E-Bulletin: Sentencing and Corrections Policy Updates Newsletter

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The E-Bulletin is an NCSL electronic newsletter for state legislators, legislative staff, and others interested in state sentencing corrections policy. This newsletter provides periodic updates on state sentencing and corrections legislation and budgets, highlights innovative policies and programs, and connects you with reports and news of upcoming NCSL events.

The E-Bulletin is prepared under a partnership project of NCSL's Criminal Justice Program and the Public Safety Performance Project of the Pew Center on the States.  The NCSL project is designed to help states find the best research and information availale when considering sentencing and corrections policy options and reforms.

This article appeared in the February 2010 issue of the E-Bulletin.  (Full Newsletter in PDF) 

Issue in Focus:  Substance Abusing Offenders

Laws in 2009

In 2009, at least 25 states enacted laws that address substance abuse in the criminal justice system.

A handful of states relaxed sentences for controlled substance offenses. Louisiana, Minnesota and Rhode Island eased mandatory minimum sentences for certain classes of drug offenders. Nevada passed a law that permits the court to reduce or suspend a sentence for trafficking of a controlled substance if the defendant provides substantial assistance to an investigation or prosecution. Probably the most high profile amendment to drug sentencing laws in 2009 was New York’s revision of the “Rockefeller Drug Laws.” The legislation decreases mandatory minimum sentences, expands probation eligibility, and permits departures from mandatory incarceration for various felony drug offenses. A provision allows certain previously convicted offenders to apply for resentencing. Offenders convicted of operating as a major drug trafficker and criminal sale of a controlled substance to a child were exempted from the sentencing and supervision changes. The Time article, “A Brief History of the New York’s Rockefeller Drug Laws,” provides a summary of the changing political climate in New York that led to the 2009 law change.

Specialized court programs are one option states use to divert low-level drug-addicted offenders from prison.  Alabama, California, Kentucky and New York created pretrial or deferred judgment programs. San Francisco’s successful deferred judgment program, “Back on Track,” was placed in California law.  The program is designed to prevent recidivism of first-time, nonviolent felony drug offenders. Components of the Back on Track legislation include transitional programming and graduated sanctions. Florida, Louisiana, Oklahoma, West Virginia and Wyoming laws now authorize and expand the use of drug courts as a sentencing option.

Hawaii, Kentucky and Virginia authorized secure treatment programs to address the substance abuse needs of higher-risk offenders. Virginia’s Behavioral Correction Program targets nonviolent offenders who face three or more years in prison and have been identified as needing substance abuse treatment. In lieu of prison, offenders are required to spend at least 24 months in an intensive therapeutic community-style substance abuse treatment program. Upon successful completion, the court may suspend the remainder of the sentence and grant release to supervised probation. New York and Wisconsin expanded existing secure treatment programs.  New York expanded eligibility for the shock incarceration program.  Wisconsin now permits inmates with treatment needs not necessarily related to substance abuse to participate in the earned release program.  This measure was part of a larger early release and sentencing reform package in the 2009 budget bill.

At least five states expanded treatment opportunities for offenders who already are under community supervision. Maryland and New York now permit the court to extend a term of probation for up to one year for continued participation in treatment. Florida and North Dakota designated specific substance abuse treatment programs as possible sanctions for probation and parole violations in lieu of revocation. Louisiana permits a structured incarceration program to be used as a sanction for violations of drug diversion probation.

Expungement of a criminal record upon successful completion of a drug treatment sentence was addressed in four states. Drug court judges in Arkansas now are authorized to expunge or dismiss a case upon successful completion of drug court.  An offender in Louisiana can now have their conviction set aside for successful completion of intensive incarceration. The three-year waiting period to have a record sealed for successful completion of a specialty court was removed in Nevada.  New York now permits conditionally sealing arrest, prosecution and conviction records for offenders who complete a judicially sanctioned drug treatment diversion program.

Drug Diversion

In recent years, legislatures have increased treatment options available to the court for diverting low-level drug offenders from prison. The March 2010 edition of State Legislatures magazine will feature policies and programs around the country that are used to divert offenders into treatment programs. Highlights of the article include:

  • A 2009 Kentucky law that offers some felons the option of substance abuse treatment in lieu of criminal charges.
  • A 2007 initiative in Texas that expanded treatment and diversion programs has garnered national attention.
  • In 1989, Florida introduced the first drug court; since then drug courts and other problem-solving courts have been established in all 50 states.
  • California’s Proposition 36, approved by voters in 2000, provides treatment instead of incarceration for nonviolent drug offenders.
  • Hawaii's Opportunity Probation with Enforcement (HOPE) is a court-based program for high-risk probationers that uses swift and certain sanctions for program violations.