Throughout 2023, state legislatures in the South have introduced and enacted legislation that will impact the Stages of the Criminal Legal System (Stages or Stages of the Criminal Justice) along racial and socioeconomic lines. The Stages of Criminal Justice typically include: (1) Arrest and Pre-trial; (2) Trial, (3) Sentencing, and (4) Post-sentencing.

Historically, Southern lawmakers have used the Stages to undermine and disrupt African Americans’ efforts to achieve equality. For over a century, the laws governing these Stages created a parallel system that reinforced racial hierarchies and maintained existing racial caste systems. Starting in the Reconstruction era, state legislatures used the Stages to control Black labor, limit Black political participation, and deny African Americans benefits freely enjoyed by other groups. In the 1980s, they built on these laws with mandatory minimum sentences, leading to mass incarceration. While many of these laws were not racially explicit, they always had a disproportionately negative impact along racial and socioeconomic lines.

E Pluribus Unum tracked and evaluated about 413 bills related to crime introduced in the thirteen states that make up the South. What we found in some states like Louisiana gave us glimmers of hope that Southern states can improve the Stages to erase institutionalized inequities. We also found very troubling trends in many states like Alabama, Florida, and Virginia that indicate we still have a long way to go to advance the civil liberties of underserved communities and African Americans within our criminal justice system.

Efforts at Reform

Over the last decade, activists, scholars, and lawmakers have sounded the alarm about how the laws that govern these Stages create vast inequities that impact primarily African Americans and other disadvantaged communities. Because of their efforts, lawmakers at the federal and state levels have passed criminal reform legislation to address these inequities. At the federal level, Congress passed the Second Chance Act and the First Step Act in 2008 and 2018, respectively. President Obama built onto these efforts when he commuted over 1,700 prison sentences for non-drug offenses and for people serving extremely long prison terms. Starting in 2007, Georgia, Texas, Louisiana, and Mississippi all passed some form of criminal justice reform legislation, at the state levels,

Trends of 2023

Although these reform efforts were long overdue, the legislation introduced and passed in 2023 in Southern states reveals that we still have a long way to go to have a fair criminal justice system. As mentioned above, Southern lawmakers introduced about 413 crime and criminal justice bills. After examining the bills signed into law, we found about 22 that could have a clear net positive or negative impact on the Stages of Criminal Justice. Thirteen of those bills could make the Stages more just and equitable — while the other nine could have negative consequences for underserved communities, especially those of color.

Understanding these legislative trends is central to advancing the civil rights of African Americans, improving race relations in the South, and solidifying a fair and just democratic system. In this report, we highlight these trends and the potential impact they could have on their respective communities. We also focus on the bills that could improve the Stages but failed in their legislature. Examining these bills will help guide advocacy efforts going into the next legislative session. We hope that this report will encourage lawmakers and stakeholders to take a serious look at how the criminal justice laws may or may not balance public safety with protecting civil rights.

Restoring Citizenship for Justice-Involved People

Thirteen bills passed in eight Southern states that would improve the Stages of Criminal Justice, and twelve focused on Post-sentencing. These laws are a step toward restoring citizenship to justice-involved people.

Louisiana alone accounted for 41% (5) of the laws designed to restore citizenship through its Post-Sentencing stage. Specifically, Louisiana created new juvenile educational programs that will help justice-involved children develop skills and opportunities for educational development.

• LA HB 357 – Creates a commission that will provide justice-involved juveniles with rehabilitation programs, services, and education in a structured environment.
  • Why it’s important: This law will help develop skills and opportunities for at-risk youth and justice-involved children. It could help reduce recidivism and lower the chances of mass incarceration.
• LA HB 359 – Creates rehabilitation programs, services, and education in a structured environment for juveniles in certain parishes in additional districts in the state
  • Why it’s important: Similar to the other juvenile education programs, this law will ensure that justice-involved children are provided with an opportunity to gain the skills necessary to avoid future encounters with law enforcement. This will reduce recidivism and reduce mass incarceration.

Scholars have found that academic and vocational skill-building programs can decrease recidivism for juvenile offenders. Tennessee and Florida also enacted a similar law to improve their juvenile prison population’s life and academic skills. (See TN SB 617 – improving training and services for juveniles in the state; see also FL SB 7014 – establishing a scholar program for juveniles that increases their post-secondary education opportunities).

Collectively, these laws restore some semblance of citizenship to justice-involved people by empowering them with skills that will help them gain stable employment and mental health resources.

Finally, with the enactment of House Bill 286, Louisiana will allow the expungement of marijuana convictions after just 90 days instead of five years. This significant law means that a person could have drug convictions removed from their record, increasing their eligibility for more employment, school, or scholarship opportunities.

Arkansas and Georgia each took steps to ensure that justice-involved people would have access to driver’s licenses and permits once they left prison. Previously, people reentering society would face additional barriers to getting their licenses or maintaining their driving ability. Restoring their ability to get a license provides them with a critical tool for obtaining housing and employment.

• AR HB 1208 – Allows restricted driver permits for a person on probation who has a suspended license
  • Why it’s important: Many employers require prospective job candidates to have a valid driver’s license. This law provides a critical step toward restoring full citizenship to formerly incarcerated people.
• GA SB 218 – Provides identification cards to people completing prison terms if they do not have licenses and establishes an educational program for inmates that test below fifth-grade level
  • Why it’s important: As mentioned above, the ability to receive identification can be central to obtaining a job and other benefits. Moreover, the educational provision of this law increases the employability of the justice-involved person once they leave prison.

In West Virginia, lawmakers are moving to house people with mental illness in mental health facilities instead of prison, lowering the prison population. (WV SB 232) Texas lawmakers, through a bi-partisan effort, voted to provide people with food benefits (SNAP) as they reenter society. (TX HB 1743) It is important to note that the Center for Budget and Policy Priorities found that food benefits like SNAP can be a key part of reentry support and help supplement low-income and other basic needs.

While these states enacted laws to improve the Post-Sentencing stage, Alabama focused on the Arrest and Pretrial stage. Specifically, state lawmakers voted to allow the police to issue summons or complaints for certain crimes instead of using custodial arrest. (AL HB 13) This law would reduce the number of people arrested for small violations and lessen the chances for violent confrontations and additional charges and penalties.

Big Steps Towards Mass Incarceration

While these laws could restore citizenship and fairness to the criminal justice process, Southern lawmakers also voted for Sentencing bills that will contribute to mass incarceration. For example, Tennessee lawmakers voted to increase the use of consecutive sentences through the enactment of SB 1224. Consecutive sentences are two separate prison terms served one after the other. Consecutive sentences can lead to long prison terms for non-violent offenses. Evidence from the Sentencing Project shows that lengthy prison terms do not deter crime.

While Tennessee voted to increase consecutive sentences, Mississippi, Alabama, and Virginia imposed a host of new mandatory minimum sentences, added petty theft to their RICO statute, and increased sentences for gang members. Studies have shown that mandatory minimums and RICO can lead to mass incarceration and have been used to target minority groups.

• AL SB 143 – Creates mandatory consecutive penalties for firearm possession enhancement of penalties for crimes that benefit criminal enterprises (gangs or organizations that could be labeled as gangs); also requires 16-year-olds in gangs to be tried as adults.
• AL HB 1 – Adds mandatory minimums for certain felony drug trafficking crimes
• MS SB 2101 – Creates mandatory sentences for resisting arrest, carjacking, and other armed crimes
• VA SB 896 – Includes petit larceny into RICO and racketeering offenses, potentially leading to long prison terms for potentially non-violent crimes
• VA SB 1207 – Expands definition and penalties for gang crimes

Tennessee and Alabama lawmakers voted to limit inmates’ ability to receive parole based on good behavior and made it easier to revoke parole on evidence collected without a warrant. (TN HB 1031; AL SB 157) Collectively, these laws will lead to mass incarceration and undermine the progress made by previous criminal justice reforms.

Finally, Florida passed a law that will affect its Trial stage and could potentially lead to innocent people being sentenced to death. (FL SB 450) Our criminal justice system is imperfect and often arrests and convicts innocent people of crimes they did not commit. To date, there have been over 185 death row inmates exonerated. There have been over 3,000 exonerations since 1989, with over 29,000 years taken from innocent people, according to the National Registry of Exonerations. This indicates that our justice system can get it wrong. Therefore, Florida’s decision to lower the number of jurors required to sentence a person to death is problematic. It will potentially increase the use of the death penalty and lead innocent people to death row.

Sentencing

Out of the 413 bills reviewed, 17 bills could have created improvements for the Stages of Criminal Justice, but were either left unconsidered or were voted down. Six of those laws focused on Sentencing, and six focused on Post-sentencing. Most Post-sentencing laws focused on automatically restoring the right to vote to justice-involved people.

Disenfranchising justice-involved people has a history that dates to the Jim Crow era. It is the most blatant attempt to use the criminal justice system to silence Black voices. Lawmakers in Alabama and Kentucky introduced bills that would restore voting rights automatically, and South Carolina’s bills would help former inmates register. These bills would have been a significant step in restoring full citizenship for those affected, but their failure indicates that we still have a long way to go to ensure equality through our criminal justice system.

Lawmakers in Florida, Virginia, and Tennessee introduced bills focused on sentencing, hoping to limit mandatory minimums. These bills would have balanced public safety with protecting against mass incarceration. Finally, lawmakers in Florida, Tennessee, North Carolina, and Mississippi introduced laws that would decriminalize marijuana. Decriminalizing marijuana helps to reduce arrests and convictions, redirect resources, and protect people from drug convictions.

While all of these measures failed to be enacted into law, with some under consideration, they provide hope for what we could accomplish in a 2024 legislative session to improve the Stages of Criminal Justice.

In 2024, Southern lawmakers should focus on limiting mandatory minimums and restoring justice-involved people to full citizenship. Crime is not just a public safety issue. It is a public health issue. It is a public health issue for those who commit violence, and the community and victims subject to an unsafe environment. 

It is important to approach these criminal justice laws from a public safety and public health perspective. This means focusing on what works to truly reduce crime. This perspective would focus on prevention, penalties, and restoration. Restoration includes mental health services for inmates, educational programs, training, and licenses that allow some form of rehabilitation for people reentering society. Fortunately, several Southern states took important steps to restore citizenship to those reentering society. However, more can be done, and we must ensure everyone receives their right to vote once released. 

Southern lawmakers should also focus on reforming penalties or the Sentencing stage. This means we need penalties that account for the severity of the crime, consider those who were hurt or lost, and serve as a deterrent for future crimes. We cannot sentence non-violent offenders to lengthy prison terms. It disrupts families, hurts restoration, and will not deter crime. Moreover, the Brennan Center found that crime increased over 50 percent the last time Florida introduced mandatory minimums. Therefore, we need alternatives to mandatory minimums, and this will ensure sentencing is treated the same regardless of the race and socioeconomic status of the victim and suspect.

Finally, prevention is not currently a part of the Stages of Criminal Justice as it requires investments in other areas of society. It requires as much investment in good schools and teachers as police officers and prisons. It requires investments in mental health and healthcare. It requires investments in quality housing. This indicates that public safety cannot be viewed in a vacuum. It must be viewed within larger policy discussions about the economy, jobs, education, and housing. This perspective recognizes that something has failed in our larger society once a person has to engage in the Stages of Criminal Justice. This means that the 2024 legislative session could focus on more reforms for the Sentencing and Post-Sentencing stage while also fighting for larger public policy issues that promote all community members’ health, safety, and well-being.