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Punishment Isn’t Always the Best Way to Address Crime

To help people who might benefit more from treatment than jail time, lawmakers are getting rid of low-level offenses and reducing sentences for some crimes.

By Katie Ziegler  |  October 18, 2023

When it comes to crime, legislators should take a moment to reconsider laws that might have resulted from an overreaction, a Kentucky lawmaker says.

“In Kentucky, we pass a lot of bills that create new crimes, new offenses, new levels of crimes, new ways to punish,” Sen. Whitney Westerfield (R) told a session on criminal justice at NCSL’s 2023 Legislative Summit. “We don’t do enough to roll some of those things back or find ways to be less severe when it’s appropriate to get rid of offenses or to reduce sentences.”

Westerfield says that in the last legislative session, “Kentucky rolled nothing back,” and he proudly voted for most of the bills that created new offenses or increased penalties. But he advises states to pay attention to instances “where you’ve overdone it, where you have passed, or a legislature before you has passed, by knee-jerk reaction, something that was an overreaction.”

Intervening Early

Westerfield cites a promising behavioral health pilot program in select Kentucky counties that allows people to access treatment instead of being incarcerated, and have charges dismissed upon completion of the program. It is important to intervene early, he says, rather than waiting to connect people to treatment after a trial.

“The vast majority of participants so far have both a mental health issue and substance use disorder combined,” Westerfield says. “Everybody in the room, from the most hard-nosed prosecutor to the most soft-hearted defense attorney, all agree … that most of the people they deal with every day struggle with these issues. And they need to get that help.”

Westerfield says he is frustrated by legislation this session aimed at juvenile violent offenders that mandates incarceration for 48 hours. “I’m certain that for a great many of the kids that are caught in Louisville or in the rest of the commonwealth, that 48 hours is going to be 72 hours or 96 hours or something longer. Because for a lot of the youth, there’s nowhere else to take them.”

Lawmakers should look at data, he says, when evaluating these issues. “We have data that shows incarceration produces better criminals and higher costs to the taxpayer than diversion, more crime victims, and all but guarantees that kid is going to end up being back in the system as a kid again, if not as an adult down the road.”

“Children are children,” Westerfield says. “They should be treated as children. That doesn’t mean no consequence. It doesn’t mean no accountability. It means the right kind of accountability.”

Making the Most of Data

Washington Rep. Roger Goodman (D) is hopeful that a new research and policy center, established with 2023 legislation, will provide legislators with data to continue to address domestic violence.

“We have found that domestic violence is linked to violence in general in our community,” Goodman says. “Those who are convicted, particularly repeat offenders, commit other violent offenses.”

The bill that established the Center of Excellence in Domestic Violence Research, Policy and Practice at the University of Washington includes provisions about electronic monitoring technology and victim notification when an offender violates a protection order. “We’re also establishing high-risk teams to respond to those domestic violence incidents that are seemingly the most serious,” Goodman says. “They conduct a lethality assessment to determine whether the abuser is highly likely to commit another act of violence. They also help to protect and provide services to the survivor.”

The Legislature also adopted new, permanent legislation related to drug possession. The state Supreme Court invalidated the felony drug possession statute in 2021, and the Legislature’s temporary response was set to expire July 1, 2023. “But instead of just knee-jerk going back to the war on drugs and criminalizing everything, we are coming up with a more innovative approach,” Goodman says. Drug possession is now a gross misdemeanor, rather than a felony.

“We actually created a new offense of public drug use,” Goodman says. “We really want to try to mitigate the racial and ethnic disparities and not criminalize those who are suffering from a behavioral health disorder.” The bill recommends referral to supportive service and diversion programs.

Adjusting Drug Penalties

Amanda Essex, program principal in NCSL’s Criminal and Civil Justice Program, says that while the nationwide trend “has been to decrease the penalties for drug possession, we’re seeing increases in penalties related to fentanyl.” States have encountered the challenge of defining the amount of fentanyl possession that is the threshold for stiffer penalties. Essex says that along with discussions of increased penalties, states also explored harm reduction and public health strategies, such as decriminalizing fentanyl test strips.

“We’re seeing a lot of action around corrections oversight, including states taking a more active role when it comes to jail oversight,” Essex says. “So often, jails are run at the local level, but states are finding that they want to address what is happening in their jails.” Bills include regulation about the use and limits of solitary confinement, dignity laws related to incarcerated women, and expansion of free phone calls for incarcerated people.

More than 600,000 people are released from state and federal prisons each year but often lack the opportunity or means to obtain the important identification documents to really be successful when they return to the community, Essex says. To promote successful reentry, laws in at least 17 states allow people released from incarceration to receive identification cards. And “ban the box” policies in some states remove arrest and conviction questions from job applications and delay background checks in the hiring process. States have begun to explore similar policies for housing and higher education applications, Essex says.

Katie Ziegler is NCSL’s associate director of outreach and communications.

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