How Criminal Justice Reform Fared at the Ballot Box on Tuesday

Voters elected new sheriffs and DAs who’ve vowed to challenge mass incarceration and ICE, and they approved initiatives to curtail drug criminalization and expand voting rights.

Daniel Nichanian, Anna Simonton   |    November 5, 2020

A protest in Washington, DC (Photo by Victoria Pickering/Flickr under CC)

This article originally appeared on The Appeal, which hosted The Political Report project.

Voters approved initiatives to expand voting rights and curtail drug criminalization, and they elected new sheriffs and prosecutors who’ve vowed to challenge mass incarceration.

The presidential race and control of the U.S. Senate is still in limbo at this moment, grabbing much of our collective attention. But when it comes to elections relevant to mass incarceration and criminal justice, Tuesday’s elections have already delivered major verdicts that will upend drug policy, immigration enforcement, and prosecutorial norms in significant chunks of the nation. 

Here’s what we know so far.

You can explore all of our coverage of these 2020 battlegrounds for criminal justice with our interactive tool.

A banner election against the war on drugs

Oregon voters approved a groundbreaking initiative to decriminalize drugs. This is something that no other state has done, and it could reset conversations around drug reform nationally. 

Inspired by policies implemented in Portugal, Oregon’s Measure 110 makes low-level drug possession a civil offense, punishable by a fine, rather than jail time. Zachary Siegel wrote for The Appeal: Political Report that the result marks “a momentous shift in favor of a public health-focused approach to substance use, and a turn away from longtime policies that incarcerate people.” Advocates warn more work is needed to reduce law enforcement and inequalities, and vow to press further around the country.

The movement to legalize marijuana made sweeping gains on Election Day as well, with four states passing referendums to allow recreational cannabis. 

These measures passed by double-digit margins in Arizona, Montana, and New Jersey, and by a smaller margin South Dakota. As a result, there are now 15 states, in addition to Washington, D.C., where marijuana is legal. 

But when it comes to making amends for racial injustice, Kaila Philo laid out in the Political Report, this year’s marijuana legalization measures vary. 

There’s more: Oregonians supported a measure to legalize psilocybin mushrooms for therapeutic purposes, while Washington, D.C., mostly decriminalized psilocybin. And Mississippi legalized medical marijuana; its initiative succeeded despite lawmakers’ attempts to derail it by adding a stricter alternative measure to the ballot. 

Candidates for prosecutor also won elections on promises to implement far less punitive policies toward drugs. 

José Garza, who won the DA election in Travis County (Austin), Texas, vowed to overturn the county’s approach to substance use. “Using our resources to prosecute these offenses increases the likelihood that people will commit future crimes, and that makes our community less safe,” he told the Political Report in June. He has gone a step further than other progressives who have recently run for DA, extending their commitment to not prosecute drug possession to sales as well. Meanwhile, in Jefferson County, Colorado, Alexis King, a Democrat who flipped the DA’s office from the GOP on Tuesday, favors not prosecuting drug possession. “The criminal justice system has become the catchment basin for public health issues,” she told the Political Report. 

Mixed reforms on referendums that address mass incarceration and police accountability

In California, voters contended with a slew of other referendums concerning the criminal legal system. They rejected Proposition 20, a measure that would have rolled back past sentencing reforms and ramped up incarceration by reclassifying certain misdemeanors as felonies. 

They also turned down Proposition 25, a measure that divided criminal justice reform advocates on the issue of cash bail. Prop 25 would have upheld a 2018 law that eliminated the cash bail system and replaced it with algorithm-driven risk assessments. The bail bond industry opposed the measure, and in an unusual twist, so did many advocates. They warned that the new system would perpetuate racial disparities in pretrial detention, as Lauren Lee White reported. Some who shared this concern supported the measure anyway, calling it a step toward better reforms. 

Elsewhere, too, referendum results brought a mix of strides and setbacks on issues that can affect mass incarceration. 

Nevada passed Question 3, a measure that will make the parole process a bit easier. It changes the rules of the state’s Board of Pardons Commissioners by ending the mandate that the governor approve a pardon supported by a majority of the board, and addressing a backlog of requests. 

Oklahoma rejected Question 805, which would have prevented prosecutors who have charged someone with a nonviolent offense from seeking a harsher sentence based on the defendant’s prior nonviolent convictions. The measure was trying to build on other recent successful initiatives that have helped reduce the state’s record prison population. The measure’s failure will deny relief to Oklahomans who are serving staggeringly long sentences via such enhancements. 

In Kentucky, voters approved Marsy’s Law, a “victim’s rights” measure that 10 states have adopted despite criticism from the ACLU and others that it undermines due process. This could turn out to be a repeat of 2018, when Kentucky voters passed another version of Marsy’s Law but it was overturned by the state Supreme Court.

The killing of George Floyd by Minneapolis police and the ensuing protests pushed many city councils to put measures related to policing on the ballot. Bloomberg reports that in cities nationwide, from Philadelphia and Columbus, Ohio, to San Diego, voters approved plans to create police oversight boards, expand the powers of existing oversight bodies, divest from law enforcement, and impose requirements such as body cameras.

In Los Angeles, voters approved Measure J, a county-level ballot initiative that will “ redirect 10 percent of unrestricted county funds toward community investment,” as Piper French reported.

And in San Francisco voters approved Proposition E, overturning a law that required the city to maintain a minimum number of full-time police officers

California joins the wave of pushback against felony disenfranchisement 

Across the country, hundreds of thousands of citizens were newly able to vote this fall thanks to a wave of recent state reforms that have expanded the voting rights of people with felony convictions.

Throughout 2020, The Appeal talked to people impacted by these reforms who were looking to register to vote, or who helped bring them about.

California just added to this wave. Voters overwhelmingly approved Proposition 17, a ballot initiative that restores the right to vote to anyone who is not presently incarcerated.

“This is a victory for democracy and justice,” Taina Vargas-Edmond, executive chair of the Yes On Prop 17 campaign and co-founder and executive director of Initiate Justice, an organization that has championed ending felony disenfranchisement, told the Political Report. “For far too long, Black and brown Californians have been excluded from our democracy.” 

California becomes the 19th state, alongside Washington D.C., to enfranchise all adult citizens who are not in prison. 

Read more from Kira Lerner and Daniel Nichanian about this ballot measure, and what’s next in the fight against felony disenfranchisement in California.

Progressives score major wins in DA and sheriff races—but suffer some setbacks as well

In recent years, elections for prosecutor and sheriff have upended criminal legal systems around the country. Fueled by local organizing, this shift has brought into power public defenders, civil rights attorneys, and other candidates who are running on reducing incarceration. 

This fall was no exception. 

Importantly, the full scale of the results is not yet available as of publication due to outstanding ballots in counties with some of the year’s most important prosecutorial races. But here’s what we know so far.

Progressives who vowed to fight mass incarceration win key prosecutorial races

In Austin and Orlando, José Garza and Monique Worrell each vowed during their campaigns to advance reforms and reduce the prison population. And on Tuesday, they each secured decisive victories against candidates who attacked them over these positions.

Garza, a former public defender who works as a labor and immigrants’ rights attorney, won in Travis County (Austin), Texas, four months after beating the incumbent DA in a heated Democratic primary. In the backdrop of Garza’s win is the intense organizing for decarceration and immigrants’ rights by Austin advocates who are vowing to keep him accountable. 

Garza’s own organizing background extends the streak of candidates like Larry Krasner who are upending long-held expectations of who can win a prosecutorial election, and on what platform. 

Worrell, a former defense attorney, prevailed in Florida’s Ninth Judicial District, home to Orange (Orlando) and Osceola counties, against Jose Torroella, an independent. She will replace Aramis Ayala, the prosecutor who did not seek re-election after clashing with state Republicans but who endorsed Worrell.

“Garza and Worrell were elected because their messaging around public health, public safety and the fact that we cannot prosecute and incarcerate our way out of society’s problems resonated with voters,” Tiffany Cabán, who lost the DA race in Queens in 2019 and has since worked with the Working Families Party to help progressives, told the Political Report in an email. 

Garza and Worrell will be joined by other progressive candidates who ran on similar platforms. 

In Oakland County, Michigan, Karen McDonald, a Democrat, prevailed on Tuesday over a former Republican prosecutor who defended punitive practices, 3 months after ousting a carceral incumbent in the Democratic primary. During the campaign, McDonald pledged to cut incarceration, not seek cash bail, and not invoke prior convictions as a way to increase sentences. In Colorado, Democrats Alexis King and Gordon McLaughlin won two DA races in populous suburban jurisdictions that include Jefferson and Larimer counties; they will flip these offices from GOP control. Their races featured clear contrasts on the role that a prosecutor should play in targeting the size of the jail population, and in the criminalization of lower-level offenses, as the Political Report laid out in September.

Elsewhere, reform candidates who won heated primaries this year were running unopposed in the general elections. Nov. 3 formalized their victories. In Arizona’s Pima County (Tucson), former public defender Laura Conover will replace a prosecutor who implemented punitive practices. In Colorado’s San Luis Valley, Alonzo Payne ousted a sitting DA in a primary and he emphasizes that fighting poverty is indispensable to ending mass incarceration. In New York’s Westchester County, Mimi Rocah won a primary against the backdrop of explosive reporting that the incumbent was relying on police officers who were framing defendants. And in Michigan’s Washtenaw County (Ann Arbor), Eli Savit ran on never requesting cash bail, amid other decarceral commitments. 

“This is a movement,” Savit told the Political Report after his win. He cheered the collapse of the expectation that “the only way” to win these county elections “was to be tough on crime.” 

But reform-minded challengers fell short in some key general elections around the country as incumbent prosecutors in Hamilton County (Cincinnati), Ohio, Charleston and Berkeley counties in South Carolina, DeKalb County, Illinois, and Shawnee County (Topeka), Kansas, prevailed.

Ohio and Georgia, though, saw the defeats of a pair of prosecutors whose decisions have raised major concerns about racial justice. In Franklin County (Columbus), voters ousted Ron O’Brien, who is known for aggressively pursuing the death penalty and flouting police accountability. In Georgia’s Brunswick Judicial Circuit, Jackie Johnson, who came under national fire over her handling of the murder of Ahmaud Arbery, lost; local officials had accused Johnson of advising police not to arrest the white men who shot the young Black jogger, and of taking further steps to undermine the investigation. 

Voters oust a series of punitive, pro-ICE sheriffs

Tuesday saw historic wins for immigrants’ rights advocates who have decried and organized against sheriffs’ punitive and anti-immigrant practices in populous Southern counties.

Longtime Republican sheriffs Neil Warren and Al Cannon lost in Cobb County, Georgia, and Charleston County, South Carolina. In Gwinnett County, Georgia, a sheriff’s office with notoriously aggressive policies toward immigrants also flipped to a Democratic candidate.

Each of these counties is part of ICE’s 287(g) program, which deputizes local law enforcement to act like federal immigration agents within county jails. Membership in these counties falls under the sheriffs’ discretion.

The incoming Democrats—Kristin Graziano in Charleston, Keybo Taylor in Gwinnett, and Craig Owens in Cobb—have all vowed to terminate the 287(g) contract and severely restrict cooperation with ICE, which would be a major blow to the federal agency. (See also: Timothy Pratt wrote on what has driven these shifts in Georgia.)

Also central to these campaigns were the allegations that the Cobb County and Gwinnett County jails were denying people adequate care. Just in October, a judge ruled that Warren was illegally refusing to disclose information about two deaths in the Cobb County jail.

These same themes also resonated in a third Georgia county, Athens-Clarke, which also elected a candidate who ran on breaking the incumbent’s cooperation with ICE. But for John Williams, the hard work came in the June, when he beat Sheriff Ira Edwards in this staunchly blue jurisdiction’s Democratic primary; he easily prevailed in the general election on Tuesday. Besides vowing to reject ICE’s requests that he detain people, Williams ran as a supporter of bail reform and during the primary pledged to not accept donations from the bail bond industry.

Elsewhere in the country, reform-minded candidates scored victories in at least two other important sheriffs races.

In Norfolk County, Massachusetts, Patrick McDermott, a Democrat, ousted the Republican incumbent who had championed a ballot initiative to enable closer cooperation with ICE and  who spoke up against a police reform proposal. 

And Charmaine McGuffey will be the next sheriff in Hamilton County, Ohio. McGuffey prevailed over Sheriff Jim Neil, a Democrat who has attended a Trump rally, cooperated with ICE, and backed the construction of a bigger jail, in an April primary. On Tuesday, she beat a Republican who said he wanted to ramp up enforcement of low-level offenses. McGuffey, by contrast, has signaled her support for reducing the incarcerated population, and she has vowed to no longer assist ICE in detaining people.

“The solution to the problem of mass incarceration is certainly not more mass incarceration,” McGuffey explained to the Political Report in April about her opposition to building a larger jail.

On the other hand, three GOP sheriffs who positioned themselves as allies of President Trump won re-election in key races that the Political Report was watching

In Tarrant County (Fort Worth), Texas, Republican Sheriff Bill Waybourn has overseen a jail mired by gruesome deaths and contracted with ICE; on Tuesday, he prevailed over Democratic challenger Vance Keyes, who ran on reducing the jail population and ending the partnership with ICE. In Oakland County, Michigan, Sheriff Mike Bouchard, a prominent Republican politician in the state who has honored ICE requests that he detain immigrants, prevailed. In Pinellas County (St. Petersburg), Sheriff Bob Gualtieri prevailed over Elio Santana, his Democratic challenger, even as Joe Biden carried the county handily. The sheriff’s conservative politics—he has helped ICE gain a deeper foothold in the state, advocated for arming teachers, and been a staunch proponent of the state’s “Stand Your Ground” law—have made him a national figure. 

Reform-minded incumbents prevail

Some prosecutors and sheriffs who have advanced criminal justice reforms, and faced attacks over it in the general election, won their re-election bids.

In Harris County (Houston), Democratic Sheriff Ed Gonzalez beat a Republican challenger who denounced the county’s bail reform, which Gonzalez supported. Farther south, in Nueces County (Corpus Christi), Democratic DA Mark Gonzalez prevailed over a Republican rival who signaled he would be harsher toward low-level offenses like drug arrests. In Florida’s Hillsborough County, State Attorney Andrew Warren prevailed over a Republican who criticized sentencing for not being harsh enough. 

Kim Foxx and Kim Gardner won second terms as the chief prosecutors of Cook County (Chicago) and St. Louis, as expected in these heavily blue jurisdictions. Both won tough Democratic primaries to get here.

We don’t know everything yet

In many other DA races, the results are not yet conclusive at this time. In Colorado’s most populous judicial district, a reform-minded Democrat, Amy Padden, leads by narrow margin as of the most recent count. In Maricopa County, Arizona, the election remains too close between Republican incumbent Allister Adel and Democratic challenger Julie Gunnigle.

And in Los Angeles County, the year’s biggest prize, some local media outlets have indicated that the progressive challenger George Gascón is likely to oust DA Jackie Lacey, but final results are not yet available. The same is true in the Maricopa County sheriff’s race, where Joe Arpaio’s former deputy is trailing in available returns. 

Of note: Two important elections are going to runoffs. In New Orleans, where local activists have focused on the DA race as an opening for change, the DA race will be decided in December. In Athens, Georgia, reformer Deborah Gonzalez, a Democrat, faces a runoff against independent James Chafin in a race that almost did not happen; the acting DA was eliminated.

The movement extends to many other local offices, besides prosecutors and sheriffs

DA and sheriff candidates—a longtime focus of the Political Report—were, of course, not the only ones who ran on criminal justice reform. The Appeal reported on the congressional and legislative victories of Athena Hollins and Esther Agbaje in Minnesota, Cori Bush in Missouri, Mondaire Jones and Jamaal Bowman in New York. It also reported on Holly Mitchell’s win for the Los Angeles County Board of Supervisors. In Washington State, Tarra Simmons became the first person with a felony conviction to be elected to the state legislature.

And a striking pattern across the country is the growing number of even more local offices that are becoming hotspots for conflicts around criminal justice, fueled by the grassroots organizing against the many forms that mass incarceration takes.

In Vermont, proponents of criminal justice reform are reimagining the function of the unusual office of high bailiff to make the case for civilian oversight on law enforcement. Bobby Sand in Windsor County and David Silberman in Addison County (Middlebury) won on Tuesday with a stated goal of harnessing the office’s platform for progressive change.

Some school board elections became a fulcrum on issues of policing and racial disparities that fuel the school-to-prison pipeline. In Prince George’s County Maryland, the local school board deadlocked over a proposal to remove police from schools in the wake of the summer’s Black Lives Matter protests, and the issue burst into the fall’s elections, as Rachel Cohen reported in October. The candidates who ran on ending police presence in schools appear to have swept the five seats in play, though the results are not yet definitive. “I believe that we need to end the school-to-prison pipeline and that includes removing armed officers from schools,” said one of the candidates who is in the lead.

In New Orleans, a concerted effort to “flip the bench” delivered wins for two public defenders running to become criminal court judges. Angel Harris and Nandi Campbell were part of a slate of seven current and former public defenders vying for local judicial offices on platforms that included ending cash bail and seeking alternatives to incarceration. Though the majority lost, their candidacies—and these two victories—buck the norm of former prosecutors overwhelmingly filling judicial seats.