Oct. 18, 2018: Political Report

Daniel Nichanian

In this edition of The Appeal: Political Report: 14 states hold referendums in which voters will weigh in directly on measures relevant to the criminal justice system and law enforcement practices.

  • Florida: State could overhaul its regime of mass disenfranchisement

  • Florida: Will voters open the door to retroactively applying criminal justice reforms?

  • Louisiana: Amendment 2 would require unanimous jury verdicts, as in 48 other states

  • Michigan, Missouri, North Dakota, Utah: Four states vote on legalizing marijuana
  • Ohio: Reform package would make drug possession a misdemeanor—retroactively

  • Oregon: State’s 30-year-old ‘sanctuary’ law is under threat
  • Quick hits: Morgan County, Alabama, debates food funds, and six states vote on ‘Marsy’s Law’


Florida: Voters could overhaul state’s regime of mass disenfranchisement

No state disenfranchises as many of its residents as Florida. A staggering 10 percent of its voting-age population is stripped of the right to vote because of a felony conviction, according to a report the Sentencing Project released in 2016. More than 20 percent of Black adults are affected, an unsurprising racial disparity given the Jim Crow roots of the state’s statutes.

Florida is one of four states that disenfranchise people even after they complete a felony sentence. Floridians must wait for at least five years after the completion of their sentence to even apply for their voting rights to be restored. The application process itself takes many more years, and culminates in a hearing in front of the governor and other statewide officials. The board enjoys full discretion over what and how to decide, and over what questions to ask applicants, and it only hears a few hundred cases a year. Under Governor Rick Scott’s tenure, which began in 2011, Florida has restored the voting rights of approximately only 3,000 people.

Amendment 4 would overhaul this system. It would enfranchise an estimated 1.5 million people by automatically restoring people’s voting rights once they complete a felony sentence, except for people convicted of murder or a sexual offense. The amendment needs the support of 60 percent of voters, a threshold that polls suggests is realistic.

But of course a significant share of Floridians—the very people whose rights are being decided—are barred from participating.

This referendum is the culmination of organizing efforts led by the Florida Rights Restoration Coalition and its president Desmond Meade, who is himself disenfranchised. Mother Jones and the New York Times Magazine recently published in-depth profiles of the coalition’s work.


Florida: Will Florida voters open the door to retroactively applying criminal justice reforms?

Florida’s “Savings Clause” bars the legislature from reducing people’s existing sentences. This provision is an obstacle to meaningful decarceration since it significantly limits the reach of prospective criminal justice or sentencing reforms, as the Florida Times-Union’s Andrew Pantazi has laid out. Florida is the state that goes furthest in barring new legislation from applying retroactively, according to the state’sConstitution Revision Commission.

On Nov. 6, Floridians will weigh in on Amendment 11, a measure to repeal the “Savings Clause” and allow reforms to apply retroactively. It needs 60 percent to pass. It was placed on the ballot by the Constitution Revision Commission, which cites as a motivating inequity the fact that people who committed certain drug offenses before Florida modified its sentencing statutes in 2014 are serving far longer sentences than people convicted of the same offense today.

Some Florida newspapers, including the Miami Herald and the Tampa Bay Times, have endorsed the “no” vote because they worry that the National Rifle Association might push for making the state’s “Stand Your Ground” law retroactive. Melba Pearson, deputy director of the ACLU of Florida, which supports Amendment 11, argues that this concern is “valid” but “outweighed” by the positive changes the measure would enable.

“Amendment 11 would be a great vehicle for reducing mass incarceration,” Pearson told me. As examples of reforms that could be made retroactive, she mentions revising mandatory minimum guidelines, ending the suspension of driver’s licenses and the use of a “career criminal” designation, and legalizing marijuana.

Such reforms’ viability will likely be shaped by the result of Florida’s gubernatorial election, which features stark contrasts on criminal justice issues, as I profiled in August.

Louisiana: Amendment 2 would require unanimous jury verdicts, as in 48 other states

The writers of Louisiana’s 1898 Constitution couldn’t outright ban African Americans from serving on a jury, but they circumvented that limitation by enabling juries to convict over the objections of holdouts. Today, Louisianans can be convicted of any felony (including murder) by non-unanimous juries; 10 out of 12 jurors need to convict. This has made trials likelier to end in a guilty verdict in Louisiana than elsewhere, which contributes to the state’s high incarceration rate and may increase the pressure defendants face to accept a plea deal.

Amendment 2, if adopted in November, would revise the Constitution and require unanimous jury verdicts for all felony convictions.

The measure enjoys an unusually broad array of support, including endorsements from both the Democratic and Republican parties. Its most prominent opponent is Attorney General Jeff Landry, who is preparing to challenge Governor John Bel Edwards in 2019. (Edwards supports the measure.) The Louisiana District Attorneys Association is staying neutral, and some of the state’s most prominent DAs have even endorsed it.

Louisiana’s non-unanimous juries have disproportionately harmed African Americans, as the New Orleans Advocate documented in a series of investigations this yearFirst, Black Louisianans are likelier to have been convicted over at least one holdout’s objections. Of the trials reviewed by the newspaper, 33 percent of those that ended in a white defendant’s conviction were non-unanimous compared to 43 percent that ended in a Black defendant’s conviction. Second, holdout jurors whose opinion is disregarded are likelier to be African Americans—and African Americans are underrepresented on juries to start with. “Maybe my life experience is a little different than some of the white people,” a Black juror told the Advocate after serving in a case in which a Black defendant was convicted of murder over the dissent of two Black holdouts.


Michigan, Missouri, North Dakota, Utah: Four states vote on legalizing marijuana

North Dakota has the nation’s second-highest rate of arrest per marijuana user, and it issues harsher than average punishments, according to a Washington Post analysis. But on Nov. 6, North Dakotans—alongside Michiganders—could legalize the recreational use of marijuana.

There are two significant differences between the states’ initiatives.

First, Michigan’s is more specific and leaves less room for legislative amendment. It would allow people to possess up to 2.5 ounces of marijuana, set up a taxed system of commercial businesses, and enable municipalities to regulate these businesses more harshly within their borders. The legislature would need a supermajority to revise these specifications if voters adopt the measure. North Dakota’s measure is less detailed. Writing in Pot Network, Meg Ellis calls it “vague regarding laying a legal foundation for a recreational pot program.”

“This essentially is a bill asking voters, ‘Do you believe that we should end this failed prohibition of marijuana or not?’” Cole Haymond, an adviser for the Legalize ND campaign, told me. He added that the campaign is open to discussing possible amendments with lawmakers before the measure’s implementation, if it is adopted. “We welcome having a seat at the table to cast aside any concern, if they want to add any taxes, regulation, licensing,” he said.

Second, North Dakota’s initiative (unlike Michigan’s) would expunge the records of people already convicted of many marijuana offenses. However, it would not reduce sentences that people are still serving, even if it’s for an act that is no longer illegal.

Missouri and Utah are also voting on whether to legalize marijuana—but this time for medical use. (Oklahoma just took this step via referendum in June.)

Missouri’s ballot somehow contains three separate referendums to legalize medical marijuana. Each enables patients to acquire marijuana if they suffer from a qualifying condition, but they propose different tax structures and only one allows home-grown marijuana. If more than one passes, the one with the most votes becomes law. The Springfield News-Leader provides a useful overview of these measures’ specifications and differences.

Utahns get to vote on only one measure. According to the Deseret News, Proposition 2 would enable people who meet certain conditions to buy two ounces of marijuana over a two-week period; it would also provide for 15 dispensaries across the state, and enable some people to grow marijuana for personal use at home


Ohio: Reform package would make drug possession a misdemeanor—retroactively

Issue 1 would overhaul Ohio’s sentencing guidelines and probation system, cutting incarceration through a multipronged approach.

First, it would make possessing any drug a misdemeanor rather than a felony—at least for one’s first two convictions. This would decrease incarceration over new offenses since people arrested for possession would generally no longer face prison terms. Five states have already reclassified drug possession as a misdemeanor, all since 2014 (California and Oklahoma via referendum). Second, it would bar reincarceration over minor probation violations that aren’t themselves a crime. Third, it would enable existing sentences to be reduced. It would do so by increasing the maximum reduction one can obtain for participating in rehabilitation programs to 25 percent from 8 percent, and also by making the new drug statutes retroactive: People currently incarcerated for drug offenses could petition for new sentences. Of the five states with corresponding reforms, only California allowed retroactive revisions, according to the Urban Institute.

Policy Matters Ohio, a group that backs Issue 1, estimates that these provisions combined would decrease the prison population by approximately 10,000. The Urban Institute finds that the first alone (making drug possession into a misdemeanor) would cut it by 3,400.

“Mass incarceration of drug addicts who should be in treatment is unwise,” Richard Cordray, Democrats’ candidate for governor, has argued. Critics have responded that Issue 1 represents a threat to public health and safety. “We could easily become a magnet for substance abuse activity because there will be, in effect, very little consequence to engaging in such behavior,” Chief Justice Maureen O’Connor, a Republican, wrotein a statement. (Fault lines have been largely partisan, with Democratic politicians generally supportive and GOP ones generally opposed; a prominent exception is Steven Dettelbach, the Democratic nominee for attorney general, who opposes the measure.)

The warnings about the safety risks of reclassifying drug possession as a misdemeanor are not supported by a new Urban Institute study about the impact that doing so has had in five states. “Reducing incarceration for drug offenses can produce significant public safety benefits when paired with investments in drug treatment and crime prevention strategies,” the authors write.


Oregon: State’s 30-year-old ‘sanctuary’ law is under threat

President Trump’s aggressive approach toward immigration enforcement is echoing in Oregon. On November’s ballot is Measure 105, a referendum that would repeal the state’s “sanctuary” law (ORS 181A.820).

Oregon adopted its sanctuary law in 1987 to prohibit local law enforcement from “detecting or apprehending” individuals over their immigration status. An impetus behind the law was to bar deputies from profiling people based on who they suspect might be undocumented. Repealing this law would expand local law enforcement’s ability to help federal immigration authorities arrest undocumented immigrants. Measure 105 is championed by the Federation for American Immigration Reform, a group that favors severe immigration restrictions.

The sheriffs of Oregon’s three largest counties (Multnomah, Washington, Clackamas) all oppose Measure 105; Washington’s sheriff, Pat Garrett, co-wrote an op-ed defending the “sanctuary” law in August. A group of sheriffs representing smaller, more rural counties endorsed repeal in August through a statement that ties illegal immigration to criminality; they write that immigration law-violations are “precursors to other crimes illegal immigrants routinely commit in their efforts to conceal their illegal presence.” Numerous studies contradict such a connection.

What is striking about this repeal push is that Oregon’s sanctuary law does not even affect local law enforcement’s ability to partner with federal authorities when it comes to people already jailed on grounds others than immigration. Oregon’s sheriffs can notify ICE when they detain foreign-born individuals—and Garrett himself engages in this practice daily, The Oregonian reported.

Many of the recent debates about how to restrict local cooperation with ICE (for instance in Minneapolis or Orange County, California) have focused on going an extra step and restricting local officials’ cooperation with ICE even within jails.


Quick links: Morgan County, Alabama, debates food funds, and six states vote on ‘Marsy’s Law’

Morgan County, Alabama: Alabama sheriffs are allowed to personally pocket money leftover from jail food funds. Governor Kay Ivey curtailed—but did not abolish—this practice in July. Morgan County, which has been a prime example of the abuses to which this rule opens the door, is holding a local referendum on barring it. I wrote about this issue in more detail in July.

Florida, Georgia. Kentucky, North Carolina, Nevada, and Oklahoma: An initiative organized by a California billionaire to enshrine victims’ rights in state constitutions, “Marsy’s Law” has already passed via referendum in six states since 2008 and it is being considered by six more in November. These measures, which are broadly but not entirely similar, strengthen victims’ ability to testify at hearings, mandate that they be notified of certain developments, and often empower them to refuse to speak with defense attorneys; they also broaden who is classified as a victim. Critics argue that these measures promote punitive outcomes and harm defendants’ right and due process, as Meaghan Ybos reported for The Appeal in March and Sophie Quinton for Stateline in October. For instance, they have extended pretrial detentions because of the mandate that those classified as victims be notified prior to a release; they have empowered prosecutors to target investigators who seek to get in contact with victims, rendering it more arduous to mount a defense; and they have constrained appeals within time limits. Past Marsy’s Laws have occasioned legal battles, most notably in California over a provision that lengthens the time between parole hearings, and Montana, whose Supreme Court overturned the law in 2017 for doing too many things at once.


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