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From Prison Slavery to Marijuana, the Legal System Is on the Ballot Today

Here are the statewide ballot measures we are watching closely on Election Day.

Voters line up to cast their ballot just before the polls open in the midterm election on November 6, 2018, in Miami, Florida.

In states across the country, voters will decide on ballot measures today that would make big changes to the criminal legal system — and reverberate throughout the political world. While some statewide initiatives are relatively cut-and-dry, others could have unintended consequences, while still others are swirling in misinformation because they threaten dominant political power structures. Here are the ballot initiatives that we are watching closely at Truthout:

Non-unanimous Juries and Louisiana’s Legacy of White Supremacy

In 1898, delegates from the post-Reconstruction Democratic Party gathered in New Orleans to address “the purification of the electorate” or, in other words, how to maintain white supremacy by preventing Black and Brown people from voting and sending more of them to prison (thereby increasing the supply of free prison labor). The civil rights movement and court rulings have since chipped away at the major Jim Crow laws resulting from this convention, but one remains: a provision in the state constitution allowing for felony convictions without a unanimous jury. Today, Louisiana and Oregon are the only states where a felony conviction only requires 10 of 12 jurors to reach a “guilty” verdict, and Louisiana is the only state where a jury that would be considered “hung” anywhere else can send a defendant to prison for life without parole.

More than 40 percent of wrongful convictions recently overturned in Louisiana came from non-unanimous juries, according to the Innocence Project New Orleans. An analysis of thousands of felony cases by The Advocate newspaper found the unanimous jury provision to be the “capstone” of a trial system that becomes increasingly tilted against Black defendants at each stage, from juror selection to the deliberation room, where majority-white juries send Black defendants to prison at disproportionate rates. Combined with Louisiana’s harsh criminal code, the non-unanimous jury provision helps explain why Black people make up the majority of those warehoused in Louisiana’s vast prison system, which boasts one of the highest incarceration rates on the planet and more prisoners serving life without parole than any other state — three-fourths of whom are Black.

Today, Louisiana voters will decide Amendment 2, a ballot measure that would amend the state constitution to require unanimous juries for noncapital felony convictions. Stay tuned to Truthout for full coverage and an in-depth look at the movement led by formerly incarcerated activists.

Restoring Voting Rights for Millions in Florida

Of all the efforts to combat voter suppression and gerrymandering appearing on statewide ballots this year, Florida’s Amendment 4 has perhaps received the most attention. That’s because the initiative would automatically restore voting rights for an estimated 1.6 million people. Nationwide, 6.1 million people have lost their right to vote due to a prior felony conviction — including 1 out of 13 would-be Black voters, according to the Sentencing Project.

Florida accounts for roughly 25 percent of those who have lost their right to vote due to felony convictions. Rules in Florida and 11 other states make it extremely difficult to get voting rights restored, even after serving a sentence and probation or parole. If approved, Amendment 4 would automatically restore voting rights for people with prior felony convictions upon completion of their sentences, except those convicted of murder or a felony sexual offense.

Marsy’s Law: “Victims’ Rights” Opposed by Victims’ Rights Groups

Voters in Florida, Georgia, North Carolina, Nevada, Kentucky and Oklahoma will consider Marsy’s Law, a proposal to enshrine “victims’ rights” into state constitutions. Marsy’s Law appears uncontroversial at first glance, but civil liberties groups and victims’ rights advocates have come out against the proposals, arguing they are well intentioned but misguided. Promoted by a singular campaign funded by a controversial billionaire under the banner, “equal rights for crime victims,” Marsy’s Law would grant a number of rights to alleged crime victims and their families during court proceedings — before any conviction has occurred. Opponents argue Marsy’s Law would overwhelm systems already in place to assist victims of violent crime and contribute to mass incarceration by undermining due process.

Marsy’s Law is already on the books in five states. In North and South Dakota, several police officers who shot suspects, sometimes fatally, invoked a confidentiality provision in Marsy’s Law intended to protect victims from being tracked down and harassed — to keep their names from being released to the public until an internal investigation of the shooting was complete. Prosecutors in these states have used Marsy’s Law to block defense attorneys from accessing even basic information about alleged crimes, according to the Marshall Project.

However, in Iowa, some longtime victims’ rights advocates oppose Marsy’s Law, which has advanced in the state legislature. Laurie Schipper and Beth Barnhill, the executive directors of the Iowa Coalition Against Domestic Violence and the Iowa Coalition Against Sexual Assault, respectively, say victims’ rights serve a different purpose from the constitutional rights afforded to the accused, because “getting it wrong means we imprison innocent people and an offender remains free to harm others.” Biases over race, gender and immigration status routinely result in the arrest of victims seeking assistance, so Marsy’s Law could be turned against crime victims.

“Often, it is unclear who the victim is until a judge or jury sorts things out,” Schipper and Barnhill wrote in a May 2018 op-ed. “Frequently, the presumption of innocence is not experienced by domestic and sexual violence victims, especially those from marginalized communities. Women comprise a larger proportion of the prison population than ever, and most are survivors of violence.”

Abolishing Prison Slavery and Chipping Away at the War on Drugs

Four states are considering marijuana reforms, including Michigan and North Dakota, where voters could legalize cannabis for adult recreational use. The North Dakota proposal would go even further and establish a process for sealing past marijuana convictions. Polls show solid majorities of voters nationwide now favor legalization, and further legalization at the state level would generate additional pressure to end federal prohibition in Congress, where Democrats are circulating a plan to address broad marijuana reforms if they win a majority in the House.

A constitutional amendment in Ohio would make possession of certain drugs a misdemeanor rather than a felony in hopes of decreasing the prison population and redirecting funding to addiction treatment. Reformers in Washington are pushing an initiative to train police in de-escalation techniques to combat deadly and excessive use of force.

Voters in Colorado have a second chance to abolish slavery in the state by making forced prison labor illegal. Colorado’s constitution contains archaic language allowing slave labor as a form of criminal punishment, and an earlier attempt to remove it failed in 2016, likely because voters were confused by the language on the ballot. In 2014, a lawsuit challenging forced labor in a privately run immigration prison in Colorado shone a critical light on prison slavery, and nationwide prison labor strikes in 2016 and 2018 brought national attention to the issue. Nathan Woodliff-Stanley, executive director of the ACLU Colorado, said voters should dismiss concerns that the ballot measure would interfere with work programs that prisoners agree to participate in. “Whatever our corrections system may be, even in areas where there is legitimate debate, we should all agree that it should never consist of actual slavery or involuntary servitude,” Woodliff-Stanley said in a recent statement.

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