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Out With the Old: States Continue to Rethink Justice Strategies

Forecast ’24: Legislatures in 2024 will continue battling the opioid crisis and crimes of opportunity while expanding ways to keep justice-involved people from getting entrenched in the system.

By NCSL Staff  |  November 28, 2023

From battling the fentanyl crisis to dealing with ongoing catalytic converter thefts, lawmakers continue to rethink criminal justice policy.

Legislatures are focusing resources on community-oriented approaches that prioritize public safety and prevent people from becoming more deeply involved with the justice system.

NCSL Forecast ’24

This special report from State Legislatures News covers the topics NCSL’s policy experts anticipate will occupy state lawmakers’ time in 2024 legislative sessions. Read the full report here.

Hot Topic: Tailoring Public Safety Strategies

Crimes and their associated penalties are a perennial issue in legislatures. Auto thefts and the opioid crisis are currently top priorities.

Most states have considered legislation in the last few years to address the increase in catalytic converter thefts by enacting requirements for the sale and purchase of unattached catalytic converters. There also has been an uptick in legislation toughening penalties for stealing a car.

In their battle against opioids, states are increasing criminal penalties for possessing, selling and trafficking fentanyl. Emerging drug threats like xylazine, or “tranq,” a strong non-opioid tranquilizer used to sedate horses, deer and other large animals, also are getting lawmakers’ attention and being added to state drug schedules. These efforts coincide with public health approaches, including prevention, treatment and recovery options.

Trending: Reforming Juvenile Justice

Juvenile justice policy requires balancing healthy youth development and community safety with the need to hold young offenders accountable.

ACTION: Indiana and Minnesota recently passed comprehensive juvenile justice reform.

Trending: Collecting Criminal Justice Data

Collecting data across the justice system continues to be of primary interest.

ACTION: Legislatures are requiring uniform data collection and reporting by local agencies to understand who is in the system and how they move through it, to inform policymaking decisions and to allocate state resources.

Hot Topic: Expanding Front-End Justice

When it comes to police accountability, states continue to expand their role in policing policy with more than 6,700 introduced bills in the last four years.

New approaches aim to identify, address and mitigate stresses that are unavoidable in law enforcement. This includes peer counseling initiatives, mental health screening for officers and insurance coverage for treatment. Recruitment and retention also are top priorities, with at least 165 introduced bills in 2023.

ACTION: In 2023, New Jersey became the latest state to establish a state decertification process. Nearly every state now has a law on this key element of police accountability. Mandating participation in the National Decertification Index is another notable trend.

Trending: Pretrial Release

At least four states have recently considered amending their constitutional provisions on the right to bail and the ability to consider public safety in pretrial release decisions.

ACTION: Legislatures are weighing statutes that dictate the role of money in the pretrial process. Illinois is the first state to eliminate financial conditions of release. Mississippi specified last year that courts cannot set financial conditions solely for the purpose of detaining a defendant. Minnesota and Vermot required studies on the use of financial conditions.

Hot Topic: Responding to Behavioral Health Crises

From crisis training for law enforcement officers to state funding for specialized co-responder teams, there is sustained interest in how to respond when someone is experiencing a mental health crisis. Legislatures are expanding community-based services and authorizing responses that don’t involve law enforcement. Deflection programs, for example, help connect people with substance use or mental health needs to treatment and services as an alternative to making arrests or taking no action.

Hot Topic: Sealing Criminal Records to Ease Reentry

There is significant legislative activity on criminal records and reentry because transition from life in jail or prison to life in the community has implications for public safety. Legislatures are adopting policies that reduce barriers to employment and help released people successfully transition back into their communities.

ACTION: Twelve states, both red and blue, have enacted “clean slate” laws, many of which automatically seal arrest and conviction records after people have completed their sentences and remained crime-free. Pennsylvania law requires criminal records for nonviolent misdemeanors such as shoplifting, theft of less than $200 or prostitution to be sealed from public view if the person stays crime free for at least 10 years. Colorado, California, Missouri and Oklahoma passed laws in 2022; Minnesota and New York did so in 2023.

Trending: Getting Support From Congress

The Senate is intent on building on the successes of the First Step Act of 2018. Three bills expanding that act’s reforms—the First Step Implementation Act, the Safer Detention Act and the Terry Technical Correction Act—have been introduced and are awaiting a hearing in the Judiciary Committee.

The bipartisan First Step Implementation Act would allow courts to reduce sentences imposed prior to passage of the First Step Act and broaden the so-called safety valve provision that allows courts to set sentences below a mandatory minimum for nonviolent drug offenders. (Interpretation of the safety valve is currently before the Supreme Court.) The implementation bill would also provide for the sealing or expungement of records of nonviolent juvenile offenses. The bill requires the attorney general to establish procedures ensuring that only accurate criminal records are shared for employment-related purposes.

The Safer Detention Act would reform the programs for elderly home detention and compassionate release from federal prisons. The Terry Technical Correction Act clarifies that anyone sentenced for a crack cocaine offense before the Fair Sentencing Act of 2010 can apply for its retroactive application. The Fair Sentencing Act reduced the federal sentencing disparity between crack and powder cocaine from 100-to-1 to 18-to-1, where 18 grams of powder cocaine or 1 gram of crack cocaine may result in statutory penalties.

The bipartisan Rape Kit Backlog Progress Act would require law enforcement agencies to create inventories of rape kits in their possession and establish new reporting mechanisms to assess whether a kit has been added to the national DNA database. The legislation also would withhold critical Byrne JAG Program funding—the leading source of federal justice funding to state and local governments—from jurisdictions that do not improve their reporting requirements. The bill passed out of the House Judiciary Committee quickly and is awaiting a vote on the floor.

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