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Criminal Justice Reform Takes Another Big, Messy Step Forward in 2020 Elections

Two protestors holding 'No More Drug War' and ACLU's 'We the People' posters at a protest in front of the Justice Department.
What a super partisan, highly divided election means for criminal justice reform.
Two protestors holding 'No More Drug War' and ACLU's 'We the People' posters at a protest in front of the Justice Department.
Taylor Pendergrass,
Director of Advocacy,
ACLU of Colorado
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November 6, 2020

Criminal justice reform was a key issue in Tuesday night’s elections, from the presidential race all the way down to municipal ballot initiatives.
One exciting indication of just how far the movement to end mass incarceration has come? On Election Day it used to be possible to round up all reform-related electoral results in a few bullet points, but this week, there were so many criminal justice victories that it is impossible to summarize them all in a few paragraphs.
Below are some of the highlights we were tracked most closely on election night. These results show a vibrant movement growing in strength and pushing into unchartered and difficult territory.

  • A new playing field for presidential politics: The presidential race showed just how much the goalposts have shifted on criminal justice reform at the federal level. The presidential primaries this year saw the farthest-reaching commitments to criminal justice reform in the nation’s history. Many candidates, including Biden, took an unprecedented step by pledging to the ACLU to cut incarceration by 50 percent. Even under the hood, policy pledges went beyond superficial fixes and included addressing prosecutorial power, sentencing policy, and overhauling pretrial justice. Once the race narrowed to Trump and Biden, it cannot be denied that two presidential candidates sparring over their pro-reform bona fidesmarks another remarkable step forward from where we were even one cycle ago.
  • A tipping point for the war on drugs: Marijuana legalization victories over the last few cycles, essential as they are, have often obscured the cold hard truth that the war on drugs rages on. But this week’s results do suggest something new and different. For the first time in history, a U.S. state — Oregon — has decriminalized all simple drug possession, a victory that will open up a new frontier for similar efforts across the country and at the federal level. At the same time, some of the marijuana legalization victories on Tuesday were more than just continued momentum. After near universal failures in the U.S. to implement legalization policies that center racial equity and repair harm to communities of color ravaged by the war on drugs, Arizona and Montana took a step forward by including expungement (tossing out old marijuana convictions) in their initiatives. And if you’re not batting an eye at marijuana legalization in places like Mississippi and South Dakota — a state that went 65 percent for Trump — it is worth pausing to reflect that it is only because we’ve become accustomed to progress that would have been unthinkable just a decade ago.
  • Confronting hidden support for incarceration: Mass incarceration has always been a bipartisan affair, and there’s no path to ending it that does not also tackle deep-seated moderate and liberal support for policing, punishment, and retribution. Nowhere was that reality more present on election night than in Oklahoma, where a left-right coalition including the ACLU suffered a stinging defeat on a bold sentencing reform ballot initiative. Among the reasons for the loss was the no-holds-barred opposition of the largely moderate domestic violence advocacy community in Oklahoma. That community vehemently opposed any reduction in lengthy prison sentences for a few offenses related to domestic violence, despite overwhelming evidence that these extremely long prison sentences do not reduce violence. As painful as the loss was, the ballot initiative launched an unprecedented wave of support from crime survivors who bravely stepped forward to explain why their lived experiences have led them to believe we cannot incarcerate our way out of violence. While it was heartbreaking to see Oklahoma’s liberals work to sink direly needed reform, the initiative made progress in pulling back the curtain on a schism that will have to be addressed head on before ending mass incarceration is possible.
  • Wins for reform prosecutors in unexpected places: Election night saw huge wins for pro-reform, pro-decarceration prosecutors in cities such as Los Angeles, Chicago, and Orlando. Just as notable, if not more so, were the contests in less visible places such as Oakland County, Michigan, where Jessica McDonald sailed to victory in Michigan’s second most populous county. Some of the country’s highest imprisonment rates and the worst racial disparities can be found in sprawling suburbs that are often overshadowed by the big cities that have been the primary targets of the prosecutorial reform movement. Seeing real change move into the suburbs is an encouraging and essential step. Encouraging indications of support for reform-orientated candidates in traditional tough-on-crime strongholds were also seen in Phoenix and New Orleans, formerly home to two of the most punitive and infamous elected prosecutors in the country. In Phoenix, DA candidate Julie Gunningle is in an extremely tight race while running on an unprecedented commitment to cut incarceration by 25 percent. In New Orleans, longtime reform supporter Jason Williams advanced to a run-off where he might have a chance to undo former DA Leon Cannizzarro’s profoundly punitive and unethical practices.

Other noteworthy criminal justice successes were found on the West Coast: San Francisco voters cleared the way for meaningful reinvestment from policing, Washington sent a formerly incarcerated person to the legislature, Los Angeles voters approved alternatives to jail construction, and California soundly defeated an anti-reform rollback.
While Americans across the country remain divided on exactly what Election Day means for the future of our country, it’s clear that it was a good night for criminal justice reform and a harbinger of the deeper and tougher fights to come.

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