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January 6, 2017

An optimistic accounting of many areas for bipartisan federal criminal justice reform ... and good lines of inquiry for AG nominee Jeff Sessions

The week brought this extended commentary by Mark Holden at The Hill under the headline "Criminal justice reform is ripe for bipartisan achievement." I recommend the piece in full, and here are highlights of the reforms urged (with Holden's accounting of "reason it could pass" left out so readers will be encouraged to click through):

Criminal justice reform has been one of the few policy areas where Republicans and Democrats have forged bipartisan consensus.  They have come close to passing reform the past two years, and now it’s up to GOP lawmakers to pick up where they left off. Leaders as diverse as Sens. Cory Booker (D-N.J.) and Mike Lee (R-Utah) agree that the current system is broken....

That’s why it’s critical that leaders in Congress take up criminal justice reform. If they focus on six key areas of reform, there’s a real possibility that legislation could pass in both the House and Senate, even with the Senate’s 60-vote threshold, a bar not easily achieved on other issues.

Here are the six areas of reform — and the reasons they have a viable path to becoming law.

First, we need to reform the grand jury process and rein in prosecutorial overreach. As Judge Kozinski has advocated, lawmakers should require open file discovery, so prosecutors hand over all evidence favorable to an accused person, and also establish truly independent prosecutorial review units to investigate abuses....

Second, we must protect every citizens’ Sixth Amendment rights.  When it comes to federal cases, Congress should ensure that all individuals — regardless of income level – have an adequate chance to retain counsel before they appear in court.  It should also explore the model that some states have moved to, which allows defendants to choose a private lawyer from a list of options, rather than being appointed a lawyer who may not offer a competent defense....

Third, the punishment must fit the crime. Congress should reform mandatory minimums that don’t make sense and increase the use of “safety valves,” which allow judges to use their discretion for non-violent offenses if the offender meets certain requirements. These reforms are particularly important for low-level and non-violent offenders (mostly involving drug crimes), who too often languish in prison for years or even decades at a time at great cost to their families and our society at large.....

Fourth, prisons should leave individuals better off than when they came in. Prison rehabilitation programs have proven to reduce the chance of re-offense and save taxpayer dollars....

Fifth, Congress should give worthy individuals a chance to rejoin society and find fulfillment in their lives.  Lawmakers could start by “banning the box” from federal employment applications so that individuals with a record can be considered for government jobs.  Congress, however, should not mandate that companies “ban the box,” but should allow them to voluntarily do so.  Congress should also clear the record of qualifying youth and non-violent federal offenders; limit solitary confinement for juveniles; and establish effective rehab, educational, and vocational programs so that every individual leaves prison a better person than when they came....

Finally, Congress needs to dramatically scale back the federal criminal code and ensure that all criminal laws have adequate criminal intent, also known as “mens rea.”  The criminal code is a stunning 27,000 pages and comprises an estimated 4,500-6,000 criminal laws — and that doesn’t even include the thousands of additional federal regulations that impose criminal punishments. Many penalize people who had no idea they were committing a crime — missing a basic historical requirement that once existed in the criminal law to protect people from being unfairly prosecuted....

Any one of these reforms would improve our federal justice system — and have a profound effect on our society.  Taken together, they will make communities safer, support our brave law enforcement officers, save taxpayer dollars, and empower individuals in need of a second chance.  That’s precisely why Republicans and Democrats alike will have a difficult time answering to their constituents if they resist such reforms.  Doing so would be a clear political move that overlooks the millions of Americans who would be better off as a result of this bipartisan achievement.

If President-elect Trump and the GOP Congress take up criminal justice reform, it will be a sure sign that they are willing to look beyond party lines in order to improve people’s lives.  That would be good start to putting individuals’ safety and wellbeing ahead of partisan politics.

As the title of this post suggests, I think this piece's accounting of six areas in need of reform would provide a fantastic guide for questions for Senator Jeff Sessions during his hearings to serve as Attorney General. These questions can be softball (e.g., do you believe prison rehabilitation programs can be valuable?) or tough (e.g., do you think there should be more means for federal inmates to earn sentence reduction for participating in prison rehabilitation programs). And I welcome readers to use the comment to make more suggestions for additional soft or tough questions on these or other fronts.

Critically, and as I hope to outline more fully in a post over the weekend, I feel very strongly that those Senators who support federal criminal justice reforms ought to use the Sessions' confirmation hearing to do much more that just simply attack the Senator for long-ago acts or statements claimed to be evidence of racism or insensitivity.  Instead, by crafting astute questions concerning specific area of the federal criminal justice system in need of reform, members of the Judiciary Committee could and should be able to get Sessions to express support for — or at least a lack of opposition to — many of the bipartisan reforms discussed above and widely embraced inside the Beltway in recent years.

January 6, 2017 at 10:46 AM | Permalink


How is a system broken if it produces continual drops in crime rates? Reform of the criminal justice system is the same as stopping the insulin in a diabetic who has done well on it for two decades. Diabetes is chronic. Crime is chronic.

Posted by: David Behar | Jan 6, 2017 2:35:12 PM

I strongly question suggestion #2. Most everyone familiar with federal criminal practice will tell you that Federal Public Defender Organizations offer superior representation than appointed attorneys.

Posted by: Anon | Jan 7, 2017 7:46:58 AM

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