Winnable criminal justice reforms: Promising state issues for 2022

We list some high-impact policy ideas for state legislators and advocates who are looking to reform their criminal justice system without making it bigger.

by Naila Awan

This year, we’ve expanded our annual guide on state legislative reforms that we think are ripe for victory. While this briefing is not intended to be a comprehensive platform, we’ve curated this list to offer policymakers and advocates straightforward solutions that would have the greatest impacts without further investments in the carceral system and point to policy reforms that have gained momentum in the past year. We have focused especially on those reforms that would reduce the number of people needlessly confined in prisons and jails.

We've provided short summaries of each policy proposal below. Read the full report for more information, including model legislation, relevant research, and more.

Expand alternative to criminal justice system responses to social problems

Redirect public funds to community organizations that provide social services
Problem: Many communities in the U.S. are not only overpoliced, but deprived of resources they could use to prevent crime without punishing or surveilling community members, such as youth programs and affordable housing.

Solutions: Shift funding from local or state public safety budgets into a local grant program to support community-led safety strategies in communities most impacted by mass incarceration, over-policing, and crime. States can use Colorado’s “Community Reinvestment” model. In fiscal year 2021-22 alone, four Community Reinvestment Initiatives will provide $12.8 million to community-based services in reentry, harm reduction, crime prevention, and crime survivors.


Fund and implement alternative response systems for calls involving people with disabilities or experiencing mental health crises
Problem: People with disabilities and mental illnesses represent a disproportionate number of people arrested and jailed every year, but police and jail staff do not have the specific, in-depth training — nor the mandate — to treat mental illness or to accommodate those with other disabilities. As a result, approximately 25% of people killed by police have a serious mental illness and suicide is one of the leading causes of death in local jails.

Solutions: Cities, counties, and states should establish non-police crisis response systems. A promising model is Eugene, Oregon’s CAHOOTS program, which dispatches medical specialists rather than police to 911 calls related to addiction, mental health crises, and homelessness.


Decriminalize youth and stop prosecuting and sentencing them as adults
Problem: The Supreme Court has affirmed that until someone is an adult, they cannot be held fully culpable for crimes they have committed. Yet in every state, youth under 18 can be tried and sentenced in adult criminal courts, and there is no minimum age in at least 19 states and D.C. The juvenile justice system can also be shockingly punitive: In most states, even young children can be punished by the state, including for “status offenses” that aren’t law violations for adults, such as running away.

Solutions: “Raise the age” of juvenile court jurisdiction to reflect our current understanding that youth should not be held culpable as adults are, and “raise the floor” to stop criminalizing young children. States should end the transfer of youth to adult courts and systems of punishment, and move “status offenses” out of the court’s jurisdiction. Finally, redirect public funds from systems that punish and confine youth to community-based services that report better outcomes.
 

Click here to learn more about ways to expand alternatives to criminal justice systems responses to social problems.

Reduce the number of people entering the “revolving doors” of jails and prisons

Use alternatives to arrest and incarceration for all offenses that do not threaten public safety
Problem: One out of every three people behind bars is being held in a local jail, and most for low-level or non-person offenses. Spending time in jail leads to a number of collateral consequences and financial roadblocks to successful reentry, and higher recidivism rates that quickly lead to higher state prison populations.

Solutions: Although jails are ostensibly locally controlled, the people held in jails are generally accused of violating state law, so both state and local policymakers have the power to reduce jail populations. State leaders can:

• Reclassify criminal offenses and turn misdemeanor charges that don’t threaten public safety into non-jailable infractions, or decriminalize them entirely.
• Make citations, rather than arrest, the default action for low-level crimes.
• Encourage judges to use non-monetary sanctions rather than fines and fees, and ensure that judges are holding indigency hearings before imposing and enforcing unaffordable fees.
• Institute grace periods for missed court appearances to reduce the use of “bench warrants,” which lead to unnecessary incarceration for low-level and even “non-jailable” offenses.
• Establish an “open hours court” for those who have recently missed appearances to reschedule without fear of arrest.

End pretrial detention for most defendants
Problem: Many people who face criminal charges are unnecessarily detained before trial. Often the sole criteria for release is access to money for bail. This puts pressure on defendants to accept plea bargains even when they are innocent, since even a few days in jail can destabilize their lives: they can lose their housing, jobs, and even custody of children. Pretrial detention also leads to jail overcrowding, which means more dangerous conditions for people in jail, and it drives sheriffs’ demands for more and bigger jails — wasting taxpayer dollars on more unnecessary incarceration.

Solutions: States should implement pretrial reforms that end the use of money bail, limit the types of offenses for which pretrial detention is allowed, establish the presumption of pretrial release for all cases with conditions only when necessary, and offer supportive pretrial services such as reminders to appear in court, transportation and childcare assistance for court appearances, and referrals to needed social services.


Establish moratoriums on jail and prison construction
Problem: Proposals and pushes to build new carceral buildings and enlarge existing ones, particularly jails, are constantly being advanced across the U.S. These proposals typically seek to increase the capacity of a county or state to incarcerate more people, and have frequently been made even when criminal justice reforms have passed — but not yet been fully implemented — which are intended to reduce incarceration rates, or when there are numerous measures that can and should be adopted to reduce the number of people held behind bars.

Solutions: States should pass legislation establishing moratoriums on jail and prison construction. Moratoriums on building new, or expanding existing, facilities allow reforms to reduce incarceration to be prioritized over proposals that would worsen our nation’s mass incarceration epidemic. Moratoriums also allow for the impact of reforms enacted to be fully realized and push states to identify effective alternatives to incarceration.


Properly fund and oversee indigent defense
Problem: With approximately 80 percent of criminal defendants unable afford to an attorney, public defenders play an essential role in the fight against mass incarceration. Public defenders fight to keep low-income individuals from entering the revolving door of criminal legal system involvement, reduce excessive sentences, and prevent wrongful convictions. When people are provided with a public defender earlier, such as prior to their first appearance, they typically spend less time in custody. However, public defense systems are not adequately resourced; rather, prosecutors and courts hold a disproportionate amount of resources. The U.S. Constitution guarantees legal counsel to individuals who are charged with a crime, but many states delegate this constitutional obligation to local governments, and then completely fail to hold local governments accountable when defendants are not provided competent defense counsel.

Solutions: States must either directly fund and administer the services that provide indigent defense, ensuring that it is funded as an equal component of the legal system, or create a state entity with the authority to set, evaluate, and enforce indigent defense standards for services funded and administered by local governments.
 

Click here to learn more about ways to reduce the number of people entering the "revolving doors" of jails and prisons.

Improve sentencing structures and release processes to encourage timely and successful releases from prison

Make it easier to change excessive prison sentences
Problem: Nationally, one of every six people in state prisons have been incarcerated for a decade or more. While many states have taken laudable steps to reduce the number of people serving time for low-level offenses, little has been done to bring relief to people needlessly serving decades in prison.

Solutions: State legislative strategies include: enacting presumptive parole, second-look sentencing, and other common-sense reforms, such as expanding “good time” credit policies. All of these changes should be made retroactive, and should not categorically exclude any groups based on offense type, sentence length, age, or any other factor.


Repeal or reform mandatory minimum sentences and automatic “sentencing enhancements”
Problem: Mandatory minimum sentences and similar automatic sentencing structures like “sentencing enhancements” have fueled the country’s skyrocketing incarceration rates, harming individuals and undermining our communities and national well-being, all without significant increases to public safety.

Solutions: The best course is to repeal these laws so that judges can craft sentences to fit the unique circumstances of each crime and individual, but where that option is not possible, states should adopt sentencing “safety valve” laws, which give judges the ability to deviate from the mandatory minimum under specified circumstances.


Stop mandating programming requirements that impede release on parole
Problem: The release of individuals who have already been granted parole is often delayed for months because the parole board requires them to complete a class or program (often a drug or alcohol treatment program) before they can go home — yet those programs are not readily available to them. As of 2015, at least 40 states used institutional program participation as a factor in parole determinations. In some states — notably Tennessee and Texas — thousands of people whom the parole board has deemed “safe” to return to the community remain incarcerated simply because the state has imposed this bureaucratic hurdle.

Solutions: Parole boards can waive these requirements or offer community-based programming after release. Research shows that these programs are effective when offered after release as part of the reentry process.


Increase the dollar threshold for felony theft
Problem: Generally, the dollar amount of a theft controls whether the crime is treated as a felony or a misdemeanor. In many states, these limits have not been increased in years, even though inflation has risen almost every year, making stagnant thresholds increasingly punitive over time.

Solutions: States should increase the dollar amount of a theft to qualify for felony punishment, and require that the threshold be adjusted regularly to account for inflation. This change should also be made retroactive for all people currently in prison, on parole, or on probation for felony theft.
 

Click here to learn more about ways to improve sentencing structures and releases processes to encourage timely and successful releases from prison.

Reduce the footprint of probation and parole systems and support success on supervision

End punitive probation and parole conditions that impede success and are unrelated to the crime of conviction
Problem: Probation and parole are supposed to provide alternatives to incarceration. However, the conditions of probation and parole are often unrelated to the individual’s crime of conviction or their specific needs, and instead set them up to fail. For example, restrictions on associating with others and requirements to notify probation or parole officers before a change in address or employment have little to do with either public safety or “rehabilitation.” Additionally, some states allow community supervision to be revoked when a person is “alleged” to have violated — or believed to be “about to” violate — these or other terms of their supervision. Adding to the problem are excessively long supervision sentences, which spread resources thin and put defendants at risk of lengthy incarceration for subsequent minor offenses or violations of supervision rules. Because probation is billed as an alternative to incarceration and is often imposed through plea bargains, the lengths of probation sentences do not receive as much scrutiny as they should.

Solutions: There are a number of solutions available to address these problems. For example, states should:

• Set upper limits for probation and parole sentences.
• Enable early discharge from probation and parole for successfully meeting probation’s requirements for a given time period.
• Bar the inability to pay financial obligations from making a person ineligible for early discharge.
• End punitive conditions of probation and parole that set people up to fail and require that any condition imposed be reasonably related to the crime of conviction.
• Prohibit the revocation of probation or parole for a violation that does not result in a new conviction.

Eliminate re-incarceration and the use of jail sanctions for technical violations of probation or parole rules
Problem: Technical violations are behaviors that break parole rules that would not count as “crimes” for someone not under community supervision, such as missing curfew or a check-in meeting, maintaining employment, avoiding association with people who have conviction histories, and failing a drug test. Incarcerating people for “technical violations” of probation and parole conditions — whether in jail for a so-called “quick dip” or “flash incarceration” or in prison — is a common but harmful and disproportionate response to minor rule violations. These unnecessary incarcerations make it harder for people under supervision to succeed and lead to higher correction costs.

Solutions: States should limit incarceration as a response to supervision violations to only when the violation has resulted in a new criminal conviction and poses a direct threat to public safety. If incarceration is used to respond to technical violations, the length of time served should be limited and proportionate to the harm caused by the non-criminal rule violation.


End electronic monitoring for people on community supervision
Problem: Individuals on pretrial supervision, probation, and parole face an array of requirements that may result in them being returned to jail or prison even without committing another crime. Electronic monitoring imposes unnecessary, often contradictory, conditions on recently released individuals, hindering their movement and creating serious barriers to successful reentry.

Solutions: States can introduce and enforce legislation that would outlaw the imposition of electronic monitoring devices for individuals on pretrial supervision, probation, or parole. Until then, individuals forced to wear electronic monitors should not be required to pay for those devices nor be fined or re-incarcerated for their inability to pay monitoring fees. When ordered as a condition of pretrial supervision, defendants should be credited for time served on electronic home detention.


Eliminate driver’s license suspensions for nonpayment of fines and fees
Problem: Washington D.C. and 34 states suspend, revoke, or refuse to renew driver’s licenses for unpaid traffic, toll, misdemeanor and felony fines and fees, resulting in millions of debt-related suspensions nationwide. License suspension prevents people from earning the money they need to pay their fines and fees, undercuts their ability to support themselves, and forces law enforcement to waste time stopping, citing, and arresting people for driving on a suspended license.

Solutions: Stop suspending, revoking, and prohibiting the renewal of driver’s licenses for nonpayment of fines and fees. Since 2017, fifteen states have eliminated all of these practices.


Eliminate financial incentives that encourage excessive probation sentences
Problem: Most states charge people on probation a monthly fee, even though many are among the nation’s poorest, putting them at risk of being jailed for nonpayment. While the Supreme Court has ruled it unconstitutional to incarcerate someone because they cannot afford to pay court ordered fines and fees, many courts effectively do just that, by treating nonpayment as a probation violation. Where counties rely on these fees for revenue, courts are incentivized to impose unnecessary or excessive probation sentences. Moreover, the growth of privatized probation in some states has led to unnecessary “pay only” probation supervision for minor offenses.

Solutions: Pass legislation that would eliminate probation fees, require hearings on ability to pay before assessing fees, and/or regulate the use of privatized probation.
 

Click here to learn more about ways to reduce the footprint of probation and parole systems and support success on supervision.

Protect incarcerated people and families from exploitation by private contractors

Lower or eliminate the cost people in prison or jail must pay for calls
Problem: The prison and jail telephone industry offers correctional facilities hefty kickbacks in exchange for exclusive contracts. While most state prison phone systems have lowered their rates, and the Federal Communications Commission has capped small jails’ calling rates at 21c per minute for interstate calling, many jails are still charging high prices for in-state calls. In some jurisdictions, in-state calls are uncapped and can be as expensive as $1 per minute.

Solutions: The Federal Communications Commission has made progress on lowing interstate phone rates, but the agency is legally unable to regulate prices for in-state calling. States can address this vacuum by passing legislation requiring state prison systems and counties to negotiate for phone calls and video calling services for people in their custody on the basis of the lowest cost to the consumer. State legislatures and local governments can also pass bills to shift the cost of calls from those who are incarcerated to corrections agencies. Public utilities commissions in many states can also regulate the industry.


Stop prisons and jails from requiring people being released to receive their money on fee-ridden “release cards”
Problem: Correctional facilities increasingly use fee-riddled cards to repay people they release for money in their possession when initially arrested, money earned working in the facility, or money sent by friends and relatives. Before the rise of these release cards, people were given cash or a check. Now, they are given a mandatory prepaid card instead, which comes with high fees that eat into their balance. For example, the cards charge for things like having an account, making a purchase, checking the balance, or closing the account.

Solutions: States have the power to decisively end this pernicious practice by prohibiting facilities from using release cards that charge fees, and requiring fee-free alternative payment methods.
 

Click here to learn more about ways to protect incarcerated people and families from exploitation by private contractors.

Promote physical and mental health among incarcerated and formerly incarcerated people

Offer evidence-based opioid treatment to reduce deaths and re-incarceration
Problem: Despite a growing body of evidence that medication-assisted treatment (MAT) is effective at treating opioid use disorders, most prisons are refusing to offer those treatments to incarcerated people, exacerbating the overdose and recidivism rate among people released from custody.

Solutions: States can pass legislation requiring their Department of Corrections to implement MAT to eligible patients in their custody. MAT pairs counseling with low doses of opioids that, depending on the medication used, either reduce cravings or make it impossible to get high off of opiates.


Eliminate medical copays in prison and jail
Problem: While many states suspended co-pays at least temporarily in response to the COVID-19 pandemic, most state departments of corrections, and many local jails, charge incarcerated people a co-pay to see a doctor. Though these co-pays appear inexpensive, $2-$13.55 for a person in prison can amount to a day’s wages (or more). As a result, co-pays often deter sick people from seeking medical attention — they create health problems in prisons and high healthcare costs for people leaving prison.

Solutions: Pass legislation ending co-pays in prisons and jails.


Protect in-person family visits from the video calling industry
Problem: Video calling is quietly sweeping the nation’s prisons and local jails. Unfortunately, rather than providing the video technology as an additional way for families to stay connected, private companies and sheriffs are working together to replace traditional in-person family visits with expensive, grainy computer chats.

Solutions: Follow the lead of Texas, California, and Massachusetts, which have passed legislation that requires jails to preserve in-person visits.


Protect postal mail in prisons and jails
Problem: Letters and cards give incarcerated people a vital link to their loved ones, but mail to and from correctional facilities is under threat. Jails in at least 14 states have been experimenting with policies that restrict outgoing mail to postcards only. At the same time, a sharply growing number of prisons and jails are scanning and destroying incoming mail, distributing poor-quality scanned images to recipients (most recently Wisconsin, North Carolina, and the federal prison system in 2021). Corrections officials often claim that these policies are for reducing dangerous drug contraband, but their effectiveness in this regard is disputed.

Solutions: States can send a clear message about the importance of protecting family communication by passing a bill or administrative rule requiring correctional facilities to allow incoming and outgoing personal letter correspondence.
 

Click here to learn more about ways to promote physical and mental health among incarcerated and formerly incarcerated people.

Give all communities equal voice in how our justice system works

Abolish felony and misdemeanor disenfranchisement
Problem: Most states bar some or all people with felony convictions from voting. However, the laws across states vary: 20 states limit the right to vote only when a person is incarcerated; 15 states require a person to complete probation or parole before their voting rights are restored; 2 states institute waiting periods for people who have completed or are on probation or parole; and 12 states have laws providing for permanent disenfranchisement for at least some people with criminal convictions. In addition, 8 states strip people who have been convicted of a misdemeanor of their right to vote while they are incarcerated. Only 2 states (Maine and Vermont) and two territories (D.C. and Puerto Rico) never deprive people of their right to vote based on a criminal conviction. Given the racial disparities in the criminal justice system, these policies disproportionately exclude Black and Latinx Americans from the ballot box. As of 2020, 1 in 16 Black adults nationwide was disenfranchised because of a felony conviction (and in 7 states, it’s more than 1 in 7).

Solutions: Change state laws and/or state constitutions to remove disenfranchising provisions. Additionally, governors should immediately restore voting rights to disenfranchised people via commutation or other similar means when they have the power to do so.


Eliminate barriers to the ballot for currently eligible, jailed voters
Problem: Many people who are detained pretrial or jailed on misdemeanor convictions maintain their right to vote, but many eligible, incarcerated people are unaware that they can vote from jail. In addition, state laws and practices can make it impossible for eligible voters who are incarcerated to exercise their right to vote, by limiting access to absentee ballots, when requests for ballots can be submitted, how requests for ballots and ballots themselves must be submitted, and how errors on an absentee ballot envelope can be fixed.

Solutions: Because the voting systems vary from one state to the next, the reforms needed in states may also vary. However, states should guarantee that voting protections are in place. These protections may include:

• County-wide Election Day polling locations are available in each facility so that people who are incarcerated at the facility can vote in-person but no one from the surrounding community is required to vote at the jail or carceral institution;
• Election-related mail receives expedited treatment in the jail mail process;
• People who are incarcerated up to the day of a election are able to exercise their right to vote;
• People who are incarcerated have access to registration services and ballots;
• Community-based organizations can provide voter registration services and voting assistance to people who are incarcerated;
• The contact information for board of elections is available and boards can be contacted free of charge;
• Local boards of elections and sheriff’s offices are required to establish voting plans; and
• Obstacles on submitting ballot applications or ballots are eliminated.

End prison gerrymandering from giving people who live near prisons more political power
Problem: The Census Bureau’s practice of tabulating incarcerated people at correctional facility locations (rather than at their home addresses) leads state and local governments to draw skewed electoral districts that grant undue political clout to people who live near large prisons and dilute the representation of people everywhere else.

Solutions: States can pass legislation to count incarcerated people at home for redistricting purposes. Ideally, the Census Bureau would implement a national solution by tabulating incarcerated people at home in the 2030 Census, but states must be prepared to fix their own redistricting data should the Census fail to act. Taking action now ensures that your state will have the data it needs to end prison gerrymandering in the 2030 redistricting cycle.


End restrictions on jury service for people with conviction histories
Problem: In courthouses throughout the country, defendants are routinely denied the promise of a “jury of their peers,” thanks to a lack of racial diversity in jury boxes. One major reason for this lack of diversity is the constellation of laws prohibiting people convicted (or sometimes simply accused) of crimes from serving on juries. These laws bar more than twenty million people from jury service, reduce jury diversity by disproportionately excluding Black and Latinx people, and actually cause juries to deliberate less effectively. Such exclusionary practices exist in every state and often ban people from jury service forever.

Solutions: End restrictions that exclude people with conviction histories, as well as people who are charged with a felony or misdemeanor, from jury service. States and U.S. territories have changed restrictions on jury service through legislative reform, amendments to court rules, and changes to executive clemency rules.


Require racial impact statements for criminal justice bills
Problem: Some criminal justice bills unnecessarily and unintentionally exacerbate racial and ethnic disparities in arrest, sentencing, and incarceration rates.

Solutions: Connecticut, Iowa, New Jersey, and Oregon have passed legislation to provide for racial impact statements that prospectively evaluate whether or not proposed criminal justice legislation is likely to have a racially or ethnically disparate impact.
 

Click here to learn more about ways to give all communities equal voice in how our justice system works.

Eliminate relics of the harmful and racist “war on drugs”

Repeal or reform ineffective and harmful sentencing enhancements
Problem: Most states have laws that are intended to keep children safe by creating enhanced penalties for various drug crimes committed within a certain distance of schools. These laws sound like a common sense approach, but our research has shown that these laws do not work and exacerbate harmful racial disparities in the criminal justice system.

Solutions: The most comprehensive solution is for states to repeal the enhancement zones, and instead rely on the existing laws that impose additional penalties for involving children in drug activity. Barring repeal, there are several other ways to modify the scope of the law. The simplest approach is reducing the size of the zones like Massachusetts and New Jersey did. Alternatively, states can make the enhancement penalty subject to judicial discretion rather than mandatory.


End civil asset forfeiture
Problem: Police are empowered to seize and keep any personal assets, such as cash or cars, that they suspect are involved in a crime, even when there is never a related arrest or conviction. The use and scope of civil asset forfeiture was greatly expanded because of the war on drugs. But while it was intended to disrupt major criminal organizations, it is disproportionately used against poor people who cannot afford to challenge the seizures (unlike a criminal proceeding, there is generally no right to free counsel in a forfeiture case). Civil asset forfeiture makes poor communities poorer and incentivizes aggressive policing.

Solutions: Legislatures can pass laws requiring a criminal conviction for permanent forfeiture, creating a presumption that low-value seizures are not connected to a crime and therefore not eligible for forfeiture, ending participation in the federal “equitable sharing” program, creating a right to court-appointed counsel in forfeiture cases, and requiring proceeds from forfeitures to instead go to the state’s general fund or a fund dedicated to community development, education, or crime victim compensation.


End driver’s license suspension for drug offenses unrelated to driving
Problem: Four states have failed to repeal another outdated relic from the war on drugs — automatic driver’s license suspensions for all drug offenses, including those unrelated to driving. Our analysis shows that there are over 49,000 licenses suspended every year for non-driving drug convictions. These suspensions disproportionately impact low-income communities and waste government resources and time.

Solutions: Alabama, Arkansas, Florida, and Texas should formally opt out of the federal automatic suspension law. There is no financial penalty for opting-out as long as states pass a legislative resolution and the governor informs the Federal Highway Administration.
 

Click here to learn more about ways to eliminate relics of the harmful and racist "war on drugs".