Criminal Justice Solutions: Model State Legislation

December 20, 2018

Introduction 

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.