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A Case for Citizens’ Initiative Reviews of Criminal Justice Ballot Measures

Andy Puthenpurayil is a Nevins Fellow with the McCourtney Institute for Democracy at The Pennsylvania State University, studying with Healthy Democracy for the summer of 2017. Soon entering his sophomore year, his area of study is criminal justice. Here, Andy makes the case that voter information reforms such as the Citizens’ Initiative Review can serve as an important counterweight to the often distorted, confusing or hyperbolic messaging in ballot initiative campaigns, which can be particularly consequential when the topic is criminal justice.

Initiatives and referenda dealing with issues of criminal justice can often have unforeseen or unjust ramifications.  Voters may pass a measure they believe would do good, based on information from a one-sided campaign, and find that that measure affects them or their communities in a negative way.  It is important, therefore, for voters to be educated on measures and be confident in their understanding of the legislation before they decide whether to vote for or against it. The Citizens Initiative Review (CIR) provides a neutral, reliable way to educate voters on ballot measures.

In 2006, around 78% of voters in Arizona approved Proposition 100.  The measure denied bail to those who could not prove that they were in the United States legally, and were accused of a serious felony.  The voters who were in favor of the measure may have been influenced by the statements of the then Maricopa County Attorney, Andrew Thomas, who claimed that there were ‘illegal immigrants’ entering the state, committing felonies, then leaving the country.  Thomas had no evidence to back his claim, but nevertheless argued for the measure throughout the campaign.  Ultimately, the law was found by the 9th Circuit Court of Appeals to be in violation of the due process clause of the 14th Amendment.  Had voters been more informed of the true severity, or lack thereof, of the situation they voted to mitigate and of the violation of constitutional rights implicit in the bill, there may have been a different outcome.

California’s Proposition 66 provides another example of the impact campaigning can have on voters.  Proposition 66 was created to reform Proposition 184, the “Three Strikes and You’re Out” law by requiring the third strike to be a serious or violent felony.  Kevin Brady summarized the drastic change in opinion surrounding Proposition 66 in his article, “An Appetite for Punitiveness: Politics and Media in California’s Three-Strikes Law”:

In June 2004, The Field Poll conducted a survey which found that 76% of likely voters would support reform efforts.  In early October another survey found that steady support remained for the reform with 65% of likely voters supporting the measure.  Weeks later, the sentiment for reform turned drastically.  During the last week in October, just a week away from the election, the Field Poll conducted the same survey and found that only 46% of respondents would vote in favor of the Three Strikes reform, and 47% would vote against it.  The swing was as drastic as it was unexpected… So what happened?  Twelve days before the election, the campaign to defeat Prop. 66 led by Governor Arnold Schwarzenegger and former Gov. Pete Wilson secured a $1.5 million contribution from billionaire Henry T. Nichols.  This brought the “No on 66” bank balance to $6 million.

With the money contributed to the campaign, an ad opposing the law, featuring Arnold Schwarzenegger, was aired almost constantly leading up to the vote.  In the commercial, Schwarzenegger, walking next to large black and white mug shots, claimed, “Under Proposition 66, 26,000 dangerous criminals will be released from prison, child molesters, rapists, murderers”.  He then instructed viewers to, “Vote ‘No’ on 66. Keep them behind bars.”  Schwarzenegger was extremely popular at the time, and the ad was aired constantly in the short time period before the vote.  The 2004 measure ultimately failed to pass.  Schwarzenegger’s ad had a significant effect on the outcome of the vote, despite the fact that his statement that 26,000 criminals would be released was incorrect.  Twenty-six thousand inmates would be eligible for review; they would not all be automatically released had the measure been passed.

There is undoubtedly a need for better understanding and knowledge about criminal justice ballot measures.  Healthy Democracy, a nonprofit, nonpartisan organization based in Oregon, has been working to improve the initiative process through the education of voters.  The organization runs the Citizens Initiative Review, which brings together a representative sample of the voting population to learn about, deliberate on, and ultimately write a page of findings about an initiative.  The findings, called the Citizens’ Statement, are placed in the voter’s guide, which is distributed to all voters with their ballots.  The process has been studied extensively; reading the Citizens Statement has been found to increase a reader’s factual knowledge of ballot measures and to increase the reader’s confidence in that knowledge.  The need for an educated voting population is especially crucial when it comes to criminal justice measures, which can place public safety and personal liberty at stake.  The CIR has been proven to educate voters on the facts and impacts of ballot measures, which provides an extremely important balance from the emotional rhetoric that often surrounds ballot measures in the criminal justice arena.