Criminal justice reform may be under pressure, but it still has plenty of life

Headlines have declared that criminal justice reform fell apart in 2022, was no longer in vogue in 2023 and is being reversed in 2024. But while it may seem that obituaries for criminal justice reform are as common as rats in New York City, no one should fall prey to the conventional wisdom that the unrest in the summer of 2020 ushered in an era where punishment always takes precedence over rehabilitation.  

To be sure, there are many examples of reforms being rolled back—both those that went too far and those that didn’t. Prosecutors perceived as too lenient have been tossed out of office, and stiff new criminal sentences enacted. But a simplistic narrative declaring a full swing of the pendulum fails to capture a much more nuanced landscape. At the federal, state, and local levels, there remains strong momentum for many significant and sensible changes that hold people and the system accountable while also promoting rehabilitation and reintegration. 

Consider that on May 21, with just two dissenting votes, the U.S. House of Representatives passed legislation providing independent oversight of the Bureau of Federal Prisons. The bill’s adoption followed disturbing revelations of abuses uncovered by a U.S. Senate investigation, and it suggests that even lawmakers who like to project an image of toughness aren’t willing to allow people in custody to be mistreated. Similar measures were enacted with bipartisan support in Virginia in 2023 and Maryland in 2024. 

Another step forward at the federal level came in March, when Congress mandated that starting in 2026, states will be required to suspend rather than terminate federal health benefits for people who’ve been sent to prison or jail. This change recognizes both the health and public safety benefits of ensuring that people who leave jails and prisons have immediate access to medications and care. This is especially important for individuals with mental illness who can suffer severe withdrawal symptoms from a sudden interruption in their regimen. Additionally, the risk of drug overdose is 10 times higher for people in the first two weeks following release from incarceration compared with the general population. 

Many smart criminal justice reforms continue to advance at the state level as well. For instance, on June 4 Colorado joined 40 other states and the District of Columbia in unanimously adopting a policy enabling people to obtain an occupational license in spite of an old criminal record unrelated to the duties of the job. 

Oklahoma, which has long had one of the nation’s highest incarceration rates and has the nation’s highest rate of domestic violence, is also stepping up to the plate. On May 21, Gov. Kevin Stitt signed legislation that requires courts to consider as a mitigating factor in sentencing documentary evidence that the defendant was abused or trafficked. This reform addresses cases such as one where a woman who had good reason to be in fear of her life struck back and ultimately killed the intimate partner who had abused her for years—and subsequently was sentenced to life in prison.

Other examples abound, from automated record-clearing policies known as “Clean Slate” adopted by nine states between 2020 and 2023, to Nebraska’s April passage of the Veterans Justice Act. And in the last few years, states from Kentucky to Connecticut to Michigan have adopted measures to expand treatment options for people with mental illness, aiming to both divert appropriate individuals from the justice system and ensure those under correctional control receive effective care.

Nonetheless, there are a few caveats to consider alongside these impressive steps forward.

First, most of the momentum relates to reforms targeting the “back end” of the system, from sentencing to incarceration and reentry. Here, sensible changes are less likely to be conflated with hot-button controversies at the front end involving police funding, cash bail and “progressive prosecutors.” 

Second, the success of some reforms could be at risk as budgets tighten following the expiration of federal pandemic funds. For example, unlike New York’s initial bail reform, Illinois’ significantly different plan to abolish cash bail while increasing judicial discretion to detain the most dangerous defendants that took effect in September 2023 wisely infused state funding to smooth the transition. This infusion addressed at least part of the need for increased pretrial supervision as well as resources for prosecutors and public defenders, as more defendants faced hearings on whether bail should be denied. Previously, judges lacking the authority to deny bail resorted to setting unaffordable bail with scant due process. Sustaining and even doubling down on reinvesting savings from fewer people being in jail could make it more likely that Illinois can build on its promising initial outcomes.

Finally, reform must be distinguished from revolution. Some may see these tailored changes to ensure incarceration is used only to the extent necessary and reduce the risk of re-offending as insignificant because they are incremental. However, this approach produces results that are most likely to be durable while also providing an opportunity to measure results.

This is not a time to lament failures, but rather to cement reforms through robust research that reveals both where they are working and where adjustments are needed. Criminal justice reform is not a destination, but a journey that requires policies and practices more closely aligned with the best evidence on what works, America’s constitutional principles and the nation’s most cherished values.

It's clear that this pursuit is very much alive, and writing an obituary makes as little sense as declaring the mission accomplished.

Marc A. Levin, Esq., is chief policy counsel for the Council on Criminal Justice and can be reached at mlevin@counciloncj.org and on X at @marcalevin.