by Wendy Sawyer and Peter Wagner
We're publishing an excerpt from our new briefing, "A Legislative Guide for Winnable, High-Impact Criminal Justice Reforms," in today's newsletter.
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Given the public's increasing demands for real change to the criminal justice system, we've updated and expanded our annual guide for state legislators to reforms that we think are ripe for victory. We've curated this list to offer policymakers and advocates straightforward solutions that would have the greatest impacts without further investments in the carceral system. We have focused especially on those reforms that would reduce the number of people confined in prisons and jails — a systemic problem made even more urgent by the COVID-19 pandemic.
This briefing is not intended to be a comprehensive platform, but rather to address a surprising problem faced by legislators: Each state's criminal justice system varies so much that it can be difficult to apply lessons from other states to the same problem in one's own. The laws and procedures are all different, each state collects different data, and often the same words are used to mean very different things in different states, so it's important to figure out which problems are a priority in your state and which lessons from elsewhere are most useful. For that reason, each item here includes links to more state-level information, the text of model legislation, and/or detailed guidance on crafting a remedy.
Readers should also note that we made a conscious choice to not include critical reforms that are unique to just a few states, nor important reforms for which we don't yet have enough useful resources that would make sense in most states. But this guide grows and evolves each year, so we welcome ideas and resources from other state legislators and advocates.
This guide covers reforms that would:
- End unnecessary jail detention for people awaiting trial and for low-level offenses (below)
- Shorten excessive prison sentences and improve release processes (available online)
- Sentence fewer people to incarceration and make sentences shorter (available online)
- Change the financial incentives that fuel punitive justice system responses (available online)
- Stop probation and parole systems from fueling incarceration (available online)
- Keep criminal justice, juvenile justice, and immigration processes separate (available online)
- Give all communities equal voice in how our justice system works (available online)
Part 1: End unnecessary jail detention for people awaiting trial and for low-level offenses
End pretrial detention for most defendants
Problem: Many people who face criminal charges are unnecessarily detained before trial. Often the sole criteria for release is access to money for bail. This puts pressure on defendants to accept plea bargains, even when they are innocent, since even a few days in jail can destabilize their lives: they can lose their apartment, job, and even custody of children. Pretrial detention also leads to jail overcrowding, which means more dangerous conditions for people in jail, and also drives sheriffs' demands for more and bigger jails -- wasting taxpayer dollars on more unnecessary incarceration.
Solutions: States are addressing this problem with a variety of approaches, including bail reforms that end or severely restrict the use of money bail, establishing the presumption of pretrial release for all cases with conditions only when necessary, and offering pretrial services such as postcard or phone reminders to appear in court, transportation and childcare assistance for court appearances, and referrals to drug treatment, mental health services, and other needed social services.
More information: See The Bail Project's After Cash Bail: A Framework for Reimagining Pretrial Justice; Pretrial Justice Institute; Massachusetts Women's Justice Network's Moving Beyond Incarceration for Women in Massachusetts: The Necessity of Bail/Pretrial Reform; the Criminal Justice Policy Program at Harvard Law School's Primer on Bail Reform; and our briefing Technical violations, immigration detainers, and other bad reasons to keep people in jail.
Use alternatives to arrest and incarceration for low-level offenses
Problem: One out of every three people behind bars is being held in a local jail, and most for low-level or nonviolent offenses. Spending time in jail leads to a number of collateral consequences and financial roadblocks to successful reentry, and higher recidivism rates that quickly lead to higher state prison populations.
Solutions: Although jails are ostensibly locally controlled, the people held in jails are generally accused of violating state law, so both state and local policymakers have the power to reduce jail populations. State leaders should address state causes of growing local jail populations, such as:
More information: See our reports Era of Mass Expansion: Why State Officials Should Fight Jail Growth and Arrest, Release, Repeat: How Police and Jails Are Misused to Respond to Social Problems, and The Bail Project's After Cash Bail: A Framework for Reimagining Pretrial Justice.
- Encourage judges to use non-monetary sanctions, rather than fines and fees, and ensure that judges are holding indigency hearings before imposing and enforcing unaffordable fees.
- Reclassify criminal offenses and turn misdemeanor charges that don't threaten public safety into non-jailable infractions, or decriminalize them entirely.
- Make citations, rather than arrest, the default action for low-level crimes.
- Institute grace periods for missed court appearances to reduce the use of "bench warrants," which lead to unnecessary incarceration for low-level and even "non jailable" offenses. Establish an "open hours court" for those who have recently missed appearances to reschedule without fear of arrest.
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See the complete guide and the other six sections at
https://www.prisonpolicy.org/blog/2020/06/10/winnable-reforms/.
