10 Races that Could Totally Change Courts, Cops and Drug Law in 2020June 26, 2020
In a nation muted by pandemic, the summer protests over George Floyd’s killing have suddenly and loudly pushed criminal justice to the forefront of the political conversation—sparking the widespread sense that something, finally, has to give.
In Washington, Congress is scrambling to respond, with Democrats and Republicans butting heads over competing police-reform bills this week. And both Donald Trump and Joe Biden are running for president as criminal justice reformers, albeit with wildly different ideas about how to reduce the prison population, fix policing and address the racial inequities of the system.
But there’s only so much the federal government can do. Cops, courts and jails are mostly run at the local level, paid for by local taxes and fixed—or not—by state, county and city voters. This November, those voters are already poised to make dozens of decisions that could have widespread repercussions in how the law is written and enforced.
Much of the wave was already underway, but now the protests are shifting the window of possibility by the week and even by the day.
What should insiders have their eyes on? Politico Magazine surveyed the landscape of down-ballot candidates and questions voters will face this fall to compile a list of the races, initiatives and ideas that could define the new direction of criminal justice in America.
Minneapolis is the current center of the new push to “abolish the police,” but for the city to actually eliminate its police force, residents may have to vote to amend the city’s charter, and it’s too late for that to be put on the 2020 ballot. One conservative Georgia county, however, may decide whether they want to dissolve their police department this year.
Glynn County, along the Atlantic coast, is where in February 25-year-old Ahmaud Arbery was shot and killed while jogging. The suspects, a former police officer and his son, weren’t arrested until May, after a video of the incident went viral and public outcry demanded justice. Making matters worse, the county police chief as well as three former high-ranking officers were indicted in February on unrelated charges relating to a narcotics coverup.
In response to both the controversial killing and corruption more broadly, Republican state Senator Bill Ligon introduced a bill that will put a nonbinding question to residents of Glynn County in November: “Shall the Glynn County Board of Commissioners retain the Glynn County Police Department and make necessary reforms to answer the concerns of the Glynn County grand jury or shall the Glynn County Board of Commissioners abolish the Glynn County Police Department and allow the Glynn County Sheriff’s Department to be the sole local law enforcement in the county?” That bill—as well as a companion bill asking voters if they want the question’s results to be binding—just passed in the state Legislature and now needs only the governor’s signature to be put on the ballot.
Replacing the police with the sheriff is far from the “police-free” future that the abolitionist movement imagines—but it can be a powerful lever for reform, as the case of Camden, N.J., indicates. If Glynn County voters decide to do it, the result could become the latest example of what can be done when a police department is deemed simply unfixable.
There are more than 2,000 prosecutor and sheriff elections this fall, offices that have a big impact on criminal justice across the country. Perhaps the biggest is unfolding in Los Angeles, where the district attorney is the unapologetically tough-on-crime Jackie Lacey, the county’s first female and first Black D.A. She’s being challenged from the left by George Gascón, a former beat cop in L.A. and former district attorney of San Francisco. Who wins will determine who runs the nation’s largest court system and oversees a jurisdiction of more than 10 million people. It’s been called “the single most important D.A. race in the country” by Black Lives Matter co-founder Patrisse Cullors, who supports Gascón.
Lacey is a career Los Angeles prosecutor who came up in the tough-on-crime 1980s and ’90s, starting her career as a deputy district attorney and working her way up to the top spot in 2012. She’s not completely reform-averse—she opposes private prisons, favors diverting people with mental illness away from incarceration and toward treatment, and supports cash bail reform if not outright abolition. But she has also routinely declined to prosecute police officers for misconduct, including for fatal shootings, and she’s sent 22 people—all people of color—to death row.
Gascón opposes the death penalty, and much of Lacey’s agenda. He started his career in the Los Angeles Police Department in 1978, rising from patrol officer to assistant chief, then moving to become police chief of Mesa, Arizona, in 2006. Three years later, he moved back to California, succeeding Kamala Harris as San Francisco’s district attorney, where he became a full-throated advocate of a more progressive approach to justice. He advocated for the end of cash bail and supported independent investigations of police officers for shootings or excessive use of force. He resigned in 2018 to take care of his elderly mother, who died last September.
The race is also a referendum on just how quickly the summer protests are challenging the status quo. Lacey entered as a strong favorite, backed by heavy police-union spending, and nearly reached the 50 percent threshold in the March primary to avoid a runoff in November entirely. But the ground has been shifting since then: Gascón was recently endorsed by the Los Angeles Times, and Lacey’s near-unanimous support among establishment Democrats has begun peeling away.
In his 24-year career as sheriff of Maricopa County, Joe Arpaio became the national face of a tough-as-nails, no-mercy approach to law enforcement. A police officer turned drug enforcement official, he found his niche as “America’s toughest sheriff,” with a penchant for making examples out of convicts—and making headlines. He built an outdoor jail that he himself called “a concentration camp”; forced inmates to wear old-fashioned striped prison suits and pink underwear; and reinstituted chain gangs, including the first and only all-female chain gang. It got him reelected four times, but also got his department federally investigated and disciplined for violating civil rights by routinely stopping Latino-looking drivers to check their citizenship status. And behind all the theater, he had a notably poor track record of investigating violent crimes, including more than 400 sex crimes.
In 2016, the county—which includes the heavily Latino and liberal Phoenix, and whose more moderate suburban population is growing more Democratic—finally voted him out, replacing him with Paul Penzone, a Democrat who promised less drama and more accountability. The next year, Arpaio was convicted of criminal contempt for refusing for years to abide by a court order to stop racially profiling Latinos. But having been one of the first public officials to endorse Donald Trump in early 2016 (and a fellow “birther” conspiracy theorist), he was quickly pardoned by the president. Trump called Arpaio “a patriot” who was “protecting the public from the scourges of crime and illegal immigration.”
Now, the 88-year-old has thrown his hat in the ring for sheriff again, hoping that Phoenix voters are worried enough about immigration and crime that they want him back. It might not be such a long shot, either: His comeback campaign has already out-fundraised his opponents, though it has relied heavily on out-of-state donors. And Arpaio did have high approval ratings for much of his early career as sheriff. But Arizona is changing, with the presidential election and a U.S. Senate race in a once reliably red state appearing increasingly competitive for Democrats. Arpaio faces off against his former second-in-command, Jerry Sheridan, in the Republican primary in August, and if he wins that, he’ll compete in November against Penzone—a race that will measure just how willing voters are to turn their backs on the crime rhetoric of the past few decades.
For eight straight years after 2010, the Kansas GOP had a trifecta of power over the state capitol—a Republican governor as well as Republican supermajorities in the Senate and House. Over that time, the prison population kept rising, and even Republicans have grown concerned with overcrowding.
Then, in 2018, minority whip of the state Senate Laura Kelly defeated Kansas’ immigration hawk secretary of state Kris Kobach to become the first Democratic governor in nearly a decade. Now, in 2020, Kansas Democrats hope they can finally break the Republican Party’s supermajority grip over both chambers of the Legislature. They only need to pick up one seat in the House and three in the Senate. And if they do, criminal justice is likely to be one of the big changes afoot: Polls show a majority of Kansas voters of both parties want changes to the criminal justice system and would especially like to see the state reduce its imprisonment rates. And the Floyd protests that have spread to even rural Kansas have brought only more attention and urgency to the issue of policing reform.
Without the power to override a veto, Republican lawmakers would have to come to the table with Democrats. The state’s GOP has not been outright opposed to criminal justice reform—former Gov. Sam Brownback supported programs to reduce recidivism, and the current Legislature approved a bill to create a bipartisan commission that will review sentencing guidelines as well as all other matters it determines “are appropriate and necessary to complete a thorough review of the criminal justice system.” But these efforts have not done enough, say Democrats—and bills to do more have failed. A bill on diversion and treatment programs recommended by the bipartisan commission in December died in committee this May. As did another bill—introduced by a Democratic state representative and sparked by the police shooting of a 17-year-old in 2018—that would have required outside investigations of officer-involved deaths and greater transparency around investigations that don’t end in officer prosecutions. A few Democratic down-ballot wins this November might finally give the party the leverage to push through some previously elusive reforms.
Yes, you read that correctly: Slavery is on the ballot in 2020. While the 13th Amendment was ratified 155 years ago, it only abolished slavery “except as a punishment for crime.” And more than 20 states have similar language in their own constitutions. Convict leasing, chain gangs and prison labor can all be traced back to this exception.
So the complete abolition of slavery—excising the punishment exception—in state constitutions is more than symbolic: It would prohibit using prisoners for forced and unpaid labor. This year, Nebraska and Utah voters will decide whether to amend their state constitutions, and in Minnesota, lawmakers are in the process of deciding whether to put it on the November ballot.
Amending constitutions to abolish slavery altogether is not without its critics. Many prison activists say banning unpaid labor is not enough of a reform, since most prison workers are exploited with meager wages, which the anti-slavery amendments do nothing to fix. And in Colorado, where voters amended their constitution to ban slavery in 2018, some were worried the change would also effectively ban community service as a sentence, pushing more people behind bars. But in states where all forms of slavery are banned, including Colorado now, community service is still allowed, as those programs are considered voluntary alternatives to incarceration.
Cash bail has quickly become one of the biggest targets of justice reformers, who argue that the American pretrial detention system is unfair and deeply damaging: It fills jails with poor people who haven’t been convicted, often keeping them out of work and away from their families for months, simply because they can’t afford to front enough money to walk free before their court date, while letting potentially dangerous but wealthy suspects buy their release.
But the road to change has been halting, at best. A New York bail reform law got caught up in finger-pointing politics over its impact on crime rates and is now being rethought. In California, then-Gov. Jerry Brown signed Senate Bill 10 in August 2018, to make America’s largest state the first to completely abolish the use of cash bail—but in a sign of how quickly the criminal justice debate can move, the law immediately came under fire from both sides and has never actually been implemented.
By the time it was signed, many onetime supporters had already turned on the reform, arguing that its replacement for bail—a system in which judges and risk assessment tools determine whether an arrestee is too dangerous to be let go before trial—might actually be quite susceptible to racial bias. Meanwhile, bail bond companies, which had been fighting the proposal from the start, launched a petition to put SB10 up for a direct ballot referendum. Before the law went into effect last year, that petition met the signature threshold to qualify for this year’s ballot, and the law was put on hold until voters could weigh in. Now, Californians will have to decide for themselves whether they want cash bail kept or abolished in their state.
Before the coronavirus pandemic, cannabis advocates saw 2020 as a potentially big year. Since California legalized medical marijuana in 1996, and Colorado and Washington became the first states to legalize recreational use of marijuana in 2012, more than 22 states have legalized its medical use and 11 more have legalized its recreational use. Advocates were hoping to get four more states to put medical marijuana on the ballot this year and to get nine states where medical marijuana is already legal to put recreational use on the ballot.
Now, however, several of those state campaigns have been put on hold because it’s become harder, if not impossible, to safely gather signatures during a pandemic. A few measures are still awaiting signature verification, and only three are certain to be taken up this November: Mississippi’s measure to legalize marijuana for medical use, New Jersey’s question of whether to legalize recreational use, and South Dakota’s separate measures asking voters to decide on both medical and recreational use.
The cutting edge of drug policy reform is no longer cannabis: It’s psychedelics.
Last year, Denver and Oakland became the first jurisdictions in the United States to decriminalize natural psychedelics, including what are commonly known as “magic mushrooms,” as well as other plant-based hallucinogens like peyote and ayahuasca. Similar efforts toward decriminalization of these substances, which advocates point out are non-addictive and research suggests may even have therapeutic benefits, are underway in dozens of cities. The first statewide statute could be adopted in Oregon this November.
Last month, the proponents of IP34, a ballot initiative that would allow the “manufacture, delivery, administration of psilocybin [the chemical compound in “magic mushrooms”] at supervised, licensed facilities,” turned in more than the necessary petition signatures to get on the ballot, but those signatures are pending verification this summer by the Oregon secretary of state’s office.
The psychedelic decriminalization movement is gaining steam outside of Oregon, too. In Washington, D.C., a campaign to effectively decriminalize the cultivation, possession and purchase of “entheogenic plant and fungi medicines” is still collecting signatures to make it onto the ballot in November. A similar effort in California was tabled due to the coronavirus. And in 2022, it’s likely that at least Colorado voters could also see a psilocybin decriminalization measure on their ballots.
But Oregon’s psychedelic initiative would decriminalize psychedelic use only in clinical settings. The state also has another measure on the table that would decriminalize mushroom possession anywhere—and also possession of most other drugs, including cocaine, heroin, methamphetamine and ecstasy. (Marijuana is already legal in Oregon.) IP44, which is also pending signature verification to be on the ballot this year, would reclassify “personal, non-commercial possession” of drugs listed in Schedule I, II, III or IV of the federal Controlled Substances Act from a felony or misdemeanor to a “violation” deserving of a mere $100 fine.
Critics want to put on the brakes. They argue that the broad decriminalization of drugs is a dangerous venture that would put Oregon on the outer edge of global drug policy—and would remove an important deterrent to substance abuse and experimentation. Advocates argue the plan is more sophisticated than that; it would also establish a system of addiction treatment and recovery centers funded by the state’s multimillion-dollar marijuana tax revenue. The idea, overall, is to move drug use from the realm of crime to the realm of health policy—a longstanding goal of reformers, but one that no American state has yet tried so sweepingly.
The victims’ rights movement—which has sought to give crime victims and their families more of an informed and influential role in the prosecution process of suspects—has been incredibly successful over the past three decades. Nearly every state and the federal government has implemented some form of victims’ rights legislation addressing issues such as the right to be reasonably protected from the accused and the right to restitution and compensation from the convicted.
One particular victims’ rights law, Marsy’s Law, has been so popular that voters in more than a dozen states have amended their constitutions to adopt it over the past decade, thanks in large part to the relentless campaigning and bankrolling of its namesake’s brother, an eccentric billionaire former tech CEO. Marsy’s Law has critics from the civil rights sphere, who say the provisions in the amendment, while well intentioned, threaten to increase prison populations and undermine due process. Among other things, the amendment requires victims’ families to be notified and allows their concerns to be considered during bail, sentencing and parole hearings. But it has also faced legal challenges in Pennsylvania and was overturned in Montana and Kentucky on technicalities over how state constitutions can be amended.
In November, Kentucky voters will get a second bite of the apple; Marsy’s Law is on the ballot again, after the amendment was approved by 63 percent of voters in 2018 but blocked by state courts for the ballot language being insufficiently descriptive of its substance. This year, the full text of the proposal will be on the ballot.
Until recently, Oklahoma had the highest incarceration rate in the world. The state has made modest improvements in the last few years, but it still outpaces 48 states in putting people behind bars. And according to a 2019 report by reform advocacy group FWD.us, people in Oklahoma spend 70 percent longer in prison for property crimes and nearly 79 percent longer for drug crimes than the national average. Criminal justice reformers in the state have an idea to help solve that: Ban sentence enhancements, which currently increase punishment by years if not decades for someone who is convicted and already has a felony record. Reformers are seeking a constitutional amendment to ban applying those sentence enhancements to people convicted of nonviolent crime who have nonviolent felony records—and to retroactively commute such enhancements for people currently in prison.
This specific proposal to restrict sentence enhancements has been taken up in the Legislature before. “The policy was introduced in 2017, 2018 and 2019,” Kris Steele, executive director of Oklahomans for Criminal Justice Reform and a former state speaker of the House, told Tulsa World. “Ultimately, the policy failed to gain traction.” So now proponents are hoping to take it directly to voters with a ballot initiative.
The proposal faces some serious critics, including the governor. Many victim advocates and prosecutors say they oppose the reform on the grounds that repeat domestic abusers will be treated more leniently. Until just last month, domestic violence was not considered a violent crime in Oklahoma, and its recent reclassification won’t apply to the ballot measure, which exempts convictions of violent crime, as defined before domestic violence was added to the list.
But the sentence enhancement reform may not make it to the ballot this November. It’s faced a tough road already: In March, the secretary of state refused to accept petition signatures for the ballot initiative, citing his office’s closure to the public due to coronavirus, before being compelled to accept them by the state’s Supreme Court. Now the measure must complete in time the final stages of a complex process—signature certification by the secretary of state, a review of the ballot title by the attorney general and resolution of any legal objections before the state Supreme Court—before it can officially be put before voters.