Search About Newsletters Donate
Support independent, nonprofit journalism.

Become a member of The Marshall Project during our summer membership drive. Our journalism has tremendous power to drive change, but we can’t do it without your support.

Darla Juma, president of the North Dakota Victims Assistance Association, speaking against Marsy's Law, which would offer protections to crime victims, in June.
Crime on the Ballot

It’s Not Just Pot and the Death Penalty

Four important ballot measures you probably haven’t heard of.

High-profile state ballot measures on contentious issues like the death penalty, guns and pot are closely watched as indicators of the national mood. But this election season also brings less-noticed proposals that may have more far-reaching effects. Here are four ballot measures in six states that could serve as laboratories for other states.

Shortening Time Served for Nonviolent Felonies

California has a long history of putting criminal justice policy on the ballot: the state’s infamous “Three Strikes” law was strengthened by a ballot initiative in 1994; then, with voters’ appetite for mass incarceration on the wane, the law was partially repealed by another initiative in 2012. In 2014, voters downgraded several major felonies to misdemeanors — most notably, possession of heroin and other illegal drugs.

Now, with the state under a federal mandate to reduce its prison population, Californians will consider a constitutional amendment to make certain prisoners eligible for earlier release.

Under the current law, sentences for many felonies can be “enhanced” with additional prison time if the person committing the crime is classified as a gang member, for example, or has other felony convictions on his record. Under the state’s “determinate sentencing” provision, prisoners must serve their entire term, enhancements and all. Proposition 57 would undo that requirement for those whose crimes are classified as “nonviolent,” making prisoners eligible for parole after they’ve served the full term for their primary crime.

The proposition also creates a system of early-release credits that inmates can earn by participating in education and rehabilitation programs. “You’re giving more people incentives to rehabilitate rather than just saying: ‘on a fixed date, you will be out; until then, it doesn’t matter how you behave or what you do,’” says Dan Newman, a spokesman for the Prop 57 campaign. The lack of any incentive for self-improvement, he says, is “a recipe for more violence and trouble in the prison and more recidivism when they get out.”

Gov. Jerry Brown has been stumping hard for the measure, committing both political and financial capital from his own campaign coffers. Brown himself signed the “determinate sentencing” bill during his first term as governor in 1977; he has since called it an “abysmal failure” and positions Prop 57 as a way to curb some of its excesses. He’s battling a coalition of district attorneys and sheriffs who argue that many crimes considered “nonviolent” under the language of the provision are not really so. Phone calls and emails to the No on 57 campaign, and to the Association of Deputy District Attorneys, which has provided major funding for the campaign, were not returned.

Prop 57 also has a major juvenile justice provision: it would require a judge to decide whether someone under 18 should be tried as an adult; currently a prosecutor alone can make that decision.

The measure is expected to pass, with two-thirds of voters in a recent poll saying they would vote yes.

Bail Reform

New Mexico
When someone is accused of a crime in New Mexico, the law requires he or she be sent home under “the least restrictive conditions necessary to reasonably assure both the defendant’s appearance in court and the safety of the community.” In other words, jail should be a last resort, reserved for the most dangerous defendants or those most likely to flee.

But that’s rarely what happens, says Charles Daniels, Chief Justice of the state’s Supreme Court. “Everybody has just grown so used to this notion that if you are accused of a crime, you have to pay somebody some money to get out of jail. Our judges have just gotten so used to putting a price tag on your presumption of innocence,” he says.

Research from around the country shows that tens of thousands of people are routinely held in jail for low-level offenses because they don’t have small sums of money to make bail. Daniels has spearheaded an effort to overhaul the state’s bail system; a ballot measure this November would amend the state constitution to include a rule that no one should be held in jail solely because they can’t afford bail — and would make it harder for defendants to get out if they are dangerous.

In almost every state, people accused of crimes have a “right to bail”: Regardless of how dangerous the defendant, or how serious a flight risk, a judge can’t hold anyone outright. Instead, judges who want a defendant held set a too-high bail amount that they hope the defendant can’t afford. “It’s a shell game,” says Daniels.

The ballot measure would remove “right to bail”, and the constitution would be amended to say judges can deny bail if, after a hearing, they feel someone is too dangerous to be released.

It’s this provision that gives local criminal defense and civil liberties groups pause. After all, these “right to bail” provisions are rooted in historical abuses, and are meant as a safeguard against arbitrary detention. “I don’t know how exhaustive or objective those hearings will actually end up being,” says Peter Simonson of the ACLU of New Mexico. “There could be instances where the hearing isn’t all that thorough and the determination about dangerousness isn’t as careful as it should be.”

The ACLU isn’t opposing the measure, but the organization withdrew its earlier enthusiastic support when heavy lobbying by the bail bond industry resulted in the language of the measure changing; What began, in the original provision, as a straightforward declaration is, in the final version, more opaque and contradictory. The Bail Bond Association of New Mexico lobbied extensively, and made generous campaign contributions, during consideration of the measure. Emails seeking comment from the group were not returned.

Still, it’s the “dangerousness” provision that may assure the bill’s passage, says Andrea Joseph, professor of criminal justice at New Mexico State University. “The reason it’s going to pass is not for the reason it was introduced, which was to make bail fairer for those who have the inability to pay. I think people will pass it because the way it’s phrased on the ballot is to be able to keep violent felons in.”

Writing Victims' Rights Into the Constitution

North Dakota, South Dakota, and Montana
Three states this November will vote on an almost identical ballot measure that would create sweeping new protections for crime victims. Called “Marsy’s Law,” “this is an equal rights campaign to strengthen victims’ rights so they’re equal to rights that criminal offenders have,” according to Jason Glodt, a former prosecutor managing the campaign in South Dakota.

Marsy’s Law is named for Marsalee Nicholas, who was killed by her boyfriend in 1983. A week after her murder, her mother “walked into a grocery store after visiting her daughter’s grave and was confronted by the accused murderer. She had no idea that he had been released on bail,” according to the Marsy’s Law website.

The amendments would require that victims be notified at every major step of the criminal justice process, one of more than a dozen new rights, including the right to withhold records, the right to refuse to be deposed or interviewed, and the right to speak at hearings. The amendments would also broaden the definition of “victim”; in some states, like North Dakota, current victim protection laws are only triggered in the case of a serious crime like assault or murder. Under Marsy’s Law, “victim” would include those who had their purses snatched — and their “spouse, parent, grandparent, child, sibling, grandchild, or guardian, and any person with a relationship to the victim that is substantially similar to a listed relationship.”

To detractors — who include, unexpectedly, both prosecutors and victims’ groups — the law would clog the system with petty crimes. “Marsy’s Law puts a $5 check case on the same legal footing as a rape or murder case,” Darla Juma the North Dakota Victim Assistance Association President told the Bismarck Tribune.

Criminal defense lawyers have also voiced concerns. “There’s an inherent problem in trying to give rights to a victim throughout a criminal case, because by its nature, it presumes the defendant is guilty,” says Barry Pollack, president of the National Association of Criminal Defense Lawyers. “You have what looks like a homicide, and the defense is that it was actually a suicide. Is there a victim in that case or not? The trial itself can be unfairly influenced by designating a victim before there’s been any conclusion of guilt.”

Marsy’s brother, the wealthy California businessman Henry Nicholas, has bankrolled the campaigns in Montana, North Dakota, and South Dakota, and similar ones in at least six other states, including the successful passage of victims’ rights amendments in Illinois and California. An effort is also underway to add victims’ rights provisions to the U.S. Constitution. Nicholas has spent almost $2.5 million on the North Dakota measure alone.

De-Felonizing Drug Possession

By its own count, Oklahoma has the second-highest incarceration rate in the country (after Louisiana), and the highest rate of incarcerated women. Seventy-five percent of those behind bars are there for nonviolent offenses — most commonly, drug offenses.

Two ballot measures poised to pass this November aim to change that.

The first, SQ 780, would downgrade simple drug possession from a felony to a misdemeanor, and raise the “felony theft threshold” —the dollar value of a stolen item that triggers felony rather than misdemeanor charges — from $500 to $1000. A corresponding measure, SQ 781, directs cost savings generated by SQ 780 into a special fund that would pay for mental health and substance abuse services.

The measures are backed by a coalition of both right- and left-leaning organizations, including the ACLU and the Family Policy Institute of Oklahoma.

Local sheriffs and prosecutors warn that without the threat of felony charges, prosecutors lose the leverage they need to compel people to participate in drug court, accept plea deals, or to testify in other cases. Sheriffs fear that all these new misdemeanor arrests will simply shift overcrowding in prisons to the jails.

The measures come at a time when Oklahoma has been contemplating criminal justice reform (spurred, in part, by a budget crunch caused by falling oil prices). In April, Gov. Mary Fallin signed a package of bills aimed at shrinking the prison population, including one that reduces mandatory minimums for drug possession and one that broadens the use of drug courts and community sentencing.

The state is also undergoing a Justice Reinvestment process; a task force researching the drivers of the state’s incarceration rate will submit an additional series of recommended bills next year. The success of those bills is staked, to a certain extent, on these ballot initiatives. “If we are successful on November the 8, elected officials will feel like the people have spoken, and it’s OK — perhaps even expected — to take a smarter approach to criminal justice issues in Oklahoma,” says Kris Steele, chair of the coalition pushing the ballot initiatives.

A recent poll found 75 percent of respondents supported the ballot questions.