What election results reveal about the future of criminal justice reform

Crime was not the primary issue on voters’ minds this November. The economy, democracy, immigration, abortion, healthcare, gun policy, and taxes outranked crime as the concern voters claimed was important to their vote. Gallup found that crime ranked eleventh among 22 issues voters said were “extremely important” to their vote.

However, the results of criminal-justice-related ballot initiatives indicate that crime was still a salient issue, and voters may be reacting against the more radical demands that were floated by advocates after the murder of George Floyd, like defunding or abolishing the police, as well as to the 2020 upticks in certain types of crime.

Some of the ballot measures were in keeping with a criminal justice system that balances the imperative for the protection of persons and property with a parsimonious use of state resources, minimizing the use of force and restrictions on freedoms by the state. Others were not quite as well-measured and pointed to a shift in the climate around criminal justice reform away from its previous optimistic tenor of the period between 2000 and 2020.

The optimistic climate around criminal justice reform was partially attributable to the decreasing significance of crime to the voting population. However, in 2024, even though crime was not the top issue of concern, 75% of voters indicated that it was still either extremely important or very important to their vote, with only 6% saying it was unimportant. Pew’s results, which, unlike Gallup’s, focused on violent crime specifically, found that it ranked fifth among voters’ concerns, with 61% of voters saying it was very important to their vote. Both Donald Trump and Kamala Harris campaigned on, to varying degrees and emphases, a “tough on crime” approach to mirror this attitudinal change among the public, which could be partially attributable to increases in concern about newsworthy increases in certain types of crime during the pandemic and its aftermath.

As reported by the Council on Criminal Justice (CCJ), homicide in 2021 and 2022 was about 30% higher than in the first half of 2019, as was non-residential burglary. Gun assault was 40% higher during those years. In 2023, motor vehicle theft was 102% higher than in the first half of 2019; shoplifting and carjacking were up a whopping 127%.

There was also extensive coverage of those upticks. Videos of smash-and-grab burglaries went viral, and news stories on organized retail crime increased nationally from 436 in 2019 to 925 in 2022. Voters may have linked certain reforms as leading to quality-of-life problems, property crimes, or violence. The results of the 2024 ballot initiatives related to criminal justice in five states speak to the above climate shift among the voting population. Here, we give a post-mortem of those initiatives by topic and look forward to what this portends for the next four years.

Colorado Proposition 130: Funding for law enforcement

Result: Passed 52.8% to 47.2%

Postmortem analysis

A repudiation of the 2020 “defund the police” demands through a popular vote but still signaling concerns with some police practices involving force, this successful proposition directs the legislature to provide an additional, one-time allocation of $350 million to fund recruitment, retention, and training for local police officers.

The funds, to be paid out over an indeterminate amount of time, will be distributed in the form of grants for hiring initiatives, training, and support that can come via pay increases, bonuses, educational programs such as postsecondary degrees in criminal justice, training (including in restraining use of force), and a one-million-dollar death benefit for the families of officers killed in the line of duty on top of death and disability benefits from pensions.

Proposition 130 was placed on the ballot through the signature-collection efforts of Advance Colorado, self-described as “[a]n action-based organization focused on reversing radical policies that are harming the state and restoring common sense values and principles in Colorado,” which garnered 185,000 signatures. The organization stated the purpose of Proposition 130 was in response to “a significant increase in crime, and especially violent crime, in the state of Colorado.” Violent crime did rise in Colorado between 2013 and 2022, after which it has begun to dip. Property crime increased between 2020 and 2022 but has also been declining. Noting that crime began to decrease before a massive increase in state spending will be important for any evaluation of the effectiveness of the influx of funds in the upcoming years in reducing crime.

There are two policy levers that should be exerted with the passage of this bill. One concerns the timing of the allocation of the funds. $350 million represents ten times the amount of recent state funding for law enforcement and is in addition to that funding. Colorado has a billion-dollar budget hole, and the recently passed Proposition KK, which levied taxes on firearms sales, is estimated to raise only $39 million in additional funds per year. Because it is a one-time allocation without a timeline for disbursement, legislators should consider a 10-year or slightly longer distribution period, which would allow for the funds from Proposition KK to cover the new hole. Because no new taxes were implicated in the passage of this measure, this would necessarily mean that the budget will have to shift funds away from other programs or potential intervention strategies that can help reduce crime, like substance abuse treatment.

The second policy lever is stringent attention to what types of activities the grants will be used for and how to measure their effectiveness. It is disappointing that there was no assessment mechanism included in the proposition that would mandate an accounting for the success of the funded programs, such as in increased clearance rates, which is a more direct measure of police efficacy, but this can be made a condition of the grants.

Grants should be given for initiatives with strong empirical backing for crime reduction and increases in officer well-being. For example, there is inconsistent evidence as to whether police levels (officers or spending per capita) in and of themselves reduce crime. However, there is strong support for policing strategies like “hotspot” policing, so focusing on hotspot areas where crime is concentrated would be a beneficial use of funds. If the need is demonstrated, specialized investigative teams targeting specific types of crime can be deployed, which is among the intended purposes that should be supported through this funding. Police de-escalation training and law enforcement obtaining postsecondary education also provide mixed or questionable support from reputable research for its effectiveness in various job-related outcomes.

California Proposition 6 and Nevada Question 4: Forced prison labor

Result: Proposition 6 failed, 53.3% to 46.7%; Question 4 passed 60.6% to 39.4%

Postmortem analysis

These ballot initiatives, for which Reason Foundation published guides prior to the election, dealt with the question of whether to remove the exception to involuntary servitude and/or slavery (which exists as a “loophole” to the abolition of slavery in the U.S. Constitution’s 13th Amendment) in the state constitutions of California and Nevada. In California, the ballot also carried with it a prohibition against disciplining an incarcerated person for refusing a work assignment. These votes followed closely on the heels of other recent and successful ballot initiatives to end involuntary servitude in Colorado (2018), Nebraska (2020), Tennessee (2022), Vermont (2022), Alabama (2022), Utah (2022), and Oregon (2022).

Why the initiative failed in California but succeeded in Nevada has been partially and reasonably attributed to the fact that the language in the title and summary provided to voters in California did not use the word “slavery” (“slavery” doesn’t appear in its state Constitution, whereas it does in Nevada’s), but only the less-understood term “involuntary servitude,” leaving voters confused. In both instances, what is meant by involuntary servitude is forced labor, often with the threat of punishment if it is withheld. This was certainly the case in states like California and Nevada, where incarcerated people have been mandated to work, including in jobs that carry significant risk to their lives, like fighting fires, for either no wages or paltry wages. If incarcerated individuals refuse to work, they may be reprimanded and denied a range of privileges.

Some have argued that work in prison leads to better chances of employment upon reentry and less recidivism. However, most studies investigate voluntary work programs, so the true impact of forced labor on employment and recidivism is unknown. Affirmatively choosing to seek the benefits of work and gaining time credits or wages for that exchange in itself signals a likelihood of successful reentry.

The private sector has a strong, beneficial role to play here in the absence of a constitutional ban on forced labor. There can be a closer mapping of work inside to work outside, fair pay for services, and cultivation of future employees, such as is seen with the sales and marketing company Televerde, which hires women in prison, providing them with practicable sales training and access to marketing technology, as well as a workforce development program through their related foundation. There would need to be a commitment on the part of private employers, coupled with training, development, and openness to successful second chance practices, such as is seen with Nehemiah Manufacturing, which concentrates its hiring on the formerly incarcerated and provides them with wraparound services (like social workers, subsidized housing, and access to free transportation) to help with their re-entry.

From a policy perspective, there are several approaches to reducing the negative consequences of the failure of the ballot initiative. Doing away with employment restrictions and other collateral consequences is a clearer path to employment opportunities than coerced labor. Policy analysts at Reason have also noted that the California constitution should be interpreted to mean that judges can order involuntary servitude, but prison staff cannot. This would greatly reduce the availability of the tool of punishing incarcerated people for refusing work or impelling them to participate in work they do not wish to, for any reason, engage in.

Colorado Amendment 1: Constitutional bail exception for first degree murder

Result: Passed 69% to 31%

Postmortem analysis

Colorado’s Amendment 1, which passed with 69 percent of the vote, allows judges to deny bail to a person charged with first degree murder. This shouldn’t be interpreted as a rejection of bail reform but rather a return to a recent status quo. Colorado was one of 19 states that had a constitutional right to bail for all crimes except those accused of a capital offense. Colorado abandoned the death penalty in 2020, and so this meant that first degree murder, as a capital offense, was de facto eligible for bail, an interpretation upheld by the state Supreme Court.

Republican and Democratic lawmakers brought this constitutional amendment to the voters, also backed by the conservative action committee Advance Colorado, to restore the pre-2020 restriction on setting bail. Because this was in many senses a technical fix to update a statute after “capital offense” was removed as a category of crime in the state, it is hard to attach any significance to its passage. It is, of course, possible that voters intended to signal a mistrust of judges who were responsible—during the intervening period since the death penalty was abolished—for setting bail and release conditions that would prevent the pretrial release of people accused of first-degree murder.

It is helpful to understand a little context here about the significance of bail reform efforts. Through the 1960s, the only factor that judges could consider in setting bail was the likelihood of the defendant appearing in court, which made cash bail a useful tool. Then, reforms to the bail system in the 1970s and 1980s allowed judges to consider risks to public safety in their decisions as well. A point of concern remained as to how to ensure that the ability to pay bail does not determine whether someone can be released in the pretrial period, which would offend due process and justice interests.

In the 2010s and 2020s, cash bail reform began in New Jersey, spreading to New York, California, and Illinois. Cash bail reform became a controversial political flashpoint in state and local elections from “tough on crime” legislators. As reported by Reason Foundation, evidence suggests that restricting the use of cash bail among those deemed a low risk to public safety has positive effects, such as reducing the likelihood of being pressured into a plea deal, allowing defendants to keep their jobs and familial responsibilities, and “would not result in dramatic drops in court attendance or increased risk of reoffending. … There is even some evidence that pretrial reforms that reduce detention of low-risk, bond-eligible defendants may actually improve public safety.”

There is strong evidence that pretrial detention severely inhibits an individual’s ability to mount a legal defense and undermines the presumption of innocence and the ideals of due process. Pretrial determinations should, therefore, be made on an individualized basis and impose the minimum restrictions on liberty necessary to preserve the integrity of the adjudication process and to protect the community from definable threats of harm.

Colorado Proposition 128 and Arizona Proposition 313: Violent crime sentencing and parole

Result: Proposition 128 passed 62% to 38%; Proposition 313 passed 65% to 35%

Postmortem analysis

Colorado’s Proposition 128 saw a decisive win, garnering 62% of voter support. As with Proposition 130, 128 was sponsored by the conservative policy advocacy organization Advance Colorado. Unlike Proposition 130, though, it was a citizen-initiated ballot

Starting in January 2025, parole guidelines changed, requiring people convicted of certain crimes of violence, such as second-degree murder, first-degree assault, first-degree burglary, and aggravated robbery, to serve 85% of their sentences before becoming eligible for parole. It also ends earned time reductions for completing in-prison programming designed to reduce recidivism.

While these crimes are certainly far from sympathetic and create real harm and fear in the public, the marginal increase in public safety expected from the passage of this proposition is questionable. According to an analysis by the legislative council staff, 218 people per year will be affected by the change. This is out of a system that held 17,168 prisoners in 2022, an increase over the prior year. Because the average governing sentence for these crimes is a hefty 23 years, this will mean that instead of becoming eligible for parole after an average of 17 years, those convicted will serve 19.5 years. An additional, arbitrary 10 percent served towards the sentence, or 2.5 years, is unlikely to have enhanced deterrent or rehabilitative value. And although the individual is incapacitated for another 2.5 years, these years are on top of an already almost two-decades-long sentence. Each additional year beyond 10 years has a decreasing impact on recidivism.  It, therefore, is not a parsimonious use of state restriction on freedom.

It is also not an effective use of an additional $12 to $28 million per year in prison costs, which is on top of a strained Colorado budget now committed to $350 million for local law enforcement through Proposition 130. The loss of incentives through earned time credit to participate in rehabilitative programming that facilitates reentry, on the other hand, may mean that preparedness for release may decrease. Taken with Proposition 130 and Amendment 1, Prop. 128 was indicative of a pro-law-enforcement, risk-averse sentiment towards particularly violent crime that saw fiscal concerns as secondary.

Eligibility for parole after 75% of the time served, per the previous requirements, was not a guarantee of parole; in the same way, it is not a guarantee at 85% of the time served. In fact, discretionary parole has been more difficult to obtain due to pressure for punitive approaches and fear of having exceptional cases of reoffending capture public attention. The Colorado Parole Board approved 39% fewer people for parole in 2022 than in 2019. The Board is tasked with using risk-assessment tools, evidence of rehabilitation and work, and other indications of readiness to return to the community in their decisions. These methods, already conservative, allow for some individualization in determining whether a sentence has been sufficient to produce change and maintain public safety. The passage of Prop. 130 may be seen as a mandate for harsher sentencing and may result in an increase in discretionary denials of parole, no matter what percentage of time has been served.

“Second Look” legislation already enacted in Colorado, which allows for resentencing/sentencing modification for those convicted under habitual offender laws after serving at least 10 years, can provide a way to counteract the cost, both fiscal and societal, of increasing the time-served requirement for parole. However, this legislation is limited, applying only to offenses committed after 2023 and, therefore, will not have an impact until at least 2033. It should be made fully retroactive and expanded so that mandatory reviews are given after 10 years.

While Colorado’s proposition dealt with “back end” sentencing increases, Prop. 313 in Arizona addressed “front end” sentences by mandating life imprisonment for a class two child sex trafficking conviction. The previous discretionary sentence was seven years to life for the same crime. The measure passed readily with 65% of voters supporting it, unsurprising given that crimes against children, and especially sex crimes against children, are among the most instinctively reviled by the public.

While it may satisfy a deep retributive impulse, the lack of discretion means that judges are not given the opportunity to take into account the individual aggravating and mitigating factors of cases. Removing parole entirely as an option denies any possibility for successful reintegration and rehabilitation. The measure may also ensnare some of the victims of sex trafficking themselves, as they can be coerced to traffic others; in total, the measure represents an overextension of punitive power.

California Prop. 36, Florida Amendment 3, Massachusetts Question 4, Nebraska Measures 437 and 438, North Dakota Measure 5: Drug policy

Result: Proposition 36 passed 68% to 32%; Amendment 3 failed 44% to 56%; Measures 437 and 438 both passed 71 % to 29% and 67% to 33%, respectively; Measure 5 failed 52.5% to 47.5%.

Postmortem analysis

California’s tough-on-crime Proposition 36 passed decisively in the liberal-leaning state, with close to 70% of the vote, a bellwether for the national climate shift towards punitiveness. The measure was wide-ranging and had many elements, including increasing penalties for various drug and theft crimes and elevating numerous misdemeanors to felonies.

In substance, Prop. 36 returns California to a harsher drug prosecution approach. It backs away from earlier commitments to shift away from incarceration and toward treatment as the prevalent response to drug possession and use offenses. Proposition proponents widely publicized the heightened sanctions as a purported solution for particularly notorious retail thefts and visible homelessness in recent years. While it is important to deploy robust law enforcement resources to address public safety disruptions, the prevailing evidence shows that increasing penalties will greatly increase incarceration but will do little to eliminate retail theft or solve homelessness. On the contrary, research shows that the length of a sentence is not a factor in deterrence, but that certainty of apprehension is.

One confusing aspect of the measure is that it created a new category called a “treatment mandated felony,” which mandates involuntary treatment (with no funding allocation to support it) for certain people with multiple drug arrests and then requires the ones who don’t successfully complete the program supplied to them to serve time in prison for up to three years. Reported estimates are that this will increase incarceration rather than treatment. Meanwhile, it is likely to exacerbate an already devastating lack of treatment beds in the state, as well as remove services that were funded through the savings gained from reducing these same penalties, which amounted to $800 million in the state (65 percent of which was allocated to treatment costs). It is worth noting that the people who received that funding had an impressively low rate of subsequent offenses, 15.3 percent, when recidivism rates upwards of 35 percent are generally seen in the state. Thus, these programs appear to be effective at reaching a population for whom rehabilitative community programming is preferable—at pennies on the dollar—to incarceration.

According to the legislature’s nonpartisan Legislative Analyst Office, Prop. 36 will likely inflate state criminal justice system costs by “hundreds of millions of dollars” a year. “Some of these costs could be offset by reductions in state spending on local mental health and substance use services, truancy and dropout prevention, and victim services due to requirements in current law.” Local governments may also see tens of millions of dollars in added costs largely from increased jail incarceration.

Proponents claimed that these costs “will be money well spent,” and of course, if the policies would substantially eliminate retail theft crime and drug overdoses, their funding would be worthwhile. But a lot of money will be wasted, and a lot of incarceration will result from these changes, and none of that money will be available for communities to offer needed services that are proven to reduce drug overdoses, crime, and homelessness. Instead, the new policies prioritize prison—which should be used sparingly because it is expensive and harmful.

In this political fight, well-resourced interests—notably, $16 million from big retailers and law enforcement—won the day, and the public returned the state to a policy focused on incarceration instead of diversion and treatment. As discussed above, even if there is a shared goal of reducing criminal activity, adding penalties for drug crimes will not eliminate drug harm.

Voters in several states also declined to legalize or decriminalize certain drugs. These results, coupled with California’s Prop. 36, suggest that any consensus about drug policy—at least for expanding marijuana legalization—may be evaporating. Massachusetts residents turned down a citizen-driven ballot measure, Question 4, to establish regulated access for adults to natural psychedelic substances like psilocybin (a.k.a. mushrooms) that show therapeutic potential in treating mental health conditions like post-traumatic stress disorder, with 57 percent voting against it.  

Only two states have passed policies allowing for legal access to psychedelics thus far: Oregon and Colorado. Massachusetts has had legal marijuana for recreational use since 2016.

Rand research shows about 3% of American adults used psilocybin in 2023. Perhaps Massachusetts voters are worried about the increased use of these drugs. That said, if the measure had passed, it might only have increased use locally for at least a novelty period since use rates of hallucinogenic drugs are quite stable over time, but it certainly wouldn’t have resulted in a proverbial mushroom cloud on every street corner in Boston.

The failure doesn’t necessarily portend a shift in broader criminal justice attitudes in Massachusetts, either. After all, mushrooms are not associated with crime in public consciousness. Opposition in the state may have been perceived as credible since several large medical associations spent money opposing the proposal and casting doubt on the medical benefits claims of proponents.

North Dakotan voters similarly rejected the legalization of marijuana narrowly by about 53% (they got closer than the last two times voters tried it). South Dakota, which had legalized marijuana by ballot in 2020 only to have the bill declared unconstitutional—and tried again in 2022, only to lose by 53%—this year lost by 56%. Not the proponents’ desired trajectory. Meanwhile, Florida’s legalization constitutional amendment, Amendment 3, despite receiving a majoritarian 56 percent of the vote, failed to reach the requisite 60 percent supermajority threshold. The measure faced strong opposition from Gov. Ron DeSantis. This is the first year since 2017 in which there will be no new states voting to permit recreational adult-use legal marijuana. This breaks a pretty good streak since 2010 when Colorado passed the first state legalization measure, but it does not necessarily spell the end of the trend.

In Nebraska, paired proposals to legalize and regulate marijuana for medical use passed handily, with one pulling 71%; however, there was a cloud (pun intended) that hung for weeks over the result because of ongoing litigation over the signatures submitted to qualify the ballot initiative, though a judge later allowed the laws to go into effect. The sanctioned use of medical marijuana brings Nebraska in line with the vast majority, becoming the 39th state (plus D.C.) to authorize medical use of the substance.

It would be wrong to interpret the result in Nebraska on medical marijuana, however, as indicative of growing support for recreational marijuana legalization in the state. Rather, Nebraska is kind of a straggler when it comes to medical marijuana. And when Nebraska’s legislature considered a bill for recreational legalization last fall, it died in committee. In this election, as has been noted, the states seeking recreational use did not fare well.

Looking forward

Ballot initiatives are enormously useful in evaluating public sentiment about specific criminal justice reform issues. Through their use of direct democracy in voting for the measures’ passage or failure, they allow us to read the pulse of the public without some of the mediating influence of politicians. That said, ballot measures are much blunter instruments than legislation and frequently can’t deliver as much detail and nuance as carefully crafted laws can, whereas sentencing is, by nature, a very intricate process that needs individuated attention. Thus, sentencing reform is often more aptly suited to legislative intervention. Moreover, ballot measures can reflect a public sentiment that may not accord with that of the governing majorities.

This year’s slate of ballot initiatives produced several results that bode ill for criminal justice reform writ large and speak to recent trends toward knee-jerk, punitive responses that are impervious to cost and don’t account for lessons learned from decades of failed policy.

Nevertheless, despite the losses on the drug legalization front, there are separate signs that the Trump administration may be favorable toward federal marijuana legalization, which would clear up a lot of confusion over the status of state-legal schemes. Coupled with the closeness of the tallies, it appears marijuana legalization is not in a retrenchment position, even though it might appear so on its face.

Additional reforms that are sorely needed in the system are not completely dead, either, though the passage of Prop. 36 in California stings. Incremental, bipartisan criminal justice reforms that prioritized public safety while seeking to reduce the collateral consequences of the overreach of punitive, ineffective, and expensive state punishments have, nevertheless, continued over the past few years in states from Oklahoma to New Jersey.

It is important for policymakers and advocates at this moment to recognize the concern reflected in their states’ votes this election and in their attempts to reform the system and balance that acknowledgment with the reality that overcriminalization and over-incarceration are participants in creating, not reducing, harm. It is critical to be locking up only the people for whom the positive effects of incarceration outweigh the costs that accompany that choice of remedy. When large groups of people are subject to additional incarceration, it is harder to get that calculation right.   

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Source: https://reason.org/commentary/election-results-future-criminal-justice-reform/