By Nicole D. Porter

The United States has one of the highest incarceration rates in the world. Nearly two million people – disproportionately Black – are incarcerated in the nation’s prisons and jails. In the early 1970s, 360,000 persons were incarcerated in correctional facilities.

Criminal legal reform trends in 2024 were divergent at a time when politicians used punitive-sounding talking points to move voters fearful of a recent uptick in crime. However, stakeholders, including formerly incarcerated activists and lawmakers, saw some success in scaling back mass incarceration. Advocacy organizers and officials in at least nine states advanced reforms in 2024 that may contribute to decarceration, expand and guarantee voting rights for justice impacted citizens, and advance youth justice reforms.

Highlights include:

Decarceration Reforms: State lawmakers enacted legal reforms to reduce prison admissions and to adjust penalties to criminal sentences to more fairly hold persons convicted of certain crimes accountable. During 2024, policymakers in Oklahoma and Michigan adopted or expanded second look and compassionate release policies authorizing reconsideration of certain criminal legal sentences after a term of years.

Guaranteeing Voting Rights: While over 4 million people are ineligible to vote because of a felony conviction, voting rights reforms have expanded the vote to over two million people since 1997. This year, officials in Nebraska and Oklahoma approved measures to expand voting rights to persons after incarceration while lawmakers in Colorado passed legislation requiring all county jails to establish polling stations guaranteeing access to the ballot for incarcerated voters.

Youth Justice: Lawmakers in Indiana and Pennsylvania adopted policies that demonstrated a commitment to supporting young defendants including eliminating automatic charging of youth as adults for certain offenses and establishing practices that may reduce length of detention stays.

Highlights include:

Decarceration Reforms: State lawmakers enacted legal reforms to reduce prison admissions and to adjust penalties to criminal sentences to more fairly hold persons convicted of certain crimes accountable. During 2024, policymakers in Oklahoma and Michigan adopted or expanded second look and compassionate release policies authorizing reconsideration of certain criminal legal sentences after a term of years.

Guaranteeing Voting Rights: While over 4 million people are ineligible to vote because of a felony conviction, voting rights reforms have expanded the vote to over two million people since 1997. This year, officials in Nebraska and Oklahoma approved measures to expand voting rights to persons after incarceration while lawmakers in Colorado passed legislation requiring all county jails to establish polling stations guaranteeing access to the ballot for incarcerated voters.

Youth Justice: Lawmakers in Indiana and Pennsylvania adopted policies that demonstrated a commitment to supporting young defendants including eliminating automatic charging of youth as adults for certain offenses and establishing practices that may reduce length of detention stays.

Washington, DC: The Sentencing Project, 2024.

By Eric R. Collins

  Two observations about the operation of the criminal legal system are so widely accepted that they seem undeniable: First, it is a system of pleas, not trials. Second, the system is too punitive and must be reformed. One could easily think, therefore, that the Federal Rules of Evidence, which apply intentionally and explicitly only to the adjudicatory phase of criminal procedure, have nothing to do with the solution. And legal scholarship focusing on decarceration largely reflects this assumption: while many have explored reforms that target front end system actors and processes that lead people into the system (e.g. police, prosecutors, broad criminal statutes), and back end reforms that that seek to lessen the toll of punitive policies (sentencing reform, alternatives to incarceration), markedly fewer have explored how what happens in the middle — adjudication — contributes to mass incarceration. While this oversight makes sense, it is not justified because it is also equally undeniable that plea bargaining happens in the shadow of trial. This Article examines how the shadow of trial — specifically, the shadow cast by evidentiary rulings about the accused person’s past — contributes to the perpetuation of an expansive carceral state. It identifies how evidence rules have been relaxed, tweaked, specialized, or unmoored from their foundational principles in ways that facilitate prosecution and conviction or essentially force plea deals – without regard for the truth, fairness, or justice of the outcome. In other words, it identifies ways that evidence law undermines the Rules’ primary purpose, which is to advance fair proceedings “to the end of ascertaining the truth and securing a just determination.”   

Fordham Urban Law Journal, 50(3): 2023.