State Legislatures Turn ‘Defensive’ on Justice Reform

The bipartisan movement to overhaul criminal justice has stalled in many state legislatures as politicians take cover from an increasingly polarized political climate, speakers told a recent panel.

“Advocates seeking to reimagine the criminal legal system find themselves in a defensive mode, as they try to protect recent gains―we’re really in a very partisan moment,” said Rebecca Brown, director of policy for the Innocence Project.

“We’re seeing these dynamics play out in statehouse after statehouse.”

Brown blamed the surge in violent crime combined with divisive political rhetoric for the chill in support for criminal justice reform.
Citing one example, Brown said a law passed in Virginia last year making police disciplinary files publicly available “has a good chance of being repealed” after an election that brought to power a legislature dominated by tough-on-crime Republicans.

But Brown, a former policy analyst for the New York City Mayor’s Office, added that the dampening of enthusiasm for reform this year didn’t diminish the “amazing” achievements in states around the nation over the past two years.

She was echoed by legislators appearing at the panel organized by the 17th annual Harry Frank Guggenheim Symposium on Crime in America.

“We knew 2022 was going to be a difficult year to pass any reforms or to reimagine public safety,” said Robert Peters, chair of the Public Safety Committee in the Illinois Senate.

“[So] we spent all of last year basically running 100 miles an hour to get whatever we can get done to create the type of change that we needed, and in Illinois the last 16 months were absolutely historic for criminal justice reform.”

Sen. Peters pointed to passage of the revised Illinois Safety, Accountability, Fairness and Equity-Today (SAFE-T) Act, an omnibus bill which included measures to end cash bail, reform sentencing guidelines and make it illegal for police to lie in order to extract confessions from juveniles.

Similarly, Tenisha Yancey, now serves on the judiciary committee of the Michigan state legislature, says her state’s passage of a major criminal justice overhaul, was a product of bipartisan agreement.

The package of 20 reform bills overhauled every aspect of the state’s criminal justice system, according to an assessment by the Pew Public Safety Performance Project.

It included measures to reduce or eliminate the use of jail for many non-violent offenses, including retail fraud or driving without a license, or driving on a suspended license. It also curbed the implementation of jail for “technical” violations of probation, and made it easier to expunge criminal records.

The point of the reforms, said Yancey, was to move the system towards implementing incarceration as a rehabilitative rather than a punitive strategy that criminalized behavior that posed no threat to public safety.

“The measures we passed helped Michigan families stay together,” she said, arguing that imprisoning people for low-level minor offenses meant they would their jobs and their ability to provide for their family.

The measures also eliminated a major driver of racial bias in Michigan, she said.

“Driving without a valid driver’s license was the most common charge in at jail admission for Black residents in our state,” she said.
The speakers said the list of similar achievements across the country represented an encouraging hedge against the backlash by hardliners.

Four states—California, Maine, Virginia and Maryland—passed legislation requiring that criminal justice bills in the future contain a “racial impact” statement to ensure that they did not aggravate racial inequities or bias.

Connecticut, New York and Washington State expanded voting rights for returning citizens.

Eight states―Alaska, Connecticut, Indiana, Iowa, Missouri, North Dakota, Oklahoma and Utah―adopted legislation to remove youth charged as adults from jails and prisons to comply with the federal Juvenile Justice and Delinquency Prevention Act. Kentucky lawmakers passed a law to end the automatic transfer of youth into adult court.

And in one of the most significant pieces of legislation, New Mexico in April became the first state to abolish qualified immunity for all government employees. (Colorado passed a similar bill the year before which just applied to law enforcement.)

The New Mexico Civil Rights Act was heatedly opposed by police agencies and county and municipal governments across the state, but support from a broad coalition spanning ideological barriers―from the ACLU to the Koch brothers―helped put the bill over the finish line, recalled Brian Egolf, New Mexico’s Speaker of the House in the Democrat-controlled legislature.

“Municipal governments were going to be bankrupted and that city parks are going to be seized and sold off to pay judgments,” he said. “Our retort to that: just train your officers properly and don’t violate the rights of your citizens that you represent and you won’t have to worry about it.”

The legislation contained some key compromises to help it pass―damages were capped at $2 million, and individual officers would not be sued—but the measure offers a potential model for similar attempts in other states, in a more congenial future political environment, said Egolf.

“In fact, some of the conservatives who didn’t like it are now realizing that they can use our Civil Rights Act to protect rights that are important in their communities, such as religious liberty,” Egolf said.

According to Brown, the experience of New Mexico and other states in navigating the tough partisan environment offered some reason for optimism.

“it’s hard to really unpack everything that’s happening, but states are different laboratories for change—there’s no one size fits all for criminal justice,” she said.
​
“Utah just passed two incredibly progressive innocence reforms in a Republican controlled legislature. So I think it’s going to be case by case.”