Election Day

It’s election day, and the various national and state contests have potentially significant implications for criminal law. My rundown of the top races and issues is below, but please weigh in if you think I’m missing something major.

  1. Presidential election. Crime and punishment hasn’t been a major focus of the campaign. Some argue that Governor Romney’s emphasis on personal responsibility is suggestive of a more law-and-order approach, while others note that President Obama generally supports a larger federal role in the criminal justice system, including federal grants to support local law enforcement. Perhaps the most significant aspect of the election is that the next president is likely to appoint at least one, probably two, and perhaps more Supreme Court Justices, plus countless lower federal judges.
  2. Gubernatorial election. All the polls suggest that this race is a slam dunk for former Charlotte Mayor Pat McCrory. Crime isn’t among the issues discussed on his campaign website, and criminal justice hasn’t been a bone of contention in the campaign. However, having a Republican governor and a Republican legislature certainly raises the possibility of criminal law reforms. For one thing, it seems likely that the Racial Justice Act will come under further scrutiny. Anyone have any ideas about what else might be on the table?
  3. State supreme court election. Incumbent Justice Paul Newby faces challenger and court of appeals judge Sam “Jimmy” Ervin. Justice Newby was a long-time federal prosecutor, while Judge Ervin did some criminal defense work while in private practice. I don’t think that either judge can be defined by his prior experiences, but it is probably fair to say that in criminal cases, Justice Newby tends to be slightly more sympathetic to the prosecution than is Judge Ervin. Also, the race is non-partisan but Justice Newby is viewed as affiliated with the Republicans while Judge Ervin is viewed as affiliated with the Democrats. With the court currently 4-3 in favor of the Republicans and redistricting likely to be before the court in the near future, the race may impact the future party composition of the General Assembly, which could in turn influence criminal justice policy.
  4. Out-of-state contests. Two very interesting criminal law issues are up for popular vote. California voters are considering Proposition 34, which would repeal the state’s death penalty and replace it with life without parole. Recent polls suggest it may pass, though the issue is very close. It has made some strange bedfellows, with some conservatives supporting the initiative based on anticipated cost savings, and many death row inmates opposed because their cases will receive less scrutiny from the courts if death is no longer at stake. Meanwhile, voters in several states are considering marijuana-related initiatives, with Oregon, Washington and Colorado considering legalizing recreational use of the drug. Colorado voters, at least, appear likely to pass the initiative. Of course, federal law will still prohibit marijuana possession, but federal authorities may be unlikely to target individual users. One wonders when the marijuana controversy will reach North Carolina.

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