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States Take Sizeable Steps in 2012 to End Overincarceration

A pair of hands in handcuffs
A pair of hands in handcuffs
Alex Stamm,
ACLU Center for Justice
Inimai Chettiar,
Brennan Center's Justice Program
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June 4, 2012

As states begin to realize that they can reduce their prison populations safely, the pace of reform has begun to pick up a bit this year. State legislative sessions are coming to a close, which makes it a good time to review the actions lawmakers have taken to reduce their unsustainable prison populations in 2012. Here are the some of the legislative reform highlights:


Faced with a system of overcrowded prisons and fearing the same sort of court order that forced California to reform its prison system, Alabama took an indirect route toward depopulating its prisons. The state passed SB 386 inMay, which will allow the Alabama Sentencing Commission to set sentencing guidelines for nonviolent crimes that judges would generally have to follow. Under the new law, the Commission can make sentencing changes for nonviolent crimes, which will take effect unless the legislature takes action to reject any such the changes. The Sentencing Commission, which is insulated from the electoral pressure to reject proposals to soften criminal sentences, may now be poised to take action to reduce prison sentences for nonviolent offenses.


In the wake of the governor’s “realignment” plan, the ACLU has worked hard this year to introduce additional bills to help depopulate the state’s prisons and jails, which are currently before the state Senate. The first, SB 1506, would change simple possession of drugs from a felony to a misdemeanor and has also garnered support from conservative reform groups like Right on Crime. The second, SB 1180, would implement evidence-based risk assessment tools to safely release low-risk individuals held in pretrial detention. Additionally, a reform to the state’s three strikes law will be on the ballot this fall. In related but nonlegislative news, after longstanding litigation by the ACLU, L.A. County Sheriff Lee Baca announced that he intends to close much of the nation’s largest jail, Men’s Central.


The Colorado legislature missed one chance for meaningful sentencing reform, but the state took other steps to reduce its prison population. The ACLU strongly supported SB 163, which in original form would have changed possession of small amounts of drugs from a felony to a misdemeanor. Unfortunately, the bill was recently revised to merely commission a study of the state’s drug laws. That bill passed the Senate in early May and is currently before a House committee. Also on the horizon is a ballot initiative to legalize marijuana this November. In related news, the state will be shutting down a large prison in light of falling crime rates and prison populations.


When the Connecticut legislature voted to repeal the death penalty and the governor signed the bill into law on April 25, the state became the 17th in the nation to do so. Offenses formerly punishable by death will now receive life without parole. The ACLU helped harness the support of a wide coalition to back this bill, including murder victims’ families and law enforcement.


For all of the bluster surrounding Florida this session, their biggest accomplishment might have been simply not moving backwards. Florida gathered positive momentum when lawmakers rejected a bill vociferously opposed by the ACLU that would have privatized the operation of 26 prisons. Adding to the momentum toward smarter criminal justice, the state’s budget bill closed eight prisons built in anticipation of a crime wave that never hit. In April, however, Gov. Rick Scott fumbled a chance to build on that momentum when he vetoed HB 177, which would have permitted a small group of prisoners with substance abuse issues to move from prison to intensive treatment programs, which are proven to reduce recidivism. His veto was all the more perplexing considering the bill passed the Senate unanimously and the House 112-4.


In May, Gov. Nathan Deal signed HB 1176 into law. The bill takes a number of small steps to reduce the state’s prison population. Among other things, it reduces sentences for low-level drug offenses and theft; invests in drug treatment and mental illness courts; and establishes graduated sanctions, such as community service, for probation violations. The ACLU registered its support for the bill in a letter to the governor.


The ACLU of Hawai’i testified in support of SB 2776, signed into law in May, which will require risk assessment instruments to be used in pretrial and parole hearings. The bill will improve public safety by identifying individuals who pose the most risk to safety, while reducing prison populations by identifying individuals who can be safely supervised outside of prison or jail.


In May, the Illinois legislature sent Gov. Pat Quinn SB 2621, which would reinstate a program allowing prisoners to reduce their sentences through good behavior and participation in reentry programs. The bill will reduce Illinois’ prison population and give prisoners incentives to participate in programs that are proven to reduce recidivism, such as drug treatment and education.


The nation’s leader in mass incarceration has also emerged as a leader in reforming its prison system two years in a row. The legislature passed HB 543, which will allow prisoners serving life sentences for nonviolent crimes to go before a parole board to prove they are ready for release. Louisiana also passed HB 1026, which will allow individuals who have committed repeat low-level offenses to appear before a parole board after serving one-third of their sentences. Gov. Bobby Jindal signed HB 1026 in May and has pledged to sign HB 543.


In May, the Kansas House passed HB 2318, which would give judges more discretion when issuing sentences for low-level drug crimes. The bill would allow judges to divert individuals convicted of low-level crimes from prison to less expensive and more effective treatment programs.

A pair of incremental reforms became law this session in Maryland. In May, Gov. Martin O’Malley signed SB 691, which allows individuals on parole to shorten their parole lengths as a reward for good behavior. The ACLU of Maryland championed this bill when it was before the Maryland Senate. Gov. O’Malley also signed SB 422, which will provide defendants with an attorney at bail review hearings; it will also reduce the number of people detained pretrial by increasing the number of offenses that must be and can be charged by a citation instead of arrest and detention. The bill comes in response to a recent decision by the Maryland Court of Appeals in DeWolfe v. Richmond, holding that defendants have a right to counsel in hearings where bail is determined and reviewed. The ACLU was filed a friend-of-the-court brief in the DeWolfe case and was a strong legislative supporter of the bill’s reform provisions.


The House and Senate have yet to come to an agreement on an omnibus criminal justice reform bill (a compromise of H3811 and S2054), which includes reforming the state’s habitual offender law and reducing sentences for some nonviolent offenders. The ACLU has pushed for the positive reforms in this bill for years and is fighting proposed bad reforms. The effects of this bill on Massachusetts’ prison population won’t be clear until the details of the bill have been settled.

Missouri passed a pair of reforms this session. The ACLU has worked for several years to lay the groundwork for a sizeable reform that would reduce the disparity between sentences for crack and powder cocaine offenses. The law, signed in May, reduces the disparity from 1:75 for comparable offenses to 1:19, although the ACLU fought for a 1:1 ratio. Gov. Jay Nixon also signed HB 1525, which would send fewer people to prison for technical violations of probation and parole, such as a missed meeting or failed drug test.


In May, Gov. Mary Fallin signed HB 3052, which may end up increasing prison popuations in the state. The bill allows prosecutors to veto judicial decisions to shorten sentences and creates a secondary system of incarceration for individuals who violate drug court regulations and conditions of probation and parole. The ACLU of Oklahoma criticized the measure for not doing enough to reduce Oklahoma’s prison population and perhaps making the problem worse.

Rhode Island

House and Senate committees recently considered SB 2253 and HB 7092, which would decriminalize possession of small amounts of marijuana. Instead of facing jail time, individuals found with less than one ounce of marijuana will be punished with alternative sanctions, such as a fine. The ACLU is working hard to pass this bill.

The ACLU is helping direct policy for the state’s newly-operational LEAD program, a first-of-its-kind that diverts individuals charged with low-level offenses into community-based services, such as drug treatment, immediately after arrest and before booking. Other stakeholders helping to coordinate the policy include law enforcement, elected officials and community members. The program will be rigorously evaluated and hopefully expanded into other states. Additionally, Washington voters will consider a ballot initiative to legalize marijuana this fall.

West Virginia
Although the Senate unanimously passed an omnibus reform bill designed to save money by reducing the prison and jail populations, the bill died in the House in March. The legislature instead opted to wait for a yet another study of the state’s criminal justice system rather than addressing its prison overcrowding problem now. The act drew criticism from the ACLU and other partners. Let’s hope they don’t kick the can down the road again next session.

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