Death Penalty and Criminal Justice Reform on the BallotNovember 08, 2016

Capital punishment, mass incarceration, and drug policy are on the ballots in several states this Election Day. California, which has the nation's largest death row, could abolish the death penalty altogether.

California voters face dueling ballot measures on the death penalty; if both pass, the one with the most "yes" votes will be enacted. Proposition 62, will abolish California's death penalty in favor of life imprisonment without possibility of parole as the maximum sentence for murder. People receiving such a sentence would be required to work in prison, with a portion of their wages applied to victim restitution. Proponents of the opposite proposal, Prop 66, say it would expedite executions by changing the ways appeals are processed.

California voters are also poised to build on recent reforms targeting the state's overcrowded prisons. The number of people incarcerated in California has dropped since voters approved Prop. 47 in 2014, reducing nonviolent felonies to misdemeanors and giving more people a better chance for parole. Proposition 57 would further increase parole chances for nonviolent offenders and give them more opportunities to earn credits for good behavior. It would also allow judges, not prosecutors, to decide whether certain juveniles should be tried in adult court.

The death penalty is also on the ballot in Nebraska, where lawmakers overrode a veto from Governor Pete Ricketts last year to abolish capital punishment and change the maximum punishment to life in prison. Supporters of capital punishment have put the issue to voters in Referendum 426. A "repeal" vote would undo the death penalty ban; a "retain" vote will uphold abolition.

In Oklahoma, executions were put on hold last fall after the botched execution of Clayton Lockett, and the state's execution protocol is under review. State Question 776, if passed, would amend the state constitution to protect the death penalty by preventing it from being declared cruel or unusual punishment. The measure is designed to ensure that executions resume as soon as questions about the lethal injection protocol are settled.

Oklahoma voters will also decide whether to reclassify property offenses and simple drug possession as misdemeanors (State Question 780) and whether to use the money saved as a result to fund rehabilitative programs, including substance abuse and mental health treatment programs (State Question 781).

In New Mexico, voters will have the opportunity to reform the state's bail system by barring judges from imposing bail amounts that low-income defendants cannot afford. Money-based bail systems cause significant racial disparities in pretrial detention and in who is sentenced to prison in the United States. Constitutional Amendment 1 would allow non-dangerous defendants to be released pre-trial and give judges more discretion to deny bail to a defendant charged with a felony if a prosecutor presents evidence that the defendant poses a threat to the public. 

Measures to expand rights for crime victims are on the ballot in Montana, North Dakota, and South Dakota.

EJI believes that death penalty reform is long overdue in the United States. Smart on crime measures that reduce mass incarceration by eliminating excessive sentencing and offering more resources for rehabilitation have been embraced by crime victims and policymakers from both parties. While bipartisan criminal justice reforms remain stalled in Congress, voters at the state level are poised to enact important changes.