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Policy Solution

Criminal Justice Solutions: Model State Legislation

Summary: This report offers state lawmakers model legislation based on smart, bold policy solutions that would keep crime low while reducing mass incarceration.

  • Priya Raghavan
Published: December 20, 2018


Amer­ica’s crim­inal justice system is in crisis. It is both inequit­able, placing a dispro­por­tion­ate burden on communit­ies of color, and extremely expens­ive, cost­ing $270 billion a year. 

What’s more, our current approach is not neces­sary to protect public safety. Research conclus­ively shows that high levels of impris­on­ment are simply not neces­sary to protect communit­ies. The Bren­nan Center has found that around 40 percent of Amer­ica’s prison popu­la­tion is incar­cer­ated with little public safety justi­fic­a­tion — in other words, they are behind bars unne­ces­sar­ily.

Under­stand­ably, voters across the polit­ical spec­trum have lost faith in the fair admin­is­tra­tion of justice, and the urgency of crim­inal justice reform contin­ues to be a rare point of bipar­tisan agree­ment. Despite this voter consensus — and with some notable excep­tions — poli­cy­makers gener­ally have been slow to respond. 

This report offers state lawmakers model legis­la­tion based on smart, bold policy solu­tions that would keep crime low while redu­cing mass incar­cer­a­tion. These model bills are based on the policy solu­tions put forth in our March 2018 public­a­tion Crim­inal Justice: An Elec­tion Agenda for Candid­ates, Activ­ists, and Legis­lat­ors (“Crim­inal Justice Agenda”). More back­ground on the impact and motiv­a­tion for these policies can be found in that report. 

This report provides the blue­print to make those policy solu­tions achiev­able. In some cases, the report spot­lights robust and useful examples of state legis­la­tion already intro­duced or in effect. In others, the Bren­nan Center created original model legis­la­tion that can be easily adap­ted to the needs of differ­ent juris­dic­tions. 

Notably, if every state passed the Altern­at­ive to Prison Act and the Propor­tional Senten­cing Act, two new and original policy propos­als, the national prison popu­la­tion could safely be reduced by nearly 40 percent. 

The report includes model and example legis­la­tion to: 

  • Elim­in­ate Impris­on­ment for Lower-Level Crimes. Incar­cer­a­tion is too often the punish­ment of first resort. It can be espe­cially coun­ter­pro­duct­ive for people convicted of lower-level crimes who could be better sanc­tioned by altern­at­ives to incar­cer­a­tion, such as treat­ment, community service, or proba­tion. Our model bill would elim­in­ate impris­on­ment for certain qual­i­fy­ing lower-level offenses and instead require diver­sion into vari­ous altern­at­ives to incar­cer­a­tion. 
  • Make Sentences Propor­tional to Crimes. State prison sentences are excess­ively long. A grow­ing body of research shows that there is little or no rela­tion­ship between length of incar­cer­a­tion and recidiv­ism. Our model bill would reduce sentences by 25 percent for those offenses that make up the largest share of the prison popu­la­tion. 
  • Abol­ish Cash Bail. The decision of whether a defend­ant should be jailed while await­ing trial is often based on a defend­ant’s wealth and not on public safety consid­er­a­tions. This report high­lights a model bill developed by Civil Rights Corps that would end the use of money bail.
  • Reform Prosec­utor Incent­ives. Our model bill incentiv­izes local prosec­utors to change their prac­tices by provid­ing bonus dollars to their offices if they reduce incar­cer­a­tion while keep­ing recidiv­ism rates low. 
  • Reform Marijuana Laws. Jail and prison spaces are expens­ive, and beds in these facil­it­ies should not be used for people convicted of low-level marijuana offenses. This report high­lights a ballot initi­at­ive that legal­ized marijuana posses­sion in Cali­for­nia and legis­la­tion that decrim­in­al­ized marijuana posses­sion in Delaware, serving as useful models for lawmakers to enact as legis­la­tion in other states. 
  • Calib­rate Fines to Defend­ants’ Abil­ity to Pay and Elim­in­ate Fees. Courts continue to levy fees and fines on defend­ants convicted of crimes and civil viol­a­tions without consid­er­ing whether they are finan­cially able to pay them. This leads to never-ending cycles of crim­inal justice debt and even modern-day debt­ors’ pris­ons. Our model bill would calib­rate crim­inal fines (monet­ary sanc­tions prescribed by courts as punish­ment for commit­ting a crime) to a defend­ant’s abil­ity to pay and elim­in­ate the assess­ment of court fees (flat fees inten­ded to offset court costs) on crim­inal defend­ants. It would mandate that fines are calcu­lated with refer­ence to the number of days of income a person must forego to pay them — called “day fines.” 
  • Reduce Opioid Deaths. The over-prescrip­tion of legal opioids, such as oxycodone and codeine, contrib­utes signi­fic­antly to Amer­ica’s opioid crisis. This report high­lights legis­la­tion in New Jersey that limits when and how doctors can prescribe opioids. It also high­lights a Vermont bill that increases access to drugs that can neut­ral­ize the effects of opioid over­doses. 
  • Curb the Number of Women Enter­ing State Pris­ons. The best way to help incar­cer­ated women is to signi­fic­antly reduce the female prison popu­la­tion. Addi­tion­ally, incar­cer­ated women have unique needs, and reforms aimed at condi­tions of confine­ment can help meet them. This report provides summar­ies of legis­la­tion in New Jersey and Oklahoma that encour­age diver­sion and improve condi­tions of confine­ment and reentry services for women and primary care­takers of chil­dren.