State Legislative Affairs Update

State Legislative Affairs Update

Access to The Champion archive is one of many exclusive member benefits. It’s normally restricted to just NACDL members. However, this content, and others like it, is available to everyone in order to educate the public on why criminal justice reform is a necessity.


Death Penalty

Connecticut: House Votes To Retain Death Penalty

After more than five hours of debate, the Connecticut House of Representatives voted 89-60 against H.B. 6012, which would have replaced capital punishment with a sentence of life in prison without the possibility of release. The March 30th vote came as the courts considered whether Michael Ross — sentenced to die for strangling and raping four young women in the early 1980s — is competent to stand trial. Ross has asked to be executed, and he is scheduled to die May 13. While death penalty opponents lost the vote, they were satisfied that a full-fledged debate on the death penalty occurred and that they received 60 votes for abolition.

New York: Assembly Issues Report On Death Penalty Hearings; Capital Punishment Unlikely To Be Revived

On April 4, the New York State Legislature released a report highlighting testimony from 170 witnesses who attended five recent statewide hearings on the death penalty. The hearings were convened in the wake of People v. LaValle, which essentially invalidated the death penalty in New York state. Of the 170 witnesses, 148 opposed the death penalty. As a result of the hearings and strong outpouring of opposition to capital punishment, it appears that the death penalty will not be reinstated by the state legislature.

The New York Assembly report and press release are online at:


Drug Law Reform

California: Legislators, Advocates Battle Over ‘Treatment-Not-Jail’ Bills

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In the 2000 election, California voters overwhelmingly approved Proposition 36, which required non-violent drug possession offenders to receive treatment instead of jail or prison time. This year, the law’s drug treatment funding expires, requiring the legislature to authorize more funds and possibly alter the voter-approved law. Prosecutors and narcotics officers are seeking to severely scale back the law, while drug treatment advocates want it expanded.

S.B. 556, which would strengthen Prop. 36 according to advocates, passed the Senate Public Safety Committee on April 19 and is headed to the Senate Health Committee. S.B. 803, which was scheduled for a hearing as The Champion went to press, would significantly alter the intent of the law. It would allow 25-years-to-life prison terms to be imposed on otherwise treatment eligible offenders, as well as impose more jail time for persons showing signs of “treatment non- compliance.” This added jail time alone is estimated to cost counties an additional $29 million.

For more on the battle for the future of Prop. 36, see the Drug Policy Alliance website:

Maryland: Legislators Reject Mandatory Minimum Reforms

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Advocates for criminal justice reform in Maryland were close to achieving a legislative victory this year, but fell one vote short when S.B. 673 was voted down in the Senate Judiciary Committee. The bill would have repealed mandatory minimum sentences for many drug offenses, giving discretion back to judges.  


Recording Interrogations

District of Columbia: Interrogation Recording Law Passes Council, U.S. Congress

On April 13, 2005, the Electronic Recording Procedures Act of 2004 became law (D.C. law 15-351) after completing the congressional review process. The law requires the Metropolitan Police Department to electronically record custodial interrogations of persons suspected of committing crimes of violence. The recording must “commence with the first contact between the suspect and law enforcement personnel once the suspect has been placed in the interview room,” including the Miranda warning. A statement that is not recorded is subject to a rebuttable presumption that it is involuntary, and may be overcome if the prosecution proves by clear and convincing evidence that the statement was voluntary.

New Mexico: Legislation Requiring Recorded Interrogations Signed By Governor

New Mexico became the first state in 2005 to require interrogations to be recorded. HB 382 applies to custodial interrogations in felony cases, and the recording must include the Miranda warning. While advocates note that some loopholes in the law exist, such as only requiring officers to “comply when reasonably able to do so;” containing a “good cause” exception to recording; and not requiring recording when “the electronic recording equipment was not reasonably available,” they believe the law is an important first step in getting all interrogations electronically recorded.

New Jersey: Recording Interrogations Advances Per State Supreme Court Committee, Attorney General

The New Jersey Supreme Court’s Special Committee on Recordation of Custodial Interrogations issued its report on April 15, recommending that the state Supreme Court adopt a rule requiring police interrogations in most violent crime cases to be electronically recorded. The Committee — made up of representatives from a cross-section of the criminal justice system — recommended that recordings “should occur when a custodial interrogation is being conducted in a place of detention and should begin at, and include, the point at which Miranda warnings are required to be given.”

While these recommendations are new, police in New Jersey have been recording confessions of murder suspects since April 2004, thanks to guidelines issued by Attorney General Peter Harvey. Those guidelines were recently expanded to require confessions in all first-and second-degree cases to be recorded by September, and all third-degree cases by the end of 2005. While advocates have applauded this important first step, they say it doesn’t go far enough because the full interrogation – from Miranda warning to confession — is not recorded.

Now that the Special Committee on Recordation of Custodial Interrogations has issued its recommendations, it appears likely that recordings will have to include the Miranda warning. The state Supreme Court is seeking comments on the report until July 1, and will eventually issue court rule changes.

The report of the Special Committee on Recordation of Custodial Interrogations is online at:


Eyewitness ID Reform

Virginia: First State To Pass Eyewitness ID Reform Legislation In 2005

On March 20, Governor Mark Warner (D) signed modest eyewitness identification reform legislation requiring arrestees’ photographs to be sent to the Central Criminal Records Exchange and for state and local law enforcement agencies to “establish a written policy and procedure for conducting in-person and photographic lineups.” The legislation was passed at the urging of the Virginia State Crime Commission, which delivered its recommended eyewitness ID reforms to the legislature in its report, “Mistaken Eyewitness Identification.” Thanks to another commission recommendation, police recruits and current officers in Virginia will be trained in proper eyewitness identification procedures beginning in October.

The Virginia State Crime Commission report, “Mistaken Eyewitness Identification,” is online at:


Innocence-Related News

North Carolina: Legislation Introduced To Establish Innocence Inquiry Commission

In March and April, legislation was introduced in North Carolina’s House (H.B. 1323) and Senate (S.B. 1045) to establish a statewide agency to screen and investigate innocence claims. The bills were introduced at the urging of North Carolina’s Actual Innocence Commission, headed by state Supreme Court Chief Justice I. Beverly Lake, Jr. Lake testified in support of the legislation before the State Senate Judiciary Committee Thursday, April 14.

The plan calls for the North Carolina Innocence Inquiry Commission to investigate inmates’ claims, which would be evaluated by a seven-member panel composed  of members appointed by the Chief Justice of the North Carolina Supreme Court, including a prosecutor, defense attorney, judge, and a victims’ advocate. If five of the seven members found “sufficient evidence of factual innocence,” the claim would be forwarded on to a three-judge panel. To be declared innocent, the three judges would have to unanimously agree that there is clear and convincing evidence that the defendant did not commit the crime. To deter false claims, the legislation requires defendants to waive their “procedural safeguards and privileges,” allows defendants to be compelled to testify, and requires “evidence of criminal acts, professional misconduct, or other wrongdoing disclosed through formal inquiry or Commission proceedings” to be “referred to the appropriate authorities.”  

Texas: Senate Committee Approves Bill For Agency To Review Innocence Claims

The Texas Senate Committee on Criminal Justice approved a bill sponsored by Sen. Rodney Ellis (D) that would empower a criminal justice agency to investigate wrongful convictions and “colorable allegations that an innocent person has been executed.” S.B. 1033 would give the Criminal Justice Advisory Council the power to investigate all post-conviction exonerations to determine what errors occurred in the cases and what procedures need to be implemented to prevent future wrongful convictions. The bill would also empower the Council to issue subpoenas for witnesses and documents for its investigations.

Virginia: Innocence Commission Examines Wrongful Convictions

The Innocence Commission for Virginia (ICVA) released a major report on March 30, 2005, which identified common problems that led to eleven wrongful convictions in the state between 1982 and 1990. The report calls for reforms in seven areas — eyewitness identification, interrogation, discovery, law enforcement investigation, scientific evidence, and defense practices  — to improve Virginia’s criminal justice system and offer the latest and best practices to law enforcement officers, courts, prosecutors, and defense counsel.

The ICVA report, A Vision for Justice, is online at:

Wisconsin: Task Force Makes Recommendations To Reduce Wrongful Convictions

The Avery Task Force made a set of important recommendations earlier this year that should go far in reducing wrongful convictions. The task force — composed of legislators, judges, prosecutors, defense attorneys, police, academics, and a victims’ advocate  —  was created in the wake of Steven Avery’s exoneration. Avery was sentenced to 32 years in prison in 1985 for first-degree sexual assault and released in 2003. The task force’s recommendations and draft legislation address: eyewitness identification reform; DNA preservation; DNA testing; and the statute of limitations in sexual assault cases. The task force also endorsed a policy calling for the electronic recording of interrogations, but no specific proposals were drafted. More work on this issue is expected in the near future.
To learn more about the Avery Task Force’s work, see:


Sentencing Reform

Colorado: Legislature Takes Wait-and-See Approach To Blakely Fix

Colorado’s legislature considered — and killed — two bills that would have brought the state in line with the Supreme Court’s Blakely decision.  The first, S.B. 05-215, was supported by the  district  attorneys, and “would have expanded the state’s sentencing range to engulf both the presumptive range and the aggravated range for felony sentencing,” according to Guss Guarino, Executive Director of the Colorado Criminal Defense Bar (CCDB).  According to Guarino, the result would have been “a broad, indeterminate sentencing scheme.” Over five years, a significant expansion of the prison population was expected, as was a price tag of over $50 million.

As an alternative, the CCDB, led by Legislative Liaison Maureen Cain, strongly advocated for H.B. 05-1327, which would have provided a procedural mechanism for a jury determination of aggravating circumstances.  The one-year fiscal note on this bill was $500,000.

Guarino  said  Colorado’s compromise was to consensually kill both bills after much legislative wrangling.  As a result, Colorado now has two sentencing ranges for each felony class (F1 to F6) — the presumptive range and the aggravated range. The Colorado Court of Appeals has determined in numerous cases that a sentence in the aggravated range requires a stipulation by the defendant or a determination of fact by the jury, but currently there is no rule or procedure that addresses a jury determination of aggravators. While the state Supreme Court has yet to rule on the impact of Blakely/Booker on Colorado’s felony sentencing scheme, it inevitably will in the near future.