Criminal Justice Reform in the States: Spotlight on Legislatures
Many of the laws that govern the American criminal justice system are set at the state level. This means that much of the efforts to change or overhaul this system—on anything from sentencing and the death penalty to disenfranchisement and drug policy—happen in legislatures, far from the spotlight that accompanies federal action. This page, which is not meant to be exhaustive, keeps track of important legislative developments in the current sessions.
Information is added weekly. The page is written by Daniel Nichanian.
Explore these developments chronologically below, or geographically by clicking on this interactive map:
Explore the Appeal: Political Report’s special coverage on state legislative efforts against felony disenfranchisement, on death penalty abolition, on prison gerrymandering, and on state reforms of ICE cooperation.
New Jersey: Incarceration
Governor Phil Murphy signed into law a bill (S2519) that will significantly reduce the prison population, and do so within weeks. The bill is the state’s response to the COVID-19 pandemic’s deadly devastation in its prisons and jails. It will grant many people incarcerated in the state with early release. “Reducing our prison population will undoubtedly further our mission to combat COVID-19,” Murphy said. More than 2,000 people will be released on Nov. 4, according to his office, and an additional 1,000 will be released through January.
More coming up…
Michigan: Expungement reform
Michigan has adopted a major package of legislation that will enable hundreds of thousands of state residents to clear their criminal records. The package expands the range of cases which people can expunge, and streamlines the petition process. This includes convictions for marijuana-related actions that are no longer illegal since the state legalized marijuana in 2018.
It also makes expungement automatic for many misdemeanors and some felonies, though after a prolonged wait time. Known as “Clean Slate,” the reform will apply retroactively, though the automated expungements will begin in two years.
Once it is implemented, eligible Michiganders will see their records expunged without having to apply or file a petition. This matters because the immense majority of people who are eligible for an expungement do not apply because of cost, lack of information, or administrative complexity. A study published last year found that 90 percent of Michiganders eligible for an expungement had not applied.
According to extensive tracking conducted by the Collateral Consequences Resource Center, Michigan is the sixth state to adopt a law that automates at least some expungement.
When Vermont legalized marijuana possession in 2018, it did not also put in place a legal and regulated system of marijuana sales, unlike what has happened in many other states. This year, Vermont’s legislature passed a bill to implement such a system, and Governor Phil Scott allowed it to become law without his signature yesterday. Marijuana Moment details the fights that went into the legislation, and the logistical details of the system of retail sales and dispensary licenses it will authorize. Separately, Scott signed a bill that will automatically expunge the convictions of people convicted of possessing marijuana.
Governor Ralph Northam sent a bill dealing with marijuana back to the legislature, instead of signing or vetoing it. House Bill 5058 would ban law enforcement from stopping and searching a vehicle on the basis of the smell of marijuana; Virginia adopted a law to decriminalize marijuana possession in the spring but it still allows such searches, which lead to punitive and racially disparate law enforcement. Advocates have pressed for change. Northam asked for a tweak to the bill, which will become law if the legislature agrees to the change. There are several other bills that deal with policing that are sitting on Northam’s desk, but many of the bolder bills advocates pushed for—including qualified immunity reform—derailed during the special session.
California: The 2020 session ends
Governor Gavin Newsom ended September by signing, and vetoing, a flurry of bills pertaining to the criminal legal system.
Here are 10 bills that Newsom signed into law.
—Assembly Bills 3070 and 2542 will make it harder for prosecutors to exclude Black people from jury trials, and that will make it easier for defendants to appeal a conviction or sentence on the grounds that it is racially discriminatory. The Appeal: Political Report lays out the significance of these reforms for the fight against racism in jury selection.
—AB 1950 caps probation terms at one year for misdemeanors and two years for felonies. Probation terms are stringent and can result in incarceration over technical violations.
—Senate Bill 203 has made California the first state in the nation to require that minors consult with legal counsel before a police interrogation.
—AB 1506 shifts the responsibility of investigating police killings of unarmed people onto the state’s attorney general, instead of local DAs.
—SB 32 provides that transgender people be detained in a prison based on their gender identity; it also enables the state to deny this due to “management or security concerns.”
—SB 823 takes a step toward phasing out California’s youth prisons. Its existing facilities will largely stop admitting minors starting in July 2021; minors will be detained instead in facilities run by county governments.
—AB 3234 makes two separate moves. First, it expands eligibility for the state’s elderly parole process; most notably, people will be eligible at age 50 instead of 60. Second, it enables judges, without a prosecutor’s assent, to steer people charged with misdemeanors into a pretrial diversion program, meaning that completing the program would result in the dismissal of the charges.
—In 2017, California had barred the imposition of some fines and court fees on minors and on their parents or guardians, effective January 2018. SB 1290 now vacates the fines and fees that had already been imposed as of that date.
Newsom vetoed the CRISES Act, which was going to set up a pilot program for mental health or medical professionals to respond to some 911 calls instead of the police. He said the bill located the pilot program in the wrong state agency. Sydney Kamlager, the lawmaker who introduced the bill, vowed to press ahead. “We will continue to pursue community alternatives to police response that are not controlled by law enforcement,” she said in a statement.
He also vetoed SB 555, which would have capped the cost of phone and video calls for incarcerated people, as well as capped the inflation of commissary items, with an eye to fighting the exhorbitant fees incarcerated people have to pay, in what is a nationwide problem.
Finally, Newsom vetoed SB 1220, which would have mandated that DA offices maintain a Brady list of officers with a history of lying or misconduct; Newsom said this is too costly to implement.
Florida: Criminalizing protests
Governor Rick DeSantis unveiled harsh legislation that would make activities like blocking a road a felony. The bill would also make it a felony to have been present in an assembly during which people or property were injured, as well as a charge for which bail should not be granted. And the bill would shield people who cause others’ death, for instance by running them over with a car, if they show they were “fleeing from a mob.” Other states have been moving to similarly shield people who run someone over.
The Department of Corrections is proposing for legislation that would cut the state’s prison population by 30 percent within the next fiscal year. Proposals range from “minimizing prison time for some nonviolent offenders to increasing time off for good behavior to bringing back a version of parole,” the Seattle Times writes. The twin contexts of this conversation are the state’s fiscal crisis, and its staggering racial inequalities. Four percent of the state’s population is Black, but Black residents are 18 percent of those who are in prison, and 25 percent of those who are in prison for at least 15 years.
California: Formerly incarcerated firefighters
Incarcerated people are often sent to battle dangerous wildfires for minimal pay, but they are prohibited from becoming firefighters once they leave prison. California adopted a new law last week that loosens those rules. But The Appeal reports that the law comes with major hurdles—the process is not automatic, there are carve-outs, and prosecutors can object—due, again, to the vocal opposition of police unions, state DAs, and firefighters unions.
Pennsylvania has an exceptionally harsh probation system that traps people in long periods of supervision, as the Philadelphia Inquirer documented in the fall of 2019. A bipartisan bill to overhaul the system appeared to have momentum, but it was gutted, and ultimately even the weakened bill did not make it to the governor’s desk. The Appeal reports on what happened.
Hawaii: Driver’s licenses, and more
Hawaii will no longer punish people unable to pay off court debt by restricting their access to driver’s licenses.
Until now, people who owed fines and fees have been barred from renewing their licenses. This practice compounds underlying inequalities. In taking away people’s main mode of transportation, it cuts off access to work and make it harder to pay off debt in the first place.
House Bill 2750, which became law in Hawaii on Sept. 15, ends this practice.
One caveat: Individuals who are already barred from renewing their licenses will have to petition the court to lift that. Someone who incurs unpaid court debt in the future, though, will not have to take additional action.
This adds to a nationwide stream. Hawaii is the 10th state to end the link between court debt and driver’s licenses, according to tracking by the Fines and Fees Justice Center, a national organization that testified in favor of Hawaii’s bill, as did state groups like the Hawaiʿi Health & Harm Reduction Center, the Community Alliance on Prisons, and the ACLU of Hawaii. Oregon and Virginia adopted similar laws in 2020; Montana did in 2019.
Governor David Ige, a Democrat, signed HB 2750 into law. He also signed Senate Bill 2193, which expands partial protections against employment discrimination for people with a criminal record, and HB 285, which requires police departments to disclose the identity of officers who are discharged or suspended. But he vetoed a bill that would have expanded work furlough opportunities.
Nebraska: Parole and death penalty
Setbacks for criminal justice reform in Nebraska, the Omaha World-Herald reports. Governor Pete Rickets vetoed a bill that would have made people eligible for parole two years before their scheduled release. He also vetoed a separate bill that would have required that witnesses be allowed to see the entirety of an execution; proponents say this is important for there to be accountability if an execution is botched.
Tennessee: Criminalizing protests
The state’s Republican government is cracking down against Black Lives Matter protests. Governor Bill Lee signed into law a bill that toughens penalties for offenses associated with protest activity. In particular, the legislation makes it a felony punishable by up to six years in prison to illegally camp on state property, and creates a mandatory incarceration period for offenses tied with rioting.
Black Lives Matter protests have demanded accountability for the police. Georgia responded this month with a new law that creates a new offense of “bias motivated intimidation” against a police officer. Andrea Young, executive director of the ACLU of Georgia, said the law was “hastily drafted as a direct swipe at Georgians participating in the Black Lives Matter protests who were asserting their constitutional rights.” Brian Kemp, the Republican governor who signed the law, framed it as a direct response to the current protests. “While some vilify, target and attack our men and women in uniform for personal or political gain, this legislation is a clear reminder that Georgia is a state that unapologetically backs the blue,” he said.
The Missouri Senate adopted a “tough on crime” package, championed by the state’s Republican governor, that would lock up more minors and narrow availability for parole. The package would also eliminate the requirement that St. Louis police officers live in the city. The bill passed 27-3, and columnist Ray Hartmann notes that the three “nay” votes came from the chamber’s only Black Democrats. Senator Jamilah Nasheed, one of the bill’s opponents, told Hartmann that “white Democrats stood alongside white Republicans against Black officials who understand the plight of what is happening in their own communities.” Senator Karla May, who also opposed it, noted that adult prosecutions of minors disproportionately target Black children.
Governor Kate Brown, a Democrat, proposed closing two minimum-security prisons to counter the spread of the coronavirus, but legislative leaders stalled the recommendation. Senator Betsy Johnson, also a Democrat, said keeping prisons open was a way to protect jobs. Brown is defending another approach. “We can safely close prisons, keep our communities safe and reduce taxpayer expenses,” the governor said.
North Carolina: “Ban the box”
Governor Ray Cooper signed an executive order last week that “bans the box” in the public sector. North Carolina will no longer ask applicants for state jobs whether they have a criminal record. Legislation to do this in the private sector as well has stalled in the past in the legislature. In the wake of renewed Black Lives Matter protests this spring, the legislature passed two laws pertaining to the criminal legal system, with reformers questioning why the state is not doing more. One enables judges to sentence someone convicted of some low-level drug offenses to less than the mandatory minimum if they get treatment for substance use; the other slightly expands expungement opportunities.
A new Minnesota law introduces new rules against the use of chokeholds and neck restraints, creates a new unit to investigate police killings, and removes the ability of police unions to veto an independent arbitrator.
But MinnPost reports that the bill is far narrower than what Democrats (who control the House but not the Senate) had proposed; some voted “no,” saying that it would not make a meaningful difference on law enforcement.
Efforts to reduce the prison population in Mississippi, a state with an astronomical incarceration rate, suffered a major setback last week. Governor Tate Reeves, a Republican, vetoed a bill that would have made thousands of incarcerated people eligible for parole. The bill, which passed the GOP-run legislature with bipartisan support, made people convicted of nonviolent offenses eligible for parole after serving 25 percent of their sentence, and others after serving 50 percent. Reeves also vetoed a separate bill that would have enabled people to expunge some felony convictions for nonviolent offenses. Reeves won last year in an election system that excluded roughly 10 percent of the state’s adult population due to a felony conviction.
Georgia: Public defense
State lawmakers this month wanted to cut the budget of the state’s public defender system and eliminate its appellate division. Faced with backlash, they backed down. But the leadership of the Georgia Public Defender Office chose to nevertheless dismantle the division, leaving some Georgia advocates alarmed by what this will mean for people’s ability to challenge their convictions.
Oregon: Fines and fees
Oregon ended the suspension of driver’s licenses over unpaid fines and fees, a practice that can trigger mounting economic and legal trouble for people who cannot afford their court debt. Oregon is only the ninth state to do so. Criminal justice reform advocates now want public authorities to more fundamentally cut off their budgetary reliance on fines and fees. Read more.
Colorado and Iowa: Policing
Colorado‘s response to the Black Lives Matter protests has been to adopt Senate Bill 217. Saja Hindi breaks down its many parts in the Denver Post. The law ends police officers’ ability to claim qualified immunity in civil suits. It also empowers the state’s attorney general to prosecute police officers, and sets new requirements for police departments to collect and disclose demographic information on their use of force, among other provisions. It was supported by state organizers such as Elisabeth Epps, an abolitionist advocate.
In Iowa, lawmakers passed and the governor signed a far narrower bill that bans chokeholds in most circumstances. Local advocates erupted in chants of “Let them vote!” at the state Capitol; that’s a reference to the fact that Iowa is now the only state in the country to enforce a lifetime ban on voting for anyone with a felony conviction.
New York: Policing
In response to renewed Black Lives Matter protests, New York has repealed Section 50-a, the state’s stringent statute that shields police officers’ disciplinary records. This has been a longtime demand of state advocates in the face of police departments’ ever-expanding use of Section 50-a to refuse disclosures.
New York also adopted a string of other laws. It codified a special prosecutor’s office to investigate police killings, it required officers to wear body cameras, and it criminalized the use of police chokeholds. Such statutes can be difficult to enforce, though, in the context of a culture of impunity, as NPR reports. “Many of [these] policy changes … languished for years because of opposition from influential police and corrections unions,” the New York Times wrote.
The protests that have followed George Floyd’s killing jumpstarted legislative debates around policing. Connecticut Senator Gary Winfield, who has run into police unions when pushing police accountability bills in the past, says he will reintroduce measures such as ending qualified immunity.
Pennsylvania Democrats have introduced a plethora of bills, but the Republican leadership has blocked them from passing.
There’s a partisan confrontation in Wisconsin as well around Assembly Bill 1012, which would tighten criteria around what use of force is considered acceptable, and protect whistleblowers who report police brutality
Louisiana is one of the harshest states when it comes to sentencing people to life in prison. House Bill 173, signed into law by Governor John Bel Edwards this week, makes a dent into that: Some people who’ve been convicted for crimes they committed as children will now be eligible for parole after 25 years of incarceration if they fulfill a list of conditions. In addition, Edwards signed HB 643, which will allow parole officers to recommend a lesser level of supervision for someone who is on parole after either three or seven years depending on whether the underlying offense is classified as nonviolent; this would not change the fact that the individual remains on parole, setting him up to be reincarcerated even beyond the very lengthy period of intensive supervision.
Virginia has adopted a new law that decriminalizes the possession of up to one ounce of marijuana. It also seals past marijuana records.
Starting on July 1, people will face $25 fine instead of facing arrest and criminal charges. This is a big shift: There were more than 46,000 criminal cases in 2018 alone, disproportionately against African Americans. Virginia “will officially become the 27th state to remove the threat of jail time for possessing small amounts of marijuana,” Marijuana Moment reports.
This development follows the 2019 wins by prosecutors who ran on not prosecuting pot possession.
However, the reform falls short of legalization, which many pushed for. In addition, continued stops and policing is all but certain to disproportionately harm African Americans, as it has elsewhere in the country. Groups such as the ACLU of Virginia pushed for the state to go further in decoupling marijuana and law enforcement, and specifically to bar police from citing its smell to justify searching vehicles; legislative leaders resisted such steps.
House Bill 3967 was in danger of derailing when the pandemic sent lawmakers home in March. Instead, the legislature returned last week, promptly picked-up the bill (“unexpectedly,” the Post and Courier reports), and sent it to the governor who signed it within a day.
This new law bans shackling women who are pregnant, in labor, or recovering from giving birth. It also requires that jails and prisons provide menstrual hygiene products. And it restricts the use of cavity searches and solitary confinement on women who are pregnant and within 30 days of giving birth.
Governor Jay Inslee vetoed legislation that would have made Washington the fourth state to adopt a “Clean Slate” law, reports Rachel Cohen in The Appeal: Political Report. It would have kicked off the process of automatically expunging some people’s records, without requiring them to go through a burdensome and often costly application process.
Inslee cited budgetary constrains brought on by COVID-19 to explain his veto, but advocates stress that it is crucial to speed up such reforms now to protect people with criminal records from the pandemic’s economic devastation.
Three pieces of legislation pertaining to the court system and to criminal justice reached some resolution the first week of May.
Two became law without Governor Larry Hogan’s signature (he faced a statutory deadline to act on them or just let them become law); Hogan vetoed the third.
Became law: new restrictions on driver’s license suspensions. Maryland will no longer suspend people’s driver’s licenses if they fail to pay fines and fees linked to traffic violations; the new law provides that the unpaid fines be referred to a collection agency. The bill applies retroactively, so many will be able to regain their licenses. Marceline White, executive director of the Maryland Consumer Rights Coalition, called the law a “first step in reducing this vicious cycle of penalizing poor Marylanders and will enable people to get to work and repay their fines with dignity.” Virginia passed a bigger reform, which ended suspensions over any court debt, last month.
Became law: new restrictions on the use of jailhouse informants. “Time and again, when innocent people go to prison in Maryland, false testimony from jailhouse informants play a role,” the Baltimore Sun reported in February. House Bill 637 will create new restrictions on this practice. Among other measures, the Sun wrote, it will require a judge “to hold a hearing to assess the informant’s credibility” and prosecutors to “maintain a database of jailhouse witnesses.”
Vetoed: a bill to seal low-level marijuana convictions. This bill would have shielded marijuana convictions from public records. It would have benefited an estimated 200,000 Marylanders. Marijuana Moment reports that Hogan justified his veto as payback for lawmakers not passing his unrelated proposals to make state law more punitive toward violent crime. The legislature may override Hogan’s veto in 2021.
Other Maryland bills became law last week, including a ban on housing discrimination based on the tenant’s source of income and a repeal of the ban on sodomy. Hogan vetoed an effort to expand public transit.
State organizers made it a priority to soften the requirement that incarcerated people serve 85 percent of their sentences before being eligible for release. A bill that would have reduced that number to 65 percent died without being considered. Also, a bill to end the suspension of driver’s licenses over unpaid court debt advanced past multiple committees only to be ignored.
Indiana: Youth justice
Indiana was considering a punitive bill that would have treated more children as adults; it would have expanded the range of cases eligible for adult prosecution, and lowered to 12 the minimum age of adult prosecution for an expanded list of offenses. The Senate passed this bill in February. But the House did not take up the bill before adjourning.
Since 2016, Virginia has shielded the identity of the suppliers of execution drugs from public disclosure; this was done because secrecy made it easier for executioners to obtain these drugs. (Other states have followed this approach.) The state then paid skyrocketing prices to a secret supplier to buy execution drugs.
This secrecy was lifted with the adoption of Senate Bill 270 this month. “If there are drugs that are manufactured to kill humans, I think people have the right to know about those drugs,” Democratic Senator John Bell, who introduced the bill, told the Virginia Mercury in February.
House Bill 33 is now law. It grants parole eligibility to most people sentenced between 1995 and 2000. Virginia eliminated parole in 1995, but did not require juries be informed of this when deciding sentences until 2000, when the state Supreme Court issued its Fishback ruling. About 350 people would benefit from this change. Northam asked lawmakers to make the bill effective immediately, rather than in June, because of the pandemic; they obliged last week.
There are two caveats, though. First, Virginia’s parole board seldom grants parole to those who have remained eligible, so expanding eligibility may not be sufficient absent other state changes. Second, lawmakers did not advance more ambitious bills that would have re-established parole in the state more broadly.
While the country debates how to run elections during a pandemic, the GOP-run legislature overrode Democratic Governor Andy Beshear’s veto and toughened Kentucky’s existing voter ID law. This move comes four months after Beshear restored the voting rights of about 140,000 people who have completed a felony sentence. The new voter ID law will disproportionately affect that population, Kira Lerner reported in The Appeal in January. “Kentucky does not have any system in place to help those leaving state prisons obtain a valid form of state ID,” she wrote.
Voting rights & prison gerrymandering
Virginia is the latest state to end prison gerrymandering. The new law paves the way for Virginia to draw fairer maps, and adds to a tidal wave of state action against prison gerrymandering that seemed unthinkable just a year ago. Virginia is the nineth state to take action against prison gerrymandering.
The new laws do not change the state’s harsh felony disenfranchisement rules, though. Proposals to abolish or narrow those rules disenfranchisement are on the table, and advocates to press on the issue next year.
Fines and fees
Virginia will no longer suspend driver’s licenses because people owe court debt, thanks to legislation that was signed into law in April.
The state has been suspending hundreds of thousands of licenses each year, disproportionately those of African Americans and lower-income Virginians. The new law severs one of the pillars by which local and state governments enforce the unequal fines and fees system that their revenues often depend on.
Virginia is the eighth state to take this step.
Going forward, Virginia will continue suspending licenses on some circumstances unrelated to driving. Still, last week Northam also signed a separate law that ends suspensions over other grounds than unpaid debt, including over drug-related conviction.
Virginia has adopted two laws relevant to youth justice. One requires that state prosecutors get a judge’s approval before treating kids younger than 16 as adults. But prosecutors will retain sole discretion over whether to prosecute 16- and 17-year olds in adult court. Other states have stripped them of that authority more fully.
Another will allow judges to depart from mandatory minimum statutes when they decide the sentence of minors who are being tried in adult court. It requires judges to consider factors like early childhood trauma when deciding sentences. Before this law, a child’s sentence was effectively settled the moment they were charged and waived into adult court, with no consideration of other factors.
These laws add to a reform Virginia adopted in February to make all children eligible for parole.
Death penalty, prison gerrymandering, and immigration
Colorado hit two major milestones this month, writes the Political Report. It abolished the death penatly, a long-sought win for criminal justice advocates. It also ended prison gerrymandering.
Nationwide efforts on both fronts have considerable momentum. Colorado is the 22nd state to repeal the death penalty, and the eighth to end or restrict prison gerrymandering.
Separately: SB 83 bars ICE from arresting people who are in or on their way to courthouses. “Advocates have documented cases of undocumented immigrants entering courthouses as defendants, witnesses or victims, and then getting detained by ICE agents,” the Denver Post reported in January.
Kentucky’s governor signed into law a bill (HB 327) that directs courts to automatically expunge people’s records when their cases are dismissed or when they are acquitted.
Parole reform and youth justice
Virginia will give hundreds of people who have been incarcerated for decades, ever since they were kids, a shot at petitioning for release. House Bill 35, which was signed into law in February, abolishes sentences of life without the possibility of parole for minors; Virginia is the 23rd state to take thsi step. Minors sentenced to sentences that amount to life in prison would also get some chance at parole.
This is a major turnaround for this punitive state, which largely eliminated parole for everyone in 1995; this has fueled Virginia’s growing, and aging, prisons. But the bill’s impact hinges on its parole board no longer denying the vast majority of applications it receives.
Governor Larry Hogan, a Republican, is pushing a punitive bill that would increase sentences in Maryland, the Baltimore Sun reports, including imposing mandatory minimums for some offenses, and lengthening penalties for others. But Democratic leaders have signaled they will not go along with the legislation due to its new mandatory minimums. Hogan is now attacking them for endangering public safety. “If they don’t pass the bill, people are going to continue to die,” he said. Hogan targeted Senator William Smith. Indeed, Smith told the Political Report in January that Smith’s abrupt rise to a key committee chairmanship could “shuffle the politics of mass incarceration in Maryland.”
Local organizers have rallied to soften the law that requires that incarcerated people serve 85 percent of their sentences before being eligible for release. These efforts moved by only a very small step last year. Now, Republican lawmaker Walter Blackman has now filed a bill that the Phoenix New Times calls “the most sweeping sentence reform for nonviolent offenders in Arizona since 1994.”
Yet bold reform may run into the same cast of opponents as last year; that includes DAs and Eddie Farnsworth, a Republican senator who chairs the Senate Judiciary and Public Safety Committee. (Farnsworth has said he is not seeking re-election this year, which may alter the state landscape in 2021.)
Iowa and Washington
Voting rights and court debt
A bill to restore the right to vote to all citizens who are not in prison died this week in an acrimonious debate in Washington State’s Democrat-run Senate, as it had in 2019. Washington will continue to disenfranchise people who are in prison and on probation, as well as people who are unable to pay off their court debt; this is a similar rule as Florida’s 2019 law that critics decry as a poll tax, and which suffered a legal setback this month.
In Iowa, which is the only state to enforce permanent lifetime disenfranchisement over any felony conviction, the Senate keeps stalling on passage of a constitutional amendment in 2019 that would restore people’s voting rights upon completion of their sentences. Powerful senators are signaling that even if they advance the proposal, they plan to at least limit reform by adding carve-outs and tying the restoration to payment of financial obligations. The Iowa County Attorneys Association, the groups that lobbies on behalf of state prosecutors, also backs this proposal to tie voting to debt payments.
Minnesota has an exceedingly high rate of people on probation (the country’s fifth highest), as the Star Tribune reported in 2017. That’s fueled by long terms: Some Minnesotans are sentenced to be on probation for decades; the average length is five and-a half years. This is a problem in terms of the massive number of people under supervision, but also because it drives incarceration as people are sentenced to prison over violations of their probation conditions.
But a change is coming: Minnesota’s 11-member Sentencing Guidelines Commission approved a presumptive five-year cap on probation terms, with some carve-outs. The cap, a longtime goal for state reformers, comes into effect in August unless it is overridden by the legislature, which is sharply partisan and has shown little ability to pass major measures. (A bill to introduce a cap stalled last year.) The cap would not apply retroactively, however.
Sentencing and parole
The sudden resignation of a powerful Maryland senator who chaired a committee in charge of the criminal legal system is shuffling the politics of mass incarceration in Maryland. His replacement as chair by a more progressive lawmaker, Senator William Smith, may make criminal justice reform more viable. In a Q&A with the Political Report, Smith outlines his views on mandatory minimums, youth justice, and parole reform.
New Jersey: Prison gerrymandering, parole, and more
New Jersey has adopted a new law that ends prison gerrymandering in legislative redistricting, reports the Appeal: Political Report. That is the practice of counting incarcerated people at their prison’s location; the new law provides instead that people will instead be counted at their most recent address.
The reform has limits: It only applies to legislative redistricting, and people who are incarcerated remain disenfranchised. New Jersey is the seventh state to end prison gerrymandering for legislative redistricting. The clock is ticking for states to adopt reforms by the next round of redistricting.
Besides ending prison gerrymandering, New Jersey adopted a series of other laws relevant to the criminal legal system this month.
1. Senate Bill 761 enables people incarcerated over some low-level offenses to petition for parole up to six months before their current eligibility date, and to not go through a full hearing; the state estimates that up to 2,000 people a year will qualify for early release as a result.
2. SB 48 tackles the youth justice system. It eliminates fines for offenses adjudicated as juvenile, and it also ends the mandate that minors who finish their term of incarceration serve more supervision. But the bill was considerably weakened right before its adoption last week so that it no longer meaningfully expands early release; an earlier version aimed for the state’s parole board to no longer have a veto over whether minors should be released.
3. SB 2055 makes incarcerated people eligible to apply for state aid for higher education programs.
4. SB 1963 and SB 4970 reform civil asset forfeiture rules. One bill creates a requirement that police departments release quarterly forfeiture reports; the information will be available on a public database. The other requires that convicted people’s assets be seized, but it only applies to cases that involve under $1,000 in cash or $10,000 in property; that falls quite a bit short of the reform Arkansas adopted just last year.
New legislative efforts take off for 2020
In Arizona, proposals to soften the state’s harsh “truth in sentencing” statutes failed in 2019 but are back this year. The Appeal reports on one GOP-sponsored bill that would reduce the sentences of the people whom Arizona sends to fight wildfires.
In Colorado, a Democratic senator is pushing to reform the state’s felony murder laws by taking life without the possibility of parole off the table.
In Delaware, advocates are planning a wide-ranging push after 2019 successes.
In Florida, lawmakers have filed bills to restrict the circumstances in which children can be detained, restrict felony murder, curb driver’s license suspensions, enable people sentenced while younger than age 25 to get a “second look,” and curb mandatory minimum laws, including for people convicted of a repeat offense.
In New York, the Brooklyn Eagle offers a comprehensive look at 15 major bills that lawmakers may tackle in 2020. The list features proposals to restrict solitary confinement, expand parole for people over the age of 55, abolish disenfranchisement, and better investigate the police.
Also, California‘s governor released a budget with a number of reform proposals. Illinois‘s wants to tackle ending cash bail. Virginia‘s released a slate of proposals including increased funding for public defenders, and eligibility for parole for people above age 50 and 55 who have served lengthy sentences. And Wisconsin‘s has said a 2020 priority will be limiting solitary confinement.
State legislatures this year abolished the death penalty, legalized or decriminalized pot, expanded voting rights for people with felony convictions, restricted solitary confinement, and made it harder to prosecute minors as adults, among other initiatives.
Read the Political Report’s retrospective of the year that was—by theme and with seven maps. And yes, each state shows up.
New York: Child welfare systems
In late December, Governor Andrew Cuomo vetoed two bills that aimed to reform the child welfare system. The first would have required more evidence for the state to list parents on a state abuse or neglect registry; the second would have enabled judges to order an open adoption in cases of adoption after foster care. Commentary on both bills appeared in The Appeal in November.
Sexual offense registries
Governor Tony Evers, a Democrat, vetoed a bill that would have repealed the ban on people convicted of a sexual offense living within 1,500 feet of schools or parks. Such residency restrictions create major issues for people with criminal records, fueling homelessness and cutting them off from families and employment opportunities.
While rolling back such restrictions is perceived to be politically difficult, this bill had passed the GOP-run legislature unanimously; it even had support from state DAs. Dan Feyen, a GOP senator who sponsored the bill, told me via an email from a spokesperson that he was “frustrated and incredibly disappointed,” and that residency limits push people on supervised release leave people “to be more isolated.” The legislature could seek to override Evers’s veto in 2020. Feyen said he is “optimistic that [the bill] would maintain support.”
Kentucky and New Jersey
New Jersey Governor Phil Murphy signed into law a bill to enable any adult citizen who is not incarcerated to vote. People on parole and probation were disenfranchised until now. The law will restore the rights of about 80,000 people.
Just a week before, Kentucky Governor Andy Beshear issued an executive order to restore the right to vote of people with nonviolent felonies once they complete their sentence. Beshear, whose order still leaves many Kentuckians disenfranchised, also called on the legislature to adopt a constitutional amendment codifying it into law.
Expungement, food assistance
The legislative session has long ended, but the Political Report overlooked a few major reforms that West Virginia adopted earlier this year. First, Senate Bill 152 expanded the range of offenses people can clear from their records. Rather than limit eligibility to misdemeanors, West Virginia now also enables people convicted of nonviolent felonies to seek expungements three years after completing their sentences. As in most states, though, expungement will not be automatic.
In addition, House Bill 2459 has ended the lifetime ban on food assistance benefits (SNAP) for people with drug-related felony convictions.
“We should be anxious to see these people get back on their feet,” John Scott, a GOP Representative who sponsored the bill, said during legislative debates. The law’s final version contains some carve-outs, though. The ban stems from a 1996 federal statute and it has blocked many low-income West Virginians from vital resources, NPR reported last year. But states can opt out of that statute, and by now most have, at least in part. (The most recent besides West Virginia was Indiana in 2018.)
Mississippi and South Carolina are the only two states left that will have a lifetime ban on SNAP benefits for anyone with a felony drug conviction. (Other states have kept partial prohibitions; Michigan has a lifetime ban for anyone with multiple drug convictions, for instance.)
Michigan: Youth justice
Michigan automatically treats all 17-year olds as adults, which throws thousands of minors into adult court. But that will soon change: A new set of laws will raise the age until which teenagers can be in the youth system by one year, to 18. Read more in the Political Report.
Only three states have now passed no law raising the age to 18: Georgia, Texas, and Wisconsin.
Still, prosecutors will retain broad discretion to charge minors much younger than 17 as adults with little oversight, and state and national advocates vow to press ahead with further demands to further restrict the prosecution of youth as adults, and more.
New York: Voting rights
A New York bill introduced by Democratic state Senator Kevin Parker in October would guarantee the right to vote of all voting-age citizens, including if they are in prison. “All New Yorkers should be able to exercise their foundational American right of voting,” it states.
Read the Political Report’s article on this legislation: Ending felony disenfranchisement would also mean that law enforcement professionals are no longer the arbiters of who gets to exercise democratic rights.
This bill adds to the nationwide landscape of legislation that would stop stripping people of their voting rights over a criminal conviction.
Democrats gained control of the Virginia government for the first time since 1993. This coincided with a wave of wins for decarceral prosecutors.
What is next? The legislature may tackle marijuana laws, lessen sentencing guidelines, and raise felony thresholds. It may also expand voting rights.
Democratic lawmakers began filing bills for the 2020 session in mid-November. Of interest: Senate Bill 1 would stop the suspension of driver’s license over nonpayment of court debt;SB 2 would decriminalize marijuana; SB 72 would create a public defender’s office in Prince William County; House Bill 35 would make anyone sentenced while a minor eligible for parole after 25 years; HB 319 would end prison gerrymandering.
Justice Forward Virginia, a nonpartisan organization, released a Virginia-specific list of legislative priorities on criminal legal reform. It includes restoring a parole system, requiring prosecutors to adopt open-file discovery, eliminating mandatory minimum statutes, and more.
To head the committee in charge of such bills, Democratic leaders appointed Delegate Charniele Herring. This came after a public outcry by groups like the NAACP over the rumored appointment of a lawmaker with a record hostile to reform.
See also: Vaidya Gullapalli warns in the Daily Appeal that gun control bills Democrats may consider “rely on further criminalization of gun possession.”
Massachusetts: Drug policy
People who relapse while on probation are frequently incarcerated, despite the medical understanding of relapse as a symptom of substance use. A Massachusetts bill would try to change that: It would “prevent judges from throwing people in jail who are in treatment and fail a mandatory drug test while on probation,” Sarah Lustbader writes in the Daily Appeal. The legislation would also limit the number of random drug screenings to four a month.
Illinois: Licence suspensions
The Illinois legislature adopted Senate Bill 1786, which would counter the practice of suspending driver’s licenses. It would bar such suspensions over many non-driving violations, such as not paying traffic tickets or theft of motor fuel. Losing one’s license can trigger further economic hardships and mounting legal if not carceral problems. SB 1786 was sponsored by Democrats Carol Ammons and Omar Aquino. It is now on the governor’s desk.
Lawmakers are considering two bills to modify Ohio’s punitive approach to drug policy. They would reduce the reliance on incarceration, and lessen the severity of some charges from a felony to a misdemeanor. Ben Stein, an advocate with Policy Matters Ohio, makes the case for these reforms in Cleveland.com. “By passing both [bills], we can stop pretending addiction is just a bad decision that should be punished,” he writes.
Lawmakers passed a flurry of reforms in the final days of the legislative session, in mid-September. We wrote then on eight major bills.
Governor Gavin Newsom signed seven of them into law in October. These new laws:
1. allow most people with felony convictions to serve on juries after completing their sentence (Senate Bill 310);
2. ban facial recognition in body cameras for three years (Assembly Bill 1215);
3. eliminate the requirement that individuals convicted of some drug offenses receive at least a 180-day jail stay (AB 484);
4. voids deals in which defendants agree to forfeit hypothetical future rights (AB 1618). San Diego DA Summer Stephan was asking for such deals.
5. ban private prisons and immigration facilities (AB 32), with some caveats, including the provision that currently existing contracts are not terminated.
6. repeal the one year-additions to a person’s sentence for each prior felony conviction punished with prison or jail (SB 136);
7. automate part of the expungement process (AB 1076). California is the third state to adopt a “Clean Slate” law. Its version will apply to all misdemeanors and some felonies, with a big caveat: It will only apply to offenses committed after 2021.
Newsom vetoed AB 927, however. It would have required that judges determine a defendant’s ability to pay before imposing fines and fees.
He also angered some marijuana advocates by vetoing a bill “that would have allowed dying patients to use smokeless forms of medical marijuana in hospitals, skilled-nursing facilities and hospices,” Patrick McGreevy reports in the Los Angeles Times. He signed bills that ban the use of marijuana in tour buses and limousines, and increase penalties for illicit marijuana sellers.
Life sentences and parole
State Senator Sharif Street is reintroducing legislation to make anyone who is serving a life sentence eligible for parole after 25 to 35 years. This would make Pennsylvania the first state to bar life without the possibility of parole and its functional equivalents. The state is a worldwide leader in death by incarceration, as documented in a 2018 report by the Abolitionist Law Center. Thousands of individuals (16 percent of the state’s prison population) are serving a life sentence or a sentence of 50 or more years. Similar bills have been filed elsewhere in the country, amid growing recognition that slashing incarceration requires changing the prevailing approaches to violent offenses.
Pennsylvania is also the only state in the Northeast where capital punishment is in the books, though Governor Tom Wolf imposed a moratorium on executions in 2015. And some lawmakers are planning a legislative push to abolish it.
The D.C. Council is considering a reform that would enable judges to reduce the sentence of anyone convicted for a crime they committed before the age of 25, once they have spent 15 years in prison. This bill would advance the nationwide efforts against virtual life sentences, and also build on efforts to expand youth justice beyond its usual cutoff of 18. Writing in the Washington Post, James Forman Jr., a professor of law at Yale, supports the proposed reform and rebukes the U.S. attorney’s office for opposing it. “I teach in prison, and my students are living proof that people can change,” he writes. “Despite their histories, many of my students have found ways to resurrect their lives while incarcerated.”
Law enforcement practices
In August, the state repealed an 1872 law (the California Posse Comitatus Act) that made it a misdemeanor to refuse to help law enforcement. The posse comitatus doctrine has a long and dark history that illuminates the way local law enforcement has functioned, Sarah Lustbader writes in The Appeal.
A new law will ease implementation of the state’s Raise the Age law, which increased the jurisdiction of the youth justice system. As Lauren Gill reports in The Appeal, the law eliminates a burdensome requirement that 16- and 17-year-olds show up in adult criminal court for their case to be moved to family court.
Illinois, and beyond
Immigration & ICE
Governor J.B. Pritzker has signed two laws relevant to immigration. One bans private immigration detention centers in Illinois. The other bans county governments in Illinois from contracting into ICE’s 287(g) program. California adopted a ban against these contracts in 2017, soon after President Trump’s election. But the reform has not taken off since elsewhere, at least not until this Illinois law.
Oregon became the latest state to act against it last week when Governor Kate Brown signed SB 1013, which considerably narrows the range of capital offenses. The bill is not retroactive, but the governor has the authority to commute existing death sentences.
After the law’s adoption, DAs kept up their complaints that it affects pending or non-finalized cases, and prominent Democrats like Senator Floyd Prozanski agreed to narrow the law; Governor Kate Brown even signaled she would call a special legislative session to do so. But the session did not happen, likely because enough House Democrats stood firm against it.
While calls to improve police accountability have intensified nationwide, New Jersey is heading in the opposite direction. The Appeal reported this month on a bill that would expand qualified immunity, the doctrine that largely protects law enforcement officers from legal accountability, to police officers at private colleges and universities. The bill, sponsored by Democratic Assemblymember Roy Freiman, passed the Assembly but has yet to be considered in the Senate. “They’re trying to protect themselves from the fallout of police violence rather than trying to make sure police violence never happens in the first place,” Micah Herskind, an activist who opposes the bill, told The Appeal.
Since Louisiana’s 2018 referendum, Oregon is the only state where people can be found guilty by a nonunanimous jury. And the state took no action this year to end this anomaly. Reform looked to be on the way when even the Oregon District Attorneys Association endorsed changing the state Constitution, and when the House passed a bill to put the matter on the 2020 ballot. But the Senate adjourned without adopting it. The Associated Press reports the issue is sure to return next year. The U.S. Supreme Court is set to consider a case involving a nonunanimous conviction, and some advocates say they will press the issue in the legislature once more.
Prosecutorial decisions typically function as a black box, which makes it difficult to assess fundamental matters like the extent of racial disparities in a given office. Connecticut is set to change this. Last week, Governor Ned Lamont signed legislation that WNPR says is the “first in the nation to mandate the collection of prosecutorial data statewide.” Prosecutors will now need to collect demographic data pertaining to charging and sentencing decisions, the use of diversion, and their plea offers.
Samantha Michaels reports in Mother Jones that in Rhode Island, anyone who is serving a life sentence is considered to be “civilly dead,” and therefore deprived of all civil rights. This includes the right to complain in state court about mistreatment. Rhode Island is the only state where the status of “civil death” is applied so literally, but legislation to end it has failed every year since 2014. Will 2020 change this? Another bill that failed this year would have abolished life without parole for people under 18.
Oregon overhauled its youth justice system, advancing in one swoop goals that reformers have had for decades. SB 1008 abolishes life without parole for minors, expands opportunities for early release, and restricts the prosecution of children as adults.
Advocates emphasized that plenty of work remains, especially insofar as SB 1008 is not retroactive. But they also said this as a major paradigm shift in the state.
The battle continues over Senate Bill 437, the 2018 law that reduced the conditions under which someone can be convicted of murder for an act they did not commit. Nearly all DAs like San Diego’s Summer Stephan have since fought the law, denying potential relief for thousands convicted under the felony murder doctrine. But Attorney General Xavier Becerra, a Democrat, just sided with the legislature last week: His office filed a legal brief defending the reform’s constitutionality.
Asset forfeiture, medical release
Hawaii Governor David Ige vetoed a series of reforms. He killed a measure to restrict civil asset forfeiture and another for terminally ill incarcerated people to be eligible for medical release. “There’s longstanding deference to police and law enforcement in our state,” said Mandy Fernandes, policy director of the ACLU of Hawaii. Ige allowed a bill decriminalizing the possession of small amounts of marijuana to become law without his signature. The bill falls short of reforms other states have recently implemented.
Alaska continues to roll back the decarcerative reforms it adopted in 2016, Zachary Siegel reports in The Appeal. The latest law was championed by Mike Dunleavy, a Republican who was elected governor in 2018 on a platform to “Make America Safe Again.” Siegel reports that it “makes simple drug possession an arrestable offense and adds years of sentencing on to various crimes that reforms had previously reduced.” These changes may lead the state to reopen Palmer prison, which was closed in 2016. Alaska had already reversed some decarcerative reforms in 2017.
Oregon allowed the use of attack dogs in cell extractions, which led to the mauling of a man in 2017. A bill to ban this practice was adopted by the legislature in the spring and signed into law by Governor Kat Brown in June. A Human Rights Watch report already examined the use of attack dogs against incarcerated people in 2006. “Some prisoners will wrap blankets, towels, and even toilet paper around their limbs to try to protect themselves from dog bites,” the report documented.
The death penalty will remain abolished. Ever since the state Supreme Court struck it down in 2016, there have been legislative rumblings to reinstate it. Democrats govern the state, but enough support such a measure to make it at least viable. The House actually adopted such a bill in 2017; and two of the four initial sponsors of a 2019 version were Democrats (William Carson and Bruce Ennis). Governor John Carney has said he may sign a reinstatement bill. But the legislature adjourned for the year without taking any action on this.
New Jersey has restricted solitary confinement, a practice by which state prisons torture people for months or years on end. A new law, signed by Governor Phil Murphy last week, creates a limit of 20 consecutive days and 30 days over a 60 day-period. New Jersey is the first state to adopt such a time limit through law; Colorado has implemented a 15 day-limit administratively. Vox calls it “the most progressive legislative reform to the practice of solitary confinement in the U.S.” New Jersey’s reform was championed by activists organized around the Campaign for Alternatives to Isolated Confinement (NJ CAIC). Advocates pushed for a time limit in New Mexico and New York this year, but those proposals failed.
A new law will enable the state attorney general, John Shapiro, to prosecute firearm violations in Philadelphia. The move, which dilutes DA Larry Krasner’s authority, applies only to Philadelphia and expires in two years, right when Krasner’s current term ends. The bill’s Republican sponsor implied to The Intercept that he was motivated by his view that Krasner, who has used probationary programs, was not “enforcing the law.” Democratic Governor Tom Wolf signed the bill.
New Mexico and New York
Efforts to legalize marijuana collapsed in the final day of the legislative session. But the state adopted a backup bill to decriminalize the possession of up to two ounces of marijuana (as opposed to one ounce previously) and the act of smoking marijuana in public. It reduces these acts, now misdemeanors, to a violation subject to a ticket and fine. In addition, the bill provides for automatic expungement of existing records: The state will vacate past convictions over offenses no longer deemed criminal.
New Mexico went through a similar sequence of events this year. While initial reform efforts focused on legalization, the state eventually decriminalized possession of small amounts of marijuana, reducing penalties for first-time offenses.
Nevada, Washington, and beyond
Nevada and Washington became the fifth and sixth state to take action against prison gerrymandering, which dilutes the power of urban areas and of communities of color. Their laws requires the state to count incarcerated people at their last known address for purposes of redistricting, as opposed to where their prison is located.
But the clock is ticking for other states to take such action, as the next round of redistricting is around the corner.
Jail conditions and sheriffs
Alabama sheriffs can no longer personally pocket the funds meant to provide food to people in jail. A new law, sponsored by Republican Senator Arthur Orr and signed by Governor Kay Ivey, ends a rule that incentivized sheriffs to provide subpar meals and then keep leftover money. This longstanding practice drew renewed outrage in 2018, when an AL.com investigation by Conor Sheets revealed that Etowah County Sheriff Todd Entrekin had pocketed $750,000 of jail food funds and bought a $740,000 beach house.
Read more in the Political Report.
The GOP-run House passed a bill in April to decriminalize some the possession of small amounts of marijuana. But it was then ignored in the Senate, and is now dead since the legislature has adjourned. Republican Lieutenant Governor Dan Patrick, who controls the Senate agenda, staunchly opposed the bill. Texas did expand medical marijuana, significantly lengthening the list of qualifying medical conditions.
Texas also legalized hemp, distinguishing it from marijuana based on THC concentration. But an unintended consequence is that marijuana cases now require knowing a product’s THC level. Many DAs say they lack the resources and capacity to make this determination; the state’s GOP leaders contest this.
Connecticut could have been the first state to make phone calls from prison free. But the legislature adjourned without adopting this bill, despite organizing by the group Worth Rises and a shout-out from Senator Elizabeth Warren. Making a 15-minute call from a Connecticut prison costs $3.65, an expense that piles up and compounds the isolation of incarcerated people. Rachel Cohen reported in The Intercept that the bill was held up by the stonewalling of Governor Ned Lamont and the lobbying of Securus Technologies, a prison telecommunications company. Cohen later reported that the proposal failed for reasons unrelated to its content and may return next year.
Governor John Bel Edwards signed into law a bill that shrinks DAs’ power to jail victims of sexual offenses or domestic violence to compel them to testify. The law prohibits such “material witness warrants” in misdemeanor cases; for felony cases, it imposes a list of conditions before someone can be detained.
The law was narrowed from its original version, which banned detention altogether, in part because of the opposition of the head of the Louisiana District Attorneys Association.
Cooperation with ICE
A bill to curtail the agency’s reach was weakened after Democratic Governor Jared Polis objected to restrictions it imposed on local cooperation with federal immigration authorities. His office warned in April that he would veto the bill unless it was stripped of some of its most important provisions, including a ban on counties joining ICE’s prized 287(g) program. Polis signed the narrowed version in May. But immigrants’ rights advocates argue that ICE contracts were already illegal under state law. Read more in the Political Report.
In December, the Sixth Amendment Center released a report funded by the legislature documenting that Oregon’s public defense system violates the U.S. Constitution. How is the legislature responding? By creating a task force to study the issue. Lawmakers gutted a bill that would have expanded the state’s defense system and limited public defenders’ caseload, replacing those provisions with a task force that would last through the end of 2020; advocates warn this could derail any other reform push for years.
Gravity knives, sentencing reform
New York’s ban on gravity knives is no more: Governor Andrew Cuomo signed into law a bill sponsored by Assemblymember Dan Quart that decriminalized their possession. The ban “has swept up tens of thousands of New York City residents, overwhelmingly people of color, for owning what critics argue are common work tools,” The Appeal reported in March.
Also, in New York, passage of the Domestic Violence Survivors Justice Act will allow sentencing judges to consider whether a crime was connected to abuse that a defendant suffered. Read more in The Daily Appeal.
The legislature adjourned in May without adopting reform legislation. A proposal to stop suspending driver’s licenses over an inability to pay court fines and fees did not make it past either chamber (despite bipartisan success elsewhere), nor did a proposal to consider indigency before imposing fines and fees.
Other bills that drew attention but passed neither chamber included a five-year cap on probation terms and a proposal to enable people on parole to vote, as is the law in 18 other states. Earlier this year, the GOP-run Senate also killed a bill to legalize marijuana.
Illinois is set to legalize the possession and sale of marijuana. The legislation sets up it sets up a streamlined pardon process to expunge existing convictions, which will relieve thousands from the lifelong implications of past prosecutions. It also contains other provisions meant to repair the harm caused by prohibition.
Colorado is lowering drug possession to the misdemeanor level. This new law, effective in 2020, reclassifies possession of nearly all Schedule I and Schedule II substances, including heroin and fentanyl. This significantly reduces penalties associated with possessing these drugs. It shortens sentences and shifts people from prison to county jails.
New Hampshire has abolished the death penalty.
The Senate voted one week after the House to override Governor Chris Sununu’s veto. The law passed the Senate with no vote to spare, but that was enough to make New Hampshire into the 21st state to have gotten rid of capital punishment.
In 2016, Oklahomans approved State Question 780, which reduced drug possession and some theft offenses to the misdemeanor level. But SQ 780 did not apply retroactively; it gave no relief to people with past convictions. But in May, the state adopted a new law that makes SQ 780 retroactive. Hundreds of people could be quickly released, and tens of thousands will be eligible for an expungement. Oklahoma is just the second state to retroactively reduce drug possession to a misdemeanor (after California).
See also: In August, KWTV reported that the state has begun the process of commuting the sentences of about 1,400 people who are currently incarcerated on drug possession charges.
Colorado and Nevada
Colorado and Nevada adopted new laws this week that will restore people’s voting rights as soon as they are released from incarceration, as opposed to doing so at later stages of the legal system (if ever). These reforms deal a double blow to a system that excludes and marginalizes millions of U.S. citizens nationwide.
The two whitest states (Maine and Vermont) are currently the only jurisdictions with no felony disenfranchisement, a practice with racist roots. That could change if D.C. abolishes disenfranchisement. Kira Lerner reports on a new bill that would enable people to vote from prison. Every member of the City Council signed on as a co-sponsor. D.C. already authorizes people to vote while on probation and on parole.
Youth detention & sentencing
Washington adopted two new laws relevant to detention and sentencing over the past month. One restricts the state’s aggressive habit of detention of minors for noncriminal acts but it makes exceptions when such behavior violates a valid court order. The other amended the state’s three-strikes statutes by removing second-degree robbery from the list of offenses that can trigger a life without parole sentence. Both bills were narrowed during the legislative negotiations. Read more in the Political Report.
Arkansas has restricted asset forfeiture to cases where an individual has actually been convicted of a felony. The conviction requirement, which also stipulates that the felony must relates “to the property being seized,” comes with exceptions, for instance if a person flees or does not show up in court. The adoption of Senate Bill 308, comes in the heels of a U.S. Supreme Court decision that narrowed civil asset forfeiture.
North Dakota reduced penalties for marijuana possession last month. In a step toward decriminalization, the new law eliminates the threat of jail for first-time offenders who possess under half an ounce. It reduces possession of a greater quantity from a felony to a misdemeanor. North Dakotans rejected a referendum to legalize marijuana last year.
Detention conditions & bail
Local jails will now need to provide free menstrual hygiene products to people in custody. A new law, sponsored by lawmakers Leslie Herod and Faith Winter, extends a mandate that already existed in state prisons. According to 9News, the catalyst for this reform was Elisabeth Epps, an activist with the Denver Justice Project, who has talked about the difficulties she had experienced getting such products while she was detained in jail for interfering with police.
Epps also plays a central role in state organizing against cash bail—and the state just moved on this issue too: A new law will prohibit the use of money bail in petty offense cases and most traffic offense cases. That is a modest reform compared to changes adopted elsewhere. The state also adopted a separate bill that requires bond hearings within 48 hours of arrest.
Drug-induced murder charges
Throughout the country, DAs are increasingly treating overdoses as homicides, a surge fueled in some states by statutory changes that make murder charges easier to file. Virginia came close to such a change this year. The legislature passed a bill that would have expanded the scope of felony murder charges against people who sell or provide an illicit substance that results in an overdose. But Governor Ralph Northam, a Democrat, vetoed the bill in May. It “goes beyond drug dealers and would punish individuals who are themselves struggling with addiction,” he said, a point made by critics of these charges.
Innocence and exoneration
A new law will expand reentry services available to people who are exonerated. It also provides exonerated individuals $50,000 of restitution for each year they were incarcerated. However, exonerated people will only qualify if they forego all litigation against the state. Kristine Bunch, who was exonerated in 2012 after being incarcerated for 17 years and who has founded the nonprofit Justis 4 Justus to assist exonerated people, criticized the reform for asking people to make this choice. “Saying you can’t have a civil suit in addition to receiving help … it’s like they’ve gotten away with it,” she told the Hendricks County Flyer. The bill was sponsored by Republican Representative Greg Steuerwald.
A new law will require prisons and jails to provide menstrual hygiene products at the state or the county’s expense. The U.S. Department of Justice found in a 2014 report about an Alabama women’s prison that prisoners were “compelled to submit to unlawful sexual advances” to “obtain necessities, such as feminine hygiene products.” The state Department of Corrections now insists that it is providing such products, but the bill’s sponsor, Representative Rolanda Hollis, said she has heard otherwise.
Montana, Tennessee, and Virginia
Fines and fees
Three states addressed the practice of suspending driver’s licenses over a failure to pay fines and fees, a practice that can trigger mounting legal and economic hardships.
In Montana, House Bill 217 will halt the suspension of driver’s licenses over a failure to pay fines and fees, a practice that can trigger mounting legal and economic hardships. This bill was left for dead in early April when a Senate committee voted to table the legislation, but there was enough support for the full chamber to blast HB 217 out of committee and adopt it, a month after the bill passed the House.
The reform was championed jointly by the ACLU of Montana and Americans for Prosperity.
Tennessee also adopted a law to restrict license suspensions. Unlike Montana’s reform, Tennessee’s would apply only when a court determines that a person is too poor to pay or is making “reasonable” efforts to do so.
Finally, hundreds of thousands of Virginians can regain their driver’s licenses in July. The state has ended their automatic suspension over unpaid fines and fees. But the Associated Press reports that Virginia’s reform expires next year unless it is renewed because it was adopted as a budget amendment.
Missouri will remain one of only three states that allows someone to be sentenced to death even if a jury does not reach unanimity on sentencing. If the jury deadlocks, state law allows judges to impose the death penalty no matter the majority position. Republican lawmakers Shamed Dogan and Paul Wieland had filed legislation (HB 811 and SB 288) to require a jury to unanimously recommend the death penalty. The idea made it out of committee, but it did not move further by the end of the legislative session.
Colorado, New York, Utah
Utah adopted a new law that cuts the maximum sentence for a misdemeanor by one day (from 365 to 364). This small change has big implications. Under federal law, noncitizens sentenced to at least one year of detention face deportation, so Utah’s change effectively shields noncitizens from facing such dire consequences based on a misdemeanor conviction. The bill was championed by the Refugee Justice League and by GOP Representative Eric Hutchings.
New York also adopted such law in 2019. Colorado did too, but not for the highest class of misdemeanors.
Iowa will take no action on expanding voting rights this year. It is one of just three states with laws that permanently disenfranchise anyone convicted of a felony. In March, the House overwhelmingly passed a constitutional amendment to restore the voting rights of people who complete a felony conviction. But Republican Senator Brad Zaun, chairperson of the Senate Judiciary Committee, decided to sideline the bill; Kira Lerner earlier reported in The Appeal on Zaun’s efforts to dilute the reform. Although Governor Kim Reynolds backed this change, she also said she would not use her executive authority to enfranchise people with completed sentences. As a result, people will still need to file individual pleas for clemency—and Reynolds has only restored the rights of 88 people in this way during her first two years in office—though she eased the application process this year.
Attorney General Jason Ravnsborg mounted a strong but ultimately failed push this year to reverse the 2013 reform with which South Dakota created a presumption of probation for offenses in the two lowest felony classes. People can now only be sentenced to prison if a court identifies circumstances that it says make them a threat. The Urban Institute found two years later that this was helping decrease prison admissions and it proposed further reforms, such as expanding presumptive probation to more offenses. But this year Ravnsborg faulted presumptive probation as too lenient and harmful to deterrence. He championed legislation to repeal it and to expand judges’ ability to send people to prison. The state’s prosecutors and sheriffs associations each endorsed the bill, but the Department of Corrections argued that incarcerating more people was unviable and too expensive. The bill died in February when the Senate voted against it.
New Mexico adopted a new law to restrict solitary confinement. The state has one of the country’s highest rates of solitary confinement, a practice that is tied to widespread deaths in the state’s carceral system, as Kira Lerner reported in The Appeal. The law bans putting pregnant women and minors in solitary confinement. It also restricts its use to 48 hours for people with “serious” mental disabilities.
However, the original bill introduced in January went further: It restricted putting anyone in solitary confinement for more than 15 consecutive days. This would respect the United Nations’ “Nelson Mandela Rules,” which prohibit its use for longer than that. (Colorado’s Department of Corrections announced it would follow those rules in 2017.) Legislative leaders removed this language on the House floor.
Youth justice and parole
A new Illinois law defies the usual pattern that in the United States even bold youth justice reforms stop at the age of majority, if not earlier. It creates a parole process for most people who will be convicted of offenses they committed before the age of 21, providing them review after either 10 years or 20 years depending on the offense category.
Read the Political Report on how this law, while restricted, opens doors to think differently about what criminal justice reform can look like.
Illinois is also consideration legislation to raise the age of criminal responsibility to 21.
Arizona, New Mexico
“Ban the box”
New Mexico Governor Michelle Lujan Grisham has signed into law a “Ban the Box” bill that bars private employers from asking job applicants about prior arrests or convictions on an initial application. However, employers can inquire into this past and take it into account at later stages.
A similar bill has died in Arizona. The Senate passed it in March, but Republican Representative John Allen refused to take it up in the committee he leads. “I don’t know if we have the legal ability to go into a private company and tell them what they can’t look at,” he said.
Response to opioids
Pastors from the North Carolina Council of Churches and other advocates rallied in Raleigh to demand that the state expand Medicaid. They framed this reform as crucial to fighting the opioid crisis by enabling people with substance use disorder to receive treatment and to shift away from a carceral and law enforcement response to addiction. The GOP-run legislature has opposed Medicaid expansion. It is now mulling a more punitive response to opioids via HB 212, which would increase the length of incarceration for people who break into a pharmacy.
New York adopted a major package of pretrial reforms that state organizers have long worked toward. These measures considerably strengthen the state’s discovery rules. They also end the use of cash bail for misdemeanors and some felonies.
See also: As the pretrial reforms near their implementation date, advocates worry about how prosecutors will act.
California, Colorado and Nebraska
Bills to abolish the death penalty failed in Colorado and Nebraska. In Colorado, the legislation lacked sufficient support in the Senate. And Nebraska lawmakers rejected rejected legislation on a vote of 25 to 17; the bill had advanced past the committee stage. The Nebraska legislature abolished the death penalty in 2015, but voters then reinstated it in a 2016 referendum. Senator Ernie Chambers has been the primary sponsor of these repeated efforts.
In California, meanwhile, Governor Gavin Newsom imposed a moratorium on executions last month.
Massachusetts, Mississippi, New Mexico, Washington
Various efforts to expand voting rights for people with felony convictions faltered around the country in March and April.
Mississippi: The last rights restoration bills that was still standing in Mississippi’s legislative session died in March. With the legislative path sidelined once more, what are the prospects and obstacles for the state to emulate Florida in pursuing a popular initiative? The Political Report explores.
New Mexico: Legislation to enfranchise people on parole and probation died when Democratic leaders did not bring the bill to a vote by the session’s deadline.
Washington: Similar legislation also died in Washington, where the Senate Rules Committee did not advance it.
Massachusetts: The state was considering a bill to abolish disenfranchisement, but the proposal derailed in April when the Joint Committee on Election Laws effectively voted to table it. The committee vote was not public. Only four of its 17 members answered the Political Report’s multiple requests for comment about how they voted. All those who replied said that they voted to advance the reform.
Criminal convictions have ramifications far beyond the explicit sentences imposed on individuals. Reformers are pushing this year to expand and/or automate expungement processes in a number of states. In Delaware, new legislation would considerably increase eligibility for expungement; state law currently provides adults no opportunity short of a pardon to have past convictions expunged.
And Utah adopted a “Clean Slate” bill to automate some of its expungement process. In Utah, as elsewhere, many people who are eligible to apply do not do so, in part because it is too complicated and too costly.
Read more about the Utah and Delaware bills, and expungement reform, in the Political Report.
Major bills to overhaul Arizona’s criminal legal system fell by the wayside. One proposal that advocates had rallied around was HB 2270, which aimed to lower the requirement that people serve 85 percent of their sentence before being eligible for release; another would have enabled some people to expunge their record. While these bills and others were sponsored by Republicans, the Arizona Central and Arizona Mirror reported that they were largely blocked by Representative John Allen, the GOP chairperson of the House Judiciary Committee. The Mirror also discusses the opposition of Senator Eddie Farnsworth, the GOP chairperson of the Senate Judiciary Committee, and Maricopa County Attorney Bill Montgomery.
See also: In June, GOP Governor Doug Ducey vetoed a rare bill that passed the legislature. It would have narrowed the circumstances in which prosecutors can treat defendants as repeat offenders. That status triggers stacked charges and harsh sentences. Prosecutors lobbied against the legislation.
Florida has repealed its ban on medical marijuana taking a smokable form. The state had adopted this ban after a 2016 referendum legalized medical marijuana; Governor Rick Scott then defended the ban in court. But Florida’s new Governor Rick DeSantis staked a different position in January. “Whether they have to smoke it or not, who am I to judge that?” he said. The legislature then adopted SB 182 this month.
Youth justice & sentencing reform
Second, House Bill 1039 raises to 10 from 7 the age at which children can be referred to the juvenile justice system. The Senate adopted the bill unanimously last week, a month after the House did so by an overwhelming majority. “To me, it still seems like 10 is quite young,” one lawmaker said during the House debates.
A legislative committee voted to advance a bill that would grant voting rights to people in prison, a major win in itself for the nationwide movement to abolish felony disenfranchisement. But the bill then stalled. The Political Report writes that advocates vowed to press ahead. “People don’t lose their citizenship just because they’re sentenced to prison,” said one state organizer.
Sex work decriminalization
Decrim NY, a coalition of state organizations, launched a campaign to decriminalize sex work in February, The Appeal reports. The aim is “repealing laws criminalizing sex work, restoring the rights of people who have been prosecuted for prostitution-related offenses, and ensuring all people in the sex trades can meet their basic needs … without discrimination,” Melissa Gira Grant writes. The coalition has partnered with lawmakers who plan to introduce decriminalization legislation. State Senators Jessica Ramos and Julia Salazar wrote an op-ed in the New York Daily News about their intent to push for such reform. One bill already introduced by Senator Brad Hoylman would repeal the penal code criminalizing loitering for prostitution.
Massachusetts, Vermont, and more
Reformers in Massachusetts and Vermont are hoping to build on recent successes of those who have chipped away at sentences of life without the possibility of parole for minors by pushing proposals to entirely abolish life without parole. Their proposals would also ensure everyone serving life is made eligible for parole after 25 years. This would be a first in the U.S. “We have an ethical and moral obligation to not incarcerate people beyond reasonable punishment,” Tom Dalton, executive director of Vermonters for Criminal Justice Reform, told the Appeal: Political Report.
New Hampshire & Vermont
Although Vermont legalized the possession of marijuana last year, it did not set up a system of legal sales. The House and Senate are now considering setting up such a system via HB 196 and SB 54), In New Hampshire, the House voted to legalize possession and sales, and enable expungement of past convictions. The bill did not reach a veto-proof majority, however. The governor has said he opposes legalization.
Arkansas and Wyoming
Arkansas adopted a new law that will shroud the state’s death penalty process in secrecy and make it a felony punishable by up to six years in prison to “recklessly” identify the makers of drugs used for an execution. Sarah Lustbader writes that “if the stigma of producing tools for execution is so great that no drug manufacturing company will put its name on the product, that should tell us … that executions are beyond the pale.”
Also this month, Wyoming came within a few votes of abolishing the death penalty. The GOP-run House adopted an abolition bill, but the Senate narrowly rejected the proposal. One obstacle was the lobbying of the Wyoming County & Prosecuting Attorneys Association.
Death penalty repeal also fell short in committee in the Kansas and Montana Houses.
Kentucky’s harsh disenfranchisement statutes deprive more than one in four Black Kentuckians of the right to vote. We explored efforts to expand voting rights in December. Now, a new push got off the ground: Senate Bill 238, filed by Senator Morgan McGarvey, would restore voting rights once they complete their sentences for most felony convictions. It includes exceptions for certain crimes. It is backed, among other groups, by Americans for Prosperity, a conservative group that may have sway on Republicans who govern the state.
Lawmakers have also filed bills to reform the process by which some people can petition to expunge low-level felonies and regain their rights. That requires a prohibitive $500 fee, which HB 155 and SB 215 would reduce.
Two bills expanding early release are moving forward in the House, reports the St. Louis Post-Dispatch. The first (House Bill 113) would authorize judges to order the release of individuals after a shorter period of time than their sentence mandates. The bill would not apply to higher categories of offenses. HB 113 is supported by Speaker Elijah Haahr and by the Department of Corrections, which says it would affect hundreds of incarcerated individuals, but not by the Missouri Association of Prosecuting Attorneys.
The second bill (House Bill 352) would grant parole hearings to individuals who are serving lifetime sentences, are older than 65, and have served at least 30 years. The bill would apply only to individuals who have been convicted of a single felony.
While some states debate how to accelerate decarceration trends, Nevada is confronting the growth of its prison population. The Advisory Commission on the Administration of Justice approved a report on incarceration in Nevada on an 11-4 vote. According to the report, Nevada’s prison population grew by 14 percent between 2010 and 2016, and it is projected to grow by 9 percent by 2028. The length of incarceration for people convicted of drug offenses has increased by 30 percent since 2012. The report also lists 25 policy recommendations that “would avert 89 percent of the projected [10-year] prison population growth,” a far cry from many reformers’ decarceration goals. Many of the proposals target the severity of sentences and charges sought for some low-level offenses, for instance by tripling the threshold at which a theft would count as a felony rather than a misdemeanor; others seek to loosen parole or probation violations
A bipartisan coalition of South Carolina lawmakers is pushing a range of sentencing reform contained in House Bill 3322. The bill’s provisions include new avenues for incarcerated individuals to obtain sentence revisions or reductions, for instance by lowering the percentage of a sentence one needs to serve before being eligible for early release from 85 to 65 percent. The bill would also eliminate some mandatory minimums. “More prison time is not the answer,” Erica Fielder, the founder of Hearts for Inmates, a group that has started a petition in favor of sentencing reform, said at a hearing.
A new law requires that all cases of people who are killed by police officers or who die while in custody to be investigated by the attorney general’s office rather than county prosecutors. “This bill is needed because like every institution where human interaction is at the forefront, there is a susceptible element of perceived corruption that can exist,” said Assembly member Britnee Timberlake. Attorney General Gurbir Grewal had testified against the bill. The first death that will be investigated under this law is that of a man shot in Passaic on Jan. 31.
In Tennessee, meanwhile, Nashville voters approved the creation of an independent police oversight board in November, but GOP lawmakers introduced a bill that would block aspects of Nashville’s initiative.
Most prior efforts to restore voting rights to people with a felony conviction have taken partial steps, such as restoring people’s rights once they finish serving their sentence. But legislation introduced in New Mexico (House Bill 57) follows a more empowering route: It would eradicate disenfranchisement and enable people who are in prison, on parole, and on probation to vote. This was a core demand of the 2018 prison strike. “It’s our voice in decisions that are being made that impact our lives and who represents us,” said Selinda Guerrero, an organizer with Millions for Prisoners New Mexico. The legislation is in Democratic hands, since they won full control of the state government in November.
See also: The legislation passed its first hurdle in the state House in late January.