Sentencing Trends

02/29/2016
The U.S. has more people incarcerated than any other nation with 2.2 million people in prison or jail and 4.7 million under community supervision on probation or parole. Criminal sentencing trends over the last 30 years have resulted in a 500% increase in our nation's prison population. Much of this increase is due to “get tough on crime” laws that were enacted throughout the 1980s and 1990s.
 
In 2014 both state and federal legislative bodies began examining who goes to prison and for how long, preserving costly prison space for the most dangerous offenders. Much of the focus has been on offenders that went to prison during the “war on drugs,” often being incarcerated for years for low-level offenses.
 
Sentencing policies of this era resulted in dramatic growth in incarceration for drug offenses. Since the official start of the so-called drug war in the 1980s, the number of Americans incarcerated for drug offenses climbed from 41,000 in 1980 to nearly a half million in 2014, according to the Sentencing Project. Furthermore, sentencing laws such as mandatory minimums keep many people convicted of drug offenses in prison for longer periods of time: in 1986, people released after serving time for a federal drug offense had spent an average of 22 months in prison. In contrast, by 2004, time served for a federal drug offense averaged 62 months in prison.
 
At the federal level, people incarcerated on a drug conviction make up half the prison population. At the state level, the number of people in prison for drug offenses has increased ten-fold since 1980. Most of these people are not high-level actors in the drug trade, and most have no prior criminal record for a violent offense, according to the Sentencing Project.
Policy has been shifting and recent years have seen steady changes to the sentencing policy for drug crimes. The changes include diverting some offenders to community supervision and treatment, adjusting drug penalty thresholds and relaxing mandatory minimum sentences.
In one big change, effective last November, 6,000 federal prisoners were released early due to drug guideline reductions put into effect by the United States Sentencing Commission, an independent agency in the judicial branch charged with setting federal sentencing guidelines. The guidelines not only made changes to offenders being sentenced under new, reduced guidelines but the change affected prisoners retroactively, and current prisoners are able to petition courts for sentence reductions.
 
The Honorable Patti B. Saris, chair of the U.S. Sentencing Commission said the new guidelines represented “a significant step toward the goal the Commission has prioritized of reducing federal prison costs and overcrowding without endangering public safety.” She furthered that: “Commission researchers estimate that applying the amendment going forward may reduce the prison population by 6,500 in five years and far more over time, while more than 46,000 current prisoners could be eligible to have their sentences reduced by retroactive application of the amendment.”
 
Yet she commented that more needs to be done. “Still, only Congress can act to fully solve the crisis in federal prison budgets and populations and address the many systemic problems the Commission has found resulting from mandatory minimum penalties.”
According to early release petitions obtained by The Associated Press, some of the offenders were low-level offenses, such as the case of  Lincoln Steve White, 43, who was caught buying two ounces of cocaine for $1,400 in Florida in 2008 and has served more than five years of a seven-year sentence.
 
Dramatic Steps
by States
Beyond the federal drug guidelines, states have made dramatic steps to change sentencing. During 2014, legislators in at least 30 states and the District of Columbia authorized a range of law changes and policies that may address the nation’s scale of incarceration, according to a report called “The State of Sentencing, 2014, Developments in Policy and Practice,” conducted by the Sentencing Project.
 
The report outlines specific actions taken by states, including reclassifying certain low-level offenses, adopting changes to probation and parole policies that expand sentencing alternatives, adopting reforms to juvenile justice and scaling back collateral consequences associated with a criminal conviction, including employment bans. Here are some highlights of the changes made by states.
 
State Sentencing Shifts
According to the Sentencing Project, California voters authorized a substantial law change under Proposition 47, a measure that reclassified six low-level property and drug offenses from felonies to misdemeanors and eliminated prison as a sentencing option. Four states—Idaho, Mississippi, Nebraska, and Vermont—authorized reforms under the Justice Reinvestment Initiative. Also in California, lawmakers equalized quantity triggers for certain crack and powder cocaine offenses, increasing the number of states that have authorized such law changes; Missouri, South Carolina, and Ohio enacted similar policies in recent years.
Also in California, lawmakers authorized AB 1468, a comprehensive measure that included several provisions relating to persons sentenced to county jails for non-serious, non-violent, non-sexual felony convictions under the state’s Realignment policy. A key provision requires the presumption of split sentences for persons sentenced to a county jail term under Realignment offenses and requires probationary supervision.
 
The low-level property offenses reclassified by California’s Proposition 47 include shoplifting, theft, and check fraud under $950, as well as personal use of most illegal drugs. State savings resulting from the measure are estimated to be at least $150 million a year and will be used to support school truancy and dropout prevention, victim services, mental health and drug abuse treatment, and other programs designed to expand alternatives to incarceration. Approximately 10,000 incarcerated persons will be eligible for re-sentencing under the new law.
In Alabama a task force was established to study and identify causes and potential legislative solutions to address chronic overcrowding in the state’s prison system. In Delaware, HB 312 authorized judges to impose sentences concurrently, rather than limiting sentencing to consecutive sentence imposition.
 
In Florida, HB 89 enables judges to depart from mandatory minimum sentences for aggravated assault. Prior to the law change, aggravated assault was subject to a three-year mandatory minimum sentence if a firearm was displayed during an offense or a 20-year mandatory minimum sentence if a firearm was discharged.
 
In addition, the Sunshine State’s SB 360 raised the weight threshold for trafficking in prescription painkillers containing oxycodone and hydrocodone, created new weight categories for several trafficking offenses and reduced statutory penalties for specified offenses. Specifically, the measure eliminated the mandatory minimum for illegal possession or distribution of hydrocodone painkillers under 14 grams, and illegal possession or distribution of oxycodone painkillers under 7 grams.
 
In Missouri, lawmakers revised the state’s criminal code. The focal point of the revision was the implementation of new felony and misdemeanor classes. Under the new, lowest level misdemeanor class, jail time is no longer a sentencing option. Previously, the code authorized sentences of 15 days to a year for misdemeanor convictions. A salient provision in the new law eliminates jail time as a sentencing option for persons convicted of a first-time offense of possessing less than 10 grams of marijuana. Possessing up to 35 grams of the drug is currently punishable by up to a year in prison.
 
New Hampshire legislation authorized earned time for certain incarcerated persons who participate in self-improvement programs including education and vocational programs and mental health treatment. Judges will determine at sentencing if persons sentenced to prison are eligible for this earned time provision. The law also authorizes earned time reductions for eligible inmates who were incarcerated prior to the effective date; the measure outlines a process for inmates to petition the sentencing court.
 
Four states, Idaho, Mississippi, Nebraska and Vermont, authorized legislation to analyze criminal justice data to identify key factors contributing to state prison population growth, and developed policy proposals to reduce costs and improve public safety. Alaska, the District of Columbia, Maryland, Minnesota, New York, and Oregon addressed marijuana offenses in various ways.
 
Probation & Parole
During 2014, three states—Mississippi, New York, and Oklahoma—adopted changes to probation and parole policies to broaden criminal justice options. In Mississippi Provisions under HB 585, the state’s justice reinvestment initiative act, expanded judicial discretion to impose sentences such as court-ordered treatment for individuals convicted of certain drug offenses. The measure also authorizes circuit courts to target individualized treatment for veterans with certain convictions.
 
In New York judges can now establish probation terms for felony offenses at three, four or five years and for misdemeanors at two or three years, based on the nature of the crime, the individual’s criminal history, and risk of re-offending. Previously, almost all felony cases resulted in a five-year probation term.
 
Oklahoma lawmakers authorized SB 1720, a measure that requires probation agencies to provide probationers with intake and orientation, substance abuse assessment, and a treatment plan. The measure also requires the agency to conduct a criminal risk needs assessment and reasserts statutory authority to impose certain conditions of supervision.
 
Collateral Consequences
The consequences of a criminal conviction often go well beyond the period of incarceration or probation. Simply having a criminal record can bar individuals from securing employment, receiving public benefits, or voting. In 2014, at least 14 states and the District of Columbia passed legislation to minimize these consequences in law changes that addressed employment, federal felony drug bans on public assistance, and initiatives to ease the reentry process for those struggling to reintegrate into their communities, noted the Sentencing Project.
For example, of note in California’s Proposition 47 is a provision that permits people who have completed their felony sentences for specified offenses to petition the court to reclassify those convictions to a misdemeanor. This law change may eliminate barriers o employment, housing, and jury service.
 
Delaware, Illinois, Nebraska, New Jersey and the District of Columbia authorized “ban the box” policies to reduce barriers to employment. This discourages employers from requiring probationers to check a box disclosing their past conviction. In Delaware, the new law prohibits public employers from inquiring into the criminal background of job candidates until after their first interview. Employers may then disqualify applicants only for business reasons and only after taking into consideration the nature of the offense and the amount of time passed since the offense.
 
Juvenile Justice
With growing awareness around how justice system involvement impacts youth, states are continuing to rethink how they hold youth accountable. Some have overhauled their juvenile justice system, placing new emphasis on preventive services and community-based alternatives to detention. Others have made incremental changes to their policies on juvenile dispositions and the collateral consequences of a juvenile record. At the close of 2014, youth faced improved outcomes in at least 15 states.
 
New legislation in Kansas allows state courts to focus on treatment rather than punishment for low-risk youth in need of care. The law expands prosecutorial discretion to depart from established adjudication and placement processes to refer youth to child welfare services.
Kentucky’s SB 200 will transform the state’s juvenile justice system by reducing the use of out-of-home confinement for low-risk youth, particularly those adjudicated for status offenses, and expanding opportunities for treatment to reduce recidivism. These youth will be diverted into community-based programs and requires evidence-based assessments to guide individual interventions and other provisions.
 
The U.S. Supreme Court’s decision in Miller v. Alabama determined that mandatory life without parole sentences for juvenile defendants were unconstitutional. During 2014, seven states passed legislation to come into compliance with the decision.
 
Policy Recommendations
The report by the Sentencing Project acknowledges lawmakers have enacted a number of legislation changes to improve criminal justice policy during 2014. It states: “While the pace has accelerated in recent years, most of these measures will have only a modest impact on the scale of incarceration. It will take more far-reaching measures to markedly reduce the nation’s rate of incarceration, which is far above that in other western nations.”
 
Some of the ways that policy and practice revisions could be broadened in order to decrease prison populations are by changing statuary penalties for certain offenses and by modifying truth-in-sentencing requirements for persons with violent offenses. Lawmakers could address sentencing policies known to result in racial disparities, such as equalizing quantity triggers for intent-to-sell powder and crack cocaine offenses. Emulating comprehensive juvenile justice reforms enacted by Hawaii and Kentucky that included reducing out-of-home placements and prioritizing therapeutic interventions and evidence-based treatment plans is a recommendation that would reduce the number of youth in secure detention. Lastly, addressing collateral consequences that the stigma of a prior record has on employment or housing can go a long way in establishing an ex-offender as a productive member of society. 
 
To read the full report “The State of Sentencing 2014” see https://sentencingproject.org/doc/publications/sen_State_of_Sentencing_2014.pdf
 

 

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