Issue Brief

Justice Reinvestment Initiative Brings Sentencing Reforms in 21 States

Revisions to mandatory minimums, drug-free school zones among host of changes

The introductory text below was updated for clarity on March 8, 2016.

Overview

Since 2007, 21 states have reformed their sentencing laws as part of the Justice Reinvestment Initiative. This brief highlights the specific policy changes these states have made.1

The Justice Reinvestment Initiative is a public-private partnership that includes the U.S. Justice Department’s Bureau of Justice Assistance, The Pew Charitable Trusts, the Council of State Governments Justice Center, the Crime and Justice Institute at Community Resources for Justice, the Vera Institute of Justice, and other organizations. Overall, 31 states have participated in the initiative.

Although specific reforms vary from state to state, all aim to improve public safety and control costs for taxpayers by prioritizing prison space for serious and repeat offenders and investing some of the savings in alternatives to incarceration that are effective at reducing recidivism among low-level offenders.


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Summary

State sentencing reforms enacted through justice reinvestment fall into 11 general categories:

Reclassify/redefine drug offenses: Revise criminal penalties for offenses such as simple possession of narcotics.

Reclassify/redefine property offenses: Revise criminal penalties for offenses such as theft, forgery, or shoplifting.

Establish presumptive probation for certain offenses: Make probation—rather than incarceration—the default sentence for certain offenses.

Revise sentencing enhancements: Adjust prison time faced by certain types of offenders, such as those with a prior record or whose crimes involved firearms.

Revise mandatory minimums: Adjust laws that require courts to sentence offenders to prison terms of various minimum lengths.

Reduce crack-powder cocaine disparity: Reduce criminal penalties for crack cocaine offenses to bring them more in line with those for crimes involving the powder form of the drug.

Revise sentencing guidelines/establish sentencing commission: Modify the guidelines that courts follow when sentencing offenders or establish a commission to set or revise such rules.

Improve pretrial release systems: Change procedures for defendants awaiting trial, including by using risk assessments to help determine whether those charged can safely be released into the community.

Establish pre-sentence assessment: Change procedures for convicted offenders who are not yet sentenced, including by using risk assessments to help guide decisions regarding appropriate levels of punishment, supervision, and treatment.

Revise drug-free school zone: Adjust the size of drug-free school zones to reduce the number of drug offenders who face sentencing enhancements for crimes that may not have involved children or students.

Authorize risk-reduction sentencing: Authorize courts to impose risk-reduction sentences, which allow offenders to shorten their time behind bars by demonstrating good behavior and participating in substance abuse, job training, and other programs while in prison.

State-by-state changes

States have taken a variety of approaches to sentencing policy reform through the Justice Reinvestment Initiative:

Alabama (2015)

  • Created a new felony category for the lowest level of drug and property offenses, requiring offenders to enter community corrections programs instead of prison.
  • Redefined third-degree burglary as a nonviolent offense if the offender entered an uninhabited, non-domicile building and encountered no one while committing the crime.
  • Required those convicted of certain property, drug, and “person” crimes to serve “split sentences,” which require a fixed term of incarceration followed by a mandatory period of post-release supervision.

Arkansas (2011)

  • Equalized the weight thresholds and criminal penalties for possession, possession with intent to deliver, and delivery of cocaine and methamphetamine.
  • Raised the weight threshold for simple drug possession and reclassified the offense to allow courts to place low-level offenders on probation or in other programs, as appropriate.
  • Revised felony definitions and classifications for simple possession of controlled substances to reduce the minimum and maximum terms of incarceration.
  • Separated possession with intent to deliver from manufacturing and delivery and set punishments appropriate to the offense for each controlled substance.
  • Enhanced or retained punishments for more serious offenses such as large-scale manufacturing and created the new offense of trafficking for possession or delivery of large amounts.
  • Raised the threshold for felony theft from $500 to $1,000.
  • Created a new felony classification for theft with a value of less than $5,000 to allow courts to place low-level offenders on probation or in other programs, as appropriate.
  • Raised the threshold for certain other felony theft offenses from $5,000 to $25,000.

Delaware (2012)

  • Required pretrial risk assessments to help magistrates decide which offenders can be safely released into the community and under what conditions.
  • Required risk and needs assessments for offenders in prison and on probation, as well as case plans informed by those assessments.
  • Allowed probationers to receive 30 days of credit toward their sentences for every 30 days of compliance with their terms of release.
  • Increased the “good time credits” that offenders can receive from 100 to 160 days, with an additional 60 days available upon completion of a program designed to reduce recidivism.

Georgia (2012)

  • Created degrees of burglary based on severity, increased penalties for serious burglaries, and established a graduated scale of sanctions to impose more severe punishments for burglaries of residences than those of non-residences.
  • Created degrees of forgery based on severity, increased penalties for serious forgeries, and established a graduated scale of punishment based on the type of forgery.
  • Created degrees of theft based on severity; raised the felony theft threshold from $500 to $1,500; created a graduated, value-based scale of penalties for felony theft; raised the penalty for the most serious theft (above $25,000); and raised the felony shoplifting threshold from $300 to $500.
  • Revised penalties for the simple possession of drugs, creating degrees based on weight and establishing a graduated scale of sanctions, with higher penalties for third and subsequent convictions, and prevented drug possession offenses from triggering sentence enhancements under the state’s recidivist law.
  • Invested $175,000 in the development of a risk assessment tool to help judges identify lower-risk, nonviolent offenders who could safely be steered away from prison.

Hawaii (2012)

  • Gave judges more discretion to diverge from mandatory minimum sentencing laws in cases involving second-time felony drug offenders.
  • Required timely, pretrial evaluation of defendants through risk assessments. 

Illinois (2009)

  • Established an advisory council, reporting to the governor and state lawmakers, to collect and analyze data from all relevant sources and evaluate the effectiveness and efficiency of sentencing policies and practices.

Kentucky (2011)

  • Distinguished between serious drug trafficking and peddling, and established a proportionate scale of penalties to ensure that offenders who traffic in large quantities are punished more harshly than those who sell small amounts for personal use.
  • Revised penalties for the simple possession of drugs, reduced the maximum sentence for possession in the first degree from five years to three years, and allowed courts to defer prosecution or issue  presumptive probation sentences to first- and second-time possession offenders.
  • Eliminated sentence enhancements for second and subsequent drug possession offenses.
  • Limited prosecutors’ ability to seek enhanced sentences for certain offenders.
  • Reduced the size of drug-free school zones from 1,000 yards to 1,000 feet.
  • Required courts and correctional authorities to use risk and needs assessments to inform pretrial supervision, sentencing, and probation and parole conditions, among other decisions.
  • Required that at least 75 percent of state spending on supervision and intervention programs for pretrial defendants and other offenders go toward evidence-based initiatives.

Louisiana (2011)

  • Provided judges with authority to waive some categories of minimum mandatory sentences. 

Missouri (2012)

  • Reduced the sentencing disparity between crack and powder cocaine offenses.

Mississippi (2014)

  • Implemented “true minimums” to ensure that nonviolent and violent offenders serve at least 25 and 50 percent of their court-ordered sentences, respectively.
  • Created a uniform definition of violence for the purposes of administering pretrial diversion programs, specifying the minimum percentage of each sentence that must be served behind bars, and determining parole eligibility.
  • Modified penalties for simple drug possession.
  • Differentiated between higher- and lower-level commercial drug offenders (those convicted of drug crimes other than possession and trafficking).
  • Enabled prosecutors to punish drug traffickers based on the weight of drugs seized, and gave judges the authority to depart from mandatory minimum sentences when the penalties are not in the interest of public safety.
  • Expanded eligibility for earned time to offenders sentenced for possession with intent to distribute.
  • Raised the felony theft threshold from $500 to $1,000.
  • Instituted presumptive probation—establishing supervision as the default punishment—for most property crimes under $1,000, unless a court declares the offender a risk to the public.
  • Established a graduated, value-based scale of penalties for property felonies.
  • Created a criminal enterprise law to deter organized retail theft.
  • Allowed judges to order probation and intensive supervision for offenders with previous felony convictions and non-adjudicated probation for all drug offenders except traffickers.
  • Permitted judges to order drug court for offenders convicted of a commercial drug offense, excluding trafficking, and for driving under the influence.

Nebraska (2015)

  • Emphasized probation, rather than incarceration, for those convicted of certain low-level felonies.
  • Defined periods of incarceration and mandatory post-release supervision for three felony classes.
  • Required that misdemeanor sentences calling for incarceration be served in jail rather than prison.
  • Updated property offense penalty thresholds to account for inflation.
  • Reclassified felonies according to whether they involve violence or are sex offenses to more clearly distinguish between more serious and lower-level nonviolent offenders.

North Carolina (2011)

  • Required nearly all first-time drug offenders convicted of misdemeanors or felony possession of narcotics or paraphernalia to be placed in diversion programs rather than prison.
  • Created a “habitual breaking and entering” offense and required that second-time offenders be sentenced according to the felony punishment chart.
  • Scaled back sentence enhancements under the state’s habitual felon law.
  • Permitted judges to impose shorter sentences on certain offenders provided that they complete rehabilitative programming. 

Ohio (2011)

  • Raised felony theft thresholds.
  • Eliminated the disparity in criminal penalties between crack and powder cocaine offenses.
  • Capped sentence lengths for mid-level felony property and drug offenses.
  • Eliminated certain sentence enhancements for drug offenders.
  • Created a “risk reduction” sentencing option that allows certain offenders to shorten their time behind bars if they complete assigned programming.
  • Expanded judicial release policies.
  • Required creation of administrative policies to prioritize intensive residential community correction programs for higher-risk offenders and those who otherwise would be sentenced to prison.
  • Required courts to use a validated risk assessment tool at various points in the criminal justice process, including at sentencing.

Oklahoma (2012)

  • Instituted a pre-sentence risk-and-need screening to help guide decisions regarding the appropriate level of punishment, supervision, and treatment for each individual.

Oregon (2013)

  • Reduced the sentencing ranges for selected property offenses, including robbery in the third degree and identify theft.
  • Expanded presumptive probation for marijuana offenses and for driving with a suspended license.
  • Removed mandatory minimum sentences for certain drug offenders with multiple convictions.

Pennsylvania2 (2008, 2012)

  • Created a “risk reduction” sentencing option that makes people convicted of nonviolent offenses eligible for shortened sentences upon successful completion of evidenced-based programs.
  • Expanded access to intensive treatment for people convicted of an offense motivated by the use of or addiction to alcohol or other drugs and required that low-level misdemeanants receive a sentence other than prison.

South Carolina (2010)

  • Expanded the list of violent crimes to include 24 offenses that were not previously classified as “violent,” even though they may have resulted in the death of a victim.
  • Created an “attempted murder” offense, with a penalty of up to 30 years.
  • Provided that a person convicted of a “most serious offense” shall be sentenced to life without parole if the person had two or more prior “serious offense” convictions.
  • Reduced the maximum penalty for nonviolent burglary in the second degree from 15 years to 10 years, and made such offenders eligible for parole.
  • Increased the felony property crime threshold from $1,000 to $2,000.
  • Increased penalties for habitual motor vehicle offenders who drive with a suspended license and cause an accident resulting in great bodily injury or death.
  • Established a consolidated assault and battery statute, with graduated penalties for more serious conduct or harm, and eliminated provisions related to assault and battery against special classes of individuals (e.g., sports officials, emergency medical service providers).
  • Made people convicted for a first or second drug offense other than trafficking eligible for probation or a suspended sentence, parole, work release, and good conduct and other credits; and made those convicted of a third or subsequent drug offense other than trafficking eligible for probation, suspension, parole, and credits in limited circumstances.
  • Equalized penalties for crack and powder cocaine possession offenses.
  • Clarified the proximity-to-schools statute, which mandates enhanced penalties for controlled substance offenses near a school, park, or playground, so it requires intent to commit a controlled substance offense in a designated zone.
  • Redefined a second or subsequent offense for certain drug crimes (e.g., marijuana possession is no longer counted as a second or subsequent offense if a first offense occurred more than five years in the past; for other possession offenses, the first offense must have been within 10 years).
  • Required drug offenders to pay a controlled substance offense assessment (with a waiver for indigent defendants) and allocated the proceeds to drug court programs.
  • Allowed for sentence reductions if offenders cooperate with law enforcement, the Department of Corrections, or prosecutors.
  • Required an accurate fiscal impact statement before committee action on legislation that would establish a new criminal offense or amend sentencing provisions for an existing offense.

South Dakota (2013)

  • Required judges to identify defendants who are military veterans and to determine their treatment needs.
  • Created a tiered controlled substance statute to differentiate between drug users and dealers; increased the penalty for the most serious drug manufacturers, distributors, and dispensers; and reduced the punishment for possession.
  • Created targeted punishments for certain property crimes, including increasing penalties for the most serious grand theft and reducing and subdividing sentences for grand theft of less than $5,000 and for third-degree burglary (of an unoccupied, uninhabitable structure).
  • Created additional penalties of five years (for those convicted six to nine times) or 10 years (for those convicted 10 or more times) of additional supervision for DUI offenses, and gave prosecutors the option to increase the amount of time fourth-time offenders can serve in jail.
  • Created presumptive probation for certain nonviolent felonies, unless a court finds and states on the record that aggravating circumstances pose a significant risk to the public.

Utah (2015)

  • Converted drug possession for all first- and second-time offenders from a third-degree felony with the possibility of up to five years in prison to a misdemeanor with a maximum penalty of one year in jail.
  • Eliminated weight thresholds for all marijuana offenses and reclassified marijuana possession as a Class B misdemeanor, with an enhancement to Class A upon a third conviction.
  • Reduced the size of drug-free school zones from 1,000 to 100 feet, restricted them to specific locations and times when children are most likely to be present, and limited automatic sentence increases to activities involving the sale and distribution of drugs.
  • Instructed the state sentencing commission to change how criminal history affects sentence length.
  • Instructed the commission to reduce sentencing guidelines by four to six months for lower-level criminal offenses.
  • Instructed the commission to formalize guidelines for the courts and the Board of Pardons and Parole that provide swift, certain, and proportional sanctions for supervision violations in lieu of revocation to prison for the remainder of the original sentence.

Vermont (2008)

  • Established a pilot program to ensure that offenders are screened before sentencing and before release from prison to identify those who are candidates for treatment and diversion programs.  

West Virginia (2013)

  • Required pretrial assessments, within three days of placement in a regional jail, of arrestees’ risk of flight and reoffending to inform judicial decision-making.
  • Created a new “treatment supervision” sanction and invested prison savings to increase treatment capacity.
  • Limited sanction options for probation violations that are not new criminal offenses.
  • Required post-prison supervision for violent offenders and authorized judges to require it for nonviolent offenders.

Endnotes

  1. For the purposes of this brief, sentencing law changes include those addressing pretrial defendants.
  2. Pennsylvania enacted four bills in 2008 (H.B. 4, H.B. 5, H.B. 6, and H.B. 7) and two bills (S.B. 100 and H.B. 135) in 2012.

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