Criminal Justice Reform Electoral Victories Across the Country

Criminal justice reform is a purely bi-partisan issue. In fact, I contend it is a thoroughly conservative issue. As limited government conservatives, we demand transparency and accountability on what our public officials spend – like the VDOT audit or their own personal offices. Shouldn’t we be as concerned with the government mismanaging an American citizen’s liberty as we are with how much they spend on staplers?

“When governments fear the people, there is liberty. When the people fear the government, there is tyranny.” Thomas Jefferson said these words in defense of the 2nd Amendment. Consider how powerful a weapon transparency is, and how much autocrats fear it. Do conservatives not believe that we should know what the government is doing in our name?

Accountability in government is just another name for limited government. It’s about citizens controlling government, rather than government controlling us. Limited government conservatives aren’t anarchists – we recognize the need for responsible government. But the only way to ensure that government is doing what it needs to and no more is to know about what the government is doing, and being able to course-correct when government goes too far.

How puzzling it is, then, that when it comes to instilling more transparency and accountability in government, some Republicans balk at the judicial system. From the police to prosecutors to judges and to prisons and jails, the judicial system represents the most tangible way the government can interfere in an individual’s life. It is the manifestation of the mandate we’ve given government to deprive someone of their liberty, and maybe even their life.

Liberty is foundational to the conservative movement. Shouldn’t, then, the ability of government to snatch liberty away from Americans be given the greatest scrutiny? The greatest transparency? The most just accountability?

You’d think so, but there is a clear schism within the Republican Party, driven by those who still adhere to 1980s and 1990s “tough on crime” policies and the War on Drugs. For example, when it was pointed out that the United States had – by far – the largest prison population and the highest incarceration rate per capita, Sen. Tom Cotton responded that “if anything, America has an under-incarceration problem.”

Source: International Centre for Prison Studies, World Prison Brief

It’s worth pointing out that the U.S.’s ignoble status as the top jailer of its own people is a recent development. Before the 1980s, the U.S. was in line with the rest of the developed world. The last forty years have seen an avalanche of aggressive mass incarceration, with whatever progress we’ve made in the past few years barely making a dent:

Source: fivethirtyeight.com and Bureau of Justice Statistics

Also notable are the anti-reform efforts of now-former Attorney General Jeff Sessions, who has helped put into effect the President’s 1980s-esque “tough on crime” rhetoric. Sessions was the sharpest critic of bi-partisan sentencing reform that is being championed by Sen. Chuck Grassley (R-IA), the powerful Judiciary Committee Chairman, and by Jared Kushner inside the White House.

I was proud to support Ed Gillespie and John Adams in 2017, and was honored to be asked to join a wide and diverse group from all walks of life across the state to form his criminal justice agenda. In a step rarely taken by Republican candidates, Gillespie not only publicly released an agenda on the issue, but also held a press event announcing it’s rollout. Sadly, it did not get the media coverage it deserved, and was later muddled by Gillespie’s ads hitting Ralph Northam for felon re-enfranchisement.

Similarly, folks may remember that one of the reason Young Republicans in Virginia were excited about Ken Cuccinelli’s 2013 bid for Governor was his approach to these issues. Cuccinelli, then still the presumptive nominee, even went in front of a CPAC audience and told them a problem was those who get “too excited to lock up every convict and throw away the key.”

Unfortunately, neither Cuccinelli nor Gillespie were able to put their reform efforts into action as Governor. However, electing legislators and Governors aren’t the only avenues for voters to bring about needed reforms in the criminal justice system. There are other ways; for example, elections often overlooked on the ballot, including local elections and ballot referendums. Just this past week, many of these showed up on ballots across the country. Here’s a quick overview of real successes that voters are responsible for:

Florida Re-Enfranchises Voters

On Tuesday, 65% of Florida voters passed Amendment 4, which automatically reinstates voting rights to those convicted of a felony after they complete their sentence, including probation. In Virginia, this may be viewed as a bold action, or maybe even controversial. However, in most of the United States, they were probably wondering why they even need voting on in the first place.

You see, Virginia is one of only three states (formerly four, before Tuesday) that requires special action to restore an ex-felon’s voting rights. As you probably remember, only the Governor can restore rights, on a case-by-case basis. There is a similar process in Kentucky, and in Iowa, ex-felons must petition the courts for reinstatement.

In 20 states, now including Florida, voting rights are automatically restored after serving a sentence and probation. This includes such liberal bastions as Arkansas, Idaho, Kansas, Oklahoma, and the infamously “soft-on-crime” state of Texas.

In another four states, restoration of rights happens immediately after parole, including the two most populous states (New York and California).

In 14 states, voting rights are restored as soon as you complete your sentence, including deep red states Indiana, North Dakota, Ohio, and Utah.

Virginia, Iowa, Kentucky, and Florida are very much the exception to the nationwide consensus that felons should be able to vote after paying their debt to society. Now, the voters of Florida have decided to no longer be that exception.

The fact that 65% voted for this – even as Republicans won statewide (recount pending) – serves to underscore the folly of disenfranchisement. Someone commits a crime, is prosecuted and convicted by a jury of their peers, and is sentenced by a judge. Why is there additional punishment on top, non-germane to the crime? Folks argue that these people proven they can’t be trusted with the ability – but if they’re released from prison, then clearly we trust them to be a contributing member of society again. We asked them to pay their debt, and they did.

There are all sorts of obstacles put in the path of ex-felons who are looking to reintegrate into society. Job prospects are diminished. Earning power is diminished. Some can’t find housing. Some lose the support of their family and peers. Some are denied the ability to be a family. Having the government deem them a second-class citizen on top of all of this serves no one, and has no compelling state interest.

Louisiana Now Requires Unanimous Verdicts for Convictions (and Somehow Didn’t Before)

One of the most shocking results on Tuesday was in Louisiana, where Amendment 2 passed with 64% of the vote. Amendment 2 requires a unanimous verdict from juries to convict for non-capital felonies. This isn’t shocking due to the outcome of the vote, but rather due to the fact (which I was previously unaware of) that this wasn’t already the case to begin with.

It probably won’t surprise you to learn that this is a holdover from the Jim Crow era, where black people suddenly starting finding themselves on juries and crafty white supremacists found a way to continue to bypass their influence. The law allowed for conviction on non-capital offenses with only 9 out of 12 jurors agreeing (later upped to 10). Now, Louisiana joins 48 other states and the 20th Century (let alone the 21st) by requiring unanimity.

By the way, I said joins “48 states,” meaning it’ll be the 49th. That last plucky holdout state? Oregon. WTF?

Marijuana and Medical Marijuana Legalized in 3 States

Enough ink has been spilled about the War on Drugs and the effectiveness of prohibition. Suffice to say, the movement towards decriminalizing and legalizing marijuana is a step towards reducing government forcefully interfering in the lives of citizens over non-violent offenses.

Two states joined the growing ranks of those legalizing medical marijuana with Missouri voting 66% and Utah voting 53% to approve such measures. Virginia passed a similar law through our legislature back in February. It passed the Senate 40-0, and its chief patrons were Sen. Siobhan Dunnavant (R) and Congressman-elect Ben Cline (R).

There are now 33 states, plus D.C. where medical marijuana is legal.

Speaking of the District, it voted to legalize marijuana in small amounts in 2014, but the Republican-controlled House of Representatives have blocked D.C.’s ability to tax and regulate dispensaries, meaning marijuana could only be grown on private property and not legally sold. With Democrats now in power, that will likely open the door for D.C. to begin legally selling it.

Michigan went a step further on Tuesday and legalized marijuana for recreational us, with 56% of the state voting yes, becoming the tenth state to do so (joining Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon, Vermont, and Washington). While Michigan’s referendum did not include any provision for those currently in jail for marijuana offenses, Governor-elect Gretchen Whitmer is considering legislative or executive action to do so.

Retroactive Sentencing in Florida

While on the topic of those currently in jail, Florida also passed Amendment 11 with 62%, which fixes a unique provision in their state constitution which makes them the only state that prohibits the state legislature from passing laws that would retroactively apply to those already convicted and serving their sentence.

Whether the legislature should do this and in what circumstances it should is a matter for debate and discussion. But before Tuesday, the legislature was handcuffed by the Constitution to even be able to do this. Now, if Florida wants to join the growing ranks of state (and the federal government) in considering sentencing reform, it can do so and have it apply to those already in state prison.

Police Oversight in Nashville; Police Accountability in Washington

In Washington state, 60% of voters approved ballot measure #940, which addresses training and accountability for police officers. First, it requires police to receive training for engaging those with mental health issues, and also on de-escalating situations. It would also require police to administer first aid to victims, including those whom they shoot.

More importantly is a loosening of how police can be held accountable. Rather than being “anti-cop,” this simply brings Washington in line with the rest of the country. Previously, Washington had one of the highest burdens for holding police accountable for their actions. Not only did they have to show that an officer’s actions were unreasonable and unjustified, but prosecutors also had to prove that the officer acted “with malice.” In 10 years between 2005 and 2014, only one Washington police officer was ever convicted of a crime under this unusually high standard.

Meanwhile, the citizens of Nashville, TN, voted with 59% of the voted to create a citizen-led police oversight panel.

Alabama Sheriffs Can No Longer Personally Pocket Money Meant for Jails

You didn’t read the headline wrong. This is a real thing voters had to vote on, based on a real scandal that happened in Alabama this year. Etowah County Sheriff Todd Entrekin, responsible for the care and feeding of inmates in his prison, took state money allocated to food for his prisoners, gave them the bare minimum he could, and simply pocketed the rest. Even if he thought it was a waste of taxpayer funds, rather than send it back to the state treasury, improve the department, or find other ways to benefit taxpayers, he used the money instead to buy $1.7M worth of properties in Alabama for himself.

On Tuesday, two counties (Cullman and Morgan) voted overwhelming to formally ban this egregiously corrupt practice.

Reformer DAs and Sheriffs Elected Across the Country

While it’s great to have federal and state legislation help spur the cause of criminal justice reform (aided by voters at the ballot box), a critical way to actually implement reform (with or without legislation) is by those who are trusted to carry it out. In most of the country, prosecutors and sheriffs are elected. Prosecutors are given tremendously wide leeway on what cases they pursue and how to pursue them, while sheriffs are trusted with moving and housing inmates in jail.

Because they are elected, then DAs (or Commonwealth’s Attorneys as they’re known in Virginia, and other states have other names) and Sheriffs reflect the values and priorities of the voters who elect them. The CJR movement has had tremendous success in recent years electing reformists into DA offices in large cities. Notably victories include Brooklyn, NY in 2013, Orlando, Houston, Cook County, Illinois (just two years after the murder of Laquan McDonald by police officer Jason Van Dyke) and the city of Philadelphia last year.

This November brought even more reformers as District Attorneys, most notably in Suffolk County (Boston), the fourth-most populous county in the U.S., D.A-elect Rachel Rollins ran on a data-driven platform, built on the pillars of fairness and transparency. On the far western end of the state, another reformer was elected D.A. in Berkshire County, MA.

So, too, were reformers elected in Bexar County (San Antonio), the seventeenth-most populous county in the U.S., and in Dallas County, the ninth-most populous. (It should be pointed that the defeated incumbent in Dallas oversaw the successful prosecution of a white police officer for murdering an unarmed black teenager, Jordan Edwards).

Also in Jefferson County, AL, home to Birmingham and the largest county in Alabama. And in Chesterfield County, Virginia, Scott Miles defeated chief deputy John Childrey, who had been serving as acting D.A. since Billy Davenport’s retirement earlier this year. While Miles is a Democrat and Childrey is a Republican, it’s worth looking at Miles’ platform and his data-driven plans to tackle over-incarceration. I encourage Chesterfield voters to give him a chance; he’s up for re-election to a full term in 2020.

Another D.A. was ousted in Rensselaer County, NY (home to Troy, next to Albany). While the attorney that defeated him isn’t a reformer in the same mold as those above, it’s notable that the incumbent D.A. was indicted. Joel Abelove, the incumbent, oversaw a jurisdiction where a police officer was involved in a shooting. While the state Governor and Attorney General sought to have an independent investigation and prosecution, Abelove speedily empaneled a grand jury to exonerate the officer, and then withheld evidence from the grand jury to get the outcome he desired. Sometimes actions (and accountability for those actions) are as important as the policies that people bring to these roles.

Finally, two sheriffs were defeated thanks, in part, to voter concerns on how their departments were treating citizens. Wake County, North Carolina, had several complaints of aggressive uses of force, including unleashing police attack dogs on black suspects. On Tuesday, voters voted out incumbent Donnie Harrison in favor of Gerald Baker.

Then there’s Los Angeles County. With 10.16 million people, it’s by far the largest county in the U.S. If it were a state, it’d be the ninth largest state. If it were a nation, it’d be the 89th largest country, bigger than Sweden. The policies and actions of its Sheriff directly impacts over 3% of the American population.

In 2011, the ACLU released a jaw-dropping report about systematic abuse within LASD jails, run by a group of deputies labeled as a legitimate “gang” and under the leadership of Sheriff Lee Baca, who would go on to be convicted and sentenced to jail for covering up the abuses from an FBI investigation.

New Sheriff Jim McDonnell was elected as an outsider in 2014, but critics say he hasn’t done enough to change the culture of the department, including clearing the ranks of the gangs of deputies. An LA Times investigation also determined that the LASD targeted thousands of innocent Hispanic drivers in drug searches.

Historically, the Sheriff’s race has never been competitive, but after Tuesday McDonnell is narrowly trailing retired Lt. Alex Villaneuva, who is running on a reformist platform. Thanks to California’s mail-in voting process, votes will continue to be counted over the next several weeks. However, with the ability to affect change placed directly in the voters’ hands, it appears the largest county in the U.S. has chosen to do something with it.