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.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.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.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.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.
In Delaware, a package of 11 criminal justice bills passed the General Assembly, most of them by wide bipartisan margins.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.Drug offense sentencing laws were altered to downgrade the severity of offenses or remove enhanced penalties.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.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.
Even deep-red Mississippi passed a major reform package this year, albeit one focused on “nonviolent crimes”—an easier bipartisan sell.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.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.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.
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.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.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.”
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.Dunleavy also cut funding to health and safety programs designed to reduce homelessness and addiction.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.
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.
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 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.
- 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.
- 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.
- 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.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.