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The State of Sentencing & Decriminalization

While Federal Sentencing Reform Efforts Look Bleak, States Push Ahead

Toward the end of his second term, President Obama’s administration embarked on several criminal justice reform initiatives—including in the area of sentencing—which the Trump administration and Attorney General Jeff Sessions have largely reversed.In 2013, the Department of Justice (DOJ) instructed U.S. Attorneys to adjust charging policies to reserve mandatory minimum penalties “for serious, high-level or violent drug traffickers.” Memorandum from Attorney General Eric Holder to United States Attorneys and Assistant Attorney General for the Criminal Division, “Department Policy on Charging Mandatory Minimum Sentences and Recidivist Enhancements in Certain Drug Cases,” August 12, 2013; and Sari Horwitz, “Holder Calls for Reduced Sentences for Low-level Drug Offenders,” Washington Post, March 13, 2014. For the new administration’s position, see Memorandum from U.S. Attorney General Jeff Sessions to All Federal Prosecutors, “Department Charging and Sentencing Policy,” May 10, 2017; and Rebecca R. Ruiz, “Attorney General Orders Tougher Sentences, Rolling Back Obama Policy,” New York Times, May 12, 2017. With Republican majorities in both houses of Congress, hopes for federal sentencing reform legislation all but died in 2017 as well. The election in Alabama of Doug Jones to the U.S. Senate—a former prosecutor who has advocated for criminal justice reform, including less-harsh sentencing—marked a possible shift on the issue in one historically red state.See Justin George, “Doug Jones’ Win Is Also a Win for Criminal Justice,” Vice, December 14, 2017; and Justin George, “What the Doug Jones Election Means for Criminal Justice Reform,” The Marshall Project, December 13, 2017.

Top Things to Know

  1. Attorney General Sessions seeks return to “tough on crime” policies, including an emphasis on mandatory minimums.
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  2. Louisiana adopts sweeping justice reform, and Massachusetts moves closer.
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  3. Executions increased in 2017, though they still remain at their lowest levels in decades.
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  4. Oregon relaxes drug laws in effort to curb mass incarceration.
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  5. More states introduce “drug-enhanced homicide” bills.
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  1. Congress is considering expanding the Controlled Substances Act to include synthetic drugs.
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  2. In Washington, DC, bipartisan sentencing reform dies and is (maybe) reborn.
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  3. California ends mandatory sentencing enhancements for prior drug convictions.
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  4. Iowa passes second sentencing reform bill in two years.
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Facts and Figures

On Our Radar

  • Racial impact statements may help reduce racial disparities in sentencing.
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  • Marijuana legalization is pursued with racial justice as its aim.
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