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 Michael Vitiello

The United States’ War on Drugs has not been pretty. Moral panic has repeatedly driven policy when states and the federal government have regulated drugs. Responding to that panic, legislators have authorized severe sentences for drug offenses.

By design, Article III gives federal judges independence, in part, to protect fundamental rights against mob rule. Unfortunately, the Supreme Court has often failed to protect fundamental rights in times of moral panic. For example, it eroded Fourth Amendment protections during the War on Drugs. Similarly, it failed to protect drug offenders from excessive prison sentences during the War on Drugs. This Article examines whether it is time for the Supreme Court to rethink its precedent upholding extremely long sentences for drug crimes.

In 1983, in Solem v. Helm, the Supreme Court held that the Eighth Amendment’s Cruel and Unusual Punishment Clause applies to terms of imprisonment. There, it found the imposition of a true-life sentence imposed on a repeat offender to be grossly disproportionate to the gravity of the defendant’s offense. Whatever hope Solem created that courts might limit excessive sentences proved to be false.

Two Supreme Court cases dealing with drug sentences, bracketing Solem, demonstrate the Court’s unwillingness to override legislatures’ discretion in imposing sentences. In 1982, the Court upheld a 40-year term of imprisonment imposed on an offender who possessed less than nine ounces of marijuana. In 1991, the Court upheld a true-life sentence imposed on an offender who possessed 672 grams of cocaine. The Court’s refusal to curtail such extreme sentences reflects its willingness to accede to the nation’s moral panic over drug usage.

Since the height of the War on Drugs, Americans have changed their views about drugs. Significant majorities of Americans favor legalization of marijuana for medical and recreational use. Many Americans favor a wholesale rethinking of drug policy. Despite studies in the 1950s and 1960s demonstrating beneficial use of drugs like LSD and psilocybin, Congress yielded to moral panic and included them in Schedule I when it enacted the Controlled Substances Act of 1970. Efforts are afoot at the state level to legalize the study of and to decriminalize the use of those and other drugs.

This Article argues that the Court should rethink its Eighth Amendment caselaw upholding severe drug sentences. The Court’s Eighth Amendment caselaw balances the severity of punishment against the gravity of an offense. In turn, the gravity of an offense turns on its social harm and the culpability of the offender. The Court upheld extreme drug sentences based on the view that drugs were a national scourge. Moral panic led it to overstate the social harm and the culpability of drug offenders. Scientifically based examination of drugs and drug policy should compel the Court to rethink its excessive punishment caselaw because the balance between severity of punishment and the gravity of drug offenses looks different when one has a better understanding of true costs and benefits of drug use.

Clev. St. L. Rev., 69, 441 2921

By: Aaron Arnold, Precious Benally, and Michael Friedrich

In recent years, several U.S. states have adopted legislation aimed at decreasing sentences for low-level drug offenses. These reforms represent a promising effort to reduce the use of unnecessary incarceration. But one consequence has been reduced enrollment in drug courts. This paper explores how drug courts can adapt themselves to sentencing reforms and continue serving as a powerful, lifesaving intervention for court-involved individuals with substance use disorders.

New York: Center for Court Innovation, 2020. 12p.

By Beth M. Huebner, Andrea Giuffre

Investigations in Ferguson, Missouri, revealed that many individuals, particularly Black people, entered the criminal justice system for relatively minor offenses, missed court appearances, or failure to pay fines. Municipal courts were focused on revenue generation, which led to aggressive enforcement of municipal codes. Although subsequent reforms were passed, little is known about whether and how the legislative changes influenced the law-in-action in the municipal courts. Using data from qualitative interviews with St. Louis area residents and regional court actors, as well as court observations, this article documents the legal structure of municipal courts in the region after Ferguson. We address how the parochial nature of municipal courts in St. Louis County perpetuates the financial marginalization of residents through the layering of punishment, and how the state legal structure further facilitates control, even after reform.

RSF: The Russell Sage Foundation Journal of the Social Sciences January 2022, 8 (1) 108-127; DOI: https://doi.org/10.7758/RSF.2022.8.1.05

By Clara Herz

Given the debate at the seventy-second Conference of the Association of German Jurists (Deutscher Juristentag) in September 2018 on whether German sentencing needs reform, this Article will explore this very question in greater detail. In this regard, this Article will present various empirical studies in order to demonstrate that notable inconsistencies in German sentencing practice exist. This Article will then point out that broad statutory sentencing ranges, along with fairly vague sentencing guidance, are among the main causes of these disparities. Subsequently, this Article will examine several mechanisms that selected foreign jurisdictions—namely the U.S., the U.K., and Australia—have put in place in order to enhance consistency in their sentencing practices. Three mechanisms of sentencing guidance will be distinguished here: First, formal sentencing guidelines; second, guideline judgments; and third, sentencing advisory bodies as they operate in some Australian states. This Article will compare these mechanisms and assess their merits and drawbacks. Based on this comparative study, this Article will look at how to improve consistency in German sentencing practice. In this respect, this Article will present three steps that German criminal law reform should follow, including a better sentencing framework, the strategic gathering of sentencing data, and the implementation of a flexible sentencing guidelines regime

German Law Journal (2020), 21, pp. 1625–1648 doi:10.1017/glj.2020.90

By Marie Manikis

Censure, blame and harms are central concepts in sentencing that have evolved over the years to take into account social context and experiential knowledge. Flexibility, however, remains limited as the current analysis in sentencing focuses on the offender while failing to engage with the state's contribution in creating wrongs and harms. This risks giving rise to defective practices of responsibility since the state can also contribute to their production. The following article presents a complementary and additional framework within sentencing to account for state censure, blame and harms. The framework is rooted in communicative theories of punishment that integrate a responsive understanding of censure and a relational account of responsibility.

The Cambridge Law Journal , Volume 81 , Issue 2 , July 2022 , pp. 294 - 322

by Lois M. Davis, Louis T. Mariano, Melissa M. Labriola, Susan Turner, Matt Strawn

he California County Resentencing Pilot Program was established to support and evaluate a collaborative approach to exercising prosecutorial resentencing discretion. The first of three reports, this evaluation seeks to determine how the pilot program is implemented in each of the nine participating counties and what the characteristics are of a possible candidate for resentencing.

This report describes the pilot, evaluation methods, initial findings based on stakeholder interviews, and analysis of pilot data. Qualitative interviews reveal key strengths and challenges of the pilot in its implementation. Analyses of quantitative data describe the population of individuals considered for resentencing. Together, these findings shed light on the early experiences of the nine counties implementing this important pilot program.

Key Findings

• Implementation challenges include developing eligibility criteria, acquiring and analyzing data from the California Department of Corrections and Rehabilitation (CDCR) to identify individuals who met eligibility criteria, working with the individuals to facilitate preparation of their application and supporting documents, identifying and hiring community-based organizations (CBO)s, and working with the courts to develop processes and procedures for making referrals to the courts.

• Except for a few counties, most of the DA and PD offices did not have a history of working closely together and are still developing that collaboration.

• Across the nine pilot counties, the initial cases reviewed tended to involve individuals who were over the age of 50. The controlling offense most often involved a crime against persons. Nearly half of the cases reviewed involved third-strike sentences, and nearly three-fourths of reviewed cases had a sentence enhancement present.

SANTA MONICA, CA: RAND, 2022. 77P.

by Lois M. Davis, Louis T. Mariano, Melissa M. Labriola, Susan Turner, Andy Bogart, Matt Strawn, Lynn A. Karoly

he California County Resentencing Pilot Program was established to support and evaluate a collaborative approach to exercising prosecutorial discretion in resentencing eligible incarcerated individuals. Nine California counties were selected and were provided funding to implement the three-year pilot program. Participants in the pilot include a county district attorney (DA) office and a county public defender (PD) office and may include a community-based organization in each county pilot site. The evaluation seeks to determine how the pilot is implemented in individual counties, whether the pilot is effective in reducing criminal justice involvement (e.g., time spent in incarceration and recidivism), and whether it is cost-effective.

This report documents evaluation results, focusing on the implementation of the program from September 2022 through July 2023 — the second year of the pilot program. In addition to providing a review of the pilot program and evaluation methods, the authors describe year 2 findings based on stakeholder interviews and analysis of pilot data. Qualitative interviews revealed key strengths and challenges of the pilot in its implementation. Analyses of quantitative data describe the population of individuals considered for resentencing and document the flow of cases from initial consideration through resentencing. These findings shed light on the experiences of the nine counties in implementing the pilot program during year 2.

Key Findings

• Interviews with DA and PD offices indicated overall support for the program but faced key challenges

• The PDs tended to want to play a more proactive role in defining eligibility criteria, identifying cases for consideration, and making recommendations to the courts than what the DAs envisioned.

• Personnel shortages were mentioned by multiple offices as a continuing challenge.

• Only four of the counties were working with a community-based organization.

  The pilot counties each developed their own criteria for identifying cases eligible for resentencing consideration

• Although the inclusion criteria varied somewhat across the pilot counties, overall the criteria focused on such factors as the age of the incarcerated individual, the crime committed, and the length and other details of the sentence.

• Counties indicated use of less strict criteria in this second year of implementation and were embracing flexibility in the cases they were reviewing.

  Analysis of case-level data covering the first 18 months of pilot implementation revealed important data points

• Among the 684 case reviews initiated during the reporting period, 105 cases had been referred to the court for resentencing, the DA offices had decided not to refer 321, and 258 were still under DA review.

• Of 94 cases for which courts have ruled on a resentencing motion, 91 cases have resulted in resentencing. Of the 91 resentenced individuals, 63 have been released from prison.

• Among those cases awaiting a DA decision on whether to proceed with resentencing, 72 percent have been under review more than six months.

Santa Monica, CA: RAND, 2023. 95p.

By Liz Komar, et al.

Through the lens of the successes and challenges of New York’s DVSJA, this guide explores the need for similar bills across the country (referred to as DVSJA legislation, DVSJA laws or DVSJA relief) and offers recommendations for advocates and legislators developing and implementing those laws in their own jurisdictions. Drawing from case law and the guidance of survivors, advocates, and litigators, the guide offers a model bill, which can be adapted to fit any locality. Woven throughout are the experiences of those who have applied for DVSJA relief in New York or those who would benefit from such a law should it be enacted in their state.

Specifically, the guide recommends that states enact sentencing laws for domestic violence survivors that:

1. Create broad and trauma-informed eligibility criteria

2. Develop a legal process accessible to survivors

3. Craft a trauma-informed and realistic legal standard

4. Maximize sentence reductions

The ultimate goal of these recommendations is to allow advocates to draw on lessons learned from New York’s DVSJA to strengthen efforts for survivor sentencing legislation already gaining ground across the United States.

Washington, DC: The Sentencing Project and Survivors Justice Project, 2023. 33p.

By Sarah W. Craun and Alyssa Purdy

There are numerous federal criminal statutes authorizing a sentence of life as the maximum sentence allowed, such as for offenses involving drug trafficking,1 racketeering, 2 and firearms 3 crimes. While convictions under these statutes are common,4 sentences of life imprisonment are rare, accounting for only a small proportion of all federal offenders sentenced during the last six fiscal years. During fiscal years 2016 through 2021, federal judges imposed a sentence of life imprisonment (“life imprisonment sentence”) on 709 offenders. Another 799 offenders received a sentence so long that it had the practical effect of a life sentence (i.e., 470 months or longer) (“de facto life sentence”). Together these two groups of offenders represent only 0.4 percent of the total federal offender population during the last six fiscal years. By comparison, other federally sentenced offenders during this time received a median sentence of imprisonment of 24 months. Due to the infrequency and nature of life imprisonment, such sentences are of heightened interest to policymakers. In February 2015, the United States Sentencing Commission released Life Sentences in the Federal System, examining the application of life sentences by federal courts during fiscal year 2013.5 Using data from fiscal years 2016 through 2021, this report updates and augments the Commission’s previous findings by examining the offenses that led to the life sentences imprisonment imposed, along with offender demographics, criminal histories, and victim-related adjustments

Washington, DC: United States Sentencing Commission , 2022. 40p.

By Linda Ross Meyer

Exactly how is it we think the ends of justice are accomplished by sentencing someone to a term in prison? How do we relate a quantitative measure of time—months and years—to the objectives of deterring crime, punishing wrongdoers, and accomplishing justice for those touched by a criminal act? Linda Ross Meyer investigates these questions, examining the disconnect between our two basic modes of thinking about time—chronologically (seconds, minutes, hours), or phenomenologically (observing, taking note of, or being aware of the passing of time). In Sentencing in Time, Meyer asks whether—in overlooking the irreconcilability of these two modes of thinking about time—we are failing to accomplish the ends we believe the criminal justice system is designed to serve. Drawing on work in philosophy, legal theory, jurisprudence, and the history of penology, Meyer explores how, rather than condemning prisoners to an experience of time bereft of meaning, we might instead make the experience of incarceration constructively meaningful—and thus better aligned with social objectives of deterring crime, reforming offenders, and restoring justice.

Amherst, MA: Amherst College Press, 2017. 118p.

By Sigrid Geralde Clara van Wingerden.

The sentencing decision of the judge might be the most important decision in the criminal proceedings, not only because of the impact the punishment has on the offender, but also because the sentencing decision is a cornerstone of the legitimacy of the entire criminal justice system. Nonetheless, there still are questions about the factors judges take into account when making their sentencing decision. This study aims to improve our understanding of the sentencing decisions judges make.The developments in criminal justice practices as regards the emergence of ‘actuarial justice' have directed the focus of this study to risk-based sentencing: are offenders with a high risk of reoffending more likely to be sentenced to imprisonment and to longer prison terms than low-risk offenders? To what extent do judges take information into account on the risk-related personal characteristics of the offender, such as unemployment, ties to family or friends, or drug usage, when making their sentencing decision?Using uniquely detailed data on risk-related social circumstances of the offender, and advanced quantitative and qualitative research methods, this study provides in-depth insight into sentencing.

Leiden: Leiden University, 2014. 215p.