On an Election Day that saw convicted felon Donald Trump all but freed from criminal prosecution and returned to the White House, American voters largely rejected candidates and proposals favoring criminal legal system reform. In 2020, many previously disinterested or uninformed Americans flocked to support and enact changes to the criminal legal system in the wake of George Floyd’s infamous murder by Minneapolis police. Progressive prosecutors were elected in many of America’s largest and most important cities, building on years of groundwork by activists and reflecting a chorus for change that had intensified throughout the 2010s. But November’s election represented a tough test for the forces of reform, as statewide ballot initiatives sought to roll back wins by advocates of reform and progressive prosecutors and as mayors defended their record against “tough-on-crime” challengers. The most visible of these battles concerned California’s Proposition 36, which mandates harsher charges and sentences for individuals accused of drug- or theft-related crimes. The contest over Proposition 36 goes right to the heart of America’s views on crime: are voters willing to tolerate some petty crime in exchange for a freer, less harsh legal system, or are they prepared to sacrifice reform for perceived gains in security?
In the Golden State, at least, the answer was resounding: a week out from Election Day, nearly 70% of Californians voted in favor of Proposition 36. The ballot initiative, among other things, upgrades theft charges to a felony punishable by up to three years in prison for those with two or more prior theft convictions, allows sentences for those convicted of theft or damage of property charges to be lengthened if they committed the crime with three or more people, and forces sentences for certain drug and theft charges to be served in state prisons instead of county jails. These provisions undo many of the reforms of Proposition 47, which California voters enacted with 58% of the vote in 2014 as a response to severe overcrowding in California’s prisons at the time.
Proposition 47 reduced several charges from felonies to misdemeanors, including shoplifting, forgery, certain kinds of fraud, and theft under $950. Within two years after Proposition 47 was enacted, California’s incarceration rate fell by 8% – saving the state roughly $800 million. Moreover, the pandemic saw California’s incarceration rate drop about 20%; having stabilized in the wake of Proposition 47, it has remained largely stagnant since. Proposition 47 was not the main driver of reduced incarceration numbers in California and has been perhaps unfairly fingered for the small rise in petty crime in the state, given the simultaneous effect of Covid-19.
The passage of Proposition 36 imperils the movements for criminal legal reform and for progressive prosecution, partially because it proved a worthwhile investment for business interests. Businesses have been among the most vocal supporters of Proposition 36, claiming that they have seen a spike in thefts; however, the California Retailers Association cited lack of data from many of its stores in failing to provide an actual estimate of stores’ losses to theft. Safeway and Kroger together spent roughly $1 million on a 2020 effort to repeal Proposition 47, and the fight to enact Proposition 36 amassed $4 million from Home Depot, Target, and Walmart alone.
Voters, like stores, have trouble accurately assessing the scale of the problem. The hostility of the electorate to reform is partially explained by the sad reality that many Americans’ votes against criminal legal reforms are based on inaccurate perceptions of a rise in crime. Last year, over three-quarters of Americans polled believed crime was on the up even though FBI numbers showed it was going down, and though murder rates are down by double-digit percentages. Any ability to preserve existing gains for criminal legal reform will require greater efforts directed toward educating the public on the actual facts surrounding crime in America.
Further proof of the 2024 electorate’s opposition to reform can be found in Colorado, where voters in an increasingly liberal state embraced ballot initiatives supporting police and lengthening sentences. Proposition 130 awards $1 million to the next of kin of any police officer killed on the job and directs the Colorado legislature to fund local police departments to the tune of $350 million. Proposition 128, which garnered 62% of the vote, requires people convicted of various violent crimes to serve 85% or more of their original sentence before becoming eligible for parole – upping the existing requirement of 75% service. Amendment I, stripping judges of the ability to grant bail to people accused of first-degree murder, passed with nearly 70% of the vote. (In Colorado, amendments require 55% of the vote to pass, whereas propositions require only a simple majority of 50%). Even a minor referendum to criminalize trophy hunting of big cats, Proposition 127, failed. Yet progressive ballot initiatives succeeded outside the criminal context: striking a state constitution definition of marriage as exclusively between one man and one woman, imposition of a 6.5% tax on guns and ammunition, and codification of the right to abortion alongside the removal of a ban on state funding for abortions. The success of many progressive priorities simultaneous to the lopsided failure of many criminal legal reforms suggests that voters have soured specifically on progressive crime policies, rather than left-leaning ideas more broadly.
Twenty-six states in all allow for some form of ballot initiative or referendum. Opponents of criminal legal reform will surely be heartened by the movement’s setbacks in progressive strongholds like California and Colorado, and it is likely they will seize on the clear tide of public opinion to promulgate more anti-reform measures via ballot initiatives in many of these states. In California, even a measure to ban incarcerated persons from forced labor failed despite being described as the “End Slavery” bill. Clearly, there is a lot of work to do to convince American voters that criminal legal reform is worth pursuing and is not a dangerous path.
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