This Election Day doubles as a referendum on criminal justice for voters in every single state, because Hillary Clinton is a moderate reformer with potential for greater enlightenment, and Donald Trump is a maniac who would destroy our civil liberties and wildly exacerbate mass incarceration. But voters in a few specific states will also have an opportunity to make specific and highly consequential decisions about the future of criminal justice in America through several hotly contested races and ballot initiatives. The results of these contests could set a precedent that reverberates around the country and charts the path forward for our criminal justice system. Or they could set us back decades. If you’re keen to take the pulse of America on this issue and see voters reject the politics of callous, retributive “law and order,” these are the contests to watch.
1. Arizona: Bill Montgomery vs. Diego Rodriguez
Maricopa County Attorney Bill Montgomery is one of the most vindictive prosecutors in the United States today, pursuing the death penalty at a disproportionately high rate, repeatedly condoning prosecutorial misconduct, and vigorously pursuing low-level marijuana crimes. When one veteran informed Montgomery that he used cannabis, Montgomery responded: “I have no respect for you. … You’re an enemy.” When Montgomery learned that doctors were able to stop a five-year-old’s seizures for the first time using medical marijuana extract—which was legal under state law—he tried to prosecute the child’s family. Montgomery is also extraordinarily Islamophobic, once spending $40,000 in taxpayer money to stage a viciously anti-Muslim seminar for law enforcement. And he recently withheld video of a troubling police shooting; the victim was an obviously unarmed man who begged officers not to shoot him moments before they opened fire.
Democrat and former prosecutor Diego Rodriguez mounted a credible challenge to Montgomery this year urging reform across the board. Notably, Arizonans will also have an opportunity to legalize recreational marijuana through a ballot measure on Tuesday. A victory in either contest would serve as a stinging rebuke to Montgomery; a victory in both would fundamentally alter the dynamics of Arizona’s criminal justice culture.
2. Arizona: Sheriff Joe Arpaio
America’s most notorious sheriff is also, himself, an alleged criminal. A federal judge has charged Maricopa County Sheriff Joe Arpaio with criminal contempt of court after the sheriff refused to stop illegally targeting Latinos in violation of a court order. But even before then, Arpaio had used his office to stretch the law to its furthest limits, and often to its breaking point. In the past, Arpaio has kept inmates in outdoor “tent cities” in temperatures of 140 degrees; denied diabetic prisoners access to insulin; and condoned egregious misconduct by officers, including the routine use of racial slurs. But it is Arpaio’s incessant racial profiling that will hopefully lead to his downfall on Election Day. A grassroots campaign of Latino activists appear poised to unseat the notorious sheriff, turning a previously popular platform—anti-immigrant sentiment—into a political liability. Arpaio’s loss would send shockwaves throughout the politics of law enforcement in Arizona, proving that nativism and xenophobia may no longer be winning issues in the increasingly diverse state.
3. Texas: Devon Anderson vs. Kim Ogg
Harris County District Attorney Devon Anderson (who oversees Houston) is famous for several things: Ordering a huge number of felony arrests on the basis of “possession” of mere drug residue; jailing a rape victim and marking her as a “sex offender” for some reason, then allegedly denying her medical treatment; and blaming the Black Lives Matter movement for police shootings. She is, in a word, awful, and her Democratic challenger Kim Ogg promises to rein in her excesses if elected. Oggs is also a lesbian, a fact that Anderson brings up with curious frequency. If Oggs wins, she could de-escalate Houston’s war on drugs and institute more humane policies for victims of sexual violence and domestic abuse, two issues at the core of the criminal justice reform movement.
4. California: Propositions 62, 64, and 57
This election season, Propositions 62 and 64 have drawn most of the attention in California: Prop 62 would repeal the death penalty, while Prop 64 would legalize marijuana. Both propositions are best viewed through the lens of racial justice. The war on marijuana is carried out with astonishing racial bias; as study after study has demonstrated, blacks are arrested at much higher rates than whites for marijuana possession. The death penalty, too, seems to have racial bias baked in: Juries are significantly more likely to sentence a defendant to death if he killed a white person than if he killed a member of a minority group. Both of these propositions should pass and help lead California to the forefront of reform.
But Prop 57 is even more interesting and, in a way, more forward-thinking. The measure would increase parole chances for nonviolent felons, and provide them with more opportunities to earn good behavior credits while serving time. Most importantly, Prop 57 would let judges, not prosecutors, decide whether many juveniles should be tried in adult court. Currently, prosecutors have the right to file charges against juvenile offenders in adult court, permitting them to treat teenagers like adults and threaten them with the harshest of penalties. Prop 57 would put that power in judge’s hands—an absolutely necessary step if we are ever going to stop treating youth offenders like hardened criminals.
5. Oklahoma: State Questions 780 and 781
These measures serve as a critical reminder that criminal justice reform does not break down neatly along party lines. Just as Texas leads the country in reforming eyewitness identification—thanks in large part to Republican politicians—Oklahoma could soon spearhead a new approach to prisoner rehabilitation thanks to the work of former Republican House Speaker Kris Steele. Question 780 would reclassify certain property offenses and simple drug possession, moving them from felonies to misdemeanors. Question 781 would use the money saved from these reclassifications to fund rehabilitation programs, including drug addiction and mental health treatment, educational opportunities, and vocational training. Together, the questions hit the bipartisan sweet spot: They save a great deal of money that would otherwise be wasted on incarceration, and use those funds to prevent further wrongdoing and wasteful spending. If they pass, expect reform-minded conservatives to push similar measures in neighboring states.
There are plenty of other key criminal justice contests this election season, including recreational marijuana legalization in Maine, Massachusetts, and Nevada; a death penalty measure in Nebraska; and several other hotly contested district attorneys races. Reformers can’t win them all—but even a few victories would embolden the movement and reject the rhetoric of mindless and ineffective “law and order” politics. With any luck, by Wednesday morning, a handful of states may have proved that, for all of Trump’s talk of vengeance and punishment, America is moving forward on criminal justice.
