Tough-on-crime laws are winning at the ballot box
Since the pandemic prompted a spike in crime, politicians from both parties have been running fear-mongering, law-and-order campaigns. And it’s becoming clear that many Americans, including liberal voters, are shifting rightward when it comes to their views on criminal justice, despite the fact that crime rates have actually been falling since 2021.
Proposition 36, a ballot measure in California, asked voters if they wanted to toughen penalties for drug- and theft-related crimes. And on Tuesday, voters said yes by an overwhelming margin. (With more than half of the votes counted, the yes campaign had won more than 70 percent of the vote.) That Californians — some of the country’s most reliable Democratic voters, who previously passed a ballot measure to reduce penalties for low-level offenses — passed a tough-on-crime measure is sure to lead people to believe that Americans more broadly are looking to roll back some of the progressive reforms that many states have passed.
The result didn’t come as a surprise. Polls showed that an overwhelming majority of voters supported Prop 36, and various Democratic and Republican politicians had endorsed it. And while California Gov. Gavin Newsom opposed it, he also wasn’t particularly vocal about doing so, and Vice President Kamala Harris, who’s registered to vote in the state, declined to say how she was voting on the measure.
“It goes to show that there is a real disparity between what is right as a matter of policy and then where the temperature is as a matter of politics,” said Insha Rahman, the director of Vera Action, a criminal justice reform advocacy group.
It’s not just California. Another ballot measure, which would require some people to serve more time in prison before they qualify for parole, passed by a comfortable margin in Colorado, a reliably blue state, on Tuesday as well.
All are further signs that the era of criminal justice reform — that is, the movement that successfully pushed for a more forgiving criminal justice system and for policies to decrease the US prison population — is facing a stubborn and serious backlash. At least for now.
Why voters aren’t moved by falling crime rates
The way people feel about crime doesn’t tend to match up with actual stats. Before the pandemic, crime had been steadily declining across the country for almost 30 years. (Violent crime and shoplifting briefly rose during the pandemic, but overall crime rates have continued to trend downward since.) But almost every year during that period, the majority of Americans thought crime was getting worse, according to Gallup.
The last few years have been no different. In 2023, the same poll showed that 77 percent of Americans believed that crime was increasing despite FBI data showing that the opposite was true. In 2023, murders were down by nearly 12 percent, and in the first half of this year, murders declined by another 23 percent.
As I wrote earlier this year, there are two main reasons Americans tend to overestimate the extent to which crime happens: Media coverage of crime can often overstate trends and sometimes sensationalizes incidents that grab people’s attention. And law-and-order campaigns — the kind of campaigns that Donald Trump ran, for example — are a mainstay of American politics and appear in virtually every election cycle in local, state, and national races.
In the decade before the pandemic, however, criminal justice reform advocates succeeded in highlighting racial disparities in the prison system and the many injustices in various sentencing laws. As the prison population boomed after the tough-on-crime era of the 1990s — and peaked around 2008 — Americans became more open to having a more forgiving criminal justice system, and law-and-order campaigns saw fewer successes.
Many progressive reforms aimed at reducing the prison population — including lowering penalties, legalizing drugs, and declining to prosecute petty crimes — passed. States across the country, both Republican and Democrat, implemented laws that aimed to reduce their overall prison populations. California was a part of that push, and in 2014, voters passed a ballot measure to reduce penalties for low-level offenses.
The crime spike in 2020, however, put a stop to that momentum, and Americans started to look at a few of those reforms with some regret. California and Colorado voters aren’t alone. Oregon, for example, recriminalized drugs after decriminalizing them in 2020, and Louisiana passed a slew of laws that reduced parole eligibility and imposed harsher sentences. Progressive prosecutors who championed lowering penalties and loosening enforcement of petty crimes have been voted out of office.
That doesn’t necessarily mean that Americans are irrational: The United States is, after all, a relatively violent country and has a higher homicide rate than its peers. But while crime is a problem, lawmakers tend to react too quickly to crime trends, often by passing shortsighted tough-on-crime laws that bolster the perception of public safety by, say, putting more cops on the streets, but end up exacerbating the existing flaws of the criminal justice system, including sending poorer and more marginalized people to prison.
In California’s case, voters have really been pushing for tougher law enforcement. Earlier this year, San Francisco voters passed a ballot measure that would subject welfare recipients to drug tests and expanded police surveillance. Now, the rest of the state showed that the appetite for tough-on-crime laws isn’t going away. And the ballot measure in Colorado showed that other parts of the country are probably feeling the same way.
What Prop 36 means for California — and the rest of the country
The new California law would roll back some previous reforms from the 2014 ballot measure that reduced penalties for low-level crimes. Specifically, it would turn some thefts that are currently classified as misdemeanors into a felony charge if someone has already been convicted of theft at least twice — no matter the value of stolen goods. It would also turn certain drug possession charges that were previously a misdemeanor into a “treatment-mandated felony.” That means that people caught with certain amounts of hard drugs would be required to seek treatment, but if they fail to complete it, they could end up serving up to three years in prison.
Over the last two decades, California’s prison population has significantly declined. But laws like Prop 36 will likely reverse some of that progress. “It is likely that jail and prison admissions will go up in the state of California,” Rahman, of Vera Action, said.
More than that, the ballot measure’s success will likely encourage other states to enact tougher laws. If even liberal voters in California supported the measure, then wouldn’t other constituencies across the country want something similar, if not even tougher? “It will absolutely put wind in the sales of opponents of [criminal justice] reform,” Rahman said.
Colorado voters will add to that sentiment. Under Proposition 128, which also passed by a wide margin, people convicted of violent crimes — including second-degree murder, sexual assault, and aggravated robberies — will have to serve at least 85 percent of their prison sentence before becoming eligible for parole, up from 75 percent.
That said, these ballot measures don’t necessarily provide the full picture. Rahman, for example, highlights lower-profile battles that criminal justice reform advocates have recently won, including some drug decriminalization and legalization efforts.
For now, though, there’s one lesson for criminal justice reform advocates: “The big story here is to say that just because we had one high-profile prominent loss, doesn’t mean the momentum for criminal justice reform is dead,” Rahman said, referring to Prop 36. “Reform is still happening, but it’s in the shadows, and it’s on us to pay as much attention to those wins as it is to the one big loss.”