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Sentencing Project State of Sentencing 2012 Jan 2013

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The State of Sentencing 2012
Developments in Policy and Practice
Nicole D. Porter
January 2013

For further information:
The Sentencing Project
1705 DeSales St., NW
8th Floor
Washington, D.C. 20036
(202) 628-0871

This report was written by Nicole D. Porter, Director of Advocacy at
The Sentencing Project.
The Sentencing Project is a national non-profit organization engaged
in research and advocacy on criminal justice issues.
The work of The Sentencing Project is supported by many individual
donors and contributions from the following:
Morton K. and Jane Blaustein Foundation
Ford Foundation
Bernard F. and Alva B. Gimbel Foundation
General Board of Global Ministries of the United Methodist Church
Herb Block Foundation
JK Irwin Foundation
Open Society Foundation
Public Welfare Foundation
David Rockefeller Fund
Elizabeth B. and Arthur E. Roswell Foundation
Tikva Grassroots Empowerment Fund of Tides Foundation
Wallace Global Fund
Working Assets/CREDO
Copyright @ 2013 by The Sentencing Project. Reproduction of this
document in full or in part, and in print or electronic format, only by
permission of The Sentencing Project




oday, 6.98 million men and women are under correctional supervision. A
total of 4.8 million individuals are monitored in the community on probation
and parole and 2.2 million are incarcerated in prisons or jail. The nation
continues to maintain the highest rate of incarceration in the world at 716 people in
prison per 100,000 population. The scale of incarceration varies substantially by
state, resulting from a mix of crime rates and legislative and administrative policies.
Lawmakers continue to face challenges in funding state correctional systems.

According to the National Conference of State Legislatures, several states are likely
to be reducing services, including education and health care, during the 2013
legislative session due to reduced state revenues, uncertainty at the federal level and
the impact of potential cuts in federal funding. In recent years, reducing prison
populations with the goal of controlling correctional costs has been a salient reason
for reform in states like Kansas, New York, and New Jersey. Overall, prison
populations declined by 28,582 in twenty-six states during 2011, or 1.5%.
State lawmakers in at least 24 states adopted 41 criminal justice policies that in 2012
may contribute to downscaling prison populations and eliminating barriers to reentry
while promoting effective approaches to public safety. This report provides an
overview of recent policy reforms in the areas of sentencing, probation and parole,
collateral consequences, and juvenile justice. Highlights include:

Relaxed mandatory minimums – Seven states – Alabama, California,
Missouri, Massachusetts, Kansas, Louisiana, and Pennsylvania – revised
mandatory penalties for certain offenses including crack cocaine possession
and drug offense enhancements;


Death penalty – Connecticut abolished the death penalty, becoming the 17th
to eliminate death as a criminal sanction;


Sentence modifications – Two states – Louisiana and Oklahoma –
authorized or expanded mechanisms to modify sentences post-conviction.
These policies allow prosecutors and judges to reduce the prison sentences
of individuals who meet eligibility requirements;


Parole and probation revocation reforms – Seven states – Colorado,
Delaware, Georgia, Hawaii, Louisiana, Missouri, and Pennsylvania --



expanded the use of earned time for eligible prisoners and limited the use of
incarceration for probation and parole violations; and

Juvenile life without parole – Three states -- California, Louisiana, and
Pennsylvania – authorized sentencing relief for certain individuals sentenced
to juvenile life without parole.

Changes in criminal justice policy were realized for various reasons, including an
interest in managing prison capacity. Lawmakers have demonstrated interest in
enacting reforms that recognize that the nation’s scale of incarceration has produced
diminishing returns for public safety. Consequently, legislators and other
stakeholders have prioritized implementing policies that provide a more balanced
approach to public safety. The evolving framework is rooted in reducing returns to
prison for technical violations, expanding alternatives to prison for persons
convicted of low level offenses and authorizing earned release for prisoners who
complete certain rehabilitation programs.



Key Criminal Justice Policy Reforms and Legislation Passed in 2012



Authorized Sentencing Commission to Impose Presumptive Sentencing Standards


Modified Three Strikes Law and Restricted Juvenile Life without Parole


Authorized Possession of Marijuana, Expanded Earned Time Eligibility, Established
Statewide “Ban the Box,” and Limited Authority to Transfer Juvenile Cases to Adult Court


Eliminated the Death Penalty and Permitted Medical Marijuana


Authorized Alternative Sanctions to Limit Incarceration and Took first step towards Voting
Rights Restoration


Modified Penalties for Certain Drug and Property Offenses, Expanded Accountability
Courts, Codified Graduated Sanctions, and Allowed Sealing of Certain Criminal Offenses


Limited Use of Incarceration for Technical Parole Violators


Restricted Access to Sealed Criminal Records


Reformed Criminal Penalties for Certain Low Level Drug Offenses


Scaled back Certain Mandatory Minimums, Restored Parole for Certain Life Prison Terms,
Shortened Time Requirements for Certain Parole Eligible Sentences, Eliminated Juvenile Life
without Parole for Non-Homicide Offenses, and Expanded Expungement Relief


Authorized Expungement Relief for Certain Juvenile Convictions


Modified Mandatory Minimums in Drug-Free School Zone Cases and Authorized Medical
Use of Marijuana


Expanded Expungement Relief for Certain Juvenile Convictions


Lowered Crack-Powder Sentencing Disparity, Authorized Earned Compliance, Allowed Swift
and Certain Sanctions, Expanded Expungement Relief

North Carolina

Established Expungement Policy


Allowed Sealing of Certain Eligible Offenses


Expanded Judicial Review, Reduced Sentences for Certain Drug Offenses, Modified Parole
Authority for Specified Offenses, and Required Post Incarceration Supervision


Established Automatic Expungement Process for Juvenile Prostitution Offenses


Enacted Justice Reinvestment Provisions, Limited Juvenile Life without Parole, and
Mandated Courts to Cite Reasons for Out-of-Home Placements

Rhode Island

Eliminated Criminal Penalties for Certain Marijuana Offenses


Authorized Expungement for Certain Offenses


Expanded Expungement Relief


Authorized Possession of Marijuana for Personal Use


Established Expungement Process



Lawmakers in 18 states adopted sentencing policy measures to manage state prison
populations during 2011. These legislative reforms impacted prison admissions and
length of stay, policy initiatives that may contribute to reducing state prison
populations and result in cost savings. During the last legislative session state
policymakers enacted sentencing reforms that limited the use of incarceration for
specified offenders, eliminated certain drug policy sentencing disparities, and relaxed
mandatory minimum sentencing practices.
Alabama – Authorized Sentencing Commission to Impose Presumptive
Sentencing Standards
Senate Bill 386 authorizes the state’s sentencing commission to set punishment
standards for nonviolent crimes that judges generally would have to follow.
Previously, the commission could only suggest changes to sentences for nonviolent
and violent crimes, that needed to be codified into statute by the Legislature and
were not binding on judges.
The legislation required that the commission’s recommended sentencing changes for
nonviolent offenses take effect unless the Legislature rejects the recommendations
by statute. Those changes would be binding on judges as "presumptive sentencing
standards," with some exceptions. Judges could impose sentences more or less
severe than those called for by the new punishment standards if they publicly cited
aggravating or mitigating factors as defined by the commission.
California – Modified Three Strikes Law
Voters in California endorsed efforts to reform the state’s harsh three strikes
provision. Proposition 36 revised the three strikes law and was adopted by a wide
margin with 68% support. The ballot initiative changed the state’s sentencing policy
so that life sentences will be imposed only when a third felony conviction is serious
or violent. The measure also authorized re-sentencing for individuals currently
serving life sentences if a third strike conviction was not serious or violent and the
sentencing judge determines they do not pose an unreasonable risk to public safety.
Current estimates project that nearly 3,000 individuals are eligible for sentencing
relief under the new law. The provision continues to authorize a life sentence for a



non-serious, non-violent sex or drug offense if the individual's prior convictions
were for rape, murder or child molestation.
Colorado – Authorized Possession of Marijuana for Personal Use
Voters ended marijuana prohibition with the passage of Amendment 64. The ballot
measure allows adults 21 and older to purchase up to one ounce of marijuana from
marijuana dispensaries and grow up to six marijuana plants in their homes.
Possession is limited to up to an ounce for personal use, but selling marijuana
without a license, purchasing marijuana from a party who is not licensed, as well as
public use of marijuana, will remain illegal.
Connecticut – Eliminated the Death Penalty and Permitted Medical
Senate Bill 280 eliminated the death penalty as a sentencing option for capital felony
offenses. The measure renamed capital felony offenses as murder with special
circumstances and instituted life without parole as a sanction for such offenses.
Today, seventeen states and the District of Columbia have abolished the death
penalty. In recent years, Illinois, New Mexico and New Jersey all voted to abolish
the death penalty and New York's death penalty law was declared unconstitutional in
2004. Connecticut’s reform, only applies to future sentences and at the time of
passage, 11 men had been sentenced to death and faced execution. However, some
legal experts assert that defense attorneys could use the repeal measure to win life
sentences for those inmates.
Connecticut lawmakers also authorized the use of medical marijuana with the
passage of House Bill 5389. The legislation permits the limited use and distribution
of marijuana as medicine for qualifying medical conditions including cancer,
HIV/AIDS, and multiple sclerosis while excluding “chronic pain.” The statute does
prohibit patients from growing their own marijuana.
Kansas – Reformed Criminal Penalties for Certain Low Level Drug Offenses
House Bill 2318 amended several statutes of the criminal code, including drug
offenses. Prior to the bill’s passage drug offenses were sanctioned according to a
sentencing grid and convictions for drug possession and small-scale dealing offenses
triggered presumptive prison sentences. Consequently, judges had to state specific



findings if they wanted to depart downward from the grid. HB 2318 created a
“border box” on the sentencing grid that authorized judges to institute a lesser
sentence or drug treatment without having to justify their decision. The measure
also created harsher penalties for persons convicted of large quantity manufacturing
and selling offenses.
Louisiana – Allowed Probation or Parole for Certain Mandatory Minimums
Under House Bill 1068 persons convicted of offenses subject to mandatory
minimums are eligible for probation or parole if agreed to in a negotiated plea deal or
as part of post-conviction agreement for persons convicted in trial. Misdemeanor
and felony offenses are eligible for sentence relief under the new statute.
Massachusetts – Modified Mandatory Minimums in Drug-Free School Zone
Cases and Authorized Use of Medical Marijuana
A provision of House Bill 3818 decreased the distance from a school zone that
carries additional penalties for nonviolent drug offenses from 1,000 to 300 feet,
scaling back sentencing enhancements. However, the momentum in support of the
measure was based in the legislation’s provisions that enhanced penalties and
eliminated parole eligibility for persons with prior offenses. The bill minimized
judicial discretion for certain defendants convicted of a third violent felony offense
and required the imposition of a mandatory minimum sentence without the
possibility of parole. For those convicted of a third nonviolent felony, parole
eligibility would be delayed.
Massachusetts voters approved a measure to legalize medical marijuana with the
passage of ballot Question 3. The measure was proposed by petition, and authorized
patients to possess up to a 60 day supply of marijuana for personal medical use; the
amount that constitutes a 60 day supply will be determined by the Department of
Public Health’s regulations. To qualify, patients would need to be diagnosed with a
debilitating medical condition such as cancer, glaucoma, and HIV/ AIDS, and obtain
written certification from a doctor "with whom the patient has a bona fide physicianpatient relationship." Patients would also need to register with the health
department. Under the law, non-profit medical marijuana treatment centers would
be able to grow and provide marijuana to patients or designated personal caregivers.
Patients would only be able to cultivate their own 60 day supply of marijuana if they



have limited access to treatment centers, such as through financial hardships or
physical inability. Fraudulent use of medical marijuana registration could be
punished by up to six months in jail or a fine of up to $500.
Missouri – Lowered Crack-Powder Sentencing Disparity
State lawmakers reduced the highest sentencing disparity in the nation with the
passage of House Bill 1256. The provision was amended into a broader criminal
justice measure that received bipartisan support and minimized the sentencing
quantity ratio of 75-to-1 to 18-to-1 mirroring changes in the 2010 federal Fair
Sentencing Act. Under previous law, a person who sold 450 grams of powder
cocaine faced the same penalty as someone who sold six grams of crack cocaine.
Both crimes were considered Class A felonies with mandatory minimum sentences
of 10 years. The bill lessened the ratio, by raising the quantity for Class A crack
felonies to 24 grams resulting in a new quantity ratio.
Rhode Island - Eliminated Criminal Penalties for Certain Marijuana Offenses
Lawmakers eliminated certain criminal penalties for marijuana with the passage of
Senate Bill 2253. The measure changes possession of one ounce or less of marijuana
from a criminal penalty to a civil offense subject to financial penalty. The legislation
replaced the previous criminal charge for simple possession – up to a year in jail
and/or up to a $500 fine – with a $150 civil offense. Persons under the age of 18
would be subject to the same civil violation and would also be required to attend a
drug education course as well as perform community service. A third marijuana
possession offense within 18 months could result in a misdemeanor conviction
punishable by up to 30 days in jail and/or a fine of up to $500.
Georgia, Hawaii, Kansas, Missouri, Oklahoma, and Pennsylvania -- Justice
These states enacted measures under the framework of justice reinvestment, a
concept that currently prioritizes advancing alternatives to incarceration for persons
convicted of eligible nonviolent offenses, standardizing the use of risk assessments in
pretrial detention, and authorizing early release mechanisms for prisoners who meet
eligibility requirements. The general approach for these measures included efforts to
scale back certain sentencing provisions and reduce returns to prison for probation
and parole violators. Some of the legislative measures also included statutory



mechanisms for reinvesting savings achieved through reducing prison populations
into other aspects of the criminal justice system, including in-prison treatment and
local law enforcement.
Georgia – Modified Penalties for Certain Drug Offenses, Expanded Accountability Courts,
Established Graduated Sentencing Structure for Burglary and Forgery Offenses; Modified
Threshold Amounts for Felony Property Offenses
Lawmakers in Georgia unanimously supported House Bill 1176, a measure that
modified several sentencing provisions for burglary, forgery and possession of
controlled substances. Penalties for certain drug offenses were reduced including the
lowering of minimum penalties for an initial Schedule I (controlled substance) or
Schedule II (narcotics) from two years to one year and eliminating statutory language
that mandated a 5-year minimum sentence for a subsequent conviction. The
legislation also expanded the system of “accountability courts” statewide to
strengthen treatment as a sanction for persons convicted of eligible drug offenses.
For burglary and forgery, HB 1176 established a penalty structure triggered by the
seriousness of the offense. The bill created a graduated scale of penalties so that
burglary of a residence is punished more severely than burglary of a non-residence
and sentences vary depending on the type of forgery. Under the new law, a third
first degree burglary offense carries a mandatory minimum sentence of five years in
The bill also increased the dollar amount that triggers a felony theft offense,
reflecting that inflation has lowered the value of previously established monetary
thresholds. HB 1176 increased the felony threshold for shoplifting from $300 to
$500 and for most other theft crimes to $1,500 and instituted sentence ranges that
correspond to the value of the theft. The measure applied to several statutes
including theft by taking, by deception, receiving stolen property, and copper theft.
In recent years, other states – Maryland, Oregon, Montana, South Carolina, and
California -- have also modified felony theft thresholds.
Hawaii -- Expanded Use of Alternative Sanctions for Felony Drug Offenses
State lawmakers worked to establish alternatives for felony drug offenses, modify the
terms of probation, and change felony theft penalties with the passage of House Bill



2515. The legislation expanded eligibility for alternative sanctions for persons
convicted of a second drug offense; previously only first time offenders were eligible.
The legislation also reduced probation sentences for certain class B or C felony
offenses to five years from four years upon conviction.
Kansas and Missouri -- Established Justice Reinvestment Working Groups
Officials in Kansas and Missouri took steps towards managing state prison
populations by establishing justice reinvestment working groups. Kansas lawmakers
passed House Bill 2684, legislation that required the Secretary of Corrections to
establish a Justice Reinvestment Working Group composed of 17 members
appointed by various officials in each branch of state government. The working
group is charged with studying data-driven, fiscally-responsible policies and practices
that can increase public safety, and reduce recidivism and spending on corrections in
Kansas. The working group was required to submit a report of its activities and
recommendations to the Legislature by early 2013.
Missouri established a similar entity with the enactment of House Bill 1525, a
measure that established a 13-member Sentencing and Corrections Oversight
Commission. The bill specified the composition of Commission members,
including, judges, public defenders, prosecutors, and victim’s advocates. The
Commission is charged with monitoring statutory provisions focused on reducing
recidivism and determining ways to reinvest any cost savings to support evidencebased practices.
Oklahoma -- Expanded Judicial Review and Reduced Sentences for Certain Drug Offenses
Lawmakers attempted to address prison overcrowding with the passage of House
Bill 3052, the state’s version of justice reinvestment. The bill included several
provisions, most notably expanding the time period for judicial review from 12
months to 24 months with the approval of the district attorney. Under this
provision, persons within the last ten years of a prison sentence for a felony
conviction or probation revocation are ineligible to apply for a sentence
modification. HB 3052 also reduced sentences for a second drug conviction in
some circumstances, including penalties for a second conviction involving any
Schedule III, IV, or V substance or marijuana that is not during probation or within
ten years of a previous conviction. The new criminal penalties range from a one to



five year prison sentence, rather than the previous two to ten years. The Justice
Reinvestment grant program created by HB 3052 established a mechanism to
distribute anticipated cost savings to local law enforcement agencies to address
violent crime.
Pennsylvania – Expanded Sentencing Options for Certain Drug Offenses and Authorized
Presumptive Parole for Eligible Defendants
Senate Bill 100 includes several sentencing provisions targeted to address the state’s
criminal justice system. The measure authorizes sentencing to County Intermediate
Punishment (CIP) facilities for persons convicted of lower quantity drug felonies and
sentenced under the first tier of the drug trafficking mandatories. The measure also
expands sentencing to State Intermediate Punishment (SIP) facilities for a list of
statutorily specified offenses. The bill excludes sentencing to SIPs for persons
convicted within the last ten years of murder, voluntary manslaughter, robbery,
robbery of motor vehicle, and drug trafficking, among other offenses. SB 100 also
expands the eligibility age for persons sentenced to boot camp from 35 years to 40
The bill also expanded authority under the 2008 Recidivism Risk Reduction
Incentive (RRRI) initiative by enabling judges to sentence eligible individuals to
sentences with presumptive parole triggers. Persons eligible for RRRI are prisoners
in the custody of the Department of Corrections with no history of violence or
convictions for specified offenses including assault, robbery, or arson. If the person
completes required programming and meets other conditions, he or she will be
presumptively paroled at the minimum eligibility date. SB 100 authorizes eligible
defendants to receive an RRRI minimum sentence even if a mandatory sentence is
authorized by law.
To complete the justice reinvestment initiative, a separate piece of legislation was
needed to allocate the savings into policing, supervision, county corrections and
community corrections. Lawmakers passed House Bill 135, a measure that
established a formula by which savings realized through SB 100 will be returned to
local governments to carry out determined directives. The legislative formula
outlined in HB 135 includes 43% for local police grants; 26% allocated to local
grants for county probation; 21% to implement contracts with counties for diversion



of low-level offenders; 6% to the Board of Probation and Parole for costs related to
streamlining the parole process; and 4% to coordinate and implement improved
reentry programs.
Washington – Authorized Possession of Marijuana for Personal Use
Voters authorized marijuana legalization with the passage of ballot Initiative 502.
The ballot initiative eliminates criminal penalties and regulates the production,
possession and distribution of marijuana for persons age 21 and older. The
Washington referendum imposes a 25% tax rate on marijuana at three points: when
the grower sells it to the processor, when the processor sells it to the retailer, and
when the retailer sells it to the customer. It's not clear exactly how much tax revenue
legalization will bring in, although estimates for the measure run as high as $500



Many states that aim to manage prison populations have prioritized reducing returns
to prison for persons supervised on probation and parole. In 2012, at least eight
states enacted efforts to address supervision policies that may contribute to state
prison admissions. There is little evidence that expanding capacity reduces
overcrowding and current fiscal pressures make prison expansion an unlikely option.
In many jurisdictions, state lawmakers have the authority to address the length of
stay and ease capacity issues through sentencing and parole reforms. During 2012,
several states enacted legislative measures to reduce prison time served as an
incentive for good behavior and successful participation in rehabilitation programs
that include vocational training, education, and substance abuse treatment.
Colorado – Expands Earned Time Eligibility for Certain Persons
State lawmakers enacted House Bill 1223, a measure that extends eligibility for
earned time to persons re-incarcerated under a parole revocation and to individuals
convicted of felony offenses after July 1, 1993. Prior to passage of HB 1223, persons
sentenced for parole violations could not accrue earned time and benefit from early
release policies. The bill also created a new category of earned time called
“achievement earned time (AET)” and authorized up to 60 days of achievement
earned time, not to exceed a total of 120 days, at the discretion of the executive
director of the Department of Corrections. AET is awarded for specified
milestones of achievement including successful completion of eligible education or
rehabilitation or demonstration of exceptional conduct as defined by statute.
Delaware – Expanded Alternative Sanctions to Limit Use of Incarceration
State lawmakers also passed a justice reinvestment package in 2012. Senate Bill 226
authorized the use of home confinement in lieu of incarceration to sanction technical
supervision violations. The goal of this provision is to alleviate capacity pressure at
prison facilities used to sanction persons who violate the conditions of supervision.
SB 226 also increased the amount of good time that eligible prisoners may earn, up
to 60 days for successful completion of an approved program for a total of 160 days
in a given year. Previously, prisoners could only earn 100 days of good time. The
measure also allowed persons under community supervision to earn credit for
successful compliance with the conditions of their probation. Persons may earn up



to 30 days of credit for 30 days of compliance with conditions of supervision, not to
exceed half of their probationary period.
Georgia – Authorized the use of Alternative Sanctions and Codified
Graduated Sanctions
As previously noted, HB 1176 also worked to address recidivism by seeking to
encourage the sanction of probation in lieu of prison by allowing courts to authorize
electronic monitoring for all eligible defendants. The measure codified into statute
the use of graduated sanctions for probationers and required the implementation of
evidence-based practices including the use of a risk assessment. The legislation
contains provisions to reinvest $11.6 million in anticipated savings into specialty
courts that focus on persons convicted of drug offenses with mental illness and
prioritized $5.7 million in projected savings for new residential treatment centers
focused on providing rehabilitation services to prisoners with drug and alcohol
Hawaii – Limited the Use of Incarceration for Technical Parole Violators
The formerly mentioned SB 2776 also limited the use of incarceration up to six
months for parole violators who have not committed new offenses or violated parole
conditions applicable to persons convicted of sex offenses. The measure also credits
time served in detention pending a parole revocation hearing.
Louisiana – Restored Parole for Certain Life Prison Terms and Shortened
Time Requirements for Certain Parole Eligible Sentences
House Bill 543 extended parole eligibility to persons sentenced to life for certain
offenses after specific conditions are met. The legislation excludes persons
convicted of violent or sex offenses. Previously, state law did not authorize parole
consideration for prisoners sentenced to life terms unless their sentence had been
commuted to a fixed term of years. HB 543 establishes new standards for parole
consideration for prisoners depending on their age of conviction. Individuals
sentenced to life who are 18 and under at the time of conviction must serve a
minimum of 25-years before being considered for parole. Persons between the ages
of 25 to 35-years must serve a minimum life sentence of 20 years before parole
consideration, while individuals between the ages of 35 to 50 must serve a minimum



15 year sentence. Persons sentenced to life terms aged 50 years or older must serve a
minimum of 10 years before being considered for parole.
Louisiana lawmakers also authorized House Bill 1026, legislation that allows parole
eligibility for persons convicted of a second felony offense after serving one-third of
the imposed sentence. Individuals excluded from the new law include persons
sentenced for a sex offense, violent crime, or those sentenced under Louisiana’s
habitual offender statute. Previously, persons convicted of a second felony offense
were only eligible for parole release after serving 50% of the imposed sentence.
Missouri -- Authorized Earned Compliance and Swift and Certain Sanctions
Missouri lawmakers enacted other provisions with the passage of HB 1525 targeted
at reducing recidivism for persons sentenced to probation or parole supervision.
Provisions include earned compliance credits for eligible individuals convicted of
nonviolent offenses sentenced to probation, parole or conditional release for a class
C or D felony or specified drug offenses. The measure mandated that earned
compliance credits reduce the term of probation, parole, or conditional release by 30
days for each full calendar month of compliance with all terms of supervision.
The legislation also authorized a probation or parole officer to impose a county jail
sentence as an alternative to revocation to prison for supervision violations. County
jail sentences are limited to a specified period of time; the first period of jail
detention cannot exceed 48 hours; however, subsequent periods can exceed 48 hours
although the total sentence cannot exceed 360 hours in any year. However, HB 1525
also allowed courts to impose a mandatory six-month sentence to in-prison
treatment programs for persons who violate the conditions of probation if continued
efforts to modify or extend probation terms are determined to not be appropriate.
Time served in the eligible in-prison treatment must be credited against the
individual’s sentence.
Oklahoma – Modified Parole Authority for Certain Offenses, Required Post
Incarceration Supervision
Oklahoma voters approved by a margin of 59.2%, State Question 762, an
amendment to the state constitution that authorized the Pardon and Parole Board to
grant parole for nonviolent offenses. The measure required the Board to report



annually on all parole releases to the Legislature. Prior to the change, Oklahoma was
among three states, including Maryland and California, where the Governor has final
approval for parole release decisions.
Oklahoma’s HB 3052, the state’s justice reinvestment measure, also included other
provisions relating to probation and parole. The legislation mandated postincarceration supervision for all persons exiting state prison, codified standards for
graduated sanctions into statute, and authorized a six-month prison term for drug
court participants and persons who violate the conditions of their probation.
Pennsylvania -- Expanded Sentencing Options for Technical Parole Violators
and Improved Reentry Services
The previously mentioned SB 100 also authorized sentencing of technical violators
to community corrections facilities for certain parole violations that did not result in
the commission of a new crime. The measure maintained the authority of the Board
of Probation and Parole to return persons who violate their parole to prison.
Additionally, SB 100 established the Safe Community Reentry Program, an effort to
reduce recidivism by providing persons with a full continuum of services during
incarceration and their transition into the community. The bill required the
Department of Corrections to conduct research that assesses the program’s impact
on reducing recidivism rates.



During 2012, elected officials in at least 11 states worked to address the barriers of
collateral sanctions for persons with felony convictions or arrests. As the
correctional population has grown in the United States, the number of Americans
with felony convictions has grown to 19.8 million adults or 8.6% of the adult
population. In recent years, there has been momentum to address societal barriers,
including changes in employment policy, authorizing expungement relief, and
extending voting rights to persons with felony convictions.
Colorado -- Established a Statewide “Ban the Box” Measure
House Bill 12-1263 statutorily required state agencies to delay when they conduct
criminal background checks for prospective employees until job applicants are
considered finalists for the position. The measure excluded jobs that prohibit
employment for those with criminal convictions, such as positions with the
Department of Corrections. The legislation required that state agencies consider
several factors for persons with criminal convictions, including the nature of
conviction, the amount of time since the applicant’s conviction, and the applicant’s
demonstrated record of rehabilitation and good conduct. Other states have passed
similar “Ban the Box” legislation, including Minnesota, New Mexico, and
Delaware – First Step in Eliminating Waiting Period for Voting Rights
House Bill 9 amended the Delaware Constitution to eliminate the five-year waiting
period for persons with certain felony convictions who have fully discharged their
sentences, before their voting rights are restored. The same version of HB 9 must
pass in 2013 in order to be enacted as a constitutional amendment and does not have
any force of law until then. Currently, Delaware disenfranchises approximately
46,600 individuals, including over 28,000 who have completed their sentence. In
Delaware, African Americans constitute about 45% of those disenfranchised, an
estimated 20,862 persons. Delaware is one of only 12 states in which a felony
conviction can result in the loss of voting rights post-sentence.



Georgia – Allowed Sealing of Certain Criminal Cases
An expungement provision was included in the previously mentioned HB 1176,
Georgia’s justice reinvestment act. The legislation also authorized the sealing of
cases that were never referred for prosecution and certain low-level drug possession
offenses after completion of probation following a waiting period. Persons
sentenced as a “youthful offender” with one misdemeanor or a series of
misdemeanors stemming from a single arrest may be sealed after a period of time.
Additionally, the bill authorized “dead docket” cases that are older than 12 months
to be sealed at the request of the subject of the record.
Indiana – Restricted Access to Sealed Criminal Records
Under House Bill 1033, lawmakers limited the ability of criminal records companies
to report criminal history information and prospective employers from inquiring
about sealed criminal records. Individuals convicted of misdemeanors and Class D
felonies are eligible to have their records sealed eight years after they have satisfied all
obligations of their sentence if it did not result in injury to another person. The
legislation authorized the Attorney General’s office to sanction criminal records
providers and employers who inquire about sealed criminal histories. Criminal
history providers who do not update their records or fail to remove any information
that is inaccurate, expunged, or restricted can be assessed a civil penalty of $1,000 for
a first violation and $5,000 for any subsequent violation. Prospective employers can
also be sanctioned with a Class B infraction if an employer asks whether an
employee, contract employee, or applicant has a criminal record that has either been
sealed or restricted. The maximum judgment for a Class B infraction is $1,000.
Louisiana – Extended Expungement Relief for Certain Felony Offenses
Senate Bill 403 authorized expungement for persons convicted of a first nonviolent
felony offense for certain drug crimes, including low-level drug possession,
manufacturing, and selling offenses. This bill allowed individuals with one felony
conviction for possession, distribution or possession with intent to distribute 28
grams or less of cocaine, amphetamines, oxycodone or methadone to apply to have
their records expunged. To qualify for expungement, the individual must also have
completed a "boot camp" rehabilitation program while in prison. A process already
exists for expunging misdemeanor convictions.



Missouri – Authorized Expungement Relief for Certain Criminal Convictions
State lawmakers enacted House Bill 1647, a comprehensive legislative measure that
included a provision authorizing expungement of certain felony and misdemeanor
criminal records. Individuals become eligible after a 20 year waiting period for
felony convictions or a 10 year waiting period for misdemeanor convictions or
municipal offenses. The statute defines years passed as calculated from the time an
individual completed a sentence of imprisonment or a period of probation or parole.
Additionally, the person cannot have been found guilty of any crime (excluding
traffic offenses) during this time period and must have demonstrated behavior that
warrants expungement. The individual must file a petition in the court in which the
conviction occurred. If the petition for expungement is denied, the individual can refile the petition after a one year waiting period.
North Carolina – Established Expungement Policy
House Bill 1023 allows individuals with nonviolent misdemeanors or felonies to
expunge their records after 15 years. In order to expunge a record, applicants must
file a petition with the court where their conviction occurred after fifteen years have
passed or when any active sentence, period of probation and post-release supervision
has been served (whichever occurs later). The petition process includes a fee, notice
to the district attorney, with a right to file objection to the petition, and judicial
authority to call upon a probation officer for investigation or verification of
petitioner's conduct.
Ohio – Allowed Sealing of Certain Criminal Records
Senate Bill 337 included several expungement provisions to improve outcomes for
persons with prior convictions. One provision modified eligibility requirements for
the sealing of a criminal record. The act stipulated that persons are eligible only if
convicted of specified offenses and only if they do not have more than one felony
conviction, or two separate misdemeanors, or not more than one felony conviction
and one misdemeanor conviction in Ohio or any other jurisdiction. Violent and sex
offenses are not eligible for expungement. The law will also help persons with
juvenile convictions by authorizing expungement after six months instead of two
years except in cases involving murder, attempted murder, or rape. The measure
expands judicial authority to seal the records of juveniles convicted of certain sex



Tennessee – Authorized Expungement for Certain Offenses
House Bill 2865 authorized expungement relief for individuals convicted of certain
first-time, non-violent and non-sexual misdemeanors, and Class E felonies after a
five-year waiting period. At the time of application for expungement, the individual
must have met all conditions of supervised or unsupervised release, including the
payment of all fines and restitution.
Utah – Expanded Expungement Relief
Senate Bill 201 expanded expungement relief to include specified traffic offenses.
The measure authorized individuals to petition the Bureau of Criminal Identification
of the Department of Public Safety for a certificate of eligibility to expunge records
of arrest, investigation, and detention, subject to specified conditions.
Vermont – Established Process for Sealing Criminal Records
Lawmakers worked to address the state’s limited expungment policy with the passage
of Senate Bill 37. The measure created a process for expunging an arrest record or
conviction for many nonviolent misdemeanors. Under the new law, individuals can
apply to the state’s attorney in the county where they were convicted if they are clean
of any crime for 10 years or more, they completed any sentence given, paid all
restitution and met any other conditions, and have had no subsequent criminal
convictions. The court has the discretion to expunge the applicant’s record. Certain
offenses, such as sexual exploitation of children, are excluded from the policy.



Lawmakers adopted policies in seven states during 2012 that demonstrate a
commitment to reforming policies for juvenile defendants and authorizing parole
options for persons sentenced in their youth. These changes in policy continue a
trend that seeks to change the response to juvenile crime by adopting mechanisms to
address risk, limit presumptive adult prosecution policies, and authorize
expungement mechanisms for certain juvenile convictions.
Notably in 2012, the Supreme Court ruled in Miller v. Alabama that mandatory lifewithout- parole sentences for individuals 17 or younger convicted of homicide
violate the Eighth Amendment. The Miller ruling builds on the 2010 Supreme
Court decision in Graham v. Florida in which it was held that individuals convicted as
juveniles cannot be sentenced to life imprisonment without parole for non-homicide
California – Restricted Juvenile Life with Parole
Senate Bill 9 allowed certain individuals to petition for a resentencing hearing if they
were minors when they committed the offense. Persons eligible for sentencing relief
under SB 9 must serve at least 15 years in prison before they can apply for parole and
are not eligible for release until they serve a minimum of 25 years. The measure
excluded certain categories of persons, including those who had a history of violence
at the time of the offense and cases where the victim was tortured or the victim was
a law enforcement officer or firefighter. As of 2012, 293 individuals were sentenced
to juvenile life without parole in California.
Colorado – Limited Authority to Transfer Juvenile Cases to Adult Court
Lawmakers in Colorado enacted two measures that improved juvenile justice.
HB12-1271, limited the offenses that trigger a juvenile defendant’s transfer to adult
court but still permits transfer certain categories including violent sex offenses or
persons with of prior violent offenses. HB 1271 statutorily required the court to
remand a youthful defendant’s case to juvenile court if the district court does not
find probable cause for a direct file eligible offense. The measure also authorized a
hearing to reverse the adult transfer of juvenile defendants following a petition to the
adult criminal court.



Louisiana – Eliminated Juvenile Life without Parole for Non-Homicide
Senate Bill 317 brought Louisiana into constitutional compliance with Graham by
authorizing parole for certain persons sentenced as juveniles to life without
parole. Specifically, the measure allowed parole eligibility after individuals have
served 30 years. SB 317 required that a three-person parole board decide whether to
release eligible individuals. The bill mandated those applying for parole to participate
in specified education programs, earn a low risk designation as determined by
Louisiana’s Department of Public Safety and Corrections, and complete authorized
reentry programs.
Maryland – Authorized Expungement Relief for Certain Juvenile Convictions
House Bill 708 authorized a person to file, and “required a court to grant,” a petition
for expungement of a juvenile criminal charge that was not handled exclusively in
juvenile court. Prior to reform, Maryland law only authorized expungement relief for
cases that were handled exclusively in juvenile court.
Michigan – Expanded Expungement Relief for Certain Juvenile Convictions
House Bill 5600 authorized a person to file a petition for expungement of juvenile
convictions under certain circumstances. Specifically, individuals are eligible to
expunge two separate juvenile convictions or three or more juvenile convictions if
they were a part of the same court disposition; felony convictions are restricted from
expungement. Previously, persons could only apply to seal one juvenile conviction if
they had no felony convictions.
Oregon – Established Automatic Expungement Process for Juvenile
Prostitution Offenses
House Bill 4146 authorized expungement for persons convicted of prostitution
offenses under the age of eighteen. Expunction is required to occur without a
waiting period and, if no objection is filed, without a hearing. Under Oregon law,
youth cannot consent to sex and therefore lawmakers found it inconsistent to
prosecute minors with the crime of consenting to sex for money. Persons seeking
expungement for other eligible offenses must wait five years before submitting their
court petition.



Pennsylvania – Limited Juvenile Life with Parole and Mandated Courts to
Cite Reasons for Out-of-Home Placements
State lawmakers moved to bring the state into compliance with Miller by
amending Senate Bill 850 to allow for an opportunity of parole release after a
specified number of years for certain prisoners. Currently, nearly 500 individuals are
sentenced to juvenile life without parole in the state, more than any other state in
the nation. Under SB 850, JLWOP remains a sentencing option for juveniles
convicted of first degree murder. However, in cases involving youth ages 15-17, a
judge can, upon consideration of a series of aggravating and mitigating factors,
impose a 35 years-to-life sentence. If the youth is under the age of 15, the judge can
impose a 30 years-to-life sentence. For second degree murder convictions, or “felony
murder,” JLWOP is no longer a sentencing option. Rather, persons convicted of
this offense ages 15-17 are sentenced to a minimum 30 years-to-life sentence, while
youth under the age of 15 are sentenced to a minimum of 20 years-to-life
sentence. SB 850 is not retroactive, necessitating court action for those currently
eligible for sentencing relief under Miller or Graham.
Lawmakers also enacted Senate Bill 818, legislation that amended the Judicial Code
relating to the disposition of a delinquent child. The measure required the court to
state the reason for the juvenile’s sentence for the record in open court, together
with the goals, terms, and conditions of that sentence. The bill mandated the court to
state for the record several conditions if the youth is to be committed to out-ofhome placement, including the name of the specific facility, type of facility, and
findings or legal basis that framed the decision.



Despite the reforms highlighted in this report, the United States continues to
maintain the highest rate of incarceration in the world. Lawmakers concerned with
the use of incarceration should prioritize addressing policies that trigger a prison
sentence and lengths of stay. Particular attention should be given to reforming
mandatory minimums and parole release mechanisms as policies that can work to
reduce state prison populations. Recent changes in policy demonstrate that
lawmakers, practitioners, and voters can adopt initiatives targeted at reducing state
prion populations without compromising public safety. In recent years there have
been modest declines in more than half of state prison populations. Population
declines offer an opportunity to state officials to reduce prison capacity and
minimize correctional costs. During 2012, at least six states closed 20 prison
institutions or contemplated doing so, potentially reducing prison capacity by over
14,100 beds and resulting in an estimated $337 million in savings.
Stakeholders exploring policy initiatives to address the scale of incarceration should
consider the following options during the 2013 legislative session:
Reform Sentencing Statutes
Revisiting sentencing statutes to address the policies that contributed to growth in
state prison populations is essential. During 2012, Missouri modified the state’s
crack-powder sentencing disparity, the nation’s highest. Also, voters in California
approved a measure that limited the scope of the state’s notorious three strikes law.
Louisiana also expanded parole eligibility in 2012 by modifying several statutes.
Despite these changes, most states continue to employ mandatory minimum
sentences that restrict the ability of judges to sanction defendants in a fair and
proportionate way. Also, Massachusetts lengthened prison stays in 2012 for certain
repeat offenders despite including a provision that scaled back enhancements for
drug offenders arrested near schools. Mandatory minimums do not reduce crime
but result in lengthy prison terms that contribute to overcrowding. Stakeholders
working to address state rates of incarceration should target the repeal of mandatory
minimum statutes and assess parole release mechanisms.



Eliminate Juvenile Life without Parole
Today, there are about 2,600 individuals who were sentenced to juvenile life without
parole. The Supreme Court’s decisions in Miller and Graham demand that state
lawmakers address this unfair sentencing option. The United States is the only
country in the world that sentences youth to life without parole; state lawmakers
should eliminate the sentencing option completely. During 2012, at least three states
– California, Louisiana, and Pennsylvania – enacted measures that expand parole
eligibility under certain circumstances.
Limit the Use of Incarceration as a Sentencing Option
Efforts to manage state prison populations should prioritize limiting the use of
incarceration as a criminal sanction. During 2012, several states, including Delaware,
Georgia, and Missouri, statutorily limited the use of prison as a sanction for technical
supervision violations and encouraged alternatives to incarceration, including home
Restrict Collateral Sanctions for Persons with Prior Convictions
More than 19 million persons have felony convictions, and the majority of these
individuals are not incarcerated. These men, women, and children live in the
community and are adversely affected by barriers that are often unnecessary for
public safety goals but restrict full societal participation. The stigma of prior
involvement with the criminal justice system can minimize job opportunities, deny
civic participation, and limit access to housing. Lawmakers should narrow the scope
of collateral consequences by establishing or expanding expungement policies,
creating mechanisms that automatically restore civil rights, and eliminating barriers to

On the Chopping Block: State Prison Closings 2012
State of Sentencing 2011
Sentencing Reform Amid Mass Incarcerations—Guarded Optimism

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