POLITICS
11/14/2012 12:03 pm ET | Updated Nov 19, 2012

Americans Voting Smarter About Crime, Justice At Polls

A headline from the Denver Post this week read: "Colorado Drug Force Disbanding." Another from the Seattle Times announced, "220 Marijuana Cases Dismissed In King, Pierce Counties."

Just 15 or 20 years ago, headlines like these were unimaginable. But marijuana legalization didn't just win in Washington and Coloardo, it won big.

In Colorado, it outpolled President Barack Obama. In Washington, Obama beat pot by less than half a percentage point. Medical marijuana also won in Massachusetts, and nearly won in Arkansas. (Legalization of pot lost in Oregon, but drug law reformers contend that was due to a poorly written ballot initiative that would basically have made the state a vendor.)

But it wasn't just pot. In California, voters reined in the state's infamous "Three Strikes and You're Out" law, passing a measure that now requires the third offense to be a serious or violent felony before the automatic life sentence kicks in. The results don't negate the law, but they do take some of the teeth out of it. And the margin -- the reform passed by more than a 2-to-1 margin -- has significant symbolic value. Three Strikes was arguably the most high-profile and highly touted of the get-tough-on-crime policies of the 1980s and 1990s. It epitomized the slogan-based approach to criminal justice policy that politicians tended to take during the prison boom.

Eric Sterling served on the House Subcommittee on Crime in the 1980s. Today, as president of the Criminal Justice Policy Foundation, he works to reform many of the laws he helped create. Sterling is encouraged by what he saw last week. "I definitely think we're seeing a shift in the public opinion," he says. "This election was really a game changing event."

There have been some other encouraging signs. In Virginia's Culpeper County, interim Commonwealth's Attorney Paul Walther appeared to be a lock to replace his former boss Gary Close, who held the position for 20 years. Incumbent district attorneys rarely lose reelection, particularly in law-and-order states like Virginia. But in 2001, Walther assisted his boss in convicting Michael Wayne Hash of shooting and killing a neighbor. Hash was innocent. When U.S. District Court Judge James Turk finally freed Hash last March, he also wrote a scalding opinion denouncing the prosecutorial misconduct that helped put Hash in prison.

Walther's opponent, Megan Frederick, made Walther's role in Hash's conviction the centerpiece of her campaign. She beat Walther on Tuesday night. The local newspaper called the race "the county’s biggest political upset."

When Williamson County District Attorney John Bradley ran for reelection earlier this year, he was trounced in the Republican primary. Bradley had helped his former boss prosecute Michael Morton for murder. Morton served 25 years in prison before he was exonerated by DNA testing. Even after his boss retired, Bradley fought Morton's efforts to get a critical piece of evidence -- a bloody bandana -- tested. The bandana became a prop in the campaign and Bradley's critics hung a replica of it on his yard signs as a reminder of the case.

Two years ago, voters in Colorado removed state judges Terrance Gilmore and Jolene Blair from their positions after a campaign by a criminal justice advocacy group. The two had recently been censured by the Colorado Supreme Court for failing to turn over exculpatory evidence in 1999 when they were prosecutors and convicted Tim Masters for a murder committed in 1987. Masters, too, was later exonerated by DNA testing.

The recent results seem to indicate that at least in some parts of the country, the electorate is paying more attention to criminal justice issues, is more willing to hold law enforcement officials accountable and is less credulous when it comes to tough-on-crime posturing.

But Julie Stewart, president of the criminal justice reform group Families Against Mandatory Minimums, remains skeptical. "I think it’s too early and too easy to say that the electorate has moved away from its love affair with punishment," Stewart says.

"While it’s refreshing to know that voters in the initiative states understand that reforms were necessary and good, I hear from prisoners every day who are being sentenced to decades behind bars for nonviolent drug offenses. We still have a very long way to go to reach the tipping point that will significantly change our national affection for over-punishment."

Another reason for putting too much emphasis on the election results: Even if the public mood has shifted, Congress is usually way behind. "There's always an innate caution among politicians about doing anything they perceive as controversial," Sterling says. "They're really sensitive to what cops say. They don't want the police unions opposing them, and no politician wants to pick a fight with a police chief. When I was on Capitol Hill, and this was 20-25 years ago, I had lawmakers tell me that it made perfect sense to them to legalize drugs. But they'd always say, 'You can never quote me on that.' None of them wanted to appear soft on crime, even if it was the right thing to do."

Politicians at the state and local level have been more willing to embrace reform. Both Stewart and Sterling say that's because they have no choice. "Governors need to balance budgets," Sterling says. "They have to set priorities. Imprisoning people at the rate we have been costs money that the states don't have. So they have to start asking themselves if these punitive policies are actually doing any good. And they're finding that they aren't. The federal criminal justice budget is infinitesimal compared to the other things the government spends money on. So you don't get those kinds of tough decisions."

Stewart says the right will also need to come on board before there's any major changes to the federal system. "I don’t think significant reform could ever happen without conservative leadership," she says. "The crack cocaine sentencing reforms of 2010 would not have happened without Sen. Jeff Sessions (R-Ala.) support. Whether or not it’s entirely accurate, Democrats are perceived as soft on crime, and Republicans as tough on crime. So, when Republicans call for sentencing or drug reforms, it becomes safe for everyone to support the reforms. It’s the Nixon goes to China syndrome."

But even here, there has been some movement. In addition to the 2010 law addressing the crack/powder cocaine sentencing disparity, some conservatives are beginning to talk about criminal justice reform, particularly when it comes to sentencing and prisons. The advocacy group Right on Crime has had some success over the last few years bringing many of these issues to the attention of conservative politicians and pundits. The conservative flagship think tank the Heritage Foundation recently launched its "overcriminalized" project, which critiques the ever-growing criminal code and the expanding power of prosecutors. A number of conservative voices have recently come out against the death penalty, including Brent Bozell, Richard Viguerie, and David Brooks.

"I think with the soaring prison population, and with groups like Chuck Colson's Prison Fellowship, many conservatives have started to come into contact with people who are or have been in prison," Sterling says. "Having personal contacts like that can change your views. When you're close to it, you start to realize how excessive it has become. And I think it can speak to religious values. Too little punishment is wrong. But they're seeing that too much punishment is just as wrong."

The one thing the 2012 results may do at the federal level is begin to convince some politicians that advocating reform is no longer political suicide. "This year’s initiatives in California, Colorado and Washington do indicate a changed public perception about punishment and marijuana in those states," Stewart says. "That should give legislators the freedom, if they choose to exercise it, to ease their tough-on-crime positions and not have to worry about surviving the next election."

Sterling agrees. "I think it could give some cover to political leaders who already thought these things but were afraid to say them. My contacts close to the Obama administration say they were really taken aback by the results in those states. They didn't expect the vote to be as lopsided as it was. I think they really don't know what to do right now. But when medical marijuana first passed in California 16 years ago, you saw (Clinton Drug Czar) Barry McCaffrey preparing his counterattack within hours. I haven't heard of anything like that in the works this time around. I think that's a good sign."

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