Why it matters

Sentencing policies and practices play a significant role in prison population growth because they determine which offenses are eligible for a prison sentence and how long those sentences should be. As a result, states are increasingly adopting sentencing policies that prioritize prison space for people convicted of serious and violent offenses while using probation for people convicted of lower-level, nonviolent felony offenses. Still, more than one-third of people in state prisons are there for property or drug offenses, suggesting that many states have the opportunity to sentence more people to probation for lower-level, nonviolent felony offenses instead of to state prisons.[17]

Since 2000, at least 37 states have raised the threshold at which the value of goods stolen in a theft constitutes a felony, and the 30 states that did so between 2000 and 2012 found that the change had no impact on the overall property crime or larceny rates.[18] Some states have also increased the threshold at which drug possession is a felony, reduced the period of incarceration for drug possession, or revised sentencing guidelines to send people convicted of drug possession to probation instead of prison. Studies have found no relationship between state drug imprisonment rates and three indicators of state drug problems—self-reported drug use, drug overdose deaths, and drug arrests—suggesting that policy approaches other than incarceration may be more cost-effective responses to people convicted of low-level drug offenses.[19]

A growing number of states have also begun reducing penalties for low-level offenses while simultaneously increasing penalties for more serious offenses. Other states have conducted a thorough review of sentencing policies to ensure that similarly serious offenses receive similar penalties and that penalties are commensurate with the severity of the offense.

What it looks like

  • Identify the percentage of people in prison for property and drug offenses and determine how long they stay in prison.
  • Identify whether similarly serious offenses receive similarly severe penalties.
  • Update property theft and drug possession felony thresholds, as needed.
  • Refine sentencing policies and guidelines to establish penalties for property and drug offenses that are proportionate to the seriousness of the offense.
    • See Case Study: South Carolina sentencing and corrections reforms save millions 

Key questions to guide action

  • What percentage of the prison population in your state is composed of people convicted of property or drug offenses?
  • When did your state last evaluate the proportionality of penalties for drug and property offenses?
  • What strategies can your state use to hold people convicted of property and drug offenses accountable while minimizing the need for costly incarceration, when appropriate?

Use the information that follows to inform your answers to these questions.

In 16 of 39 states, at least 40 percent of people in prison had been convicted of property or drug offenses.

CSG Justice Center analysis of National Corrections Reporting Program (NCRP) prison data.

The Pew Charitable Trusts, The Effects of Changing Felony Theft Thresholds: More Evidence That Higher Values Have Not Led to Increased Property Crime or Larceny Rates (Washington, DC: The Pew Charitable Trusts, 2017).

The Pew Charitable Trusts, More Imprisonment Does Not Reduce State Drug Problems (Washington, DC: The Pew Charitable Trusts, 2018).

Case Study

Indiana updates penalties in the criminal code

In 2009, the Indiana General Assembly formed the Criminal Code Evaluation Commission (CCEC) and tasked it with reviewing the state criminal code, which had not been overhauled since the 1970s. Between 2010 and 2012, reviewers checked the code with the following objectives in mind:

  1. Creating consistency
  2. Providing proportionate penalties and fitting similar sentences to similar crimes
  3. Eliminating duplication
  4. Increasing certainty about length of sentence served
  5. Prioritizing prison space for people convicted of serious, violent crimes

In 2010 and 2011, the CSG Justice Center worked with Indiana policymakers to analyze criminal justice data and interview stakeholders from across the criminal justice system. This led to the development of data-driven policy options designed to reduce corrections spending and increase public safety, which the CCEC supported. In 2011, the state introduced legislation based on those policy options, but no legislative action was taken during that session and the state’s official participation in the Justice Reinvestment Initiative (JRI) ended.

In 2013, 2014, and 2015, the Indiana General Assembly passed legislation to update the criminal code:

  • The new code added two new felony levels, creating a system that ranges from Level 1 (most serious) to Level 6 (least serious).
  • With a few exceptions, people convicted of Level 6 felonies cannot serve their sentence in prison and instead can be sentenced to jail or supervision in the community.
  • Good time credit procedures were changed to match the severity of the offense. People convicted of high-severity offenses, such as sex offenses against children, now receive the least amount of good time credit.

The legislation that passed included recommendations from the JRI process and additional recommendations from CCEC. The legislature provided funding to help Indiana counties prepare for the additional number of people convicted of Level 6 offenses serving their sentences in local communities.[20] Between FY2016 and FY2018, the Department of Corrections provided $50 million in grants to fund community corrections programs, probation departments, court recidivism-reduction programs, jail treatment services, and prosecutor diversion programs in hiring and training additional staff, providing behavioral health treatment and cognitive behavioral programs, and purchasing equipment.[21] The state also created a grant program, known as Recovery Works, to increase the availability of behavioral health treatment and recovery services in the community for people without insurance coverage who may otherwise face incarceration. The legislature provided $40 million for Recovery Works between FY2017 and FY2018.[22] Between November 2015 and May 2017, 12,040 people were enrolled in Recovery Works and the majority of referrals to the program came from probation and parole agencies.[23] A recent study found that people who remained in the program for at least six months had increases in rates of employment and insurance coverage and decreases in self-reported arrests.[24]

In 2015, the legislature also established the Justice Reinvestment Advisory Council (JRAC) to conduct a state-level review and evaluation of local corrections programs, including community corrections, county jails, and probation services, and the processes used by the Department of Correction and Division of Mental Health and Addiction in awarding grants. JRAC is charged with reporting annually on the impact of the grant-funded programs. Their latest report can be found here.

[20] Linda Brady, “Indiana’s Justice Reinvestment Journey: A Revamped Criminal Code” (Bloomington, IN: Monroe Circuit Court Probation Department, 2016).

[21] Indiana Justice Reinvestment Advisory Council, Annual Report: October 1, 2016–September 30, 2017 (Indiana: Indiana Justice Reinvestment Advisory Council, 2017).

[22] Ibid.

[23] Brad Ray and Jeff Gruenewald, “Recovery Works Phase One Policy Brief: Report to the Indiana Division of Mental Health and Addiction,” (Indianapolis, IN: Indiana University Public Policy Institute, 2017).

[24] Ibid.

Case Study

South Carolina sentencing and corrections reforms save millions

In 2010, South Carolina enacted sentencing and corrections legislation designed to protect public safety, hold people accountable for their actions, and control prison growth. The legislation strengthened supervision for people on probation and parole, improved release decision making, and made sentencing changes to prioritize prison space for people convicted of the most serious offenses and repeat offenses.

The legislation increased penalties for certain violent crimes, as well as revised penalties for certain property crimes by increasing the felony property crime threshold from $1,000 to $2,000 for all felony property crimes. The legislation permits people convicted of non-trafficking drug offenses to be eligible for probation and parole and receive good conduct credits; equalizes penalties to erase the disparity between crack and powder cocaine possession; clarifies proximity to schools for drug offenses; and requires an accurate fiscal impact statement prior to any legislation that would establish a new criminal offense or that would amend sentencing provisions of an existing criminal offense.[25]

Between 2009 and 2016, the state’s prison population fell 16 percent, and the share of prison space prioritized for people convicted of violent offenses increased 27 percent, reducing operating costs and averting spending totaling $491 million.[26] Between 2010 and 2015, the state’s crime rate fell 16 percent.[27]

[25] The Pew Charitable Trusts, “South Carolina’s Public Safety Reform: Legislation Enacts Research-Based Strategies to Cut Prison Growth and Costs” (Washington, DC: The Pew Charitable Trusts, 2010).

[26] The Pew Charitable Trusts, “Data Trends: South Carolina’s Criminal Justice Reform” (Washington, DC: The Pew Charitable Trusts, 2017).

[27] Ibid.