Introduction
Over the past 20 years, most American states have adopted a wide range of changes to their criminal sentencing statutes. The goals of the reforms varied. Some targeted certain offenses for greater or lesser penalties. Others aimed to cut correctional costs, expand alternatives to incarceration, and reduce recidivism. Few laws were enacted explicitly to reduce racial and ethnic disparities. Still, many policymakers hoped they would do just that, and the starkly disproportionate incarceration of Black people has been a central component of the national conversation about criminal justice reform. Previous reports in this series have examined national trends in state imprisonment disparities and sought to shed light on what might be driving them. The reports documented a narrowing of Black and White disparities1 between 2000 and 2019, including a decrease of two-thirds in the disparity between Black and White people in state prisons for drug crimes. Explanations for the overall trends included faster growth of the Black resident population and shrinking racial gaps in arrest rates, prison admissions, and returns to prison for technical violations of parole. The factors contributing to reductions in disparity were partially offset by widening racial differences in the amount of time people entering prison could expect to serve. This brief adds depth to these national findings by examining whether and how sentencing law changes affected imprisonment disparities in 12 states: Arizona, California, Colorado, Florida, Georgia, Illinois, New York, North Dakota, Pennsylvania, South Carolina, Texas, and Utah. The study states vary across characteristics such as demographic composition, region, the political party in power in the executive and legislative branches, sentencing structure, data availability, and whether the state had engaged in organized criminal justice reform efforts.
Figure 1: The 12 Study States
The project focused on how disparity may have been affected by state sentencing law changes, including those related to violent, property, and drug offenses, as well as parole release and technical violation practices. Changes in sentencing law can influence disparity by affecting enforcement, prosecution, and sentencing priorities. For example, creating new offenses in statute can affect the composition of people arrested, prosecuted, and sentenced to prison. When these priorities are associated with racial differences in offenses or offense behavior, then law change can lead to shifts in the demographic composition of those entering prison, even when people of different racial groups are treated equally in criminal justice decision-making.2 The analysis focused on sentencing law change because complete data were lacking on when, where, and how various other law and policy changes were implemented during the study period. For example, many drug-free school zones and zero-tolerance drug laws were enacted in the 1980s and 1990s, well before the study period. Additionally, many policy changes (e.g., adjusting the name or mission of a state’s correctional system or adjusting the use of solitary confinement) were unveiled in internal memos announcing administrative or personnel updates, making identification and analysis of the impact of these changes infeasible. Researchers identified relevant laws for this analysis through a statutory review that focused on five categories: drug offense laws, sentencing laws, laws that expanded judicial discretion, laws that addressed prison release and reentry, and laws that targeted community supervision. During the review, research team members identified sentencing laws enacted in the 12 study states for inclusion. The team excluded sentencing law changes passed after 2018 to allow at least two years for the law’s potential impact on disparity to materialize. All included laws directly applied to prison sentences, prison release, and parole practices. Law changes were excluded if they addressed groups not directly relevant to the state prison population (e.g., juvenile offenders, misdemeanor offenses, and probation supervision). Changes that affected fewer than 10 cases per year were also excluded, as these sample sizes were too small to analyze. In addition to their statutory review, researchers conducted interviews in each state with a variety of stakeholders, including agency leaders in corrections, probation, parole, and courts; gubernatorial staff; legislators and legislative staff; public defense and prosecutorial staff; correctional research staff; criminal justice commissions and councils; advocacy organization leadership; and academic scholars. Two interviews were conducted with each stakeholder; the first explored information on policies, practices, or instances that may have affected the size of the prison population, and the second used prison population and statutory data to glean more context about the intention and outcomes of statutory changes. The research team used Bureau of Justice Statistics (BJS) National Corrections Reporting Program (NCRP) data to measure racial differences in state prison admissions, releases, length of stay, and the size of the standing population. Descriptive analyses of major offense categories (e.g., violent, property, drug, and public order) used BJS offense codes; people affected by the statutes included in the analysis were identified using detailed, state-specific offense codes. The timing of the effects of statutes was generated using detailed data on the month and year of prison admissions and releases in the 12 study states. A supplemental methodology report describes the data sources and methodology used to conduct individual state analyses as well as the analyses in this report.
Key Takeaways
- Sentencing law changes were generally not associated with changes in racial disparity in imprisonment between 2010 and 2020 in the 12 study states.
- Many sentencing law changes implemented during the study period focused on crimes that did not drive prison admissions and, therefore, had negligible impacts on disparity.
- Many sentencing laws took effect after offense-specific disparities had decreased, suggesting that these laws codified an earlier change to arrest, admissions, or sentencing practices.
- Law changes focused on the violent crimes that drive prison admissions have the greatest potential to produce large changes in disparity even when people of different racial groups are treated equally in criminal justice decision-making.
- Further narrowing racial disparities in imprisonment will require investing in violence prevention and grappling with the moral, sociopolitical, and public safety issues associated with reducing prison sentences for those convicted of serious violent crimes.
GLOSSARY
- Disparity ratios are a measure that compares imprisonment rates across two groups of people. A Black-White imprisonment disparity ratio of 3-to-1, for example, means that Black adults are incarcerated at three times the rate of White adults. A ratio of one indicates no difference between the two groups, or “parity.” A disparity ratio lower than one means that Black adults are less likely to experience imprisonment than White adults.
- New court commitments refer to prison admissions that result from a conviction for a new crime rather than for violations of community supervision.
- Rates are calculated per 100,000 respective adults. For example, the Black imprisonment rate is calculated per 100,000 Black adults. All rates refer to adult state prison populations; those in federal prisons and local jails are excluded.
- Parity refers to a disparity ratio of 1 (1-to-1).
Sentencing Law Changes
The Pushing Toward Parity research team identified more than 700 (n=709) sentencing laws for inclusion in the analysis. These laws vary in scope and content; while most focused on specific offenses, the list also includes comprehensive omnibus bills and laws that created new offenses or reclassified the severity level of existing crimes, provided for penalty adjustments upward and downward, or expanded diversion, release, and treatment opportunities. During the study period, seven of the 12 study states engaged in Justice Reinvestment Initiative (JRI) efforts, and California passed a comprehensive realignment bill in 2011. None of the states enacted comprehensive reforms of sentencing systems or sentencing structures during the study period. Among the study states, legislators adopted a variety of law changes—some passed simultaneously, some in different years—that increased penalties for violent offenses while generally decreasing penalties for property and drug crimes. For violent offenses, penalty adjustments lengthened sentences, raised severity levels, and enhanced penalties for crimes against vulnerable victims. Nearly all laws addressing violent crime focused narrowly on specific subclasses of violent behavior, such as assaults against peace officers or emergency workers. Legislatures enhanced sentencing severity for these offenses by lengthening sentences, often based on the attributes of the person who committed the crime, or attributes of the victim. For example, some laws enhanced penalties committed by a person in a position of trust (such as a teacher who sexually assaulted a student), while others enhanced penalties for special classes of vulnerable victims, including children, the elderly, people who were trafficked, and law enforcement or corrections officers. For less severe offenses, laws commonly reduced penalties, reclassified offenses from felonies to misdemeanors, created avenues for diversion to probation, and expanded treatment options and community supervision. Many changes made to laws regarding diversion or treatment expressly excluded people with current or prior convictions for violent offenses.
California's Prison Realignment
In 2011, the U.S. Supreme Court required that California “realign” its prison system to reduce overcrowding. The resulting bill (AB 109 and its companion bill AB 117) shifted responsibility for the supervision of people convicted of non-serious, nonviolent, and non-sexual felony offenses – referred to as “triple non” felonies – from the state to the counties and altered sentencing and post-release supervision practices for some crimes. Realignment dramatically altered the composition of California’s prisons and jails. See the California state brief to learn more about realignment.
Justice Reinvestment Initiative
During the study period, seven of the 12 study states participated in the Justice Reinvestment Initiative. This public-private partnership provided states with resources to undertake a data-driven effort to improve public safety by shifting avoided prison expenditures into evidence-based strategies to reduce recidivism. The specific policy changes undertaken by each state varied. For more information, see the state briefs for Arizona, Georgia, North Dakota, Pennsylvania, South Carolina, Texas, and Utah.
Penalties for violent offenses were raised.
Almost without exception, law changes implemented during the study period increased penalties for violent offenses by expanding the use of mandatory minimum sentences, upgrading felony severity levels, and increasing sentence lengths. Penalty enhancements were enacted for:
- Specific violent offenses, such as attempted murder (South Carolina), 2nd-degree murder (Arizona), murder (Georgia), and concealing a death and drug-induced homicides (Illinois);
- Perpetrator behaviors, such as repeated criminal behavior or street gang activity; and,
- Victim attributes, such as crimes against children, peace officers, and emergency workers or crimes involving human trafficking or commercialized sex trafficking.
Penalties for property crimes were generally reduced.
In general, penalties for property crimes were reduced in the 12 study states, with several notable exceptions.
- Penalties were decreased by raising felony theft thresholds (i.e., increasing the dollar amount of the items stolen to meet the threshold to be considered a felony), reducing the amount of damage required for an arson offense to be considered “aggravated,” creating and expanding the use of diversion and community supervision as an alternative to incarceration, and expanding community-based treatment options.
- Penalties were enhanced for some property crimes, however. These included repeated theft at the same location, stealing from an ATM, filing a false instrument with the intent to defraud, aggravated identity theft, and reclassifying arson as a felony if the purpose of the crime was to cause bodily injury.
Drug offense law changes were mixed.
Drug offense law changes were highly prevalent among the study states. Many laws generally reduced penalties for drug possession–notably for cannabis–including downgrading offenses from felonies to misdemeanors.
- Cannabis was fully or partially decriminalized in nine of the 12 study states between 2000 and 2020: Arizona (medical use: 2010, recreational use: 2020), California (medical use: 1996, recreational use: 2016), Colorado (medical use: 2000, recreational use: 2012), Florida (medical use: 2016), Illinois (medical use: 2013, recreational use: 2019), New York (medical use: 2014), Pennsylvania (medical use: 2016), North Dakota (medical use: 2016), and Utah (medical use: 2018).
- Penalties for drug possession (except for opioids) were generally reduced, and minimum sentences for possession were also lowered.
- In many states, an individual’s first cannabis offense was discounted and not applied to criminal history, and the cultivation of small amounts of cannabis was decriminalized.
- Alternatives to incarceration were expanded for individuals with some drug possession charges.
- Penalties for synthetics, methamphetamines and their precursors, and opioids were generally increased.
- Penalties were generally increased for offenses involving the manufacture of methamphetamines and cultivation of cannabis based on the proximity of the operation to occupied properties or schools.
Impact of Sentencing Law on Racial Disparity
Changes to sentencing laws had–at most–a modest impact on racial disparities in state imprisonment between 2010 and 2020, despite what might appear to be a correlation between the volume of law changes and overall reductions in racial disparity. This suggests that factors beyond sentencing laws were responsible for the downward disparity trend. Although an exploration of these factors was beyond the scope of the analysis, hypotheses about the causes include shifts in policing practices, drug use (from cocaine to opioids), how drugs are sold (from open-air markets to the use of technology), and the types of crimes people commit (from burglary to cybercrime, for example) played a more substantial role.
- None of the analyzed laws in five states— Florida, Illinois, North Dakota, Pennsylvania, and Texas—affected racial disparities in admissions or prison sentences. Laws focused on offenses with pre-existing racial differences in the remaining seven states had mixed outcomes.
- Arizona: SB 1496 (implemented in 2018), which stipulated eligibility for a post-release drug treatment program, was associated with racial differences in outcomes, although data limitations only allowed for a six-month follow-up period. Before implementation, the trend showed increasing numbers of White people and decreasing numbers of Black people admitted with eligible charges; after the law took effect, short-term increases in eligible admissions for both White and Black people were observed, although they rose more steeply for White people.
- California: AB 109 (California’s “realignment” bill implemented in 2011) was associated with a decrease in White admissions compared to Black admissions, resulting in roughly 120 fewer White admissions per month, on average, after the law’s implementation. Additionally, SB 212 (passed in 2015) was associated with racial differences in methamphetamine admissions, despite decreases in White admissions, as virtually no Black people were admitted with methamphetamine charges before or after the law took effect. There is evidence, however, that most of this change occurred before the statute was officially enacted.
- Colorado: HB 10-1352 (implemented in 2010), which adjusted penalties for various controlled substances, and SB 13-250 (implemented in 2013), which set new qualifying drug amounts for offense severity levels, resulted in slight racial differences in the trends in admissions for drug possession and drug trafficking (amounting to a difference of less than one person per month). Additionally, HB 15-1303 (implemented in 2015) made prison the presumptive sentence for second-degree assault against emergency workers, such as paramedics. The law was associated with a faster increase in admissions of White people than Black people for these crimes. The racial difference in the rate of increase was less than one person per month, on average.
- Georgia: SB 13 (implemented in 2010), which expanded sentencing options for homicide to include life without the possibility of parole (LWOP), was followed by an increase in the probability of Black people convicted of murder receiving an LWOP sentence. This equalized the probability of LWOP sentences between Black and White people. Additionally, HB 1176 (passed in 2012) reduced penalties for marijuana possession/possession with the intent to distribute, which was associated with a decrease in admissions for Black people.
- New York: A00156B/S00056-B, two components of a drug law implemented in 2009, reduced sentences for lower-level drug possession crimes. The laws were not associated with changes in racial differences in sentence length, as sentence lengths had fallen in 2006, roughly three years before implementation. But slight racial differences in admissions were seen following the law, due to a faster increase in admissions of White than Black people (of less than one person per month).
- South Carolina: HB 3545 (implemented in 2016), which established penalties for repeated drug offenses, was associated with an immediate drop in Black admissions (affecting roughly 15 people) but not in White admissions; it also led to a one-time increase in the length of sentences imposed on Black people (about four additional months on a base of 25 months). Additionally, SB 1154 (implemented in 2011) was associated with a one-time drop in Black admissions for cocaine/methamphetamine offenses (affecting 20 people) and assault and battery (affecting roughly seven people). But there were no changes in the Black or White trends in admissions.
- Utah: HB348 (implemented in 2015), which modified penalties for drug trafficking, was associated with a six-person decrease in admissions per month, on average, for Black people relative to White people. Additionally, SB 10 (implemented in 2010) altered penalties for aggravated assault. While it was not associated with racial differences in admissions, there was a three-month reduction in the gap between average sentences for Black and White defendants following implementation. Another component of SB 10, which focused on street gangs, was not associated with racial differences.
Raising penalties for violent offenses with low prevalence in prison did not affect disparity.
While some reforms targeted high-volume violent offenses (such as aggravated assault, homicide, and certain sexual offenses), many others involved penalty enhancements for crimes that did not occur with frequency during the study period, and therefore resulted in few prison admissions. Other laws focused on specific offenses uncommon among the prison population before and after the law changes. These included human trafficking, homicide involving a victim younger than 10 years old, street gang recruitment, recruiting persons under 13 into street gangs, several fraud offenses, computer-related crimes (such as identity theft and video voyeurism), patient brokering, terrorist acts, and various property and public order offenses. The number of people affected by these laws was too small to influence the disparity in violent offenses and imprisonment. For example, from 2000 to 2020, a Texas law that increased penalties for the capital murder of a child resulted in fewer than two cases of imprisonment per year. This persisted even after the passage of SB 377 in 2011, which raised the age of child victims from younger than six years old to younger than 10 years old. Because many of the targeted crimes occurred infrequently, none of these law changes had enough cases to significantly affect the size of the prison population or overall racial disparity.
Raising felony theft thresholds did not affect racial disparity.
Eight states increased felony theft thresholds during the study period, although the net effects of these laws on racial disparity were negligible. Before 2004 (before states increased felony thresholds), people held for felony theft of $2,000 or less comprised 0.4% of the state prison population nationally. This volume is too small to impact overall disparity.
Declining disparity in drug offenses occurred as a result of practice changes rather than sentencing changes.
Laws that altered penalties for drug possession were generally enacted after changes in drug use, enforcement, arrest patterns, and other sentencing practices had occurred. As such, these laws formalized existing practices but were not associated with significant post-law disparity reductions. For example, changes in drug admissions during the study period were more strongly related to changes in drug markets–such as trends in the use of opioids and cocaine–than to changes resulting from the passage and implementation of laws. In New York, for example, penalties were decreased for certain classes of drug possession offenses; however, these changes occurred three to four years after admissions for these classes of drug crimes had already fallen for both Black and White people (Figure 2).
Figure 2: New York A 00156B: Maximum Sentence Imposed for Class B Drug Possession
Another example of this dynamic is South Carolina, where a 2012 law equalized penalties for crack and powder cocaine offenses. This law was enacted roughly five years after both crack and powder cocaine admissions had fallen. When the law was implemented, fewer than five Black and White people were admitted to prison per month with these charges (Figure 3). Similarly, the average length of the imposed sentence for powder and crack cocaine charges in South Carolina converged for Black and White people around 2006 or 2007, about five years before the law took effect3 (Figures 4a and 4b).
Figure 3: South Carolina 1154: New Court Commitments for Crack and Powder Cocaine
Figures 4a and 4b: South Carolina 1154: Average Sentences Imposed for Crack and Powder Cocaine
People held for violent crime now make up a larger share of state prison populations.
The share of people in prison held for violent crime increased over time in all 12 of the study states. This trend reflects the numerous laws that enhanced penalties for first-time and repeated violent criminal offenses and diverted many nonviolent cases to probation, drug treatment courts, and other alternatives to incarceration. On average, people convicted of violent crimes comprised roughly two-thirds (68%) of the state prison population in the 12 study states in 2020, up from 49% at the start of the century. Further, while the share of both Black and White people held for violent offenses in the 12 study states increased from 2000 to 2020, the share of Black people increased more steeply. For example, in 2000, nearly half of all those in prison (49% of Black people and 48% of White people) had been convicted of violent crimes. By 2020, however, 68% of Black people and 54% of White people were in prison for violent crimes. Overall, decreases in violent crime imprisonment disparity rates were smaller than for property and drug crimes throughout the study period, and violent crime disparity was the highest in 2020 in all but one state (New York). Throughout the study period, violent offenses were responsible for the growth in the size of a state’s prison population, as well as for increases or decreases in racial disparity. California’s correctional system realignment in 2011 (AB 109 and its companion bill AB 117) is a case in point. After the changes shifted responsibility for managing and supervising people convicted of non-serious, nonviolent, and non-sexual felony offenses from the state to the counties, sometimes moving them from prison to jail, with attendant shorter lengths of stay, the share of people held in state prisons for violent crimes increased. This resulted in an increase in California’s Black-White imprisonment disparity ratio from 8-to-1 to 9-to-1, indicating that the increase in disparity was influenced by racial differences in violent offending rates and the impact of repeat offenders. Law changes that enhanced penalties for violent offenses often happened in tandem with law changes that expanded alternatives to incarceration and reduced sentences and length of stay for nonviolent crimes. People convicted of violent offenses were also commonly made ineligible for participation in diversion or prison-based programs, earning good time sentence credits, or engaging in community-based treatment and services. In some cases, people convicted of violent crimes also had their parole eligibility and release restricted. Taken together, these laws typically extend the amount of time this group spends in prison and, by restricting access to prison- and community-based programs and treatment services, result in people being less prepared for reentry when they reach their release date.
Implications: Reducing Disparity in State Imprisonment
There was a significant narrowing in imprisonment disparity between Black and White people in the 12 study states from 2000 to 2020, which coincided with a period of heavy legislative activity on sentencing policy. Pushing Toward Parity’s multi-state analysis sought to answer a question critical to our understanding of–and future efforts to further reduce–racial disparity in imprisonment: Did legislative action on sentencing policy drive reductions in disparity? The analysis found little evidence that changes in sentencing laws had more than a modest effect on shrinking disparity in imprisonment between 2010 and 2020 in the 12 study states. While some laws were associated with racial differences in either prison admissions or the length of the imposed sentences, in many cases the targeted offenses were too infrequent or affected too few people to meaningfully move the needle on disparity. Stakeholders in the 12 study states noted that sentencing law changes were often implemented reactively, rather than proactively, potentially contributing to their limited impact on disparity. Instead, racial disparity in imprisonment declined independent of the shifts in sentencing policy. The analysis found that some law changes, especially those related to drug offenses–the category with the most significant decrease in disparity–occurred after admissions and sentencing practices had changed; in that sense, the legislative action served to memorialize, rather than drive, practice. Theoretical explanations for these practice changes include shifts in demand for certain types of drugs, arrest and prosecution priorities, expanded alternatives to incarceration, and other decisions made at the front end of the justice system. The research team for this project was unable to analyze these factors due to the high level of data aggregation.
Addressing racial disparity in imprisonment, especially for violent offenses, remains a complex challenge.
Among crime types, racial disparity in imprisonment for violent offenses saw the smallest reduction over the study period due to higher levels of violent offending and victimization, closer proximity to police operations, and the disproportionate accumulation of criminal histories within the Black community, mainly owing to historical and structural inequities. In the 12 study states, sentencing law changes directly and uniformly increased sentencing for violent offenses by expanding mandatory sentences, upgrading felony severity levels, and increasing sentence lengths. Additionally, many law changes limited people with current or former convictions for violent crimes from earning sentence credits and parole release, and typically restricted their access to prison- and community-based programming. Such changes have created a class of people who will be removed from the community for extended periods and will be less prepared for reentry as they approach their release dates. Because the largest racial gap remains for violent offenses–which make up two-thirds of state prison populations–continuing to focus criminal justice reforms on people convicted of nonviolent property and drug crimes will not further reduce racial disparities in imprisonment. Accomplishing that will require communities to invest in proven violence prevention approaches while grappling with the moral, sociopolitical, and public safety issues associated with reducing prison sentences for those convicted of serious violent crimes. These findings can and should help shape future efforts by policymakers seeking to reduce racial disparity in imprisonment. As noted in Pushing Toward Parity’s 2022 national report, three opportunities exist for further reductions:
- Closing the disparity gap in violent offending by using evidence-based strategies to reduce violence in Black communities;
- Addressing disparity in time served in prison between Black and White people for similar offenses; and,
- Limiting the role of criminal history in sentencing and release decision-making, as Black populations tend to have more substantial contact with the justice system.
These efforts can be strengthened by further research drawing on data at the local level. Exploring the impacts of arrest and charging practices, the use of criminal history, and shifts in drug markets at the community level may illuminate promising policy options to address disparity and contribute to a more effective, equitable justice system.
