Lawmakers nationwide rolling back criminal justice reform

California, once a leader in finding ways to lock up fewer people by lowering sentences for some drug and property crimes, is now considering reversing course. And it is not alone. Lawmakers across the country have rolled back reforms meant to decrease reliance on police and prisons, even though data suggests that crime rates are broadly trending down, reported The Marshall Project.

In California, a new ballot initiative could toughen sentences for shoplifting and selling fentanyl. Earlier this year, Louisiana all but eliminated parole, expanded execution methods in capital cases and increased the time people spend behind bars. The changes came after a period of reform, during which the state shrank its prison population by a third. Kentucky also passed sweeping legislation that criminalizes sleeping in the streets, limits charitable bail organizations and prohibits probation and parole for some incarcerated people.

“This is a time of extraordinary political divisiveness. It's a time of economic confusion and upheaval. It's a time where, frankly, we're still recovering from the significant social impacts of COVID,” said Lenore Anderson, co-founder and president of Alliance for Safety and Justice, which advocates for community-based approaches to safety. “When things around us start to feel more like quicksand, voters get nervous about everything, right? And crime is among the things.”

This article was published in partnership with USA Today.

In other states, recently enacted reforms are holding up, but in moments of uncertainty like these, Anderson said politicians often reach for old playbooks and “tough-on-crime” messages. That is what she sees playing out in California, where Proposition 36, a measure on the November ballot, would roll back parts of Proposition 47, a decade-old law that downgraded some drug and property crimes from felonies to misdemeanors, among other reforms.

The law played a big part in driving down mass incarceration in the state and addressing chronic overcrowding. But Anderson argues it did something else that voters want to see: It improved public safety by investing money previously spent on incarceration in drug treatment, prevention, mental health care and victim services.

One lesson those advocating reform should learn, she said, is that it’s urgent to discuss how changes can improve public safety. “We have to not only talk about safety — we need to lead with it,” Anderson said.

The news in many places has been dominated by a narrative of out-of-control crime, featuring videos of coordinated shoplifting or stories about people who repeatedly commit crimes and don’t remain behind bars.

Despite those portrayals, the data paints a much more nuanced picture, and violent crime is trending down. But researchers at Vera Action, an organization working to end mass incarceration, argue that focusing on statistics isn’t convincing for many voters.

Brian Tashman, deputy director at Vera Action, said if people who have witnessed or experienced violence feel unsafe, citing data about dropping crime rates can make them feel unheard or misunderstood. Instead of messages about “dropping crime” and increased funding for police, Vera’s polling suggests voters want to hear about new approaches to safety that don’t increase incarceration, like improved access to schools, jobs and housing.

The polling indicates voters are more open to approaches that emphasize prevention than traditional “tough-on-crime” policies like harsh sentences.

The San Francisco Chronicle reported that efforts to undo criminal justice reforms in California have been led by Republicans and funded by large retailers like Target and Walmart. But some Democrats are also throwing their support behind the rollbacks, including San Francisco Mayor London Breed, who did not return a request for comment.

Anderson, of the Alliance for Safety and Justice, said she believes elected officials like Breed are afraid of being attacked as “soft on crime,” a strategy that has been effective in the past. In a report focusing on California, Vera Action researchers wrote that California Democrats lag behind Republicans in voter trust on crime and safety. But, they argue, the “confidence gap” can be narrowed by discussing how progressive policies improve safety and security. “It’s the silence that’s deadly,” they wrote. The study pointed to Illinois as an example of a state where reformers successfully owned the issue of safety, without returning to “tough-on-crime” tactics.

In 2021, Illinois state Sen. Robert Peters stood behind Gov. J.B. Pritzker as he signed a historic law that made Illinois the first state in the nation to completely eliminate cash bail — so that no one would be in jail awaiting trial because they didn’t have enough money. It was supposed to be a day of celebration, but he remembers bracing himself for backlash.

Peters is a student of history, and knew about the backlash that came after the civil rights movement. He’d seen more recent examples, too. In 2019, New York passed a law limiting, but not abolishing, the use of cash bail. Politicians immediately faced negative media coverage. Within weeks after the law went into effect, then-Gov. Andrew Cuomo was saying the law would need to be adjusted. And politicians soon expanded the number of crimes that would allow a judge to assign cash bail.

The attacks Peters feared did eventually come in Illinois. Campaign ads connected to Republican operative Dan Proft, deceptively designed to look like newspapers, attacked supporters of the reforms for ushering in the “end of days” and “murder, mayhem.”

But as the attacks flew, Illinois organizations that advocate for the rights of victims and survivors of violence voiced their support for the reforms. Groups working to end domestic and sexualized violence, like the Chicago Alliance Against Sexual Exploitation, had been deeply involved in shaping the law. The same bill that ended cash bail also included increased access to funding for victims of crime, more opportunities to file for protective orders and a requirement that prosecutors notify survivors about pretrial hearings.

“We’re finally going to have a system that centers survivors more and takes the time to review their cases, hear back from them, notify them about what the circumstances are of their cases, or what decisions are being made and how they can contribute,” Madeleine Behr of the Chicago Alliance Against Sexual Exploitation told The Chicago Sun-Times just before the elimination of cash bail went into effect in 2023.

A coalition of organizations supporting the law, which included violence prevention organizations like Mothers/Men Against Senseless Killings, pointed to a study that showed, despite fears of spikes in violence, a decreased use of cash bail in Cook County had no statistical effect on crime. But they went beyond numbers, and also argued that when people are held in jail because they can’t afford bail, they risk losing their jobs, housing, health care and family connections. That kind of destabilization makes communities less safe, they argued, but eliminating cash bail would make it easier to maintain stability and security.

Politicians in the state, from Pritzker on down, stood by the law. The reforms remained in place, and despite attacks, the politicians who supported it kept their jobs. Lawmakers have since expanded the law by investing additional funds in mental health treatment, child care and transportation for defendants awaiting trial.

Peters, the Democratic state lawmaker, said the involvement of survivor organizations has been critical because it’s hard to attack a law for being “soft on crime” when victims and survivors are loudly arguing that it makes them safer.

Zoë Towns, executive director at FWD.us, a bipartisan organization advocating for reforms in criminal justice and immigration, said talking about how progressive criminal justice policies improve safety and assist survivors isn’t new. But in recent years there has been greater emphasis from politicians and activists in communicating that the country doesn’t have to choose between safety and justice. “These are two sides of the same coin. You have to be thinking about them together,” Towns said.

There are also plenty of reforms that are holding strong, Towns added. In moderate and conservative places like Lincoln, Nebraska, and Jacksonville, Florida, candidates who promoted justice reforms have weathered attacks that they were soft on crime. Missouri passed a law allowing recreational marijuana use and expungement of past offenses, which remains in place and is helping to fund drug treatment and legal services. And in Mississippi, a state dominated by conservatives, lawmakers recently extended a measure allowing increased parole eligibility, so more people can get released from prison.

Rafael Mangual, a fellow at the Manhattan Institute, a conservative think tank, pointed out that many reforms remain in place despite attempts at rollbacks. But Mangual doesn’t believe the enduring reforms are a reflection of what voters actually want, and he said he was skeptical that progressives could own the issue of safety. He thinks voters will ultimately decide against experiments limiting cash bail and decreasing the use of police and prisons. Mangual pointed to the current ballot initiative in California as one sign of that tendency.

But Anderson of the Alliance for Safety and Justice, which has backed reforms in California and Illinois, said she still thinks the California reforms have a chance of being upheld. She said that, as in Illinois, the way the law addresses safety and crime victims is key. For example, Proposition 47 reallocated money from prisons to victim support groups.

“We can't just sort of say okay, we're going to reduce incarceration. Everything will be fine. That's not the end goal. The end goal is a transformed approach to public safety,” Anderson said.

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