The State of Sentencing 2015: Developments in Policy and Practice

In recent years the issue of mass incarceration has gained broader attention among diverse constituencies. Over the last decade the political environment shaping sentencing laws has evolved to being “smart on crime” to counter the “tough on crime” framework of a previous era.

Related to: State Advocacy, Incarceration, Sentencing Reform, Voting Rights, Youth Justice, Racial Justice, Collateral Consequences

The United States has the highest rate of incarceration in the world and keeps nearly 7 million men and women under criminal justice supervision. More than 2.2 million are in prison or jail, while 4.7 million are monitored in the community on probation or parole.

A mix of crime rates and legislative and administrative policies has produced the nation’s high rate of incarceration. Punitive sentencing practices like mandatory minimums, habitual offender laws, the expansion of life without parole, and restrictions on sentence reduction policies have resulted in longer prison terms.

The Bureau of Justice Statistics has reported a modest decline of one percent in the nation’s federal and state prison population for 2014. Twenty-four states and the federal Bureau of Prisons experienced declines in total prison populations between yearend 2013 and 2014. Among the states, Mississippi experienced the largest decline, with 3,200 fewer persons in prison in 2014, a decrease of 15 percent. In Texas, the state with nation’s largest prison population, there was a modest decline of 1 percent, or 2,200 prisoners, from 2013 to 2014.

The need to reduce corrections spending has contributed to policy change at the state level. In many instances, state lawmakers have cited the lack of available resources to maintain a high prison capacity. During 2015, lawmakers in at least 30 states adopted changes in policy and practice that may contribute to further declines in incarcerated populations and address the collateral impacts of justice involvement. The policy reforms outlined in this document highlight changes in sentencing, community supervision, collateral consequences, and juvenile justice policies.

Highlights include:

  • Sentencing: At least 12 states authorized new sentencing laws or modified policy practices to address prison population growth. Nebraska lawmakers abolished the death penalty; Connecticut reduced criminal penalties for certain drug offenses; and Oklahoma’s governor directed parole officials to establish a sentence reduction policy for persons sentenced to certain mandatory penalties.
  • Mandatory sentencing reform: Maryland, Oklahoma and North Dakota authorized sentencing judges to depart from mandatory minimums in certain circumstances. These reforms generally allow a departure from statutory mandatory minimums based on the nature of the crime, mitigating circumstances, defendant’s character, and the defendant’s chances of successful rehabilitation.
  • Probation and parole: Lawmakers in at least six states – Arkansas, Connecticut, Georgia, Montana, Texas, and Utah – modified policies relating to community supervision. Included among the law changes is statutory guidance designed to reduce returns to prison for technical probation and parole violators.
  • Collateral consequences: Officials in at least 14 states authorized changes in policy and practice to the collateral impacts of a conviction. Notably, officials in California restored voting rights to 60,000 people on probation supervision and Kentucky reinstated voting rights to an estimated 100,000 citizens. Also, Alabama lawmakers eliminated the federal lifetime ban on food and cash assistance for persons with felony drug convictions, while Texas officials modified the ban on food assistance. Other reforms included authorizing fair chance hiring policies – “Ban the Box” — for persons with criminal records in at least five states.
  • Juvenile justice: Lawmakers in ten states adopted juvenile justice reforms, including at least three states which authorized legislation in response to Miller v. Alabama, the Supreme Court decision banning mandatory life-without- parole sentences for justice involved youth. Policymakers in at least two states restricted prosecutorial discretion in automatic transfer policies for juvenile defendants.
  • Drug-free zone reforms: Utah and Connecticut lawmakers narrowed the scope of drug-free zone policies that impose lengthy prison terms for drug offenses. Individuals convicted of using or selling drugs within the protected zone, and in many cases at a great distance from a school, have faced substantially higher penalties than others who engaged in the same conduct outside the zone. State reforms have focused on limiting the geographic area of the zones and placing restrictions on when and under what circumstances the enhanced penalties apply.
  • Reclassifying felony offenses: Connecticut, Maine, North Dakota, and Utah reclassified certain felony offenses to misdemeanors. Lawmakers enacted these policy changes to reduce incarceration and address the collateral impact of a felony conviction, including loss of voting rights, public benefits, and access to private and public housing. These policy reforms build on the 2014 California ballot measure, Proposition 47, where voters approved reclassifying six low-level property and drug offenses from felonies to misdemeanors.

While some reforms in recent years have addressed the drivers of mass incarceration, many have been relatively modest and therefore have had only a limited impact on state prison populations.

To meaningfully address the nation’s scale of incarceration stakeholders must revisit the policies observed to increase prison admissions and lengthened terms of confinement. Addressing mass incarceration will involve scaling back long prison terms even for serious crimes. It remains to be seen whether the decisions of policymakers to address sentencing laws and practices can contribute to an evolving framework that shifts away from the reliance on incarceration.

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