While incarceration rates—along with crime rates—have been trending down, the policies that created mass incarceration are dying hard and, in some places, are alive and well.Jacob Kang-Brown, Oliver Hinds, Jasmine Heiss, and Olive Lu, The New Dynamics of Mass Incarceration (New York: Vera Institute of Justice, 2018), 20.
Even as states engage in criminal justice reforms, some legislators advocated for long, inflexible sentencing policies.
In 2017, Maryland’s prison population declined, partly as a result of sweeping criminal justice reforms enacted in 2016.The Justice Reinvestment Act, Maryland SB 1005 (2016). However, in April, the state passed a new package of laws requiring—among other mandatory minimums—a 10-year mandatory minimum sentence for people convicted of a second violent offense.Maryland HB 1029 (2018); Maryland SB 101 (2018); and Maryland SB 1137 (2018). See also Rachel Chason, “Maryland Lawmakers Reject Wide-Ranging Crime Bill, Pass More Modest Measures,” Washington Post, April 7, 2018. The laws are a more modest version of legislation backed by Governor Larry Hogan that would have doubled the maximum sentence for a second offense of using a firearm in connection with drug trafficking and for witness intimidation, adding a fine of $10,000 for the latter.Ovetta Wiggins, “Md. Lawmakers Struggle for Ways to Address Crime in One of the Nation’s Most Violent Cities,” Washington Post, March 24, 2018. Wisconsin also revisited mandatory minimums. The state had imposed mandatory minimum sentences of three-and-half years for a second conviction of felony-murder, second degree intentional homicide, or any crime punishable by life imprisonment. This year, it both increased that minimum sentence—to five years—and expanded the range of crimes to which it applies.Wisconsin SB 55 (2017). The new offenses include aggravated battery, kidnapping, causing death by tampering with household products, armed robbery, physical abuse of a child, child abduction, and child trafficking.Wisconsin SB 55 (2017).
In April, the Kentucky legislature passed HB 169 in response to a perceived uptick in gang-related violence.Kentucky HB 169 (2018); and D. Anthony Everett, Donald K. Gillett II, Kate Miller, et al., “Punitive Responses to Gang Violence Are Not Effective,” Lexington Herald-Leader, March 23, 2018. Dubbed a “gang prevention” measure, the new law, signed by Governor Matt Bevin, establishes a legal definition for a “criminal gang syndicate,” reduces the level of proof needed to claim a person is in a gang, and increases criminal penalties for gang recruitment and a range of other crimes if the person convicted can be shown to be a gang member.Kentucky HB 169 (2018). People who are convicted of being in a criminal gang syndicate must now serve a minimum of 85 percent of their sentences before they can become eligible for parole.Kentucky HB 169 (2018). This is despite the fact that research shows that early intervention programs—such as those that focus on education, training and mentoring—are more effective in preventing and reversing gang activity than stiffer penalties.Robert Brzenchek, “Why Gang Violence Should Be Treated as a Public Health Issue,” PoliceOne.com, July 20, 2018; and Nancy Ritter, Thomas R. Simon, and Reshma R. Mahendra, “Changing Course: Keeping Kids Out of Gangs,” National Institute of Justice Journal no. 273 (2014), 16-28. In Mississippi, the legislature rejected SB 2868, a measure similar to Kentucky’s, in part because of concerns that it would unfairly affect racial and ethnic minorities.Mississippi SB 2868 (2018); “Opposition to Anti-Gang Bill in MS Says Bill Targets African-Americans,” WMC-5; and Blake Feldman, “Anti-Gang Act Would Be a Disaster for Mississippi,” Jackson Free Press, February 7, 2018. But the state did pass HB 387, a package allowing for judicial discretion in sentencing people classified as “habitual offenders.” Previously, judges would have been required to give a person the maximum sentence for their third felony conviction, which would automatically result in life without parole under Mississippi law. The law also established a sentencing disparity task force “to study and report the existence of possible disparity in sentencing for crimes as documented by the Mississippi Department of Corrections in order to promote the interest of uniform justice” in the state.Mississippi HB 387 (2018).