States at a Crossroads on Criminal-Justice Reform

After two decades of “tough on crime” policies, many states are taking a hard look at how people are charged, how much time they serve, and what happens when they are released from prison.

Many states are looking at growing prison populations, obstacles to substance-abuse treatment, and high recidivism rates as reasons to re-evaluate their criminal-justice systems.

The U.S. has the highest incarceration rate in the world, and many states are considering whether to build new prisons, change how they sentence people, and how they guide prisoners through parole and probation.

Several states, including Alaska, Maryland and Rhode Island, are considering changes that would ease some of the punitive policies of the 1980s and ’90s, especially when it comes to substance abuse. In some places, lawmakers will consider recommendations made by criminal-justice task forces, often with the guidance of outside groups such as the Council of State Governments and The Pew Charitable Trusts (Pew funds Stateline).

“If there’s a theme or common denominator, it is policymakers asking what the science says will work,” said Michael Thompson, director of the CSG’s Justice Center. “The question they’re asking is, ‘Can we get a better return on our investment?’”

States that want to decrease the number of people going to prison often turn to reducing sentences, either by scrapping mandatory minimums or reclassifying some felonies as misdemeanors. They may also divert people into treatment for substance addiction or mental illness.

Nicole Porter with the Sentencing Project, which advocates shorter sentences, said that when states reclassify crimes, it tends to be lower-level felonies, such as substance possession and property crimes like theft of property under a certain dollar value.

Porter said some states may be inspired by what California voters did in 2014, approving Proposition 47. That reduced some felonies, such as nonviolent property theft and substance crimes, to misdemeanors.

Not only did the state decrease the number of people going into prison, but thousands of inmates were also eligible to be released early under the new law. As of September, nearly 4,500 people were released under Proposition 47. And the state’s Department of Corrections estimates that 3,300 fewer people will be imprisoned each year.

Holly Harris with U.S. Justice Action Network, a coalition of liberal and conservative groups pushing for criminal-justice changes, said reducing felonies to misdemeanors could have a big impact on women. Though they are the fastest growing segment of prison population, many women are nonviolent offenders or are serving time for drug crimes that might be reclassified.

In Alaska, the state’s Criminal Justice Commission in December called for limiting prison to serious and violent offenders, reclassifying many of the lowest-level misdemeanors as violations punishable by fines, and shortening prison time for more serious misdemeanors to no more than 30 days.

Reducing sentences could have unintended consequences. In Utah, state Rep. Eric Hutchings, a Republican, said the reclassification of some crimes as misdemeanors blocked some people from drug courts and treatment programs meant only for felons — something he said the state will fix this year.

Many states may also consider ending some mandatory minimum sentences, which have helped to swell prison populations in several states. Iowa Attorney General Tom Miller, a Democrat, said he wants the Legislature to eliminate mandatory minimums for less serious crimes, which under current law can put someone in prison for decades.

Bills in several states, including Florida, Massachusetts and Virginia, would either scrap mandatory minimums or give judges more power to depart from them when issuing sentences. Last year Maryland, North Dakota and Oklahoma gave judges more discretion to exempt some people from mandatory minimums, according to Alison Lawrence of the National Conference of State Legislatures.

States are also looking to get people who are already in the criminal-justice system out faster and to help them transition back into society while on parole.

One option is “presumptive parole,” which means presuming that inmates are eligible for parole, rather than requiring them to persuade parole boards to release them, an approach Mississippi adopted in 2015. Michigan’s House is currently weighing the policy, something the state’s Department of Corrections estimates will free up enough prison space to save the state $82 million a year.

“It puts the burden on the state to show a compelling reason why you should not be released on parole,” Harris said.

States may also consider reducing how long prisoners must serve before they become eligible for parole. Mississippi used to require convicted felons to complete 85 percent of their sentences before they were eligible, but changed the law in 2014. Now nonviolent offenders must serve 25 percent of their time, while violent offenders must serve 50 percent, before they can be considered for parole.

Some states are trying to make their parole process more responsive to parolees’ behavior.

Several states, including Alabama and Utah, have adopted “swift, certain, fair” approaches, which aim to provide an immediate response to parolees’ behavior, whether it’s prison time after a failed drug test or a reduced parole term if parolees follow the rules and make a lot of progress in post-prison life.

Hutchings said Utah legislators passed such a measure last year after examining the recidivism rates of parolees. One-third were back in prison because they had committed new crimes, but two-thirds were there for parole violations.

People need a quick, clear response when they do something wrong, in order to change their behavior, Hutchings said, but the state was taking too long to get people in front of judges when they violated parole — and they were often sent back to prison for too long.

The state adapted one of its facilities to include a special section for parolees and probationers, giving them access to drug treatment, therapy, and their parole or probation officers. Officers can also order parolees and probationers to sleep at the center for a few nights, to make sure they stay out of trouble, or to be locked up for up to five days — or longer with a judge’s approval.

Michigan state Sen. John Proos, a Republican, said he wants to expand his state’s “swift and certain” program, which now operates only in some counties. He’d also like the state to open it to probationers.

But he also wants to understand why prison doesn’t better prepare inmates for parole. “Do we need more education? Do we need more resources?” he said.