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Reducing our Reliance on Incarceration: A Look at Promising State-Level Reforms in 2013

Alex Stamm,
ACLU Center for Justice
Chloe Cockburn,
Advocacy and Policy Counsel,
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March 21, 2013

Good news for criminal justice reform: the 2013 state legislatures have already introduced a number of impressive bills that build on the growing momentum of the last few years. If 2012 was notable for the number of major reforms that passed (see summaries here and here), then an early look at the crop of 2013 bills shows even more promise. While we may not see victories across the board on the bills currently moving though statehouses across the country, the clear message is that legislators are turning away from decades of cripplingly expensive and unjustly punitive incarceration policies and looking for alternatives.

Without question, the strongest trend in criminal justice reform legislation is marijuana reform. In the wake of the historic legalization initiatives that passed in Washington and Colorado in 2012, a variety of marijuana reform bills are appearing across the country, including medical marijuana, decriminalization (where possession remains illegal but punishable only by fine), Good Samaritan laws to protect those who report an overdose (moving us toward treating drug use as a public health problem, not a criminal justice problem), and outright legalization accompanied by taxation and regulation.

Decriminalization bills have been recently introduced in Missouri, New Jersey, New York, Texas, and Vermont, with Michigan soon to follow, and such bills are already making good progress in Hawaii, Maryland and New Mexico, although the governor of New Mexico has threatened a veto if the bill passes the senate. Although bills to legalize marijuana have a much tougher road, they have been introduced in eight states: Hawaii, Maine, Maryland, Massachusetts, New Hampshire, Oregon, Rhode Island, and Vermont, representing a sea change in the way this country views marijuana use. In addition, medical marijuana bills are in play in Alabama, Florida, Illinois, Kansas, Kentucky (SB 11), New Hampshire, Maryland, Minnesota, Missouri, New York, and West Virginia. And we could see Good Samaritan laws passed in Arizona, Missouri (HB 296), and Vermont.

Broader drug reform is on the table in California, where SB 649 would give prosecutors the discretion to charge possession of any drug as a misdemeanor rather than a felony. If passed, the measure would relieve pressure on California’s overcrowded jails and reduce the severe consequences of a felony conviction on a person’s future employment, housing, and life prospects. If the bill passes, California will become the 13th state (along with DC) to allow misdemeanor charges in “hard drug” possession cases.

Beyond drug law reform, a number of other bills may significantly contribute to reductions in prison populations. One of the most ambitious and impactful bills of this session is Georgia’s HB 242, an overhaul of the state’s juvenile justice laws. Georgia’s House of Representatives unanimously approved the bill recently; here’s a summary of its provisions. Among many other things, the bill will reduce the number of kids sent to jail and prison by expanding the number of community-based programs for juveniles convicted of minor offenses and prohibit imprisonment of youth status offenders—kids who skip school or run away. The changes could reduce the number of youth in jail or prison by one-third over the next five years.

Another very promising trend is the crop of mandatory minimum reform bills that we see in Massachusetts, Louisiana, South Carolina, Florida, Oregon and Georgia. Massachusetts’ bill is the most comprehensive; it would repeal mandatory minimum sentences for non-violent drug offenses. The other bills propose more tightly focused and limited reforms, such as eliminating mandatory sentences only for certain drug offenses. Because mandatory minimums are a major driver of incarceration rates, these bills could have a big impact. Similar efforts in other states have preceded large drops in prison populations (as well as drops in crime). It’s even more significant that four of these bills are in southern states. Perhaps the growing number of prominent conservatives who reject mandatory sentencing (such as William Rehnquist, David Keene, and Grover Norquist) are having an impact.

The push for smarter criminal justice policies is happening around the country. Oregon’s bill reforming some mandatory minimums also expands the number of people eligible for alternatives to prison and allow prisoners to earn earlier release; Rhode Island and Texas are considering bills to reclassify certain minor felonies like petty theft and prostitution as misdemeanors, so that they carry lesser penalties; South Dakota passed a bill including parole reforms and reducing some drug penalties (but unfortunately leaving in place the felony crime of having drugs in your system); Colorado and Kentucky have bills to raise the dollar threshold for triggering a felony theft offense; Colorado also has a bill to divert defendants to supervision programs before trial; Indiana and Missouri are likely to pass criminal code revision bills in that include sentencing reforms; Louisiana Governor Bobby Jindal is publicly backing a pair of bills that would expand the state’s drug court program and allow nonviolent drug-offense prisoners to earn early release; Kansas and West Virginia are working on bills that change parole conditions to limit revocations; and Hawaii and Oklahoma are considering bills allowing their states to parole elderly prisoners, whose incarceration is incredibly expensive, but offers little if any benefit to public safety.

The bottom line is that states are turning the corner. More and more legislators are realizing it is time – long past time – to stem the tide of people into prisons, where the average cost of incarceration per year in the United States is $31,000. There is a terrific amount of work to be done before we will see real reductions in the number of people in prison; however, the sheer number, reach, and geographic diversity of these bills is striking and reason to celebrate. And it’s only March. Stay tuned.

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