On Tuesday, California voters resoundingly approved two different ballot initiatives on criminal justice that are in many ways contradictory. They also voted, by a narrow margin, against an initiative to end the death penalty.
One of the enacted ballots (Proposition 36) significantly scales back California’s notorious “Three Strikes and You’re Out” law. That law locks up people with three felonies for life, even if those crimes are nonviolent, and is widely recognized as one of the harshest sentencing laws in the country. Opponents of three-strikes crafted a careful campaign over the last decade, which helped shift public opinion on the issue. Police officers, politicians, and prosecutors around the country conveyed the message that taxpayers would save money, improve public safety, and advance social justice by scaling back the law. Stories of individuals sentenced to life imprisonment for minor crimes, such as simple possession of marijuana, revealed to Californians the unintended consequences of their state’s overly punitive sentencing policies.
The other enacted ballot initiative (Proposition 35) dangerously expands the definition of “human trafficking." Now, the legal meaning is so vague that victims’ rights groups say it could inadvertently trap or criminalize the victims of trafficking — potentially deterring abused or kidnapped sex workers from seeking help due to the law’s vague sentencing provisions. Those prosecuted under the new law will face prison sentences and fines that in some cases double and triple existing penalties.
Laws like Proposition 35 are overly broad and risk over-incarcerating marginalized communities without achieving useful public safety goals — just like three-strikes did for decades. Yesterday, the ACLU and the Electronic Frontier Foundation promptly won a temporary restraining order from a federal judge to block parts of Proposition 35 that may violate the First Amendment.
The fact that such a poorly written and overly punitive law passed with such ease, as Californians simultaneously voted to reverse the harsh trend of three-strikes, reflects a lack of public understanding when it comes to intelligent criminal justice reform. A former Facebook executive contributed over $2 million in support of Proposition 35, and high-profile celebrities like Jada Pinkett-Smith endorsed it. These proponents likely supported the initiative because of its benign name — “Californians Against Sexual Exploitation ” — without fully understanding the legal implications of the vague language. The opposition to the measure was loosely organized and did not have significant funding or visibility. The ballot initiative’s title played up the emotional appeal of an anti-sex trafficking measure and masked the fact that it does little to help victims of trafficking.
California’s three-strikes reform was hailed by advocates as a “turning point” in public opinion that will encourage more “sane and humane” criminal justice policies. Yet, judging by the 81 percent who voted for Proposition 35, and the 53 percent of voters still in favor of the death penalty, overly punitive criminal justice policies continue to resonate with the public.
Tuesday’s results in California are an important reminder that more public education is key before we can fully reform our justice system to end mass incarceration.