Red States Are Reversing Criminal Justice Reform

It was impossible to avoid the "strange bedfellows" cliché when reading about the criminal justice reform movement in the 2010s. Conservatives and evangelicals worked alongside bleeding-heart liberals and civil libertarians to fix what they all 
(at the time) agreed were unjust prison sentences and punitive policies.

Fast-forward a decade, and the bipartisan sleepovers are over. Most of the same advocate groups are still lobbying for reform—and notching victories in some states—but the broad-based path for criminal justice reform bills has narrowed or altogether disappeared in other places.

Claiming to be responding to rising crime and the excesses of progressive reformers, several Republican-controlled state legislatures have not only reversed progress but also rolled back key reforms: increasing prison sentences, limiting parole and probation, restricting charities that pay bail for offenders, curtailing the discretion of local district attorneys, and gutting civilian police oversight boards.

Louisiana is a particularly stark example of this backlash. It was one of many conservative-leaning states that passed bipartisan criminal justice reforms in the 2010s as the cost of their prison systems exploded. At the time, the Pelican State's incarceration rate was nearly more than double the rest of the country's, making it the incarceration capital of the world.

In 2017, the Louisiana Legislature passed the Justice Reinvestment Initiative (JRI), a plan to reduce incarceration costs by focusing on keeping violent offenders in prison rather than nonviolent ones. (The latter were a major contributor to the state's staggering incarceration rate.) A February 2024 report by the Louisiana Legislative Auditor (LLA) found that, despite a flawed rollout, the JRI largely worked—reducing the overall prison population while increasing the percentage of inmates incarcerated for violent offenses. It also saved Louisiana $152.7 million in prison costs.

Despite the initiative's clear success, newly sworn-in Republican Gov. Jeff Landry convened a special session of the state Legislature earlier this year that passed a criminal justice package reversing many of the JRI's reforms.

The conservative criminal justice advocacy group Right On Crime urged state lawmakers to consider the LLA report, unfortunately to no avail. Louisiana will now allow 17-year-olds to be charged as adults, unseal some juvenile criminal records, eliminate parole, slash "good time" credits inmates can earn toward early release, and limit post-conviction appeals. Other measures will introduce nitrogen gas and electrocution to the state's capital punishment arsenal and make that process off-limits to public records requests.

Kentucky's trajectory is similar. The Safer Kentucky Act, enacted after the Legislature overturned Democratic Gov. Andy Beshear's veto, raises the criminal penalties for more than two dozen offenses and creates a three-strikes provision mandating life sentences without parole for those convicted of three violent felonies. It also outlaws street camping and gives property owners the right to use physical force against someone illegally camping on their property, if the person has been warned by the owner.

These changes destroy the bipartisan spirit that marked previous reforms—and come with hefty price tags.

The Louisiana bill was passed before budget analysts could even get a handle on how much it would cost, but the most conservative estimate is around $30 million annually. The Crime and Justice Institute, a Boston-based think tank, estimates that it would have cost Louisiana an extra $878 million if every state inmate released on good-time credit in 2022 were instead kept locked up for their full sentence.

According to the Kentucky Center for Economic Policy, Kentucky's new three-strikes law and expanded definition of "violent offender" alone will cost the state more than $800 million over the next decade.

"We will likely not be able to pay our bills," Beshear warned at an April press conference. "The amount we have in the budget for corrections and for payments to jails, which house the lower level felons, was set on assumptions that did not include House Bill 5."

Several state legislatures have also worked to reverse one of the more promising trends of recent years: the increase in civilian police oversight boards.

The first police oversight boards were created in the 1970s, but a surge of new ones followed the 2020 police killing of George Floyd and the nationwide protests that tragedy inspired. Over 100 civilian police oversight boards now exist around the country—independent bodies of varied power and scope that investigate, monitor, or audit police department operations.

Republican Florida Gov. Ron DeSantis signed a bill into law in April stripping civilian police oversight boards of much of their power to investigate misconduct, and stacking them with current and former law enforcement officers.

"Today's legislation will ensure law enforcement can do their jobs without the threat of harassment," DeSantis said at the signing ceremony. "While blue states vilify and defund the police, Florida will continue to be the friendliest state in the nation towards our law enforcement community."

Tennessee, too, enacted a law gutting police oversight boards and ending their ability to independently investigate misconduct complaints.

These states will now leave law enforcement departments to police 
themselves, sheltering them from transparency and accountability, despite decades of evidence that internal affairs departments cover up abuses and 
minimize officer misconduct.

Even some Democratic-controlled states are walking back criminal justice reforms. In March the Oregon Legislature recriminalized drugs, reversing a 2020 ballot measure passed by voters. Drug warriors and conservative think tanks touted Oregon's decriminalization failure as proof that legalization leads to chaos. But as Reason's Jacob Sullum wrote, Oregon's rise in overdose deaths was mirrored in other states where hard drugs remain illegal, and data showed that decriminalization neither created new drug users in Oregon nor led to an influx of users from other states seeking a consequence-free fix.

Amid these setbacks, criminal justice advocates are still making some progress. Arizona recently passed a bipartisan bill eliminating court fines and fees in its juvenile justice system, and Pennsylvania and Virginia passed probation reforms. The Kansas Legislature recently passed a bill reforming the state's civil asset forfeiture laws with unanimous support in both the House and Senate.

Politicians have pushed the narrative that criminal justice reforms have led to rising crime rates. The good news is that now, since those trends are reversing, that anti-reform story should be a harder sell. Since spiking in 2020, murder rates in major cities have been declining sharply, with a few worrying exceptions, such as Washington, D.C. In April The Wall Street Journal reported that "homicides dropped around 20 percent in 133 cities from the beginning of the year through the end of March compared with the same period in 2023."

When Landry pitched his bill in Louisiana, he cited crime statistics from 2021 and 2022 but notably ignored 2023, when New Orleans and Baton Rouge saw significant drops in homicide rates.

Lawmakers and conservative think tanks want to keep blaming reform policies for out-of-control crime, but they will struggle to form an honest narrative given the data. The future of criminal justice reform is uncertain, but the rollbacks might be enough to reignite the fight for a more just system. The backlash to criminal justice reform may have arrived just in time to be too late.