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The State of Sentencing

A Growing Divide

Sentencing—the nature and duration of the penalty a court imposes on people convicted of a crime—often draws a lot of attention in election years, and 2018 was no exception. Whether candidates for state or federal office were running on “tough on crime” platforms or advocating justice reform, sentencing made the news.Shaila Dewan and Carl Hulse, “Republicans and Democrats Cannot Agree on Absolutely Anything. Except This,” New York Times, November 14, 2018. And, as in most election years, results throughout the country were mixed.

Maryland and Kentucky enacted laws lengthening sentences for some violent offenses, while Ohio and Missouri focused on reducing criminal justice spending and reinvesting those savings in community solutions to crime.Rachel Chason, “Maryland Lawmakers Reject Wide-Ranging Crime Bill, Pass More Modest Measures,” Washington Post, April 7, 2018; Kentucky HB 169 (2018); Missouri HB 1355 (2018); and Ohio SB 66 (2018).

At the ballot box, Louisiana voters upended a Jim Crow-era law that allowed non-unanimous jury verdicts in felony cases.Udi Ofer, “The 2018 Midterm Elections Were a Big Win for Criminal Justice Reform Ballot Initiatives,” ACLU, November 7, 2018. Florida voters approved Amendment 11 to the state’s constitution, which allows reforms of criminal justice statutes to be retroactive and could result in release for people serving time for certain drug offenses.Ofer, “Big Win for Criminal Justice Reform,” 2018. And Michigan, Missouri, Utah, and Vermont added their names to the roster of states that have legalized marijuana use.German Lopez, “Marijuana Legalization Had a Pretty Good Election Night,” Vox, November 7, 2018.

The Trump administration sent mixed messages on criminal justice reform. Former Attorney General Jeff Sessions favored strict, lengthy sentences, and his successor, William Barr, has a history of pro-incarceration rhetoric.Jon Wiener, “William Barr: Worse Than Jeff Sessions?” The Nation, December 13, 2018; William Barr, The Case for More Incarceration (working paper) (Washington, DC: U.S. Department of Justice, 1992); and William Barr, Combating Violent Crime: 24 Recommendations to Strengthen Criminal Justice (Washington, DC: U.S. Department of Justice, 1992). But President Trump signed the FIRST STEP Act into law, a criminal justice package that has been hailed as a positive step toward reform by allowing incarcerated people to earn good time credits to reduce their sentences and making changes to certain mandatory minimum sentences. Some, however, have called the measure too modest and criticized its exclusion of certain individuals under supervision of the federal Bureau of Prisons (BOP) from the benefits of the new law, as well as for its controversial use of risk assessment instruments.See for example Vera Institute of Justice, “Statement from the Vera Institute of Justice on the FIRST STEP Act,” press release (New York: Vera Institute of Justice, December 17, 2018); American Civil Liberties Union (ACLU), “ACLU Praises Senate Passage of FIRST STEP Act,” ACLU, December 18, 2018; Tim Lau, “Historic Criminal Justice Reform Legislation Signed into Law,” Brennan Center for Justice, December 21, 2018; and Kara Gotsch, “Commentary: Progress on Justice Reform Closer,” The Sentencing Project, December 19, 2018. Also see German Lopez, “The First Step Act, Congress’s Criminal Justice Reform Bill, Explained,” Vox, December 11, 2018.Viewed holistically, the FIRST STEP Act’s deficits may perpetuate—and potentially deepen—racial disparities in federal corrections, even as the law reduces the overall number of people under BOP supervision.Jon Wiener, “William Barr: Worse Than Jeff Sessions?” The Nation, December 13, 2018; William Barr, The Case for More Incarceration (working paper) (Washington, DC: U.S. Department of Justice, 1992); and William Barr, Combating Violent Crime: 24 Recommendations to Strengthen Criminal Justice (Washington, DC: U.S. Department of Justice, 1992).

Top Things to Know

  1. Trump signs FIRST STEP Act into law.
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  2. Massachusetts enacts bipartisan criminal justice reform law.
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  3. Missouri, Ohio, and Georgia are getting “smart on crime.”
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  4. Some states get “tough on crime,” with returns to stiffer sentences.
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  5. Louisiana will no longer base felony convictions on non-unanimous verdicts.
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  1. Sentencing reforms can come too late for people already in prison.
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  2. Three more states vote to decriminalize marijuana use; one state legislates it.
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  3. Illinois and Michigan pass laws changing the parameters of parole.
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  4. Jurisdictions are giving judges, juries more options.
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Facts and Figures

  • 4,537,100

    Number of people under community supervision as of the most recent data available from the Bureau of Justice Statistics (2016).Danielle Kaeble, Probation and Parole in the United States, 2016 (Washington, DC: Bureau of Justice Statistics, 2018).

  • 17%

    Percentage of people incarcerated in Florida prisons who are serving a sentence of at least 10 years, which has doubled since 2000.Kang-Brown, Hinds, Heiss, and Lu, New Dynamics of Mass Incarceration, 2018, 20.

  • 27,937

    Number of people who have been in prison for at least half their lives.Urban Institute, “Data.”

  • $10/hr

    The “pay rate” for community service performed under a Utah law passed this year to provide alternatives to fines for people convicted of infractions or misdemeanors.Utah HB 248 (2018).

On Our Radar

  • California grapples with “vague” felony-murder laws in litigation, legislation.
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  • The federal government pushes for more capital punishment.
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  • Thousands of people in Pennsylvania are sentenced to life without parole—sometimes called death by incarceration.
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Discussion

Best of 2018

Contributors

Vera Staff