marijuana arrests per year in the US. Granted they aren't tried and put in prison. Arrests and fines are revenue producers. They help maintain a big intrusive government. Tomorrow two more states are going to announce legalization initiatives.

Julie Stewart, Radley Balko and Eric Sterling are thoughtful individuals. They may have a partisan position Bill, just as you have a partisan position as a former Federal Prosecutor. They are not mindless ranters without credentials. (I know you didn't say they were!)

I think that it is significant that states are beginning to legalize by degree at the same time the federal government is pouring tax payer money into campaigns to keep it criminalized.

Posted by: beth | Nov 16, 2012 4:16:01 PM

beth --

Activity X is de facto legal when it occurs a whole lot but the chances of any significant criminal punishment are practically zip. That fits pot smoking to a tee. I'll assume that your 800,000 arrest figure is correct, because for present purposes it won't carry your argument anyway. When there are 800,000 arrests out of 800 zillion occasions when pot gets smoked, smoking pot is de facto legal. Every college kid knows this, and I expect the commenters here know it too. Even when I was in college, there was approximately zero amount of fear of the cops when you were just sitting their with your buddies smoking dope. That is the definition of de facto legal.

Posted by: Bill Otis | Nov 16, 2012 4:40:03 PM

Great point. That's probably why citizens are deciding to just have the law match the reality.

Posted by: beth | Nov 16, 2012 5:09:55 PM

Is tax cheating de facto legal? Speeding? There still are laws with bite that deal with such things, even if "zillions" do it anyway.

Posted by: Joe | Nov 17, 2012 11:16:28 AM

Now Joe you know the speedlng laws are just a new way to collect extra money for the state. After all if they really didn't want people to speed there is an easy and simple solution.

Tell car makers you can't sell cars in american that can violate the speed limits

Posted by: rodsmith | Nov 17, 2012 3:17:24 PM

Joe --

"Is tax cheating de facto legal?"

Don't know. Never tried it. My guess is that small time cheating is de facto legal.


If it's 5 mph over on an interstate, yup. If it's 8, your taking your chances. If it's 20, it's not and you could get in trouble.

The reason people get bent out of shape about pot but not about, for example, tax cheating, is that pot is a counter-cultural icon and tax cheating isn't.

Posted by: Bill Otis | Nov 17, 2012 4:01:58 PM

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