However, the results of criminal-justice-related ballot initiatives indicate that crime was still a salient issue, and voters may be reacting against the more radical demands that were floated by advocates after the murder of George Floyd, like defunding or abolishing the police, as well as to the 2020 upticks in certain types of crime.

Some of the ballot measures were in keeping with a criminal justice system that balances the imperative for the protection of persons and property with a parsimonious use of state resources, minimizing the use of force and restrictions on freedoms by the state. Others were not quite as well-measured and pointed to a shift in the climate around criminal justice reform away from its previous optimistic tenor of the period between 2000 and 2020.

The optimistic climate around criminal justice reform was partially attributable to the decreasing significance of crime to the voting population. However, in 2024, even though crime was not the top issue of concern, 75% of voters indicated that it was still either extremely important or very important to their vote, with only 6% saying it was unimportant. Pew’s results, which, unlike Gallup’s, focused on violent crime specifically, found that it ranked fifth among voters’ concerns, with 61% of voters saying it was very important to their vote. Both Donald Trump and Kamala Harris campaigned on, to varying degrees and emphases, a “tough on crime” approach to mirror this attitudinal change among the public, which could be partially attributable to increases in concern about newsworthy increases in certain types of crime during the pandemic and its aftermath.

As reported by the Council on Criminal Justice (CCJ), homicide in 2021 and 2022 was about 30% higher than in the first half of 2019, as was non-residential burglary. Gun assault was 40% higher during those years. In 2023, motor vehicle theft was 102% higher than in the first half of 2019; shoplifting and carjacking were up a whopping 127%.

There was also extensive coverage of those upticks. Videos of smash-and-grab burglaries went viral, and news stories on organized retail crime increased nationally from 436 in 2019 to 925 in 2022. Voters may have linked certain reforms as leading to quality-of-life problems, property crimes, or violence. The results of the 2024 ballot initiatives related to criminal justice in five states speak to the above climate shift among the voting population. Here, we give a post-mortem of those initiatives by topic and look forward to what this portends for the next four years.

Colorado Proposition 130: Funding for law enforcement

Result: Passed 52.8% to 47.2%

Postmortem analysis

A repudiation of the 2020 “defund the police” demands through a popular vote but still signaling concerns with some police practices involving force, this successful proposition directs the legislature to provide an additional, one-time allocation of $350 million to fund recruitment, retention, and training for local police officers.

The funds, to be paid out over an indeterminate amount of time, will be distributed in the form of grants for hiring initiatives, training, and support that can come via pay increases, bonuses, educational programs such as postsecondary degrees in criminal justice, training (including in restraining use of force), and a one-million-dollar death benefit for the families of officers killed in the line of duty on top of death and disability benefits from pensions.

Proposition 130 was placed on the ballot through the signature-collection efforts of Advance Colorado, self-described as “[a]n action-based organization focused on reversing radical policies that are harming the state and restoring common sense values and principles in Colorado,” which garnered 185,000 signatures. The organization stated the purpose of Proposition 130 was in response to “a significant increase in crime, and especially violent crime, in the state of Colorado.” Violent crime did rise in Colorado between 2013 and 2022, after which it has begun to dip. Property crime increased between 2020 and 2022 but has also been declining. Noting that crime began to decrease before a massive increase in state spending will be important for any evaluation of the effectiveness of the influx of funds in the upcoming years in reducing crime.

There are two policy levers that should be exerted with the passage of this bill. One concerns the timing of the allocation of the funds. $350 million represents ten times the amount of recent state funding for law enforcement and is in addition to that funding. Colorado has a billion-dollar budget hole, and the recently passed Proposition KK, which levied taxes on firearms sales, is estimated to raise only $39 million in additional funds per year. Because it is a one-time allocation without a timeline for disbursement, legislators should consider a 10-year or slightly longer distribution period, which would allow for the funds from Proposition KK to cover the new hole. Because no new taxes were implicated in the passage of this measure, this would necessarily mean that the budget will have to shift funds away from other programs or potential intervention strategies that can help reduce crime, like substance abuse treatment.

The second policy lever is stringent attention to what types of activities the grants will be used for and how to measure their effectiveness. It is disappointing that there was no assessment mechanism included in the proposition that would mandate an accounting for the success of the funded programs, such as in increased clearance rates, which is a more direct measure of police efficacy, but this can be made a condition of the grants.

Grants should be given for initiatives with strong empirical backing for crime reduction and increases in officer well-being. For example, there is inconsistent evidence as to whether police levels (officers or spending per capita) in and of themselves reduce crime. However, there is strong support for policing strategies like “hotspot” policing, so focusing on hotspot areas where crime is concentrated would be a beneficial use of funds. If the need is demonstrated, specialized investigative teams targeting specific types of crime can be deployed, which is among the intended purposes that should be supported through this funding. Police de-escalation training and law enforcement obtaining postsecondary education also provide mixed or questionable support from reputable research for its effectiveness in various job-related outcomes.

California Proposition 6 and Nevada Question 4: Forced prison labor

Result: Proposition 6 failed, 53.3% to 46.7%; Question 4 passed 60.6% to 39.4%

Postmortem analysis

These ballot initiatives, for which Reason Foundation published guides prior to the election, dealt with the question of whether to remove the exception to involuntary servitude and/or slavery (which exists as a “loophole” to the abolition of slavery in the U.S. Constitution’s 13th Amendment) in the state constitutions of California and Nevada. In California, the ballot also carried with it a prohibition against disciplining an incarcerated person for refusing a work assignment. These votes followed closely on the heels of other recent and successful ballot initiatives to end involuntary servitude in Colorado (2018), Nebraska (2020), Tennessee (2022), Vermont (2022), Alabama (2022), Utah (2022), and Oregon (2022).

Why the initiative failed in California but succeeded in Nevada has been partially and reasonably attributed to the fact that the language in the title and summary provided to voters in California did not use the word “slavery” (“slavery” doesn’t appear in its state Constitution, whereas it does in Nevada’s), but only the less-understood term “involuntary servitude,” leaving voters confused. In both instances, what is meant by involuntary servitude is forced labor, often with the threat of punishment if it is withheld. This was certainly the case in states like California and Nevada, where incarcerated people have been mandated to work, including in jobs that carry significant risk to their lives, like fighting fires, for either no wages or paltry wages. If incarcerated individuals refuse to work, they may be reprimanded and denied a range of privileges.

Some have argued that work in prison leads to better chances of employment upon reentry and less recidivism. However, most studies investigate voluntary work programs, so the true impact of forced labor on employment and recidivism is unknown. Affirmatively choosing to seek the benefits of work and gaining time credits or wages for that exchange in itself signals a likelihood of successful reentry.

The private sector has a strong, beneficial role to play here in the absence of a constitutional ban on forced labor. There can be a closer mapping of work inside to work outside, fair pay for services, and cultivation of future employees, such as is seen with the sales and marketing company Televerde, which hires women in prison, providing them with practicable sales training and access to marketing technology, as well as a workforce development program through their related foundation. There would need to be a commitment on the part of private employers, coupled with training, development, and openness to successful second chance practices, such as is seen with Nehemiah Manufacturing, which concentrates its hiring on the formerly incarcerated and provides them with wraparound services (like social workers, subsidized housing, and access to free transportation) to help with their re-entry.

From a policy perspective, there are several approaches to reducing the negative consequences of the failure of the ballot initiative. Doing away with employment restrictions and other collateral consequences is a clearer path to employment opportunities than coerced labor. Policy analysts at Reason have also noted that the California constitution should be interpreted to mean that judges can order involuntary servitude, but prison staff cannot. This would greatly reduce the availability of the tool of punishing incarcerated people for refusing work or impelling them to participate in work they do not wish to, for any reason, engage in.

Colorado Amendment 1: Constitutional bail exception for first degree murder

Result: Passed 69% to 31%

Postmortem analysis

Colorado’s Amendment 1, which passed with 69 percent of the vote, allows judges to deny bail to a person charged with first degree murder. This shouldn’t be interpreted as a rejection of bail reform but rather a return to a recent status quo. Colorado was one of 19 states that had a constitutional right to bail for all crimes except those accused of a capital offense. Colorado abandoned the death penalty in 2020, and so this meant that first degree murder, as a capital offense, was de facto eligible for bail, an interpretation upheld by the state Supreme Court.

Republican and Democratic lawmakers brought this constitutional amendment to the voters, also backed by the conservative action committee Advance Colorado, to restore the pre-2020 restriction on setting bail. Because this was in many senses a technical fix to update a statute after “capital offense” was removed as a category of crime in the state, it is hard to attach any significance to its passage. It is, of course, possible that voters intended to signal a mistrust of judges who were responsible—during the intervening period since the death penalty was abolished—for setting bail and release conditions that would prevent the pretrial release of people accused of first-degree murder.

It is helpful to understand a little context here about the significance of bail reform efforts. Through the 1960s, the only factor that judges could consider in setting bail was the likelihood of the defendant appearing in court, which made cash bail a useful tool. Then, reforms to the bail system in the 1970s and 1980s allowed judges to consider risks to public safety in their decisions as well. A point of concern remained as to how to ensure that the ability to pay bail does not determine whether someone can be released in the pretrial period, which would offend due process and justice interests.

In the 2010s and 2020s, cash bail reform began in New Jersey, spreading to New York, California, and Illinois. Cash bail reform became a controversial political flashpoint in state and local elections from “tough on crime” legislators. As reported by Reason Foundation, evidence suggests that restricting the use of cash bail among those deemed a low risk to public safety has positive effects, such as reducing the likelihood of being pressured into a plea deal, allowing defendants to keep their jobs and familial responsibilities, and “would not result in dramatic drops in court attendance or increased risk of reoffending. … There is even some evidence that pretrial reforms that reduce detention of low-risk, bond-eligible defendants may actually improve public safety.”

There is strong evidence that pretrial detention severely inhibits an individual’s ability to mount a legal defense and undermines the presumption of innocence and the ideals of due process. Pretrial determinations should, therefore, be made on an individualized basis and impose the minimum restrictions on liberty necessary to preserve the integrity of the adjudication process and to protect the community from definable threats of harm.

Colorado Proposition 128 and Arizona Proposition 313: Violent crime sentencing and parole

Result: Proposition 128 passed 62% to 38%; Proposition 313 passed 65% to 35%

Postmortem analysis

Colorado’s Proposition 128 saw a decisive win, garnering 62% of voter support. As with Proposition 130, 128 was sponsored by the conservative policy advocacy organization Advance Colorado. Unlike Proposition 130, though, it was a citizen-initiated ballot

Starting in January 2025, parole guidelines changed, requiring people convicted of certain crimes of violence, such as second-degree murder, first-degree assault, first-degree burglary, and aggravated robbery, to serve 85% of their sentences before becoming eligible for parole. It also ends earned time reductions for completing in-prison programming designed to reduce recidivism.

While these crimes are certainly far from sympathetic and create real harm and fear in the public, the marginal increase in public safety expected from the passage of this proposition is questionable. According to an analysis by the legislative council staff, 218 people per year will be affected by the change. This is out of a system that held 17,168 prisoners in 2022, an increase over the prior year. Because the average governing sentence for these crimes is a hefty 23 years, this will mean that instead of becoming eligible for parole after an average of 17 years, those convicted will serve 19.5 years. An additional, arbitrary 10 percent served towards the sentence, or 2.5 years, is unlikely to have enhanced deterrent or rehabilitative value. And although the individual is incapacitated for another 2.5 years, these years are on top of an already almost two-decades-long sentence. Each additional year beyond 10 years has a decreasing impact on recidivism.  It, therefore, is not a parsimonious use of state restriction on freedom.

It is also not an effective use of an additional $12 to $28 million per year in prison costs, which is on top of a strained Colorado budget now committed to $350 million for local law enforcement through Proposition 130. The loss of incentives through earned time credit to participate in rehabilitative programming that facilitates reentry, on the other hand, may mean that preparedness for release may decrease. Taken with Proposition 130 and Amendment 1, Prop. 128 was indicative of a pro-law-enforcement, risk-averse sentiment towards particularly violent crime that saw fiscal concerns as secondary.

Eligibility for parole after 75% of the time served, per the previous requirements, was not a guarantee of parole; in the same way, it is not a guarantee at 85% of the time served. In fact, discretionary parole has been more difficult to obtain due to pressure for punitive approaches and fear of having exceptional cases of reoffending capture public attention. The Colorado Parole Board approved 39% fewer people for parole in 2022 than in 2019. The Board is tasked with using risk-assessment tools, evidence of rehabilitation and work, and other indications of readiness to return to the community in their decisions. These methods, already conservative, allow for some individualization in determining whether a sentence has been sufficient to produce change and maintain public safety. The passage of Prop. 130 may be seen as a mandate for harsher sentencing and may result in an increase in discretionary denials of parole, no matter what percentage of time has been served.

“Second Look” legislation already enacted in Colorado, which allows for resentencing/sentencing modification for those convicted under habitual offender laws after serving at least 10 years, can provide a way to counteract the cost, both fiscal and societal, of increasing the time-served requirement for parole. However, this legislation is limited, applying only to offenses committed after 2023 and, therefore, will not have an impact until at least 2033. It should be made fully retroactive and expanded so that mandatory reviews are given after 10 years.

While Colorado’s proposition dealt with “back end” sentencing increases, Prop. 313 in Arizona addressed “front end” sentences by mandating life imprisonment for a class two child sex trafficking conviction. The previous discretionary sentence was seven years to life for the same crime. The measure passed readily with 65% of voters supporting it, unsurprising given that crimes against children, and especially sex crimes against children, are among the most instinctively reviled by the public.

While it may satisfy a deep retributive impulse, the lack of discretion means that judges are not given the opportunity to take into account the individual aggravating and mitigating factors of cases. Removing parole entirely as an option denies any possibility for successful reintegration and rehabilitation. The measure may also ensnare some of the victims of sex trafficking themselves, as they can be coerced to traffic others; in total, the measure represents an overextension of punitive power.

California Prop. 36, Florida Amendment 3, Massachusetts Question 4, Nebraska Measures 437 and 438, North Dakota Measure 5: Drug policy

Result: Proposition 36 passed 68% to 32%; Amendment 3 failed 44% to 56%; Measures 437 and 438 both passed 71 % to 29% and 67% to 33%, respectively; Measure 5 failed 52.5% to 47.5%.

Postmortem analysis

California’s tough-on-crime Proposition 36 passed decisively in the liberal-leaning state, with close to 70% of the vote, a bellwether for the national climate shift towards punitiveness. The measure was wide-ranging and had many elements, including increasing penalties for various drug and theft crimes and elevating numerous misdemeanors to felonies.

In substance, Prop. 36 returns California to a harsher drug prosecution approach. It backs away from earlier commitments to shift away from incarceration and toward treatment as the prevalent response to drug possession and use offenses. Proposition proponents widely publicized the heightened sanctions as a purported solution for particularly notorious retail thefts and visible homelessness in recent years. While it is important to deploy robust law enforcement resources to address public safety disruptions, the prevailing evidence shows that increasing penalties will greatly increase incarceration but will do little to eliminate retail theft or solve homelessness. On the contrary, research shows that the length of a sentence is not a factor in deterrence, but that certainty of apprehension is.

One confusing aspect of the measure is that it created a new category called a “treatment mandated felony,” which mandates involuntary treatment (with no funding allocation to support it) for certain people with multiple drug arrests and then requires the ones who don’t successfully complete the program supplied to them to serve time in prison for up to three years. Reported estimates are that this will increase incarceration rather than treatment. Meanwhile, it is likely to exacerbate an already devastating lack of treatment beds in the state, as well as remove services that were funded through the savings gained from reducing these same penalties, which amounted to $800 million in the state (65 percent of which was allocated to treatment costs). It is worth noting that the people who received that funding had an impressively low rate of subsequent offenses, 15.3 percent, when recidivism rates upwards of 35 percent are generally seen in the state. Thus, these programs appear to be effective at reaching a population for whom rehabilitative community programming is preferable—at pennies on the dollar—to incarceration.

According to the legislature’s nonpartisan Legislative Analyst Office, Prop. 36 will likely inflate state criminal justice system costs by “hundreds of millions of dollars” a year. “Some of these costs could be offset by reductions in state spending on local mental health and substance use services, truancy and dropout prevention, and victim services due to requirements in current law.” Local governments may also see tens of millions of dollars in added costs largely from increased jail incarceration.

Proponents claimed that these costs “will be money well spent,” and of course, if the policies would substantially eliminate retail theft crime and drug overdoses, their funding would be worthwhile. But a lot of money will be wasted, and a lot of incarceration will result from these changes, and none of that money will be available for communities to offer needed services that are proven to reduce drug overdoses, crime, and homelessness. Instead, the new policies prioritize prison—which should be used sparingly because it is expensive and harmful.

In this political fight, well-resourced interests—notably, $16 million from big retailers and law enforcement—won the day, and the public returned the state to a policy focused on incarceration instead of diversion and treatment. As discussed above, even if there is a shared goal of reducing criminal activity, adding penalties for drug crimes will not eliminate drug harm.

Voters in several states also declined to legalize or decriminalize certain drugs. These results, coupled with California’s Prop. 36, suggest that any consensus about drug policy—at least for expanding marijuana legalization—may be evaporating. Massachusetts residents turned down a citizen-driven ballot measure, Question 4, to establish regulated access for adults to natural psychedelic substances like psilocybin (a.k.a. mushrooms) that show therapeutic potential in treating mental health conditions like post-traumatic stress disorder, with 57 percent voting against it.  

Only two states have passed policies allowing for legal access to psychedelics thus far: Oregon and Colorado. Massachusetts has had legal marijuana for recreational use since 2016.

Rand research shows about 3% of American adults used psilocybin in 2023. Perhaps Massachusetts voters are worried about the increased use of these drugs. That said, if the measure had passed, it might only have increased use locally for at least a novelty period since use rates of hallucinogenic drugs are quite stable over time, but it certainly wouldn’t have resulted in a proverbial mushroom cloud on every street corner in Boston.

The failure doesn’t necessarily portend a shift in broader criminal justice attitudes in Massachusetts, either. After all, mushrooms are not associated with crime in public consciousness. Opposition in the state may have been perceived as credible since several large medical associations spent money opposing the proposal and casting doubt on the medical benefits claims of proponents.

North Dakotan voters similarly rejected the legalization of marijuana narrowly by about 53% (they got closer than the last two times voters tried it). South Dakota, which had legalized marijuana by ballot in 2020 only to have the bill declared unconstitutional—and tried again in 2022, only to lose by 53%—this year lost by 56%. Not the proponents’ desired trajectory. Meanwhile, Florida’s legalization constitutional amendment, Amendment 3, despite receiving a majoritarian 56 percent of the vote, failed to reach the requisite 60 percent supermajority threshold. The measure faced strong opposition from Gov. Ron DeSantis. This is the first year since 2017 in which there will be no new states voting to permit recreational adult-use legal marijuana. This breaks a pretty good streak since 2010 when Colorado passed the first state legalization measure, but it does not necessarily spell the end of the trend.

In Nebraska, paired proposals to legalize and regulate marijuana for medical use passed handily, with one pulling 71%; however, there was a cloud (pun intended) that hung for weeks over the result because of ongoing litigation over the signatures submitted to qualify the ballot initiative, though a judge later allowed the laws to go into effect. The sanctioned use of medical marijuana brings Nebraska in line with the vast majority, becoming the 39th state (plus D.C.) to authorize medical use of the substance.

It would be wrong to interpret the result in Nebraska on medical marijuana, however, as indicative of growing support for recreational marijuana legalization in the state. Rather, Nebraska is kind of a straggler when it comes to medical marijuana. And when Nebraska’s legislature considered a bill for recreational legalization last fall, it died in committee. In this election, as has been noted, the states seeking recreational use did not fare well.

Looking forward

Ballot initiatives are enormously useful in evaluating public sentiment about specific criminal justice reform issues. Through their use of direct democracy in voting for the measures’ passage or failure, they allow us to read the pulse of the public without some of the mediating influence of politicians. That said, ballot measures are much blunter instruments than legislation and frequently can’t deliver as much detail and nuance as carefully crafted laws can, whereas sentencing is, by nature, a very intricate process that needs individuated attention. Thus, sentencing reform is often more aptly suited to legislative intervention. Moreover, ballot measures can reflect a public sentiment that may not accord with that of the governing majorities.

This year’s slate of ballot initiatives produced several results that bode ill for criminal justice reform writ large and speak to recent trends toward knee-jerk, punitive responses that are impervious to cost and don’t account for lessons learned from decades of failed policy.

Nevertheless, despite the losses on the drug legalization front, there are separate signs that the Trump administration may be favorable toward federal marijuana legalization, which would clear up a lot of confusion over the status of state-legal schemes. Coupled with the closeness of the tallies, it appears marijuana legalization is not in a retrenchment position, even though it might appear so on its face.

Additional reforms that are sorely needed in the system are not completely dead, either, though the passage of Prop. 36 in California stings. Incremental, bipartisan criminal justice reforms that prioritized public safety while seeking to reduce the collateral consequences of the overreach of punitive, ineffective, and expensive state punishments have, nevertheless, continued over the past few years in states from Oklahoma to New Jersey.

It is important for policymakers and advocates at this moment to recognize the concern reflected in their states’ votes this election and in their attempts to reform the system and balance that acknowledgment with the reality that overcriminalization and over-incarceration are participants in creating, not reducing, harm. It is critical to be locking up only the people for whom the positive effects of incarceration outweigh the costs that accompany that choice of remedy. When large groups of people are subject to additional incarceration, it is harder to get that calculation right.   

The post What election results reveal about the future of criminal justice reform appeared first on Reason Foundation.

Currently, Article One, Section 7.5 of California’s Constitution states that only a marriage between a man and a woman is valid or recognized in the state. This section was included in the state constitution via California Proposition 8, approved by 52% of voters in 2008. However, it was later invalidated, first by a federal court in 2010 and later by the United States Supreme Court in Obergefell v. Hodges in 2015. However, Section 7.5 remains in the state constitution.

California Proposition 3 was put on this year’s ballot by the state legislature, so voters can choose to replace the current language in Section 7.5 with revised language recognizing the right to marry as a fundamental right. In California, amendments can only become part of the constitution if the electorate approves it, so Prop. 3 is the only way to change this language.  

Fiscal Impact  

In 2011, The Legislative Analyst’s Office of California said that repealing Proposition 8 would have “little impact” in the long run on state and local governments, although in the short term, increased revenues from sales tax related to wedding ceremonies would have had a net positive fiscal impact. Because Proposition 8 was already struck down in 2010 by a federal appeals court, and same-sex marriages resumed in 2013, there is no fiscal impact expected.  

Proponents’ Arguments   

Prop. 3 was introduced by California Assemblymember Evan Low (D-Cupertino) and Senator Scott Weiner (D-San Francisco) and has the support of Governor Gavin Newsom. The justification for the bill, according to Sen. Weiner, is twofold. First, it was to “right [the] wrong” of having Article 7.5 in the constitution at all, regardless of its lack of enforceability. Second, it is to ensure that even if Obergefell v. Hodges, which guarantees the right for same-sex couples to be married, were to be overturned, same-sex Californians’ right to marry and have their marriages recognized by the state would remain intact. Among the non-governmental organizations supporting Prop. 3 are the ACLU, Human Rights Campaign,  Equality California, the National Center for Lesbian Rights, and Planned Parenthood.  

Opponents’ Arguments 

Among the nongovernmental organizations that oppose Prop. 3 is the California Family Council (CFC), which also supported Proposition 8 on the basis of a belief that marriage was created by God to be between a man and a woman. The president of CFC, Jonathan Keller, stated, “If you abolish the definition of marriage and say that marriage can mean anything, then marriage actually means nothing. This amendment removes critical protections, which is why we oppose it.”

The Restored Hope Network opposes it on the basis of harm to children and families through a diluted definition of marriage. And the California Republican Assembly writes that Prop. 3 promotes same-sex marriage and pressures those who affirm “biblical” marriage to abandon their beliefs. 

Discussion 

In 2008, 52% of Californians approved Prop. 8, a ballot initiative that, with one sentence, changed the state constitution to enshrine marriage between one man and one woman as the only valid and recognized marriage in the state. It is one of 30 other states that did so between 1998-2012. So far, only Nevada has repealed that amendment. The Supreme Court case Obergefell v. Hodges invalidated those amendments in 2015, establishing the constitutional right for same-sex people to marry and to have their marriage recognized in all states. However, the 2022 overturning of Roe v. Wade with Dobbs v. Jackson Women’s Health Organization, in which Justice Thomas wrote that precedents dealing with substantive due process (e.g. rights that are not specifically listed in the U.S. Constitution, such as the right to same-sex marriage) should be reconsidered, is bringing a sense of urgency to proponents of same-sex marriage to legislatively guarantee that right state by state.  

Even if, as the majority opinion given by the Supreme Court justices asserts, there is little risk of Obergefell being overturned, having voters eliminate language codifying heterosexual marriages as the only valid and state-recognized marriages from state constitutions is an important legal change. It upholds individual freedom, does not impede on the rights of others, and helps remove the government from policing consenting adult sexuality.  

Prop. 8 most likely would not pass in California today, with 69% of Americans supporting same-sex marriage, reflecting a remarkable shift in public sentiment and openness to same-sex couples over 16 years and further reason to put Prop. 3 on the ballot. In 2008, voters supported the stance of nongovernmental organizations like the National Organization for Marriage, The Family Research Council, and religious groups The Church of Jesus Christ of Latter Day Saints (LDS), the Orthodox Jewish Congregations of America, and the U.S. Catholic Bishops. Since then, many such organizations have moved away from publicly opposing legalizing same-sex marriage, conceding that it is a lost cause given the 69% of Americans who support it. And some have reversed course. For example, LDS backed the federal Respect for Marriage Act, which legalized same-sex marriage nationally. Republicans in both the California State Assembly and State Senate joined Democrats to unanimously approve putting Prop. 3 on the ballot.  

As far back as 1975, Reason Foundation argued that restricting marriage is not something the government should be involved in: “Marriage laws are obviously discriminatory and thereby deny to homosexual couples legal benefits granted to heterosexual marrieds—lower tax rates, immunity from being forced to testify against a spouse.”

In general, laws should be written to facilitate people doing what they choose to do, so long as it is peaceful and doesn’t infringe on the rights of others. Allowing those who want to marry to do so falls within that approach. Arguably, the government should not be in the marriage business at all, letting private individuals make the legal arrangements they prefer when it comes to sharing their lives and property, and without the government granting special privileges based on relationship status. One analyst suggested, “Make it a private contract between two individuals. If they wanted to contract for a traditional breadwinner/homemaker setup, with specified rules for property and alimony in the event of divorce, they could do so. Less traditional couples could keep their assets separate and agree to share specified expenses…Marriage contracts could be as individually tailored as other contracts are in our diverse capitalist world.”

While government regulation of marriage remains, however, Prop. 3 allows a wider subset of the population the freedom to participate in an institution that carries personal and societal significance.  

The post California Proposition 3 would amend the state constitution to recognize same-sex marriage appeared first on Reason Foundation.

The Colorado Legislature placed Colorado Proposition KK on the ballot for voters to decide. If approved, it places a 6.5 % excise tax on gun manufacturers, gun dealers, and ammunition vendors that make over $2,000 monthly on the net taxable retail sales of guns, gun precursor parts, and ammunition. The first $30 million of revenue per fiscal year from the tax would go to the Colorado Crime Victims Services Fund, the next $5 million to the Behavioral and Mental Health Cash Fund for veterans’ mental health services, the next $3 million to the same fund for behavioral crisis response services for children and youth, and the last $1 million to the School Disbursement Cash Fund. Revenues beyond that would be spent as the legislature chooses.  

This excise tax is in addition to an existing 2.9% state ​​sales tax and 11% ​​​​federal excise taxes on guns. Exceptions were made for sales to law enforcement and active-duty members of the armed forces. In addition, gun manufacturers, dealers, and ammunition vendors would be required to register with the Department of Revenue. If approved, Colorado would become the second state in the nation to have an excise tax on guns and ammunition after California levied an 11% tax intended to fund violence intervention and education.   

Fiscal Impact  

The state ​​estimated that this excise tax would bring in $35.6 million in revenue in 2025-2026 and $36.9 million in 2026-2027. This estimate assumes that the legal purchase of guns will not change in response to the additional taxes. The administrative cost, to be paid for with tax proceeds, is $390,000 to administer the tax in 2024-2025.  

Proponents’ Arguments  

Organizational supporters of a “yes” vote argue that victims’ programs need funding and that this is a fair way to provide it. Colorado Coalition Against Sexual Assault and its member programs stated that without the funding made available through the excise tax, victims of sexual assault and other crimes will see a decrease in resources. Democratic Majority Leader Monica Duran (Jefferson) and Democratic Representative Meg Froelich (Arapahoe) sponsored the legislation, and Duran cited her own usage of victim support services as a single mom as essential to her escaping domestic violence. Supporters argue that the steady funding stream that would come from this excise tax is necessary to ensure the adequate provision of services, such as crime victims’ services and access to mental health services for veterans and children, that they say remediates the harmful collateral consequences of guns and gun-related products, including suicide and intimate partner killings. They argue the excise tax is consistent with both the longstanding federal tax on retail firearms sales, which is used to fund wildlife conservation, and is consistent with historical examples from the 19^th and early 20^th century of state taxes on firearms serving as a regulation on sales and purchases.  

Opponents’ Arguments 

Organizations that have encouraged a “no” on the ballot measure argue it is a limitation on gun rights and a tax that hits lower-income individuals hardest. The National Rifle Association has called it an attack on Second Amendment rights and those who assert those rights. The Congressional Sportsmen’s Foundation also sees the bill as a restriction of the Second Amendment. They argue that the tax is a form of a “sin tax” (such as that levied on alcohol and tobacco) via higher prices passed on by dealers and manufacturers to consumers, meant to deter law-abiding sportspeople from purchasing guns and ammunition necessary to their pursuits, and meant to reduce legal gun ownership across Colorado. Without the purchase of guns by sportspeople, The Sportsmen’s Foundation further warns that conservation funding, dependent on federal excise taxes on guns, would be lowered. The Independence Institute’s argument points out the tax will hit the poor the hardest: “The legislature is making clear that Black and Brown people, since they are statistically poorer, shouldn’t own firearms, or at least should face a substantially higher hurdle to exercise this right.” Senator Kevin Van Winkle (R-Highlands Ranch) likened the excise tax to a poll tax due to its being levied on a commodity whose possession is protected by the Constitution.  

Discussion  

The purpose of the excise tax in Prop. KK is framed by its sponsors as providing stable funding for programs that seek to help victims of crime, those who have experienced violence-related trauma, and those in need of mental health services. The state is feeling pressure for such funding due to a massive drop in federal funding for these purposes through the Victims of Crime Act (VOCA) from the Crime Victims Fund, which is replenished from fines tied to federal crimes, penalties, and forfeitures. Because VOCA is the primary source of funding for victims’ services in all 50 states, the projected $700 million decrease in 2024 has sparked widespread concern, with Colorado expecting a 45% cut. A large coalition—including state attorneys general, politicians, and service providers across the country—has been calling for various solutions to plug the budget holes and ensure stable funding.  

Crime victim and mental health services are important, but is an excise tax on a targeted industry the right way to fund them?  

​​The United States ​Supreme Court stated in Sonzinsky v. U.S.​ (1937)​, a decision upholding Congress’ ​constitutional ​power to tax firearms dealers, that “a tax may have regulatory effects and may burden, restrict, or suppress the thing being taxed.” ​The federal government has had an 11% excise tax on the production and importation of guns​ to support conservation, wildlife preservation, and hunter-education programs. However, the fact that taxing firearms has passed constitutional muster doesn’t make it a good policy decision. ​Excise taxes violate several principles of sound tax policy. 

First, it is not neutral. Taxes shouldn’t distort markets, impinge on individual choice, and punish businesses and individuals monetarily by creating categories of “sinful” legal products for the purpose of reducing their usage. Such taxes are i​​nherently regressive, hitting the poor much harder than the middle class or wealthy. This is particularly problematic for guns, the only commodity whose use is enshrined in the Constitution as a right, and the individual ownership of which was upheld in the Supreme Court decision District of Columbia v. Heller.  

The measure further violates sound tax policy by being an inherently unstable source of funds for services it claims desperately need funding. This is because it depends on the assumption of unchanging consumer behavior when, in fact, sin taxes do tend to reduce the use of the taxed product, and thus, the revenue from them declines over time. Hence, sin taxes are a terrible way to fund important programs. Although proponents of the bill did not state that the tax is intended to reduce gun sales, recent analysis of the U.S. firearms market suggests that it would have that effect. One study concluded that for every 1% increase in the price of guns, demand falls by 2.5%, and so a 6.5% increase in costs to manufacturers and dealers, when passed along to consumers, could have a sizable effect on sales.  

If Coloradans agree that crime victims’ services, access to mental health and behavioral services, and school safety are important, these should not be dependent on fluctuating excise taxes. They should especially not be dependent on excise taxes that rely on the continued robust market in weapons asserted to cause the damage requiring interventions to begin with. These programs for victims and those in need of mental health should be supported through general funds, both at the federal and state levels.  

There are also problems with targeting the gun industry with this tax. The measure states that the tax is imposed “in order to generate sustained revenue for programs designed to remediate the devastating impact of these products on families and communities across the state.” This statement has two glaring problems. One is that it is unclear what percentage of the services provided directly relate to the impact of gun violence. Victims’ services are provided to all victims, regardless of the use of a gun in the commission of the crime. Behavioral and mental health counseling to those who have experienced combat trauma also does not relate to domestically purchased guns. The bill mentions the mental health crisis for children following COVID-19. COVID-19 was a virus, not a gun, and an abundance of other factors, like loneliness, created the conditions under which suicidal ideation increased.   

Another concern is that the bill makes legal guns and ammo the “sin” to be taxed, sidestepping the fact that the vast majority of legal gun and ammo buyers will pay the tax and never use or allow those products to hurt anyone. It’s a sin tax that overwhelmingly punishes the innocent for a sin they don’t commit.   

These taxes are the wrong approach to funding social services deemed essential, ​​​will unfairly affect the poor more than others, will not provide stable funding for victim services, and will impinge on law-abiding citizens exercising their rights to buy guns and ammunition. ​​     ​ 

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Currently, Article II, Section 31 of Colorado’s Constitution states that only “a union of one man and one woman is valid or recognized in the state.” This section was included through Colorado Amendment 42 in 2006, a citizen-initiated ballot that saw 55% voter approval. It was later struck down in 2014 as discriminatory by a Colorado district court judge and a U.S. district court, and then again by the United States Supreme Court’s Obergefell v Hodges decision in 2015, which ruled that marriage was a fundamental right guaranteed to same-sex couples.

Colorado marriage licenses have been issued for same-sex couples since 2014. However, Section 31 remains in the state constitution. Amendment J was put on this year’s ballot by the state legislature, so voters can choose to replace the current language in Section 31 with “A union of two consenting adults shall be valid or recognized as a marriage within the state.” A supermajority of votes from Coloradans (55%) is needed for a constitutional amendment to pass in Colorado.  

Fiscal Impact 

Colorado has been issuing same-sex marriage licenses since 2014. There is, therefore, no fiscal impact other than the minor election costs associated with any ballot measure. However, a 2011 analysis of the impact of then-proposed same-sex civil unions in Colorado predicted state revenue increases due to savings on means-tested public benefits programs,’ licensing fees, and sales tax revenues from celebratory ceremonies, accommodations for out-of-state guests and related spending, which would outweigh increased costs associated with enrolling spouses on state benefits. Such fiscal effects were likely seen after the issuing of marriage licenses to same-sex couples, although the impact has not been documented.  

Proponents’ Arguments 

Amendment J was introduced by Senator Joann Ginal (D-Larimer). The other two prime sponsors of the bill are Representatives Alex Valdez (D-Denver) and Brianna Titone (D-Jefferson). Several arguments were offered for the resolution. The first relates to the principle of equality under the law. Ginal states:

“Marriage is a basic freedom that should not be denied to anyone…In the United States, freedom means freedom for everyone. No member of anybody’s family—gay or straight—should be singled out for unfair treatment or denied their basic American freedom, just because of who they are and who they love.” 

The second argument relates to the state constitution’s outdated, unconstitutional language that is also out of touch with popular sentiment and values about same-sex marriage. Titone asserts, “This is what the people want. They don’t want an unconstitutional amendment in the Constitution anymore.” The last argument addressed the importance of removing the language in Section 31, given recent statements by Justice Thomas about revisiting Obergefell v. Hodges to prevent same-sex marriages if the decision were to be overturned.  

Among the nongovernmental supporters of Amendment J passage is Freedom to Marry Colorado, a coalition of organizations, and One Colorado, the biggest LGBTQ advocacy organization in the state. One Colorado Executive Director, Nadine Bridges, said attitudes toward same-sex marriage have changed, that the constitution’s language is now outdated, and also raised the specter of the Supreme Court reversing its 2015 decision. She stated:

“More than one Justice has said that same-sex marriage should be revisited…if the Obergefell decision is overturned, same-sex couples cannot be married in the future here in Colorado if this amendment remains in our state constitution.”  

Opponents’ Arguments 

Unlike California’s Proposition 3, a similar ballot initiative, the bill to put Amendment J on the ballot did not pass uncontested in Colorado, even as it obtained a two-thirds majority vote. Five Republicans in the Senate and 13 in the House voted no, as did one Democrat in the House. Still, there was bipartisan support, with six Republicans in the Senate and two in the House voting for the bill.  

Representative Scott Bottoms (R-Colorado Springs), in expressing his opposition, said he did not object to the amendment going before Coloradans but that it contradicted God’s laws. He said, 

“Marriage was never between people and a state…it was between people and God. God established marriage…if you want what God says is marriage, you have to go by his rules.” 

Among the organizations opposed to Amendment J, Focus on the Family and the Colorado Catholic Conference spoke at the House Judiciary Committee against the amendment. The Colorado Catholic Conference argues that marriage is rooted in the biological ability of men and women to reproduce, that children have a natural right to a mother and a father, and also that social science supports the need for a mother and a father to prevent ills such as poverty and crime. Focus on the Family advocates for the concept of natural marriage, limited to unions between men and women. They state, “Marriage and family require male and female because nature demands it…marriage as an exclusively heterosexual union is the statement from nature that the family needs both parts of humanity, not just for procreation, but for all of life.” Focus on the Family, as with the Colorado Catholic Conference, also sees heterosexual marriage as necessary for good familial and societal outcomes.  

Discussion  

Colorado was one of 30 states that amended its constitution via ballot initiative to include language that limited marriage to unions between a man and a woman between 1998 and 2012. To date, only Nevadans have repealed their amendment. This November, Colorado joins California and Hawaii in giving voters the choice of removing that language through a legislatively referred amendment. It is likely to pass, as 69% of Americans now approve of legalizing same-sex marriage.  

Amendment J may seem unnecessary because of the Supreme Court’s 2015 decision in Obergefell v. Hodges, which invalidated all laws and constitutional amendments limiting marriage to a man and a woman, establishing the right for same-sex people to marry and to have their marriage recognized in all states on the basis of the constitutional guarantees of due process and equal protection, the same guarantees that protected interracial marriage in Loving v Virginia. However, Justice Alito has written about the dangers he anticipated from the Obergefell decision, namely, Americans who disagree with same-sex marriage will be “labeled as bigots and treated as such by the government.” Justice Thomas signaled in his opinion in the case Dobbs v. Jackson Women’s Health Organization a willingness to reconsider the outcome of Obergefell. Because the Dobbs case was the decision that overturned Roe v. Wade, it upended a sense of complacency with relying on judicial precedents to protect rights that were not enshrined in state laws and constitutions. The ballot initiatives in Colorado, California, and Hawaii are preemptive as much as they are about removing outdated language. At the federal level, we see this same motivation in the 2022 repeal of the Defense of Marriage Act with the Respect for Marriage Act.   

Some constitutional experts have discouraged panicking about the demise of that precedent. The majority opinion given by the Supreme Court justices in Dobbs asserts that it is an “unfounded fear” that Obergefell will be overturned. Still, eliminating language from state constitutions that invalidates same-sex marriages upholds several valuable core principles.

It provides for an essential and meaningful personal freedom to enter into a socially recognized institution with another person regardless of their sex, it removes the government from functioning as a sexual morality police, and it maintains equality under the law. At the same time, it does not deprive heterosexual couples of their own rights, nor does it infringe on the religious or ideological liberty of those who disagree with same-sex marriage. Getting the government out of defining, regulating, and providing special benefits for marriage entirely is a better long-term goal. However, in the interim, ensuring that same-sex couples do not have their rights infringed upon merits the passage of Amendment J.

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Currently, Article I, Section 23 of Hawaii’s Constitution states: “The legislature shall have the power to reserve marriage to opposite-sex couples.” The Hawaii Remove Legislature Authority to Limit Marriage to Opposite-Sex Couples Amendment was put on this year’s ballot by the state legislature so voters can choose to remove the current language in Section 23 or to leave it as-is. 

Fiscal Impact  

Hawaii legalized same-sex marriage licenses in 2013, and same-sex marriage was legalized across the United States in 2015 with the Obergefell v. Hodges decision. There is therefore no fiscal impact.   

Proponents’ arguments  

The Democratic Party of Hawaii supports the amendment. Democratic Governor Josh Green gave written testimony to the House Committee on Judiciary & Hawaiian Affairs in favor of the measure, noting that Hawaii’s Supreme Court over 30 years ago maintained that limiting marriage to heterosexual couples was discriminatory and that in 2013, the Hawaii Marriage Equality Act recognized same-sex marriages. U.S. House Representative Jill Tokuda (D-2nd) offered written testimony arguing that the Supreme Court’s threat to revisit the Obergefell decision demands action to preserve the rights of LGBTQ Hawaiians.   

Among the nongovernmental supporters of the amendment’s passage are the Hawaii Civil Rights Commission, the American Civil Liberties Union of Hawaii, the Hawaii Health & Harm Reduction Center, and the Hawaii State AFL-CIO. The Hawaii State AFL-CIO, in its testimony to the House Judiciary & Hawaiian Affairs, wrote, “As a labor organization, we understand the importance of fighting for the rights of marginalized communities,” rooting their endorsement in the need for equal treatment under the law, fairness, and non-discrimination.

The ACLU, in its written testimony to the House Committee on Judiciary & Hawaiian Affairs, noted that it had opposed the original constitutional amendment, which would become Section 23, on the grounds that it was discriminatory. It believes that because the language is discriminatory, it should be removed. The ACLU also emphasized the importance of doing so due to the Supreme Court’s “roll back of abortion and civil rights protections, and dicta suggesting the potential over-turning of Obergefell vs. Hodges.”   

Opponents’ arguments  

The bill introducing the constitutional amendment, Hawaii House Bill 2802, was not passed unanimously, although there was bipartisan support. It passed in the House 43-6, with one Democrat and five Republicans voting against it. The Senate voted 24-1 in favor, with one Republican voting against it.  Those who opposed the bill did not give written statements to the House Committee on Judiciary & Hawaiian Affairs.   

No political, nongovernmental, or religious organizations are taking formal positions opposing the amendment. One of the chief political proponents of the 1998 constitutional amendment to grant the legislature the ability to reserve marriage to heterosexual couples, State Senator Mike Gabbard (D-Kapolei), apologized this year for his role in that amendment and voted to repeal it.   

Discussion   

Hawaii’s Amendment 2, which would become Section 23, in 1998 was approved by 70% voters to establish in the state constitution that only members of the opposite sex could legally marry in Hawaii. The right for same-sex couples to marry in the state was nevertheless legislatively granted in 2013 with the state Marriage Equality Act. The ability for states to prohibit marriage for same-sex couples was later further invalidated by the Supreme Court’s 2015 Obergefell v. Hodges decision, which ruled that marriage was a right guaranteed to same-sex couples under due process and equal protection. However, Section 23 remains in the state constitution. 

This amendment removes vestigial and now dormant language from the Hawaii constitution that enabled the legislature to limit marriage on the basis of sex. Hawaii was one of 30 states that amended its constitution via ballot initiative to include language that limited, or potentially limited, marriage to unions between a man and a woman between 1998 and 2012. To date, only Nevadans have repealed their amendment. There is no other practical change, fiscal or social, that will come from voters’ approving this amendment. Both judicially via Obergefell v. Hodges (2015) and legislatively via Hawaii’s Marriage Equality Act (2013), and the Respect for Marriage Act (2022), same-sex couples in Hawaii are entitled to marry and have their marriage recognized across all 50 states.  

It is still appropriate for Section 23 to be democratically removed by the voters of Hawaii, for several reasons. This language has been deemed unconstitutional, because it violates core principles of personal freedom and equality under the law. Removing it ensures that the government is limited in its ability to legislate morality and restrict access to a socially validated institution that also provides numerable tangible and intangible benefits. And, societal attitudes have changed dramatically since Section 23’s passage. Seventy percent of Hawaiians now support the right for same-sex couples to legally wed, and so it is likely to pass, along with similar ballot measures in Colorado and California.    

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Days after Smith’s execution, Ohio Republicans introduced House Bill 392 to put humans to death by nitrogen hypoxia, the very same legislature that had passed a law to ban gas as a method to euthanize domestic animals nine months prior.

Alabama and Ohio are not alone. Oklahoma was the first state to legislate the use of nitrogen hypoxia in 2015 with Senate Bill 794, after then-state Rep. Mike Christian (R-District 93) promoted the idea, backing it by referencing an unpublished, non-peer-reviewed paper hypothesizing that nitrogen gas death would be painless. Three criminal justice professors, one of whom was a friend of Christian’s, wrote the paper without consulting any medical experts. 

Mississippi Legislative Bill 970 was also passed in 2015, allowing for execution via nitrogen hypoxia. Louisiana joined these states early this year when House Bill 6 passed unanimously. Nebraska, with its Legislative Bill 970, is also considering legislation to allow nitrogen hypoxia as an execution method. 

Why and how did these states end up in this situation, abandoning lethal injections in favor of nitrogen gas?

As Americans have increasingly turned against the death penalty over the past 20 years, it has created market pressure discouraging drug companies from providing the compounds for execution. States that are insistent on retaining the death penalty have been turning to other methods where companies don’t have such a strong hold on the supply of the means of execution, such as lethal gas. 

And, as a way of shutting down both criticism and democratic activism about the death penalty, states have deliberately been shrouding their executions using secrecy statutes, such as shield laws. Such statutes remove transparency from execution protocols, personnel, products, and suppliers. Since 2010, 14 of the 27 states that still use the death penalty have passed such laws, thereby preventing the public from truly understanding how these systems work—or fail to work. These statutes can also prevent companies and hospitals opposed to having their product used for executions from finding out. Enacting these laws has removed government transparency and is at odds with the free market and an informed democracy.

The reason why states that still use the death penalty are eager to approve nitrogen gas is partially because large private companies that produce the drugs needed to carry out lethal injections, the most common form of execution for about 50 years, are now unwilling to sell them to the government for this purpose. According to the Lethal Injection Information Center, there have been at least 60 global companies that are preventing their products from being used in executions (the European Union prohibits member states from trading goods that can be used for execution). Many have issued public statements speaking to their corporate values and how being a supplier of drugs to kill people doesn’t align with those. For example, pharma giant Pfizer issued the following statement:

Pfizer makes its products to enhance and save the lives of the patients we serve. Consistent with these values, Pfizer strongly objects to the use of its products as lethal injections for capital punishment…[Our] obligation is to ensure the availability of our products to patients who rely on them for medically necessary purposes…We are enforcing a distribution restriction for specific products in the same class of drugs that have been part of, or could be considered by some states, for their lethal injection protocols.

A Johnson & Johnson spokesperson similarly stated that the company “develops medical innovations to save and enhance lives…We do not condone the use of our products for lethal injections in capital punishment.” 

For these companies, their involvement in supplying pharmaceutical products for lethal injection is not only opposed to values that have become dominant in an era of corporate social responsibility and philanthropic capitalism. It is simply bad business.

There may be national companies whose corporate values do align with having their products be used in executions or who think that their consumer base will be unmoved or even motivated to buy their product due to their involvement in capital punishment. But this seems unlikely. There is no organized and motivated pro-death penalty movement. The amount of profit to be made by supplying execution drugs to the state versus the amount to be lost when large numbers of a consumer base may switch suppliers and corporate image is damaged is miniscule.

With national companies’ refusal to openly supply the government, states face drug shortages that prevent them from carrying out executions. Some of these states have resorted to tactics as desperate as trying to illegally import these drugs from India. But more frequently they have turned to local compounding pharmacies without a large retail presence or robust public relations departments. These pharmacies mix or modify drugs to order and do not have to abide by FDA approval processes, which can result in improperly manufactured products that may lead to botched executions.

Even compounding pharmacies, though, have been stepping away from government contracts for execution drugs, realizing that the public backlash surrounding the use of their drugs in executions is not worth the small profit they make via such limited numbers of executions. Houston-based Greenpark Compounding, for instance, no longer makes execution drugs since becoming a protest target after investigative reporters published information regarding the company’s involvement in providing such drugs. Several pharmacy groups representing compounding pharmacies, like the International Academy of Compounding Pharmacists, have advised members to stop providing execution drugs.

Now that some states are turning to nitrogen hypoxia, large gas companies have begun to take similar measures to limit selling products for use in executions and to announce their position publicly. Airgas is the largest U.S. packaged gas distributor, with 24 branches in Alabama alone. In 2023 Airgas issued a statement:

Notwithstanding the philosophical and intellectual debate of the death penalty itself, supplying nitrogen for the purpose of human execution is not consistent with our company values…Airgas has not and will not supply Alabama nitrogen or other inert gases to induce hypoxia for the purpose of human execution.

The free market imperative that companies be open, transparent, and responsive to consumers has effectively limited states’ ability to execute in a medicalized, “humane” fashion, the only manner that receives enough public approval to maintain the system in the first place. The mushrooming of secrecy laws has acted against this democratic feedback mechanism.

Opacity in state dealings with private companies, and the usage of products provided by companies, is not in the interest of consumers, businesses, or taxpayers. Secrecy is also not in the best interest of democracy, which is reliant on its citizenry being informed about and able to debate freely the penal policies and practices for which we elect our representatives to enact. Equally troubling has been the official secrecy surrounding the execution protocols themselves. For instance, in Alabama, it is the position of the Department of Corrections that the nitrogen hypoxia protocol is confidential and not subject to public records requests.

State secrecy about matters of public policy signifies a political order that does not support principles of liberty, including freedom of information, democracy, and limited incursion on the fundamental freedom of human beings. This is especially compelling when dealing with penal policy that prescribes death to a citizen. In the case of the state’s use of lethal gas in executions, a remarkable lack of reflexiveness of its linkage to authoritarian regimes has been exhibited.

U.S. companies have, under the free market conditions of transparency, been key players in making capital punishment more difficult for the state. State secrecy laws connected to capital punishment should be overturned in favor of increased government transparency and accountability. Transparency would allow for principles inextricable from democracy and the free market, including freedom of access to information on which citizens base their decisions for spending, governance, and policy, to flourish.

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