So let’s start with the bad news. Donald Trump — a death-penalty zealot who called for the execution of the (innocent) Central Park Five and essentially ran a campaign of fear-mongering about immigration, the “war on cops,” and the “inner cities” — will be the next president of the United States. Trump is anything but predictable. Perhaps he’ll surprise us. This, after all, is a man who within the last five years called for a path to citizenship for undocumented immigrants, and has in the past called for drug legalization. But all we have to go on now is his campaign rhetoric. And that doesn’t bode well.
It seems likely that he’ll end the Obama administration’s use of the DOJ’s Office of Civil Rights to investigation police brutality, profiling and misconduct. He has all but promised to undo Obama’s modest reforms to the 1033 program, which provides surplus military gear to local police departments and has contributed to the militarization in both mind and action of police agencies across the country. He’s likely to appoint federal judges less skeptical of police misconduct and less protective of the Fourth Amendment. He’ll almost certainly appoint U.S. attorneys more likely to seek the death penalty at the federal level.
As Bill Keller points out over at the Marshall Project, Trump can also undo Obama’s executive orders on juvenile solitary confinement, federal private prisons, “ban the box” and designating federal drug crimes a low-priority. These reforms were revolutionary in that Obama is the first president in a couple of generations to at least acknowledge that the criminal-justice system is in need of reform, other than simply making it “tougher on crime.” But in practice, they were all relatively modest. Still, Trump could undo them with the stroke of a pen. He could also undo or simply end much of the important but largely symbolic work the administration is doing on forensics reform.
Then there are the people he’ll appoint within his administration. This list of potential cabinet picks from Politico ought to terrify anyone interested in civil liberties. Rudy “Freedom is about authority” Giuliani at DOJ? Sheriff David Clarke at DHS? This is a recipe for a civil liberties massacre.
Beyond Trump, there’s more bad news. The death penalty was on the ballot in three states last night, by way of four separate initiatives. In all of them, the death penalty won. In Oklahoma, voters approved a nutty amendment to the state constitution that essentially puts capital cases beyond the purview of judicial review. (The amendment will not — and could not — prevent federal habeas review of capital cases.) This is the state that badly botched one execution, and demonstrated inexcusable incompetence in its haste to carry out another (and that one on a man who has a compelling innocence claim).
In Nebraska, voters repealed a bill ending the death penalty passed by the state’s Republican-dominated state legislature. The measure was largely due to the work of Nebraska Gov. Pete Ricketts (R), who poured a massive amount of his family’s considerable wealth into the initiative.
But it wasn’t just in red states. California voters weighed in on two death penalty initiatives — one to repeal it, and one to speed it up. The former failed, the latter passed. This is a state that Hillary Clinton won by 28 points. Americans still revere the death penalty. It’s almost as if the past 20 years of exonerations, the persistent parade of crime lab scandals, the ample evidence of false confessions, the astonishing incidences of prosecutor misconduct — it’s almost as if all of those things never happened. It’s hard to comprehend how, after all of that, voters in two very different states would still opt to rush executions and limit judicial review. As I’ve pointed out here before, the argument that DNA testing will somehow preclude the execution of the innocent fails because DNA is only relevant in a subset of criminal cases — capital cases included. Meanwhile, there’s every reason to believe that the flaws exposed by DNA testing are systemic. That is, it would be foolish to believe that problems with crime labs, eyewitness testimony, police misconduct and prosecutor misconduct are limited only to those cases in which DNA testing has exposed them.
But there was also a lot of good news last night. Marijuana won in 8 of the 9 states in which it was on the ballot — including outright legalization in California, Massachusetts and Nevada. Those states all went blue in the presidential race, but red states Montana, Florida, Arkansas and North Dakota all legalized medicinal marijuana. The lesson here appears to be that pot has finally transcended the culture wars, but the death penalty hasn’t.
There are a couple of other important reform measures that passed. Ironically, both were in states that strengthened the death penalty. California voters approved Prop 57, which expands parole (as opposed to prison) and time off for good behavior for nonviolent offenses, and lets judges (instead of prosecutors) determine whether juveniles should be tried in adult courts. And in Oklahoma, voters approved of a measure to reclassify certain property and drug possession crimes from felonies to misdemeanors. They also approved a measure that would use the money saved from reclassifying such crimes to fund rehabilitation, mental health treatment and vocational training for inmates. New Mexico voters passed a bail reform measure that, while poorly drafted, at least indicates that there’s an appetite in the electorate for such reforms.
There was also some good news in individual races. Most significantly, Maricopa County, Ariz., Sheriff Joe Arpaio — the self-proclaimed “toughest sheriff in America” — was finally defeated (the fact that he’s currently under federal indictment may have had something to do with that). Unfortunately, Maricopa County Attorney Bill Montgomery — one of the most punitive prosecutors in the country — did win. (Arizona was also the only state to vote against a bill to loosen restrictions on pot, although medicinal marijuana still remains legal there.)
Voters also showed the door to overly punitive prosecutors like Harris County, Tex., District Attorney Devon Anderson (see my post about her here), and Birmingham, Ala., prosecutor Bill Veitch. In Tampa, a challenger won on an explicit reform campaign. It was the same story in New Mexico, where Marco Serna explicitly campaigned on “treating people like people” and getting addicts treatment, not prison time. His opponent ran a traditional law-and-order campaign. Serna won with over 70 percent of the vote. It was a similar story in Denver. And of course over the last year or so we’ve seen aggressive prosecutors go down in Cleveland, Chicago, Jacksonville, Louisiana and eastern Mississippi, and as Maurice Chammah writes, we’ve seen black prosecutors touting reform agendas get elected in St. Louis, Orlando and the Atlanta suburbs.
On the flip side, voters in Mississippi retained state Supreme Court justice Jim Kitchens, despite an aggressive effort by a couple of shadowy law-and-order groups to portray him as “soft on crime.” Such efforts have been successful in the past. On the rare occasion that a justice interested in due process or the rights of the accused has made it onto the court, they’ve often lost the next election after aggressive, often blatantly dishonest ad campaigns from out-of-state groups like Law Enforcement Alliance of America (or in this case, the Center for Individual Freedom). It’s so bad that some justices have outright admitted that fear of such attack ads can affect the way they and their colleagues vote in criminal cases when they’re up for reelection. In that sense, Kitchens’s victory last night is encouraging.
So what to make of all of this? There’s little evidence that the election of Donald Trump had anything at all to do with criminal-justice issues. That said, it’s likely to kill any momentum for reform that remained at the federal level. It’s hard to see the handful of reform-minded Republicans in Congress agitating to make criminal justice a priority in the current political environment — or of the Republican leadership listening to them if they do.
That said, most criminal-justice policy happens at the state and local level. And here, even in an election that swung overwhelmingly to the right, voters for the most part are still indicating that they want to rein in the excesses of the drug war, and they’re continuing the recent trend toward punishing the most punitive of elected law enforcement officials.
The one exception here is of course the death penalty. There are a couple of reasons for that. First, as I wrote above, the death penalty remains loaded with racial and culture war baggage. This election was as culture war-driven as any since 1992. There’s a strong sentiment among most people that capital cases are reserved for the “worst of the worst,” and only for those for which there is overwhelming evidence of guilt. (Neither of these things is true. But we’re discussing what voters want, not how well they’re informed.) Second, for most people, the death penalty remains remote. Lots of people — lots of white people in particular — smoke pot, or know people who do. Lots of people — and again, lots of poor, rural white people among them — might know what it’s like to be in the cross hairs of an overly aggressive prosecutor, or could envision it happening to them. But few people have much personal incentive to care about the death penalty. The typical voter — of any race or ethnic background — will never be accused of murder, much less wrongly accused. That happens to other people. Meanwhile, the typical voter can envision themselves or someone they know getting murdered. It’s on the local news all the time. None of this is to say that the death penalty isn’t important, or that the results from last night aren’t disheartening. But the death penalty votes can be distinguished from what we saw elsewhere.
To sum up, if Trump sticks to the rhetoric and promises we heard during the campaign, the next four years — at least at the federal level — look to be a dark age for reform. The names he’s floating for cabinet positions are nightmarish. But there are still good reasons for reformers to feel optimistic about where voters stand on criminal-justice issues. Yes, America just elected a demagogue. But I’ve seen little evidence that they did so because of his grandstanding on these issues (with the obvious and important exception of immigration). Moreover, given Hillary Clinton’s record, for anyone who wanted to vote on these issues, there really wasn’t much in the way of an inspiring and viable alternative. While that’s probably of little comfort for reformers, good news does come down ballot, where even in an overwhelmingly red election, voters in very red states and counties still managed to drive eight more nails into the coffin of pot prohibition, reject overly punitive prosecutors (and one exceptionally awful sheriff) and embrace reforms aimed at rehabilitation and redemption. Trump’s election aside, there’s still a strong appetite for reform at the state and local level.