AG Holder Remarks on Criminal Justice Reform

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 forAttn. General Holder Testifies At Senate Judiciary Hearing On Justice Dept Oversight 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.

The Problem(s) With American Criminal Justice

Tyranny and the Prosecutor

Regular readers know that it is our belief that the American criminal Justice system is a bloated, over-powered mess. One author on the subject believes that there are so many laws that the average American commits three felonies each day without even knowing it. There are so many laws and regulations (with criminal penalties), that no normal person could learn them all in order to comply.

Prosecutors in both the state and federal systems wield the power of these laws. A system built like this can lead to criminal prosecutions that are possible because a motivated DA or US Attorney can find some law that has been broken to get their conviction. Some zealous prosecutions have ended with the suicide of a defendant.

To be fair, though, many prosecutors are good men and women that honestly want to promote justice and order. In my last post, I discussed a prosecutor who I believe crossed way over the line.

The power of the Prosecutor

In this lengthy and powerful article, written by Radley Balko over at the Huffington Post, the power of the prosecutor in the American system of criminal justice is explored in detail. Below are some great passages of this article, but the full piece deserves a full read:

We have too many laws.
There have been a number of projects that attempted to count the total number of federal criminal laws. They usually give up. The federal criminal code is just too complex, too convoluted, and too weighted down with duplications, overlapping laws, and other complications to come to a definite number. But by most estimates, there are at least 4,000 separate criminal laws at the federal level, with another 10,000 to 300,000 regulations that can be enforced criminally. Just this year 400 new federal laws took effect, as did 29,000 new state laws. The civil libertarian and defense attorney Harvey Silverglate has argued that most Americans now unknowingly now commit about three felonies per day.

We need to move away from the idea that every act we find immoral, repugnant, or unsavory needs to be criminalized. Every new criminal law gives prosecutors more power. Once we have so many laws that it’s likely we’re all breaking at least one of them, the prosecutor’s job is no longer about enforcing the laws, but about choosing which laws to enforce. It’s then a short slide to the next step: Choosing what people need to be made into criminals, then simply picking the laws necessary to make that happen.

Prosecutors have perverse incentives.

At the state level, prosecutors are reelected, move on to higher office, or win prestigious jobs at high-powered law firms for racking up large numbers of convictions — and for getting high-profile convictions. They’re rarely publicly praised or rewarded for declining to prosecute someone in the interest of justice. I’m sure it happens. But it isn’t the sort of thing even a well-intentioned prosecutor is going to boast about in a press release.

And in conclusion…

Too often, criticism of prosecutorial excesses isn’t framed as this should never happen, but why isn’t this happening to the people I don’t like? Until that changes — until partisans are willing to condemn abuses even by their own, or committed against their political opponents or people they personally find unsavory — the problem is only going to get worse.

I’d suggest all of these factors (and probably a few I haven’t thought of) have increasingly made us a nation ruled not by laws, but by politics (and by aspiring politicians). And once criminality is influenced primarily by politics, we’re all just potential criminals.

Rarely do I see a piece like this which delves so deep into the problems endemic to the system of American criminal justice. I applaud Mr. Balko for this piece and encourage readers to take a longer look.

US Sentencing Commission Holds Important Public Hearings

February U.S.S.C. Public Hearings

February is set to be a significant month in the world of the United States federal sentencing. The US Sentencing Commission has announced two public hearings regarding big sentencing issues involving federal criminal justice.

The first hearing, announced Wednesday, is all about federal Child Pornography sentencing. A huge public reaction has occurred because many federal Child Porn possessors are getting much larger sentences than the offenders who actually create  that pornography and sexually assault the pictured victims.

The purpose of the public hearing is for the Commission to gather testimony from invited witnesses regarding the issue of penalties for child pornography offenses in federal sentencing.

The second hearing, also announced Wednesday, regards sentencing in the post-Booker world.

The purpose of the public hearing is for the Commission to gather testimony from invited witnesses on federal sentencing options pursuant to United States v. Booker.

The outcome of these hearing could be effective policies that alter sentences both in the future and retroactively. These decisions are made based on these hearings. Although the hearings themselves are public, the general public is not allowed to comment and testify. Only a handful of invites were sent out for each hearing.

Check back soon for information on the outcomes of these hearings.

Federal Prison Reform and Unusual Allies

Common Sense and Federal Prison Reform

In a piece from Truth-Out entitled “Push to Reform Prison System Brings Unlikely Allies Together”, the unusual and unlikely are no joining forces to push for federal prison reform that has been needed for over two decades. (See Sentencing Reform Act of 1984). Excerpts from the Truth-Out article are below:

Over the past 15 years, the US prison population has more than doubled. There are 2.3 million Americans behind bars – that’s one in 100. About half of the people in prison are serving time for nonviolent offenses, including drug possession. More than 60 percent of US prisoners are black or Hispanic, according to the Pew Center on the States.

With just over 4 percent of the world’s population, the US accounts for a quarter of the planet’s prisoners and has more inmates than the leading 35 European countries combined.

Corrections is now the second-fastest growing spending category for states, behind only Medicaid, costing $50 billion annually and accounting for $1 of every $14 discretionary dollars. California spends approximately $50,000 per prisoner per year, far more than the state spends on students.

The push to reform the prison system has brought unlikely allies together. Earlier this year, the National Association for the Advancement of Colored People joined forces with Republican presidential hopeful Newt Gingrich who is part of a new prison reform initiative called Right on Crime.

In September, Inimai Chettiar, policy counsel at the American Civil Liberties Union wrote about speaking alongside members of Right on Crime and the faith-based Prison Fellowship at the American Bar Association’s initiative to “Save States Money, Reform Criminal Justice and Keep the Public Safe.”

“Never before have so many legislators, governors and advocates from all sides of the aisle come together with a single unifying theme on criminal justice: we need to end our addiction to incarceration,” she writes.

Yet, it’s all too rare to hear about their efforts.

Tim Cavanaugh, managing editor of Reason.com, the web site for the libertarian Reason Magazine, says prison reform should be a major issue for conservatives, yet more often than not, it’s falsely framed as a liberal issue. He notes that Mario Cuomo, the “great liberal governor of New York,” was the pioneer of the three-strikes-and-you’re-out law, and California, the most liberal state in the country, passed a three-strikes law in 1994.

Reason’s July issue was dedicated to prison reform with articles focusing on prosecutorial misconduct on death row, the costs involved in leading the world in locking up human beings and how California prison guards became the country’s most powerful union.

Cavanaugh says one solution would be a ten-year moratorium on new laws at the city, state and federal levels. He would also end the so-called war on drugs. “You can get rid of a huge body of cancerous US legal code just by eliminating the war on drugs. Ending the war on drugs would solve these problems,” he says. “We are the revolutionaries. We are the ones who are trying to tear down the castle walls and there are a lot of folks who want to keep it.”

Why the Resistance to Less Incarceration?

The simple answer to the title of this section is: Money. The prison industry makes billions of dollars every year, and the growing trend is in private prisons. The Justice Policy Institute did a major report on the private prison industry which explains its lobbying and influence on justice policies that keep their prisons full (read: profitable).

The report (available here) is called “Gaming the System: How the Political Strategies of Private Prison Companies Promote Ineffective Incarceration Policies.” Here are the basics:

At a time when many policymakers are looking at criminal and juvenile justice reforms that would safely shrink the size of our prison population, the existence of private prison companies creates a countervailing interest in preserving the current approach to criminal justice and increasing the use of incarceration.

While private prison companies may try to present themselves as just meeting existing demand for prison beds and responding to current market conditions, in fact they have worked hard over the past decade to create markets for their product. As revenues of private prison companies have grown over the past decade, the companies have had more resources with which to build political power, and they have used this power to promote policies that lead to higher rates of incarceration.

For-profit private prison companies primarily use three strategies to influence policy: lobbying, direct campaign contributions, and building relationships, networks, and associations.

As policymakers and the public are increasingly coming to understand that incarceration is not only breaking the bank, but it’s also not making us safer, will this shrink the influence of private prison companies? Or will they use their growing financial muscle to consolidate and expand into even more areas of the justice system? Much will depend on the extent that people understand the role for-profit private prison companies have already played in raising incarceration rates and harming people and communities, and take steps to ensure that in the future, community safety and well-being, and not profits, drive our justice policies. One thing is certain: in this political game, the private prison industry will look out for their own interests.

Republicans Block Justice Reform Proposal in Senate

Senator Webb’s Ambitious Plan Shot Down

In a disheartening turn of events Senator Webb (D-Va.), a long-time supporter of criminal justice reform in the United States Senate, had his bill shot down. The bill in question would have established a commission to review and propose changes to the criminal justice system in America. The title of this article is the title of this POLITICO report on the Senate vote. Specifics from the article are below:

Invoking “states rights” and the Constitution, Senate Republicans Thursday torpedoed an ambitious plan to create a national blue ribbon bipartisan commission to do a top-to-bottom review of the U.S. criminal justice system and report back potential reforms in 18 months.

The 57-43 roll call – three short of the 60 supermajority needed – dramatized again how politically divided the chamber has become.

Almost identical legislation cleared the House in the last Congress on a simple voice vote with Republican backing and had been approved with bipartisan support in the Senate Judiciary Committee last year as well.

Given endorsements from the American Bar Association and many police and sheriffs organizations, proponents had hoped to clear the 60 vote supermajority required in the Senate. But under a barrage of last-minute attacks, Republican support wilted. And the chief sponsor, Sen. Jim Webb (D-Va.), found himself deserted by even his long time associate and fellow Vietnam veteran, Sen. John McCain (R-Ariz.).

“We’re not done,” Webb told POLITICO. “There were very specific answers to everything that was raised there. There is no states rights issue in convening the best minds in America to give you advice and observations about the overall criminal justice system.”

“I thought he was voting with us,” Webb said of McCain. The Arizona Republican argued in a separate hallway interview that the state-rights complaint was valid and also took issue with how the 14-member commission, seven Republicans and seven Democrats, would be chosen.

Indeed, Republicans argued that the White House would have too much influence, effectively creating a 9-7 majority for the administration. But Webb said the specific language that one set of commission seats be chosen “in agreement” with the White House had been the exact phrasing chosen by the GOP. And Republicans are specifically promised control over one of the two co-chairs.

Individual Republican senators said they had come under pressure from local district attorneys and judges in drug courts to oppose Webb. But the Democrat countered that he had strong support from the drug court judiciary and the model for his proposal was the influential presidential commission on crime and the judicial system in the mid 1960’s led by then-Attorney General Nicholas Katzenbach.

Webb said that 40 years later it is reasonable to have a second review, especially given the high incarceration rate in the U.S. at a time or relatively low crime rates.

“Our criminal justice system is broken in many areas,” he told the Senate in his own floor comments. “We need a national commission to look at the criminal justice system from point of apprehension through reentry into society of people who have been incarcerated.”

It is troubling how partisanship can play so heavily to a major issue facing the United States, which incarcerates almost 25% of the entire globe’s prisoners. Senator Webb is down but not out and one can only hope that this bill can pass soon, allowing professional reasoning and empirical data to determine how best do deal with issues of crime in America.