Top Trends in Criminal Legal Reform, 2023

Overview

The United States is the world leader in incarceration. This year marked 50 years of the mass incarceration crisis, with the prison population having grown nearly 500% since 1973. Today, nearly two million people – disproportionately Black – are incarcerated in prisons and jails.

However, stakeholders, including formerly incarcerated activists and lawmakers, have worked to scale back mass incarceration. Advocacy organizers and officials in at least 10 states advanced reforms in 2023 that may contribute to decarceration and address the collateral impact of mass incarceration, while also supporting community-based public safety solutions.

This brief highlights 2023 policy reforms in decarceration, collateral consequences and youth justice.

Decarceration Reforms

State lawmakers enacted legal reforms to reduce prison admissions and to adjust penalties to criminal sentences to more fairly hold persons convicted of certain crimes accountable. During 2023, policymakers adopted modified compassionate release policies, drug policy changes, and second look mechanisms.

Medical or Compassionate Release

Officials in New Mexico and North Carolina made changes to their medical or compassionate release policies to consider release petitions for incarcerated persons who are elderly or seriously ill.

• State lawmakers in New Mexico adopted Senate Bill 29 which made several changes to the state’s medical and geriatric parole system. The bill lowered the age for elder parole to 55 years of age from 65 and codified eligibility for medical and geriatric parole to include persons who meet elder parole criteria who are suffering from a debilitating and chronic infirmity, illness or disease related to aging. Staff with the state’s Corrections Department recommend persons for medical or geriatric release to the state’s Parole Board.
• Several policy measures were adopted in North Carolina’s budget House Bill 259, including a section that expands eligibility for geriatric medical release for consideration by the state’s parole commission. The new policy lowered age eligibility from 65 to 55 and changed the release standard from “no public safety risk” to “no or low risk to public safety”. Persons who are in North Carolina’s prisons and diagnosed as “terminally ill” can now petition for medical release if their illness is likely to result in death within 9 months, rather than 6 months as previous law. The bill also changes the standard for release from “no public safety risk” to “no or low risk to public safety.”

Drug Policy Reforms

Decarceration stakeholders in Ohio revisited marijuana policies adopted during the punitive War on Drugs era that contributed to increased levels of incarceration for related drug offenses.

• Ohio voters approved the Marijuana Legalization Initiative by nearly 57%, authorizing the sale and purchase of marijuana and allowing persons 21 years of age or older to use and possess up to 2.5 ounces of the substance.

According to the National Council of State Legislatures, more than 25 jurisdictions have decriminalized small amounts of marijuana possession and use. Generally, the impact of marijuana decriminalization means possession of small amounts can lead to a maximum penalty of a civil fine or local infraction rather than a low level state crime that could result in jail time.

Second Look Resentencing

Policymakers in California, Colorado, and Minnesota adopted or expanded second look policies authorizing reconsideration of certain criminal legal sentences after a term of years.

• Lawmakers in California adopted Assembly Bill 600 which expands court authority to reconsider a sentence if the applicable sentencing laws at the time of original sentencing are changed due to new statutory or case law authority. The measure eliminates the requirement that the district attorney or Attorney General concur with the resentencing court’s decision and requires the court to consider postconviction factors.
• Governor Jared Polis signed Colorado’s House Bill 23-1293 which authorizes a prospective second look sentence review for persons sentenced to 24 years or more under the state’s “habitual offender” statute and who have served at least ten years; the statute applies only to offenses that occur on or after July 1, 2023. Eligible persons can petition the court for a modification of the qualifying sentence. If the court approves a sentence modification, the new law authorizes the court to resentence the defendant to a term of at least the midpoint in the aggravated range for the class of felony for which the defendant was convicted, up to a term less than the current sentence.
• Minnesota’s policy makers passed Senate File 2909, an omnibus criminal legal policy measure that included prosecutor-initiated second look resentencing changes in section 24 of the comprehensive measure. Specifically, the measure changed state law to allow resentencing for certain persons convicted of murders committed by other people. The resentencing policy requires the governor and a majority of the Board of Pardons to commute the underlying sentence, rather than a unanimous vote as was previously required.

Scaling Back Collateral Consequences

The consequences of a criminal conviction can follow people for the rest of their lives. During 2023, efforts to scale back collateral consequences were achieved in guaranteeing voting rights for certain persons with felony convictions and certain expungement reforms.

Guaranteeing Voting Rights

While over 4.6 million persons are ineligible to vote because of a felony conviction, voting rights reforms have expanded the vote to over two million people since 1997. This year, officials in Minnesota and New Mexico approved measures to expand voting rights to persons after incarceration while lawmakers in Michigan authorized automatic voter registration for persons released from prison.

• Governor Tim Walz signed Minnesota’s House File 28, a measure that expanded voting rights to persons after incarceration on felony probation and parole. The voting rights expansion has been deemed the largest expansion of voting rights in Minnesota in a half a century and impacted nearly 50,000 eligible residents.
• Lawmakers enacted the New Mexico Voting Rights Act, House Bill 4, which included a provision automatically restoring voting rights to previously incarcerated residents following incarceration. The provision restored voting rights to more than 11,000 residents in New Mexico.
• Michigan officials adopted House Bill 4983, which allows the state to automatically register people to vote upon exiting prison. The bill will reduce confusion about who can and cannot vote given differences in state laws.

Clean Slate Reforms

Clean Slate laws authorize record sealing of certain criminal convictions. These policies can improve opportunities for people living with past convictions to obtain employment and access housing in the private and public housing rental markets among other barriers to full social, political, and economic participation as community residents. Twelve states have adopted Clean Slate Acts, and these policies were enacted in Minnesota and New York during 2023.

• The previously mentioned Minnesota reform – Senate File 2909 – also included the 2023 Clean Slate Act. The law change authorizes automatic expungement records for misdemeanor and petty misdemeanor offenses including theft, forgery or drug possession.
• New York lawmakers adopted the Clean Slate Act, Senate Bill 7551A. The measure authorizes expungement for people who complete their sentences and have no future contact with the criminal legal system for a term of years pending the underlying conviction: three years for misdemeanors and eight for eligible felonies. Residents who meet the eligibility requirements will have their convictions sealed. The law change excludes certain serious crimes, including crimes of sexual nature and murder along with most other serious felonies.

Advancing Youth Justice

Lawmakers adopted policies that demonstrated a commitment to supporting young defendants and expanding release options for persons sentenced in their youth. Policy changes in Connecticut, Minnesota, New Mexico, and Washington State continue a trend that seeks to change the response to youth crime.

Expanding Parole Eligibility to Young Defendants

The United States is an outlier as the only nation that sentences people to life without parole for crimes committed before turning 18. Recent reforms have resulted in 27 states and the District of Columbia banning life without parole for people whose offenses were committed when they were 18 years of age or younger.

• Governor Ned Lamont signed Connecticut’s Senate Bill 952. The measure expanded the state’s youth parole eligibility provisions to include people who were under age 21 at the time of their offense and sentenced to 10 or more years in prison pending the length of sentence. Persons sentenced to 50 years or less are eligible for a sentence review at 60% of time served or 12 years, whichever is greater. If persons were sentenced to more than 50 years they are eligible for a parole review at 30 years time served.
• Minnesota’s Senate File 2909, previously mentioned, retroactively abolished life without parole for persons under 18 at the time of their offense. The provision also established a Supervised Release Board and authorizes supervised release for young defendants sentenced in adult court after 15 years time served.
• New Mexico officials adopted Senate Bill 64, retroactively extending parole eligibility to persons convicted of serious offenses when they were under age 18. Persons sentenced to two or more first degree murder convictions are eligible for parole review at 25 years and persons sentenced for one count of a qualifying first degree murder offense are eligible at 20 years. Persons sentenced to other qualifying convictions are eligible for parole review at 15 years. The law guarantees the right to counsel for parole hearings and allows persons to reapply for release every five years if denied.

Sentencing Reform for Young Defendants

• Lawmakers in Washington State enacted House Bill 1324 to prevent juvenile adjudications from being used for adult sentencing range calculations under the state’s Sentencing Reform Act. Under the state’s determinate sentencing system, criminal sentences are determined according to the person’s “offender” score and the seriousness level of the present offense. The score results in a point total based on an individual’s prior juvenile dispositions and adult convictions. Certain prior dispositions and convictions are excluded from score calculations if the person has no contact with law enforcement for a specified period of time following release. Under the previous law, juvenile dispositions were included in score calculations if the person was convicted of a subsequent adult felony offense. HB 1324 now prevents juvenile dispositions from being factored in score calculations although certain serious offenses – certain serious murder and crimes of a sexual nature – are still considered.

Persistence of “Tough on Crime” Policies

Efforts to challenge 50 years of incarceration often face resistance. The 2022 version of this briefing paper highlighted District of Columbia Council Members’ unanimous approval of B24–0416, the Revised Criminal Code Act of 2022 (RCCA). The bill was a major overhaul to modernize the city’s criminal code and included a provision to expand judicial reconsideration for all persons serving long prison terms, limit prison terms to 45 years, and end accomplice liability for felony murder. However, law changes in the District require Congressional approval, and federal lawmakers rejected the measure.

Some federal and state officials prioritized expanding prison capacity rather than decarceration reforms to manage down prison populations. Kentucky Congressman Hal Rogers continued to push for a federal prison in Letcher County. Arkansas officials requested funding for 500 additional state prison beds. Alabama officials authorized a resolution to finance a new men’s prison in Elmore County. Tennessee and Texas have approved new youth prisons and detention capacity.

Recommendations to Challenge Mass Incarceration

During 2023, lawmakers advanced policy reforms to decarcerate, challenge racial disparities in imprisonment, guarantee ballot access for justice-impacted voters, and improve youth justice. Other policies were enacted too, including the elimination of cash bail in Illinois following a state supreme court ruling after lawmakers adopted the policy in 2022. Louisiana officials adopted legislation establishing a task force to review the state’s second degree murder law. Florida officials passed a law to reduce time on probation for persons who complete educational requirements or meet qualifying employment requirements. Nevada lawmakers enacted legislation guaranteeing ballot access for voters in jail.

Most of these measures will have a modest impact on the scale of incarceration and/or its consequences, and while helpful, more comprehensive reforms are needed to transform the adult and youth criminal legal systems after 50 years of mass incarceration.

For example, changes such as:

• Reforming Extreme Sentencing Statutes: Recommended reforms include: limiting maximum prison terms to 20 years, except in unusual circumstances; repealing mandatory minimums; expanding medical and geriatric parole; establishing “Second Look” sentencing review practices; ending Life-Without-Parole (LWOP) sentences and authorizing presumptive parole.
• Guaranteeing Voting Rights for All Justice Involved Residents: As of 2022, over 4.6 million residents with a felony conviction were disenfranchised, despite most living in the community. While much progress has been made, voter suppression laws have proliferated in recent years, and millions are still denied the vote. Guaranteeing voting rights for persons completing their sentence inside and outside of prison or jail will ensure a true democracy for all.
• Decarcerating Youth in Custody: Significant youth justice reforms continued this year and the number of states ending juvenile life without parole increased to 27. States should continue safeguards that prevent transfers to adult court and keep youth out of adult jails. At the same time, they should continue diverting youth from all forms of detention in favor of community-based interventions and support.