While United States Attorney General Eric Holder announced six months ago that he would be leaving his office, he is still serving and waiting for his replacement to be confirmed and take control of the US Department of Justice. In the meantime, he has not let up on his belief that criminal justice reform is a very pressing issue for the DOJ.
In a speech to the Bipartisan Summit on Criminal Justice Reform, a long speech, there was a section that should be posted loud, clear, far, and wide. It speaks to the heart of what true criminal justice reform means and some of the reasons why it is necessary. The section is posted below:
“We must reject the notion that old practices are unchangeable, that the policies that have governed our institutions for decades cannot be altered and that the way things have always been done is the way they must always be done. When the entire U.S. population has increased by a third since 1980, but the federal prison population has grown by almost 800 percent, it is time – long past time – to look critically at the way we employ incarceration. When the United States is home to just five percent of the world’s population but incarcerates almost a quarter of its prisoners, it is time – long past time – to reexamine our approach to criminal justice. And when estimates show that a staggering 1 in 28 American children has a parent behind bars and that the ratio for African-American children is 1 in 9, it is time – long past time – to take decisive action in order to end a vicious cycle of poverty, criminality and incarceration that traps too many individuals, degrades too many families and devastates too many communities.
That means more state legislatures must end felon disenfranchisement – and so many other barriers to reentry – for individuals who have served their sentences and rejoined their communities, and invest in alternatives to incarceration like drug courts – something I’d like to see in the next five years in every federal district in America. It means Congress must act to restrict and refine those crimes to which mandatory minimums apply and extend the Fair Sentencing Act so that no one is serving a sentence based on a disparity in punishment between crack cocaine and powder cocaine offenses that Congress, the President and the Attorney General have all declared unjust. And it means gatherings like this one must continue to bring together leaders and advocates, academics and public servants, from all backgrounds and circumstances, to renew our commitment to this vital cause.”
The full text of Holder’s speech can be found at the DOJ’s website, and is definitely worth the time it takes to read in full.
A week before the arguments are heard by the United States Supreme Court, the folks at SCOTUSblog have this commentary on the case, and what it all means. Below are some notable excerpts of the article.
This is a narrow case. It involves a defendant who represents a relatively small and, with time, diminishing class of individuals (those with sex-offender convictions pre-SORNA). It involves a defendant who is subject to SORNA by virtue of his military conviction, and not his interstate travel. And it involves a challenge to SORNA’s penalty provision, and not its other provisions (including its registration provision, although it may be hard to separate the two here).
Moreover, the Fifth Circuit ruling is by its own terms quite narrow, striking SORNA only as it applies in these “specific and limited facts.” The government sought review on, and the parties argue, even narrower questions. And both parties offer potential ways for the Court to dodge the core constitutional question. The government argues that the Court could simply correct the Fifth Circuit’s erroneous premise that Kebodeaux was not under a continuing federal registration obligation pre-SORNA and remand for further proceedings. Kebodeaux, for his part, argues that his failure to register occurred before SORNA applied to him, and therefore that he could not be validly convicted for failing to register under SORNA. (He says that the Attorney General had not yet issued valid regulations specifying that SORNA applied to pre-SORNA offenders when he failed to register.)
In short, this is no broadside challenge to congressional authority to require sex-offender registration. Instead, it is a very narrow case. And we can expect the Court to address it that way.
Still, bigger issues are likely to emerge in the arguments. Thus, look for the Court to press the government for limits on congressional authority, and to ask the government about federal intrusion into areas of traditional state concern. In other words, some on the Court are likely to worry about whether the government’s theories lead to an expansive federal power that can encroach too far on the states.
On the other hand, look for the Court to ask Kebodeaux about the sweep of federal power under Comstock, especially when Kebodeaux came under federal authority because of his military service, and not because of his interstate travels. Look for the Court also to test Kebodeaux’s theory of federal control pre-SORNA, given the full sex-offender registration scheme under the Wetterling Act (including the federal penalty for failure to register, and also including the federal financial incentives for states to create their own registrations and other features of the Act). The Court could see SORNA’s application to Kebodeaux as only a modest additional exercise of federal authority, given these considerations.