On November 3, voters across the country approved a slew of progressive ballot initiatives related to criminal justice. From legalizing marijuana to establishing independent police oversight boards, voters altered the political landscape, advancing criminal justice policies that have the potential to destabilize barriers to racial equity, promote transparency and accountability in policing, and restore the right to vote for people with a felony record. While the details of the ballot initiatives vary, they represent an overall trend that progressive criminal justice policies are gaining support across the United States. In particular, shifts in opinion concerning drug policy, policing, and rights for justice-involved populations highlight the growing popularity of progressive reforms.
The ballot initiative process
The ballot initiative process, which currently exists in only 24 states, gives voters the opportunity to pass or reject proposed state legislation. In some states, voters also have the ability to directly modify their state constitution via the ballot initiative process. Therefore, ballot initiatives serve as not only a tool for voters to directly weigh in on and influence state legislative and constitutional issues but also as a valuable gauge of voter opinion on a range of policy matters.
Drug policy wins
Outdated policies and practices from the war on drugs have long loomed as barriers to remedying racial inequities in the criminal justice system. However, the numerous drug-related ballot initiatives that voters approved on November 3 sent a resounding message that Americans across the political spectrum support a fairer, more just, and equitable approach to drug policy. These historic progressive policy wins indicate a shift in public opinion that drug policies from the 1980s and 1990s have fallen out of favor as progressive reforms grow in popularity, even among voters in deeply conservative states. These legislative and constitutional modifications are a crucial step forward in creating prosperity for people of color—particularly Black people—as well as low-income communities, all of whom have been harmed by the lasting effects of the war on drugs.
Voters in four states—Arizona, Montana, New Jersey, and South Dakota—voted to legalize recreational marijuana use. South Dakota became the first state to concurrently approve both medical and recreational marijuana, bypassing the typical two-step process of first legalizing medical marijuana and then approving recreational use at a later date. Mississippi voters approved Initiative 65, which legalizes medical marijuana for patients with one or more of the 20-plus qualifying medical conditions, rejecting the more restrictive option—Alternative 65A—which would have significantly limited which patients could access medical marijuana.
Oregon’s drug-related ballot initiatives were among this election’s most notable progressive criminal justice policy wins. Measure 109 legalizes psilocybin mushrooms for medical usage, authorizing therapists to prescribe them to patients with chronic mental health issues or terminal illnesses. Measure 110 decriminalizes personal possession of small amounts of schedule I-IV controlled substances such as heroin and cocaine, reclassifying possession as a civil violation instead of a criminal offense. Violators are subject to a $100 fine, which they can avoid by completing a health assessment. Taken together, these measures increase access to potential therapeutic treatments and respond to drug possession and addiction with public health solutions—not prison time.
While police violence has long been part of U.S. history, increased coverage on social and traditional media has raised awareness of instances of police brutality seemingly every day. Policing reforms that were once considered radical—such as replacing police officers with trained civilian responders concerning 911 calls related to behavioral and mental health crises—have entered the mainstream conversation, leading to a push for greater transparency, accountability, and community input around policing. Yet another facet of the criminal justice system that disproportionately harms people of color, and particularly Black and Indigenous people, policing’s racist roots leave much to be reimagined and restructured when it comes to advancing public safety. There were 18 ballot initiatives related to policing operations and oversight; all 18 passed in their respective localities, with several localities—including Columbus, Ohio; Oakland, California; San Diego; Portland, Oregon; Pittsburgh; Kyle, Texas; and King County, Washington—either creating new or strengthening existing law enforcement oversight commissions.
Philadelphia voters approved two crucial ballot initiatives that will modify policing practices. Question 1 codifies within the city’s charter a ban on stop and frisk, a policing practice that has little effect on public safety but disproportionately criminalizes Black and Latinx residents. Question 3 replaces Philadelphia’s Police Advisory Commission—which city residents have long complained lacked funding or authority to effectively carry out its duties—with a Citizens Police Oversight Commission that will have greater ability and power to investigate police misconduct.
Akron, Ohio’s Issue 2 will require law enforcement agencies to release body and dashboard camera footage following the use of force that results in death or serious harm. While recent studies have called into question the effectiveness of body-worn and dashboard police cameras, increasing transparency concerning police misconduct enables the public to demand accountability from the police and local lawmakers.
Rights for justice-involved individuals
Policies that strip away rights related to social, political, and economic inclusion—such as the right to vote—from individuals based on their criminal record deny those individuals of their humanity. This disenfranchisement and dismissal of justice-involved individuals creates a hierarchy in which individuals who have a criminal record lack the same rights extended to those who do not. Considering the legacy of policing and sentencing disparities in the United States, this hierarchy inherently runs along racial lines. It perpetuates a racist praxis that affords full citizenship and participatory privileges to white individuals over people of color, and particularly Black and Indigenous populations. Several ballot initiatives that voters approved on November 3 correct policies that have created this tiered system of rights.
Nebraska’s Amendment 1 and Utah’s Amendment C remove slavery and involuntary servitude as punishments for criminal offenses from their state constitutions. These voter-approved amendments are significant in light of the 13th Amendment’s exception clause, which permits slavery as a valid form of punishment for those convicted of a crime. Nebraska and Utah join Colorado in overturning this exception at the state level.
In California, voters passed Proposition 17, restoring the right to vote for people who have felony convictions and are on parole. The passage of this ballot initiative is a critical step toward ending felony disenfranchisement on a national scale, as California joined several other states and the District of Columbia in removing barriers to voting for justice-involved populations.
Nevada’s voters approved Question 3, which reforms the process for granting pardons and commuting sentences. Specifically, Question 3 modifies the process so that the governor no longer needs to be a proponent arguing in favor of a pardon; there only needs to be a simple majority of the Nevada State Board of Pardons Commissioners arguing in favor of a pardon. Advocates of this measure believe that this change, in addition to the new requirement that the board meet quarterly, makes the clemency process more democratic and can serve as a tool for reducing the overcrowded state prison population.
Progressive criminal justice policies won big on November 3—even in traditionally conservative states and localities. These ballot initiatives highlight the growing appeal of progressive reforms, such as legalizing marijuana and establishing independent police oversight boards, among voters across the political spectrum.
These policies, however, are superficial victories unless they are coupled with an ongoing commitment to undoing the deep-seated, structural barriers that continue to subjugate marginalized communities to fewer political rights, harsher criminal penalties, and restricted opportunities to engage unconditionally in the social, political, and economic domains. Following New Jersey’s legalization of recreational marijuana, for example, the American Civil Liberties Union of New Jersey issued a statement emphasizing that marijuana legalization must center racial and social justice. Future advances in criminal justice reform must acknowledge how the system has disproportionately harmed communities of color, and especially Black communities; it is this acknowledgement that endows future policies and reforms with the tools for admitting the United States’ wrongdoings as a step toward codifying equity and equality within our social, political, and economic structures.
Sarah Figgatt is a research assistant for Criminal Justice Reform at the Center for American Progress.