Ending Mass Incarceration: Progress Report

Guide to the 2013-2014 Legislative Session

By Chloe Cockburn, Advocacy and Policy Counsel

For the last four decades, this country has relentlessly expanded the size of our criminal justice system, needlessly throwing away too many lives and wasting trillions of taxpayer dollars. But we are not stuck with a criminal justice system that is unproductive, wasteful, and dominated by racial disparities. Bad policies are made, and bad policies can be changed.

In the 2013-2014 session, several states made a priority out of criminal justice reform aimed at reducing excessive criminalization and incarceration, continuing a growing trend. Over 300 bills were introduced that will ease our overreliance on incarceration, and over 50 of them passed so far. Year after year, more and more states are adopting the position that current policies are unsustainable, with their crippling financial and human costs, and grossly unjust, with their wildly disparate outcomes based on arbitrary factors such as race and geography. Most importantly, states are realizing that a pragmatic approach to public safety requires reduced reliance on ineffective and harmful incarceration and increased emphasis on alternatives, whose approach gets to the root causes of criminal justice encounters. Below are summarized some of the highlights of the session, both good and bad.

Bills Thinking Big

Lawmakers from both sides of the aisle led the charge on comprehensive reforms to address structural problems. The execution, however, was less dramatic than the concept: while Mississippi, Missouri, and Idaho all passed reforms addressing structural problems, Idaho's bill is not predicted to significantly reduce populations and will at best stabilize the prison population at or near current levels. Nevertheless, lawmakers have signaled that they are committed to achieving substantial results, paving the way for additional reform efforts next session.

The bills aimed at structural overhaul included a mix of criminal code overhaul, as we saw in Missouri, and justice reinvestment reforms, as led by the Pew Public Safety Performance Project in Mississippi and the Council on State Governments in Idaho.

One of the major contributors to unnecessary and costly incarceration is extreme sentencing. Missouri made strides toward reducing extreme sentencing this year by reducing sentences for drug offenses, including eliminating life without parole as a sentence for drugs, and minor property crimes. The bill took the form of a comprehensive code revision bill rather than an effort explicitly aimed at incarceration reduction.

Tackling excessive revocation rates from probation and parole was a priority in Idaho, where the Council on State Governments found that revocations accounted for more than 50% of prison admissions each year, a figure not unusual around the country. Unfortunately, a provision of the bill limiting probation terms to 3 years, which research shows effectively reduces revocations for minor violations, was rejected by prosecutors. The chair of judiciary in Idaho indicated this bill is the first in a multi-year process which will need to include sentencing reforms in order for the state to see actual prison reductions.

The Mississippi bill eliminated mandatory LWOP for drug offenses and reduced drug sentences almost across the board, especially so for offenses involving smaller quantities. It reclassified certain low-level property crimes as misdemeanors and established a presumption of probation rather than incarceration for these crimes. It expanded eligibility for diversion programs. On the back end, the bill attempted to make parole revocation more difficult by establishing intermediate sanctions and putting caps on the amount of time people can be sent back to prison for technical violations (such as missing a meeting).

Lawmakers in at least four states have stated that they will undertake serious investigations of their states’ incarceration in the next year and introduce large bills on the topic in the next session: Nevada, Utah, Nebraska, Alabama, and Alaska. Nebraska and Alabama are working with CSG under the Justice Reinvestment Initiative. Nevada has formed a partnership with the Office of Justice Programs, which will provide technical assistance and data analysis to allow the state to develop a package of reform bills for the coming session. Utah has engaged the Pew Public Safety Performance Project, which was behind the recent comprehensive reform package in Mississippi. In a promising move for longer-term reform, Alaska created a new criminal justice commission to reevaluate sentencing and criminal justice priorities and recommend policy changes over the next three years. Each of these organizations has a different reform philosophy and agenda, and it will be instructive to watch how the reform processes unfold comparatively between the states.

Marijuana Law Reform

Marijuana reform continues to capture broad popular and legislative attention, with a new theme emerging of racial justice as a driving principle of reform in the wake of the ACLU’s landmark report on racial disparities in marijuana arrests nationwide. The report and other materials based on it played a substantial role in sparking reform efforts in Maryland and Washington D.C., where lawmakers passed laws removing state/local criminal penalties for small-scale marijuana possession. While simple marijuana possession is not a direct driver of incarceration in these jurisdictions, having a criminal misdemeanor on one’s record can eliminate job prospects, render a person ineligible for educational funding, and be a cause for eviction from housing, all of which are substantial risk factors for further contact with the criminal justice system likely to result in incarceration.

D.C.’s marijuana bill was explicitly designed to address concerns about racially disparate policing practices in the district. Ninety-one percent of marijuana arrests in 2012 were of Black people, although usage rates are roughly equal as is the racial breakdown between black and white in the district. Police openly admitted that marijuana enforcement was used as a policing tool to achieve things other than suppressing marijuana use, not because marijuana enforcement itself was a priority. With decriminalization, police will lose the ability to search people incident to arrest or question them with an arrest hanging over their heads, thus significantly diminishing marijuana enforcement against certain communities as a policing tool. Moreover, because most of those arrested for marijuana offenses are impoverished, the council set a fine of $25 for possession, an amount proportional to what those most affected can pay.

Beyond Maryland and D.C., lawmakers in 17 other states introduced bills to either remove criminal penalties from marijuana possession or to tax and regulate the manufacture, distribution and sale of marijuana. These states include: Alabama, Arizona, Florida, Hawaii, Illinois, Indiana, Missouri, New Hampshire, New Jersey, New Mexico, New York, Oklahoma, Oregon, Rhode Island, and Vermont. Observers should watch these states to find out which will be the next to follow in the footsteps of Washington and Colorado. The first bill to be passed by a legislature rather than a ballot measure will be a significant milestone.

Additionally, in Louisiana, five bills were introduced to bring penalties under control. Currently, in the state, a second-time marijuana possession conviction is a felony offense and a third-time marijuana possession conviction carries a 20 year sentence, These five bills ranged from a modest proposal to merely shorten the sentence for third-time possession to 8 years, to a stronger bill to make all marijuana possession offenses misdemeanorsWhile pubic support for change is very strong, both the sheriffs and the district attorneys stood united against any and all reform, ensuring the failure of these bills. However, we hear that the sheriffs themselves plan to introduce a marijuana bill next session, a telling sign of how concerned they are at the prospect of losing control over this issue. This is a significant leap forward from last year’s session, when the ACLU put marijuana reform on the agenda for the first time.

Sentencing Reform

While sentencing reform remains a politically delicate endeavor, one area where we saw a lot of movement this session was reform to laws allowing sentences of life without parole for nonviolent offenses, which was the topic of the recent ACLU report, A Living Death. Bills reforming or eliminating life without parole were introduced in seven states (Missouri, Alabama, Hawaii, Delaware, Louisiana, Oklahoma, and Mississippi). The Mississippi and Missouri provision passed, the Louisiana bill is close to passing (this bill would allow those sentenced to life without parole under an old law to apply for parole), the Delaware bill has passed one house, and there was a near miss in Oklahoma. Recent research has found that the public increasingly objects to sentencing people to any term of prison for low-level drug offenses and supports treatment as a more effective and fair alternative.

Bills Moving Backwards

Louisiana was among the very few states to increase drug penalties this year, passing legislation increasing the mandatory minimum for the distribution, possession with intent to distribute, manufacture and sale of any quantity of schedule I narcotic drugs (aka, heroin) to 10 years (previously it was 5 years). Doubling the mandatory minimum sentence of a law that saw 1,600 people sentenced under it just last year will lead to substantially higher sentences for thousands of people and a real increase in the prison population. . Responding to a sharp increase in overdose deaths from heroin, which has occurred in numerous states around the country, the legislature took a reactionary, penalty-focused approach, with no evidence that this approach will help fix the problem. Meanwhile, other states and policymakers have recognized that the appropriate response to this public health crisis is increases access to public health resources, not to ratchet up already very high sentences for heroin sale.

In another unfortunate trend, several states have introduced, and in some cases passed, bills enhancing penalties for house burglaries, which tend to incur very long sentences. These stiffer penalties have not been shown to deter burglaries, but do extract more incarceration and enforcement resources from communities. The worst of the bunch was a provision in Mississippi’s major legislation that will designate house burglary as a violent crime, even if no one was present in the house and there was no weapon present. This change exposes someone convicted of the burglary of an empty house to a Mandatory LWOP sentence if the person has two prior felony convictions, no matter how minor. In addition to providing for an excessive mandatory sentence, this change twists the idea of a violent crime to apply to cases where no one was even present, let alone physically harmed.

Bills Increasing Incarceration

While the overall trends are good, state legislatures considered hundreds of unproductive and costly bills this session that would increase incarceration. By far the most common type of incarceration-increasing bill is one enhancing penalties or registration requirements for sex offenses. Other common types of incarceration-increasing bills include those enhancing penalties for DUIs, most often for serious injury or multiple convictions, bills dealing with crimes against children, and bills addressing human trafficking.

In 13 states, lawmakers introduced bills ratcheting up penalties for assaults committed against special classes of people depending on their job. State legislators have also singled out professions ranging from the commonplace (assaulting a health care provider) to the very specific (assaulting a sports referee or a building inspector). Several of these bills have passed, including bills in Colorado and Nebraska singling out emergency medical service providers, and a bill in Louisiana for referees. Virginia already had such a law covering teachers, principals, assistant principals, and guidance counselors, but extended it to any full or part-time elementary school employee. If legislators think that adding penalties for crimes against special people will deter such crime, they are likely mistaken; marginal increases in sentencing like these have not been found to reduce crime. Moreover, singling out special people for special treatment sends a signal that those who don’t fall into these proliferating categories are not especially valuable. Given that most victims of crime are young men of color who don’t fall into these special categories, this trend is troubling.

Bottom Line

Overall, the news is much more good than bad. As states are recognizing the need to be smart on crime, the reformist bills are overshadowing the regressive ones. However, few bills this session took a great leap forward. Most reforms continue to be technical and incremental.