Tuesday evening’s midterm elections were among the most closely watched in recent memory, in large part because of its potential implications at the national level. And there was certainly plenty of news there, but perhaps the bigger, untold story is what happened in the states. Some of the results may indicate a more progressive and comprehensive approach to justice and related issues.
At the federal level, the House of Representatives flipped from red to blue, with Democrats picking up 28 seats at last count, including some in traditionally Republican strongholds. This means that legislation cannot pass without bipartisan support. In the Senate however, Republicans now have a safe majority that will enable them to confirm the president’s judicial, Cabinet and other nominees unfettered.
Given the recent moves by the Department of Justice, including de-emphasizing reduction of disproportionate minority contact, the dismantling of the research function at the Office of Juvenile Justice and Delinquency Prevention and the promotion of policies with a punitive philosophy, it seems clear that the feds will not lead on those reform issues that are gaining traction in the states.
Significant shifts in balance of power in states
There were significant shifts at the state level, with six state legislatures seeing at least one chamber shift from Republican to Democratic control (Colorado, Maine, Minnesota, New Hampshire and New York). In six states (Colorado, Illinois, Maine, New Mexico, New York and Nevada) Democrats now have control of all three branches of government. Alaska’s House flipped from Democratic to Republican control. Nationally, there are now 14 Democratic, 22 Republican and 13 divided state governments. Georgia’s gubernatorial race remains undecided.
Democrats gained seven governorships, in Illinois, Kansas, Maine, Michigan, Nevada, New Mexico and in Wisconsin where Republican Scott Walker was ousted after defying the odds by serving three terms and surviving an attempted recall. Four attorney general offices also flipped from red to blue in Colorado, Michigan, Nevada and Wisconsin. However, it’s worth noting that state justice reform is not purely partisan, as evidenced by the groundbreaking juvenile justice reform legislation passed in red states like Georgia and signed into law by a Republican governor.
Ballot initiatives signal changes in public opinion
Ballot initiatives related to justice also featured prominently in this year’s midterms, and many may signal changes in public opinion toward more progressive policy. More than three-quarters of the reform-oriented ballot measures passed this cycle.
More than 150 ballot measures (not all related to justice) were put to voters on Tuesday night. Among the most notable for criminal and juvenile justice were Florida’s Amendment 4, which will restore voting rights for some people convicted of felonies. Florida’s law is considered the strictest in the nation. According to the Pew Center on the States, a quarter of all people in the United States disenfranchised because of felony convictions live in Florida.
Also in Florida, as part of Amendment 11 (a package of three proposed amendments to the state constitution), the Repeal of Criminal Statutes Effect on Prosecution Amendment will delete the constitutional provision that an amendment to a criminal statute does not affect the prosecution of a crime committed before the statute’s amendment. That measure also passed.
In Florida, Georgia, Kentucky, North Carolina, Oklahoma and Nevada, voters were asked to add specific rights of crime victims, together known as a Marsy's Law, to their state constitutions. Marsy's Law is named after Henry Nicholas' sister, Marsy Nicholas, who was murdered by her ex-boyfriend in 1983. In Kentucky, the results remain uncertified since the law is subject to an injunction during litigation over its constitutionality. Marsy’s Law is opposed by the American Civil Liberties Union, which believes it could interfere with defendants’ due process rights.
Colorado’s Amendment A, the Removal of Exception to Slavery Prohibition for Criminals Amendment, would remove the part of the Colorado Constitution that says slavery and involuntary servitude are allowable in the punishment of a crime. The results of this ballot initiative are still being tabulated.
Other ballot measures included Louisiana Amendment 1, Felons Disqualified to Run for Office for Five Years Amendment, which passed; Louisiana Amendment 2, the Unanimous Jury Verdict for Felony Trials Amendment, which would require unanimous rather than majority verdicts in felony trials to obtain a conviction, and Michigan Proposal 1, the Marijuana Legalization Initiative, which legalizes recreational use of marijuana for those over the age of 21. A similar measure failed in North Dakota. In addition to legalization of marijuana for those over 21, it would have automatically expunged the criminal records for those convicted of possession of a controlled substance later made legal.
Drug possession and sanctuary
Ohio Issue 1, the Drug and Criminal Justice Policies Initiative, was defeated. It would have made offenses related to drug possession and use no more than misdemeanors; prohibited courts from ordering persons on probation for felonies to be sent to prison for noncriminal probation violations; created a sentence credits program for inmates' participation in rehabilitative, work or educational programs, and required the state to spend savings due to a reduction of inmates resulting from Issue 1 on drug treatment, crime victim and rehabilitation programs.
Oregon Measure 105, the Repeal Sanctuary State Law Initiative, was defeated. It would have repealed Oregon's sanctuary state law, which limits the cooperation of local law enforcement with federal immigration enforcement. In Washington state, Washington Initiative 940, the Police Training and Criminal Liability in Cases of Deadly Force Measure, was approved. The initiative would create a good faith test to determine when the use of deadly force by police is justified, require police to receive de-escalation and mental health training, and require law enforcement officers to provide first aid.
In addition to political and policy shifts, the midterms also brought changes in leadership that could auger well for those who hope to see criminal and juvenile justice systems across the country move toward a new way of doing business. District attorneys Larry Krasner in Philadelphia and Kim Foxx in Chicago, who have become national trailblazers for a more restorative and holistic approach to prosecution, are now joined by progressive colleagues in San Antonio, Dallas, St. Louis and Boston, to name a few. While it remains to be seen what these elections will mean for the long-term trajectory of justice in America, what remains true is that at least for now all reform — like politics — truly is local.
Marie N. Williams, J.D., is senior program officer at the Stoneleigh Foundation. Before that she was immediate past executive director of the Coalition for Juvenile Justice and a longtime advocate for social justice causes.