Reducing Entries Into the Criminal Justice System
Individuals experiencing a mental health crisis often find that the criminal justice system and jail are the first or only available responses—but not necessarily the best. In recent years, states have looked to improve coordination between community-based services and the criminal justice system to ensure that individuals avoid the system, if appropriate. Colorado enacted legislation in 2017 with the goal of ending the use of correctional facilities to house individuals who are under emergency mental health holds and not charged with a crime.
Police-mental health collaboration programs—crisis intervention teams, co-responder teams, mobile crisis teams, case management teams and crisis stabilization centers—provide law enforcement with options to connect individuals with appropriate community-based services and reroute them away from the justice system prior to arrest or booking into jail.
Decriminalization
Decriminalizing behavior means imposing fines rather than jail. Recent decriminalization efforts have focused on traffic violations and marijuana possession.
About half the states have decriminalized most minor traffic offenses. Michigan’s HB 5853, passed last year, changed a number of misdemeanor traffic violations to civil infractions. A fiscal analysis of the legislation indicated that by eliminating jail as a possible sentence, arrests and convictions should decline, reducing jail operation and probation supervision costs.
Even when states decriminalize traffic violations, some remain criminal offenses, such as driving under the influence.
Twenty-seven states and the District of Columbia have decriminalized possession of marijuana, making most small, personal-consumption amounts a civil or local infraction or lowest misdemeanor with no possibility of jail time. These changes significantly reduce the costs of criminal processing and detention. People addressing a ticket avoid the criminal justice system, reducing the burden on court dockets.
Defelonization
Defelonization is the reclassification of an offense from a felony to a misdemeanor or a violation. Reducing the crime’s severity makes incarceration less likely or reduces the sentence length. Most defelonization actions involve changing what constitutes a felony by increasing drug possession thresholds or theft thresholds.
A handful of states have enacted laws defelonizing personal possession for drugs other than marijuana in order to differentiate people with substance use disorders from dealers. The decreased penalties allow for community treatment rather than using costly jail and prison beds.
In Utah’s 2015 justice reinvestment legislation (SB 348), the penalties for most first and second possession offenses were reduced to misdemeanors. Recognizing a potential increase in responsibilities for county probation agencies and jails, the state also decreased penalties for most traffic offenses from misdemeanor to infraction, resulting in little to no jail time. An evaluation of Utah’s policy changes from the Urban Institute found that the number of people serving time in prison for drug possession dropped by 59% between 2014 and 2018.
Since 2005, about 30 states have increased the dollar threshold for theft offenses, often adjusting based on the rate of inflation. Increasing the value amount has the effect of lowering penalties for smaller thefts, thereby reducing incarcerations.
More than half the states have a felony theft threshold of $1,000 or more. Kentucky passed legislation in 2021 raising its felony theft threshold from $500 to $1,000. The legislation’s corrections impact statement indicated that the threshold changes would result in a significant reduction of incarcerations for felony convictions. This and other threshold changes are projected to save up to $4 million per year.
Raising the felony theft threshold has shown no impact on overall property crime or larceny rates. States that raised felony theft thresholds experienced declines in crime rates comparable to states that did not make such adjustments, according to Pew research, and a later study of South Carolina data found that the average value of goods stolen did not rise after increasing the felony theft threshold.
Opportunities for policy changes that reduce admissions can be found throughout state statutes. A series of bills passed in Michigan following the work of the state’s Joint Task Force on Jail and Pretrial Incarceration demonstrates that there are statutes in multiple sections of code that create criminal offenses. The bill package eliminated some mandatory minimum jail sentences, created an opportunity for others to be waived if a person completed a specialty court program, and created presumptions that most misdemeanors will not lead to jail time or probation and that most low-level felonies will not result in jail sentences.
Michigan Jail Sentencing Changes
Legislation |
Code Amended |
Summary |
HB 5844 |
Public health code |
Eliminates certain mandatory minimum jail sentences. |
HB 5854 |
Michigan vehicle code |
Eliminates certain manadatory minimum jail sentences and makes other waivable. |
HB 5855 |
Revised school code |
Eliminates certain mandatory minimum jail sentences. |
HB 5856 |
Natural resources and environmental protection act |
Eliminates certain mandatory minimum jail sentences and makes others waivable. |
HB 5857 |
Railroad code of 1993 |
Eliminates certain mandatory minimum jail sentences. |
SB 1048 |
Code of criminal procedure |
Creates a rebuttable presumption for non-jail sentences in some cases. |
SB 1049 |
Code of criminal procedure |
Expands age eligibility for deferred judgment of guilt under the specified act. |
Source: Guide to Michigan's 2020 Jail Reforms, Michigan Joint Task Force on Jail and Pretrial Incarceration, 2021. |
This report was prepared under a partnership project of the National Conference of State Legislatures’ Criminal Justice Program in Denver and The Pew Charitable Trusts’ public safety performance project, Washington, D.C.