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State Criminal Justice Reform Efforts Gaining Traction

by Christopher Zoukis

On the federal level, hopes for criminal justice reform have fallen victim to partisan bickering in Congress and a lack of substantive interest from the White House. Fortunately, state officials are not waiting around, and state-level reform efforts are underway across the country.

Both houses of the Massachusetts legislature passed reform measures in late 2017. The bills address three hot-button issues: bail reform, use of solitary confinement and mandatory minimum sentences – especially for drug offenders. The reform efforts also seek to include organizations such as Boys and Girls Clubs, as well as homeless shelters, to help prevent people from resorting to crime.

With 68 percent of its local jail population suffering from substance abuse problems, Massachusetts also seeks to expand drug-sentence diversion and treatment programs – particularly to identify and treat those addicted to opioids – in an attempt to slow the revolving door between jails and hospitals for drug abusers.

In California, Governor Jerry Brown has signed a slew of bills aimed at improving the state’s criminal and juvenile justice systems. They included changes to the parole process for prisoners serving lengthy sentences for crimes committed before the age of 25, and for elderly offenders who have served at least 25 years. Sentencing practices are also impacted by the reforms, with one bill repealing a three-year enhancement for certain prior drug convictions. The California legislature also addressed reentry barriers by allowing certain juvenile and arrest-only records to be sealed.

Louisiana’s 2017 criminal justice reform package consisted of 10 bills intended to reduce the state’s astronomically-high incarceration rate. Governor John Bel Edwards touted the legislation as a bipartisan effort, but given the state’s dubious distinction as the nation’s top jailer, it is perhaps no surprise that Louisiana law enforcement officials fiercely opposed the reforms.

“We always talk about a return on investment in every other area of state government, why shouldn’t that also apply to criminal justice?” Edwards asked prosecutors from across the country at a meeting of the Association of Prosecuting Attorneys’ Major County Prosecutors’ Council in January 2018.

Edwards emphasized that the state’s reform efforts were based on successful policies implemented in other states, such as expanding probation to third-time non-violent crimes and first-time crimes involving low-level violence, as well as expanding parole and increasing the use of drug treatment and drug courts. His administration employed a task force to research best practices.

“Nobody wants to experiment with public safety,” Edwards said.

A similar slate of reform options – expanding eligibility for probation, re-designating low-level felonies as misdemeanors, smoothing out wrinkles in parole administration and keeping technical violations from returning parolees to prison – has been taken up in Arkansas, Hawaii, Michigan and Montana.

New York and North Carolina took steps to address draconian laws, unique in those states, that require minors aged 16 and 17 to be tried as adults. New York raised the age for misdemeanors and most felonies to 18, while North Carolina did the same for nonviolent crimes.

Addressing racial disparities was another focus of criminal justice reform efforts in Arkansas and New Jersey, through the use of legislative racial impact statements similar to those utilized in three other states: Connecticut, Oregon and Vermont. The statements are used to help lawmakers identify apparent racial bias that may result from proposed sentencing changes before they are made. While the Arkansas bill died in the House of Representatives, the one in New Jersey passed and was signed into law in January 2018.

Additionally, Vermont lawmakers established a 15-member racial justice oversight board in May 2017 to examine racial biases in the state’s criminal justice system.

State-level reform efforts have also extended to convicted felons after their release. The federal government denies public assistance for food and cash aid to people with felony drug convictions unless the state administering the program opts out – which is what at least 18 states have done, including Maryland, Alabama and North Dakota. [See: PLN, Jan. 2016, p.44].

Twenty-six other states “have partly eased those restrictions, often by providing the benefits only if the recipient complies with parole, does not commit a second offense, enrolls in treatment, etc.,” The Marshall Project, an independent criminal justice news organization, reported in February 2016.

Louisiana and Maryland also took steps to restrict colleges and universities from asking about applicants’ criminal records. Utah imposed similar restrictions on landlords. And last year, Alabama lawmakers restored voting rights to certain classes of former convicts, though a similar bipartisan measure in Nebraska, passed by the state legislature, was rejected by Governor Pete Ricketts in April 2017.

Meanwhile, the Council of State Governments Justice Center, with the help of a grant from the U.S. Department of Justice and in conjunction with the National Center for Victims of Crime, has launched the “Face to Face” initiative. The project aims to facilitate meetings between state governors and criminal justice stakeholders, including prisoners, correctional staff and crime victims, in an effort to kick-start reform efforts.

In August 2017, eight governors participated in Face to Face projects. Georgia Governor Nathan Deal suggested the Face to Face initiative is a powerful way to better understand the impact of criminal justice policies.

“I have learned through my own experience that criminal justice policy decisions are best made when they prioritize the needs and challenges of the people they ultimately impact,” Deal said. “I encourage other elected officials to join these efforts and make a personal, face-to-face connection with people involved with the correctional system.”

One strong indicator that states are seriously investing in criminal justice reform was a November 15, 2017 Fox News opinion piece by Kentucky Governor Matt Bevin, who challenged the continued viability of the “tough on crime at all costs” approach to politics.

“Some political advisors still speak passionately about being ‘tough on crime,’ and caution that supporting criminal justice reform policy could be politically dangerous at election time,” he wrote. “This is a ridiculous notion. After all, more than 90 percent of those incarcerated will eventually re-enter society.”

“We either pave a path towards second opportunities or we settle for recidivism,” Governor Bevin continued. “Which is better for our communities?”

In April 2018, the White House indicated that President Donald Trump may soften his long-time resistance to criminal justice reform after his son-in-law and advisor, Jared Kushner, presented evidence that reform efforts in Texas had not resulted in increased crime while reducing costs.

“Texas has driven this revolution – showing that you can reduce incarceration rates safely, while reducing crime rates and saving money,” said Mark Holden, general counsel for the Koch network, a conservative lobby.

While sentencing reform on the federal level remains elusive, President Trump has indicated he supports a limited prison reform bill, the First Step Act, which is presently stalled in the Senate. Absent meaningful federal reforms, it is up to the states to improve their own criminal justice systems. 



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