5 Criminal Justice Reforms To Watch On Election Day

By RJ Vogt | November 4, 2018, 8:02 PM EST

Should a nonunanimous jury be capable of sentencing a defendant to life in prison? Should the repeal of a criminal law be retroactive? Should increased protections for crime victims' rights be added to state constitutions?

These ballot measures and other questions will greet voters in states like Louisiana, Florida, Colorado and more on Election Day. Although closely watched local and federal races may have dominated headlines, amendments to multiple state constitutions could represent the largest mark that criminal justice reform movements leave on communities across the country this November.

Here are five reform-minded referenda to watch on Tuesday:

Louisiana: Should felony convictions require unanimous juries?

+ Click to read ballot question

Do you support an amendment to require a unanimous jury verdict in all noncapital felony cases for offenses that are committed on or after Jan. 1, 2019?

Legislators in the state long known as the "prison capital of the world" passed major reforms in 2017, bringing Louisiana's inmate population down by more than 7 percent through measures that steer nonviolent offenders away from jail cells and reduce prison sentences for those who could be safely supervised in the community.

But this year, criminal justice reform is up to the people in the guise of a constitutional amendment that would end the state's 120-year-old practice of nonunanimous juries.

Unlike the federal government and 48 other states, Louisiana does not require a 12-0 vote to convict a defendant in most felony cases. With the exception of death penalty cases, prosecutors must only convince 10 of 12 jurors to send a defendant to jail, even for a lifetime sentence.

The unusual "split-verdict law" wasn't added to the Louisiana Constitution until the state's 1898 Constitutional Convention. Appalled by the enfranchisement of African-Americans, a delegation made up of former Confederate senators passed a series of measures designed, as the convention president put it, "to perpetuate the supremacy of the Anglo-Saxon race in Louisiana."

According to William Snowden of the Unanimous Jury Coalition, the split-verdict law — which initially required only nine votes and was later amended to require 10 — accomplished white supremacists' goal by nullifying the black vote.

"When black folks got the right to vote, they would start to actually get called for jury duty," he said. "This concerned some of those confederate senators. And so the scheme they came up with was, in the event that three black people made it onto a jury, that those votes would not count."

Snowden added that creating nonunanimous juries also made it easier to convict black people and force them into slave labor as punishment, an option afforded by the 13th Amendment's exception for slavery as a use for criminal punishment.

"They wanted to be able to use that exception to their advantage because, in Louisiana, slavery was big business," he said.

Tuesday, Louisiana voters have the chance to amend their state constitution and eliminate the use of nonunanimous juries. According to the Unanimous Jury Coalition, nonunanimous verdicts have led to 40 percent of wrongful convictions in Louisiana, which has the second-highest per capita exoneration rate in the country.

A slew of Louisiana district attorneys, law enforcement officials and legislators from both sides of the aisle have backed the amendment, but it's also faced some opposition.

Calcasieu Parish District Attorney John F. DeRosier testified in April that the concept of nonunanimous juries "has worked" for Louisiana, despite its racist roots. One month earlier, Pete Adams, director of the Louisiana District Attorneys Association urged lawmakers to vote against putting the amendment on the ballot, saying it was "inviting jury nullification." The DAA has since stated it has no position on the matter.

Florida: Should the repeal of criminal laws be retroactive?

+ Click to read ballot measure

Removes discriminatory language related to real property rights. Removes obsolete language repealed by voters. Deletes provision that amendment of a criminal statute will not affect prosecution or penalties for a crime committed before the amendment; retains current provision allowing prosecution of a crime committed before the repeal of a criminal statute.

Much attention has been given to Florida's referendum on felons' voting rights this year, but voters in the Sunshine State will also have a chance to cast their ballots on another key reform: amending the state's constitution to make the repeal of criminal laws retroactive.

If the Legislature reduces the sentence for a crime, Florida courts currently cannot go back and amend previously issued sentences for said crimes, according to Douglas Berman, a professor at Moritz College of Law at The Ohio State University who runs the Sentencing Law and Policy blog.

Other states have statutes with similar effects, but only Oklahoma, New Mexico and Florida have such a provision enshrined in the state constitution. Tachana Joseph of the Florida Policy Institute said Florida's provision is the strictest of the three.

"Florida is still operating on a 'tough on crime' model instead of a 'smart on crime' model," she said. "This measure would impact a wide range of prisoners."

As an example, she pointed out that felony theft in Florida has a threshold of $300, a number that has not been revised or adjusted for inflation since 1986. If the measure passes and legislators someday decide to raise the felony theft threshold, "prisoners who are currently serving time or on probation for those types of crimes will experience some sort type of relief," Joseph said.

The measure to eliminate the ban on retroactive application is bundled together with two unrelated proposals regarding alien property ownership and high-speed transportation, making it a so-called "cleanup" amendment. Joseph said all three "technical" amendments deal with some type of existing language in the state's constitution.

Retired Florida Supreme Court Justice Harry Anstead and former Florida Elections Commissioner Robert Barnas challenged the bundling of multiple topics earlier this year, filing a lawsuit that argued the practice does not allow voters to directly choose which measures they support. The state's high court, however, struck down the challenge and allowed the bundled measures to go to the ballot box.

Ohio: Should some felony drug offenses be reduced to misdemeanors?

+ Click to read ballot measure

If adopted, the amendment would:
• Require sentence reductions of incarcerated individuals, except individuals incarcerated for murder, rape or child molestation, by up to 25 percent if the individual participates in rehabilitative, work or educational programming.
• Mandate that criminal offenses of obtaining, possessing or using any drug such as fentanyl, heroin, methamphetamine, cocaine, LSD and other controlled substances cannot be classified as a felony but only a misdemeanor.
• Prohibit jail time as a sentence for obtaining, possessing or using such drugs until an individual's third offense within 24 months.
• Allow an individual convicted of obtaining, possessing or using any such drug prior to the effective date of the amendment to ask a court to reduce the conviction to a misdemeanor, regardless of whether the individual has completed the sentence.
• Require any available funding, based on projected savings, to be applied to state-administered rehabilitation programs and crime victim funds.
• Require a graduated series of responses, such as community service, drug treatment or jail time for minor, noncriminal probation violations.

The only statewide referendum on Ohio's ballot is an ambitious proposal that would amend the state constitution to reduce low-level drug possession and usage felonies to misdemeanor offenses and block courts from sending felons on probation back to prison for noncriminal probation violations.

The ballot measure, known as Issue 1: Drug and Criminal Justice Policies Initiative, would also require the state take savings incurred by reducing inmate populations and spend that money on drug treatment, crime victim and rehabilitation programs.

The push for such a broad reform referendum came after getting "fed up" with legislators' hesitancy to more actively reduce the number of people coming into the justice system, according to Stephen JohnsonGrove, deputy director of the Ohio Justice & Policy Center and a co-author of the initiative.

He framed the ballot measure as a way to tackle mass incarceration and the opioid epidemic, which he called "twin crises."

"You've got, on one hand, $1.8 billion per year that we're spending on prisons. And we know that a lot of drug-addicted people are going into the prison system," JohnsonGrove said. "If we could get both those people and those dollars out ... we could meaningfully tackle the opioid overdose epidemic while reducing incarceration."

Although more than 700,000 supporters signed on to put the measure on the ballot, the broad reform package faces stiff opposition from conservatives and has become a hot-button issue in Ohio's gubernatorial race.

Republican candidate Mike DeWine, the current state attorney general, has released an TV ad attacking his Democratic opponent Richard Cordray for supporting Issue 1. The commercial says "Drug dealer: released. Human trafficker: released. Child pornographer: released. If Richard Cordray gets his way, criminals like these could be released early because these inmates could see a 25 percent reduction of their prison sentence, putting thousands of dangerous offenders back on our streets."

DeWine has also said the measure would enable drug dealers and claimed in interviews that someone with 1,000 pounds of fentanyl would only face misdemeanor charges if Issue 1 passes.

But JohnsonGrove said only the lowest level drug possession felonies will be reduced to misdemeanors, adding that 11 other states have reclassified drug possession as a misdemeanor. He also touted the referendum's emphasis on nonviolent probation violators, who make up 23 percent of the incoming prison population each year.

Facebook founder Mark Zuckerberg and investor-philanthropist George Soros have both pumped money into backing the measure. Cordray has called it a smart policy that's about "locking up those who are plaguing our communities and getting addicts in recovery."

Six states: Should crime victims' rights be constitutionally protected?

+ Click to read Florida ballot measure

Creates constitutional rights for victims of crime; requires courts to facilitate victims' rights; authorizes victims to enforce their rights throughout criminal and juvenile justice processes. Requires judges and hearing officers to independently interpret statutes and rules rather than deferring to government agency's interpretation. Raises mandatory retirement age of state justices and judges from 70 to 75 years; deletes authorization to complete judicial term if one-half of term has been served by retirement age.

+ Click to read Georgia ballot question

Shall the Constitution of Georgia be amended so as to provide certain rights to victims against whom a crime has allegedly been perpetrated and allow victims to assert such rights?

+ Click to read Kentucky ballot question

Are you in favor of providing constitutional rights to victims of crime, including the right to be treated fairly, with dignity and respect, and the right to be informed and to have a voice in the judicial process?

+ Click to read Nevada ballot question

Shall the Nevada Constitution be amended to: (1) remove existing provisions that require the Legislature to provide certain statutory rights for crime victims; and (2) adopt in their place certain expressly stated constitutional rights that crime victims may assert throughout the criminal or juvenile justice process?

+ Click to read North Carolina ballot question

For or against constitutional amendment to strengthen protections for victims of crime; to establish certain absolute basic rights for victims; and to ensure the enforcement of these rights.

+ Click to read Oklahoma ballot measure

This measure amends the provisions of the Oklahoma Constitution that guarantees certain rights for crime victims. These rights would now be protected in a manner equal to the defendant's rights. The measure would also make changes to victim's rights, including:
(1) expanding the court proceedings at which a victim has the right to be heard;
(2) adding a right to reasonable protection;
(3) adding a right to proceedings free from unreasonable delay;
(4) adding a right to talk with the prosecutor; and
(5) allowing victims to refuse interview requests from the defendant's attorney without a subpoena.
The Oklahoma Constitution currently grants victims' rights to crime victims and their family members. This measure would instead grant these rights to crime victims and those directly harmed by the crime. Victims would no longer have a constitutional right to know the defendant's location following arrest, during prosecution, and while sentenced to confinement or probation, but would have the right to be notified of the defendant's release or escape from custody.
Under this measure, victims would have these rights in both adult and juvenile proceedings. Victims would be able to assert these rights in court, and the court would be required to act promptly.

Florida, Georgia, Kentucky, Nevada, North Carolina and Oklahoma voters all face a decision on whether to amend their constitutions by adding "Marsy's Law" protections for crime victims' rights on Tuesday.

The six states are the latest to consider joining the national Marsy's Law movement, which is primarily backed by the billionaire co-founder of Broadcom Corp., Henry Nicholas. After his sister Marsy was murdered by her ex-boyfriend in 1983, Nicholas and his mother were alarmed to run into the murderer after he'd been released on bail without any notice to the grieving family.

The experience led Nicholas to launch Marsy's Law for All, seeking "to amend state constitutions that don't offer protections to crime victims and, eventually, the U.S. Constitution."

Since 2008, California, North Dakota, South Dakota, Illinois and Ohio have passed Marsy's Laws, defined by the organization as including the right to be notified about and present at all proceedings; to be heard at proceedings involving release, plea, sentencing, disposition or parole of the accused; to refuse a defendant's request for interviews or depositions and several other rights.

States like Alabama, Washington and Arizona had already passed crime victims' rights amendments before Marsy's Law for All began its national campaign, and opponents of the measure have pointed out that some states weighing the measure this year, such as Florida, also already have protections for crime victims in their constitutions.

But according to Henry Goodwin, national communications adviser for Marsy's Law For All, those protections aren't specific or strong enough.

"If you talk to victims of crime in Florida, they would certainly tell you it's not enough," Goodwin said. "Sometimes these victims get overlooked in the system, sometimes because it's underfunded, but sometimes just because people are busy and it's not on the front of mind."

The ACLU of Florida has opposed the measure, objecting to the fact that it would give corporations the same victims' rights as humans, and the ACLU of North Carolina has said adding Marsy's Law to the state constitution could worsen case backlogs and give judges less flexibility in the courtroom.

Meanwhile, the Kentucky Association of Criminal Defense Lawyers filed a lawsuit over its state's question, saying it wasn't worded sufficiently and voters might not fully understand the measure on which they're voting. A state circuit judge agreed, ordering officials not to certify the results of the vote. His Oct. 15 decision has been appealed to the Kentucky Supreme Court, which could have to decide whether the question was fairly worded after the votes have already been issued and counted.

Voters in all six states will also need to weigh the potential cost burden of carrying out Marsy's Law. After California passed its version, a 2012 Berkeley School of Law report found unanticipated costs included ensuring transportation for victims to all proceedings and hiring advocates to explain and facilitate the new rights, especially to victims with language barriers.

Colorado: Should slavery, as punishment for a crime, be abolished?

+ Click to read ballot question

Shall there be an amendment to the Colorado Constitution that prohibits slavery and involuntary servitude as punishment for a crime and thereby prohibits slavery and involuntary servitude in all circumstances?

It's easy to assume that slavery has long been abolished in America, but the practice is still permitted under some state constitutions as punishment for a crime in the form of involuntary prison work programs.

Colorado voters have an opportunity to amend that reality in their own state on Tuesday. For those that voted in 2016, the ballot measure might look familiar: Two years ago, an identical amendment appeared on the general election ballot but was voted down by less than 1 percentage point.

According to Abolish Slavery Colorado, the 2016 measure failed because many voters didn't understand the confusing triple negative of "end exception to involuntary servitude prohibition."

The state's voter guide had also provided an argument against the measure, saying it "may result in legal uncertainty around current offender work practices in the state ... community service programs allow offenders to engage with the community and make amends for their crimes."

Proponents of abolishing slavery, however, have noted that 23 other states have no language involving slavery or involuntary servitude in their constitutions, while still having community service and work programs in their departments of corrections.

This year, the Legislature unanimously voted to place the question on the ballot again. Representatives for Abolish Slavery Colorado have said they are confident that a newly worded referendum — "prohibit slavery and involuntary servitude in all circumstances" — should be easier to understand.

Other states, such as Tennessee, Wisconsin, Nevada and North Carolina, also make a constitutional allowance for slavery in the case of those convicted of crimes. The U.S. Constitution's 13th Amendment does, too: "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States."

--Editing by Katherine Rautenberg.

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