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Mixed Results for State Justice Reform

States tout criminal justice “reform”—but with conflicting meanings

The country’s deep political divisions played out in the states this year on the criminal justice front. Criminal justice reform—which has enjoyed bipartisan support nationally in recent years—continued in states both red and blue, but in others, “tough on crime” talk, and action, prevailed. And while many states passed criminal justice reform laws, the meaning of reform was up for grabs. Although some states passed major packages of progressive legislation, others billed regressive, harsh sentencing laws as “reforms.”

Colorado’s effort was on the progressive side. A bipartisan push brought together such diverse groups as bail bondsmen and bail abolitionists to craft a major reform package that affects nearly every part of the state’s justice system.Elise Schmelzer, “Swath of Legislation Reforming Colorado’s Criminal Justice System to Affect Tens of Thousands,” Denver Post, May 7, 2019, https://perma.cc/7GC5-3G5X.Interest groups tracked as many as 100 bills making their way through the Colorado legislature this year, and those that passed will fundamentally alter the state’s legal landscape, starting with lowering the classification of some drug offenses.Ibid. For a roundup of many of the most important bills, see Terri Hurst, “2019 Legislative Session Wrap-up,” Colorado Justice Report, Spring 2019, https://perma.cc/4YB6-W45Q.For people awaiting trial, money bail has been eliminated for petty and municipal offenses, and new timelines for bond hearings and release are in effect—aided by the addition of 15 district court judge positions statewide and a new program that will send text reminders about court dates.Colorado HB 19-1225 (2019) (bail), https://perma.cc/LS8D-K33P; Colorado SB 19-191 (2019) (bond hearing timeline), https://perma.cc/B7YN-EFVQ; Colorado SB 19-043 (2019) (judges), https://https://perma.cc/449S-5D85/449S-5D85; and Colorado SB 19-036 (2019) (reminders), https://perma.cc/Z2WB-84QD. Also see Schmelzer, “Swath of Legislation,” 2019.Incarcerated people will have access to free menstrual products, jails will be required to provide medication-assisted treatment to people with a history of opioid use, and the state will be tracking incarceration statistics more closely.Colorado HB 19-1224 (2019), https://perma.cc/T4WB-E35C; and Colorado HB 19-1297 (2019), https://perma.cc/5JXJ-SBC3. Also see Schmelzer, “Swath of Legislation,” 2019.But the reforms don’t end when people return to the community: the state has made it more difficult to deny parole or rearrest people on parole for technical violations and has created a streamlined process to automatically seal some categories of criminal records, and it has added some moderate "ban the box" provisions for housing, job applications, and college admissions.Hurst, “2019 Wrap-up,” 2019, 2-3.

In Delaware, a package of 11 criminal justice bills passed the General Assembly, most of them by wide bipartisan margins.Matthew Albright, “The Tide Turns for Criminal Justice Reform in Delaware. Will We Go Far Enough?” Delaware News Journal, July 5, 2019, https://perma.cc/DVL8-PM5V.The bills, which once would have been controversial, found support after shifts in public opinion partly driven by top criminal justice stakeholders—like new Attorney General Kathy Jennings—who have turned the tide in favor of reform in the state.Ibid.Drug offense sentencing laws were altered to downgrade the severity of offenses or remove enhanced penalties.Delaware SB 47 (2019),https://perma.cc/UPN8-LJ8L.Judges now have more leeway in determining whether multiple sentences will be served concurrently or consecutively and, after people complete their sentences, most are eligible to have their records expunged—not merely sealed—in three to seven years.Delaware HB 5 (2019) (sentencing), https://perma.cc/9YXA-BPA3; and Delaware SB 37 (2019) (expungement), https://perma.cc/6PMZ-3T8Y.But the General Assembly failed to pass bills that would have expanded criteria for early release and raised the age at which young people can be prosecuted.For a list of the original 19 bills in the criminal justice package, see Delaware Department of Justice, “Jennings, Office of Defense Services, and Legislative Leaders Announce Comprehensive Criminal Justice Reform Package,” press release (Dover, DE: Delaware Department of Justice, March 15, 2019), https://perma.cc/PR56-9K83.

Even deep-red Mississippi passed a major reform package this year, albeit one focused on “nonviolent crimes”—an easier bipartisan sell.Mississippi HB 1352 (2019), https://perma.cc/DNN9-LSRZ. Also see Michelle Liu, “Criminal Justice Reform Applauded but Advocates Say It’s a Step, Not ‘the Leap’ Mississippi Needs,” Mississippi Today, March 26, 2019, https://perma.cc/EPH5-UCEX.The package replaces Mississippi’s limited drug court program—which was available only to people with histories of substance use—with “intervention courts” that are now also accessible to veterans and people with mental health issues.Mississippi HB 1352 (2019).The courts, which provide diversion and support, can now also give people with opioid use histories access to medication-assisted treatment, which studies have found to be more effective than abstinence.For a general overview of medication-assisted treatment, see German Lopez, “There’s a Highly Successful Treatment for Opioid Addiction. But Stigma Is Holding It Back,” Vox, November 15, 2017, https://perma.cc/HR9C-CD48. For specific studies, see for example Richard P Mattick, Courtney Breen, Jo Kimber, and Marina Davoli, “Methadone Maintenance Therapy Versus No Opioid Replacement Therapy for Opioid Dependence,” Cochrane Database of Systematic Reviews 2009, no. 3 (2009), https://perma.cc/D229-5EYK; Richard P Mattick, Courtney Breen, Jo Kimber, and Marina Davoli, “Buprenorphine Maintenance Versus Placebo or Methadone Maintenance for Opioid Dependence,” Cochrane Database of Systematic Reviews 2014,no. 2 (2014), https://perma.cc/9TUF-CWJU; and Evgeny Krupitsky, Edward V Nunes, Walter Ling et al., “Injectable Extended-Release Naltrexone for Opioid Dependence: A Double-Blind, Placebo-Controlled, Multicentre Randomised Trial,” Lancet 377, no. 9776 (2011), P1506-P1513, https://perma.cc/F77F-EP2W.In addition, people with drug convictions unrelated to the operation of motor vehicles are now eligible to retain their driver’s licenses, making it easier to find work, and they can access workforce training and nutrition assistance. People with conviction histories will also benefit from Mississippi’s “Fresh Start Act,” signed into law the same day, which expands access to occupational licensing for people convicted of unrelated crimes.Mississippi HB 1284 (2019), https://perma.cc/X789-GS9B.

In New Mexico, reformers took advantage of the end of the tenure of Republican Governor Susana Martinez—a former prosecutor—to introduce a variety of bills aimed at shifting the state’s policies away from a “tough on crime” approach.Phaedra Haywood, “Trying to Clear Clogs in New Mexico Criminal Justice System,” Santa Fe New Mexican, May 4, 2019, https://perma.cc/L8M3-6QBZ.New Governor Michelle Lujan Grisham signed bills into law in April that decriminalize small amounts of marijuana, limit the use of solitary confinement, and make it easier for people with histories of justice system involvement to find and keep employment by barring questions about past arrests and convictions on job applications and expanding the list of convictions eligible for expungement.New Mexico SB 323 (2019) (decriminalize small amounts of marijuana), https://perma.cc/6JSD-VM57; New Mexico HB 364 (2019) (limit solitary confinement), https://perma.cc/9F8K-9BPT; New Mexico SB 96 (2019) (“ban the box”), https://perma.cc/URU3-ZTQX; and New Mexico HB 370 (2019) (expungement), https://perma.cc/CG7A-NMQX. Also see “Governor Signs Criminal Justice Reform Bills,” KOB4, April 3, 2019, https://perma.cc/7XJG-SWYC.But the governor vetoed a bill that would have reformed probation and parole laws after the state’s 14 district attorneys pushed back, in order to give them the “opportunity . . . to weigh in on the important issues addressed by the bill.”New Mexico HB 564 (2019), https://perma.cc/C9HR-ARTJ. The governor encouraged proponents and opponents of the bill to work out their differences in the next legislative session. Jeff Proctor, “Gov Vetoes Probation, Parole Reforms—With Some Reluctance,” New Mexico in Depth, April 5, 2019, https://perma.cc/YG2C-6ST5.

But some states’ so-called “reform packages” rolled back prior reforms. In Alaska, where the state’s new Republican governor, Mike Dunleavy, campaigned with the slogan “Make Alaska Safe Again,” legislators attacked 2016’s Senate Bill 91—a comprehensive reform package—by ratcheting up sentences and undermining the original law’s bail provisions.Zachary Siegel, “Alaska Passed Sweeping Criminal Justice Reforms. Its New Governor Just Unraveled Them,” The Appeal, July 11, 2019, https://perma.cc/2SC7-ZL6L; and Alaska HB 49 (2019), https://perma.cc/L93T-YB3T.Dunleavy also cut funding to health and safety programs designed to reduce homelessness and addiction.Siegel, “Alaska Passed Sweeping Criminal Justice Reforms,” 2019.In Montana, legislators—under pressure from retailers and police—rolled back portions of 2017 reforms to reinstate arrests (rather than citations) for crimes that cannot be punished by incarceration.Montana HB 421 (2019), https://perma.cc/3C93-LFFC; and “Gazette Opinion: HB421 Would Deter Shoplifting in Montana,” Billings Gazette, May 5, 2019, https://perma.cc/6BLA-5RTW.

Traditionally conservative Arkansas also returned to “tough on crime” policies. The Arkansas Sentencing Commission, which compiles a report at the end of each legislative session, counted 11 laws modifying or enhancing penalties for existing offenses and 19 creating new offenses, including reclassifying the possession of paraphernalia for heroin or fentanyl use from a misdemeanor to a felony.For civil asset forfeiture reform, see Arkansas SB 308 (2019), https://perma.cc/7GRJ-J2F4. For a roundup of the “tough on crime” bills passed during the 2018-2019 legislative session, see John Moritz, “New Arkansas Laws Targeting a Variety of Crimes,” Arkansas Democrat Gazette, May 27, 2019, https://perma.cc/2XN2-B4D9.

Perhaps reflecting the necessity of political compromise, some states enacted a mixed bag of criminal justice legislation that included both progressive reforms and harsher punishments.

  • In Iowa, while a bill that expanded expungements and gave judges more leeway to review mandatory sentences was hailed as an “omnibus reform package,” important reforms like bills to “ban the box” and restore voting rights for people with felony records failed to pass the legislature, and sentencing enhancements for some crimes became law.Iowa SF 589 (2019) (reform bill), https://perma.cc/Y4GZ-RVH8; and Iowa SF 113 (2019) (sentencing enhancements), https://perma.cc/ZWY2-QBHG. For a roundup of proposed 2019 legislative reforms, see Julia Shanahan, “Lawmakers at a Crossroads on Criminal Justice,” Daily Iowan, April 30, 2019, https://perma.cc/B6CZ-F4X9.Iowa continues to consider reform, however, and the governor has appointed a committee of criminal justice system stakeholders ranging from leaders of departments of corrections to leaders of the NAACP to examine the racial impact of laws and make recommendations to reduce disparities and factors driving recidivism.Associated Press, “Iowa Governor Appoints Criminal Justice Reform Committee,” WQAD, November 4, 2019, https://perma.cc/V8DZ-ZRCP.
  • Nebraska, which is facing a prison crowding emergency, passed an omnibus bill improving options for post-trial diversion and prohibiting placing vulnerable people in restrictive housing—but it also added penalties for people who violate parole.Nebraska LB 686 (2019), https://perma.cc/C2AC-Z45N; and Staff, “Nebraska Faces a Prison-Crowding Emergency,” Economist, April 11, 2019, https://perma.cc/VL4E-DHVL.
  • Florida passed its own “First Step Act”—inspired by 2018’s federal legislation of the same name—but opted for a watered-down House version of a more progressive Senate bill, omitting provisions to ease mandatory minimum sentencing and restrictions on parole but raising the threshold for felony theft from $300 (the lowest in the nation) to a still-modest $750.Florida HB 7125 (2019), https://perma.cc/VQ4N-C6K8; and Florida SB 642 (2019), https://perma.cc/U5WM-ZCJX. For a comparison of the two bills, see Andrew Pantazi and John Kennedy, “Which Florida First Step Act Will Pass, One That Cuts Incarceration or One That Doesn’t?” Florida Times-Union, updated April 20, 2019, https://perma.cc/RN6B-HRLK. Most states have felony theft thresholds of $1,000 or more. Alison Lawrence, Making Sense of Sentencing: State Systems and Policies (Washington, DC: National Conference of State Legislatures, 2015), 2, https://perma.cc/7CZ6-EB3G.
  • Nevada, too, saw important portions of this year’s omnibus reform bill fade away in the negotiation process, including provisions that would have expanded pretrial diversion in a state where the prison population is still growing despite nationwide declines.April Corbin Girnus, “Criminal Justice Bill Watered Down but Still Significant, Advocates Say,” Nevada Current, June 4, 2019, https://perma.cc/XGS8-G467. For the final version of the bill, see Nevada AB 236 (2019), https://perma.cc/34TS-3SHT.But the state passed a number of other significant reforms this year, including banning private prisons and improving processes for people to obtain ID cards while incarcerated, although it failed to pass a measure that would have eliminated money bail for people charged with nonviolent misdemeanors.For a roundup of reform legislation that did and did not pass this year, see Girnus, “Criminal Justice Bill Watered Down,” 2019.