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Excerpted From: Nicholas Ansel, Advancing Criminal Reform Through Ballot Initiatives, 53 Arizona State Law Journal 273 (Spring, 2021) (Comment) (204 Footnotes) (Full Document)


2020 brought the world's attention to bear on American policing and the American carceral regime. After the murder of George Floyd on May 25, 2020, protests erupted in every state in America. By early July, experts estimated that “about 15 million to 26 million people in the United States ha [d] participated in demonstrations,” representing “the largest movement in the country's history.” As of mid-October, Black Lives Matter demonstrations still continue in many cities.

America now cages more people than any other country in the history of Earth, incarcerating African Americans “at a rate six times that of South Africa during Apartheid.” The murder of George Floyd represented a crystallization of the American criminal project's treatment of black and brown communities, of marginalized communities, of indigent persons.

While the general contours of this crisis are consistent nationally, Americans now know that the proposed remedies must be diffuse. Policing is scattered among over 18,000 law enforcement agencies, many governed by countless local and municipal governments. Likewise, criminalization and incarceration are almost entirely accomplished at the hands of state governments, each having established unique criminal codes and policies.

So how should those involved in the criminal reform movement approach changing the punishment bureaucracy? If one were to find herself engrossed in the relevant academic literature, she might learn to form broad coalitions, lobby political bodies, strategically vote for representatives, engage media in her cause, and fund more academic studies and expertise in criminal policy.

While all this work has been invaluable, this formula omits a crucial--perhaps the crucial--vehicle for criminal reform in America. If, instead, reformers were to focus on how bold reform policies are being implemented, they may end up turning their attention somewhere else: direct democracy.

In many states, fundamental reforms have been driven in a patently American way--directly by the people. Particularly over the last decade, reformers have placed a growing number of policies directly on the ballot with compelling rates of success. As it turns out, placing trust in the people has been an extremely successful way to implement changes like policing reform, drug decriminalization, search and seizure protections, felon enfranchisement, jury unanimity, and bail reform. Coalition-building is certainly constitutive of transformative change, but maybe it is time that reformers appreciate the success their movement has already had in the minds of everyday Americans.

This Comment rebuts the traditional narrative that leaving criminal policy in the hands of average citizens necessarily results in an overly punitive system. It argues that direct democracy is a critical component of criminal reform because it serves as an effective vehicle for passing bold reform policies. Unique advantages inhere in direct democracy: it places reformers at the helm of policymaking without having to negotiate or dilute their goals, it bypasses the ruling bureaucrats who shaped mass incarceration and are thus unlikely to truly reform it, and it puts reform policies directly before the actual people who are most affected by the lived experience of mass incarceration. And, to borrow the popular idiom, direct democracy provides the movement with a greater ability to strike while the iron is hot.

The Comment follows several lines of investigation to support its core assertion. Part II focuses on direct democracy, examining the process of getting a measure to the ballot, including the express and unspoken requirements for ensuring an initiative makes its way to the voters. It then reviews a series of restrictions state legislatures have placed on the initiative process. Part III examines criminal-focused ballot initiatives that have been proposed since 2000, finding that these measures are passing with increased frequency and cover a broad range of criminal injustices, while punitive-focused pro-criminalization measures are becoming more limited in scope. Finally, Part IV discusses how criminal reform is well-suited for direct democracy because it embraces its theoretical underpinnings while dispelling its traditional critiques.

[. . .]

2020 may be an inflection point in this movement. People organized, lined up outside the halls of power across our nation, and demanded justice. They did this despite the devastating challenges and risks associated with the COVID-19 outbreak. Several ballot campaigns were forced to postpone their 2020 measures. Public closures made it rather difficult to gather signatures in time for the election. This makes it inspiring that so many criminal reform measures still qualified for the ballot and passed. If anything, the profound turnout in the 2020 election raised the stakes of future initiatives that will now require even more signatures.

At this very moment, ballot campaigns across the country are likely preparing a new slate of initiatives to bring directly to the people in upcoming elections. Maybe 2020 marked the crossing of a Rubicon in the fight for criminal justice, and we will see even bolder reforms passed by the next election cycle. Regardless, there is much work to be done. After all, lasting criminal reform depends on the power of people, not politicians.

J.D. Candidate, 2021.

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