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December 28, 2019

"Attorney General Barr wrong about role of prosecutors. Tough-on-crime stance stunts progress."

The title of this post is the headline of this notable new USA Today commentary authored by Ronald Wright.  Ron is a co-author on the Sentencing Law and Policy casebook, so I am professionally inclined to agree with a lot of what he has to say.  But this commentary — which carries a subheadline "Criticism of 'social justice' prosecutors, threat to communities shows DOJ leaders lack vision, understanding to ensure justice system reform" — strikes me as an especially astute and thoughtful response to some of the silliness emerging from DOJ leaders on this issue of late.  Here are extended excerpts:

Across the country, a new wave of prosecutors is working to reverse the damaging effects of decades of over-incarceration, attempting to make progress in the face of criticism from the nation's top law enforcement officials — Attorney General William Barr and Deputy Attorney General Jeffrey Rosen.  Both men have shown a lack of understanding when it comes to prosecutorial reform — Barr in a column written his month in which he criticized "'social justice' DAs" and "'progressive' judges" and another written last month by Rosen that accused prosecutors of "shirking" their duty....

These comments are misleading, incorrect and, more than anything, demonstrate that Barr and Rosen don't understand the modern prosecutor’s job.

The idea that the criminal justice system is not broken appears to stem from an indifference to historical trends and current realities.  Incarceration rates may have begun to tick down, but the United States remains far and away the world's incarceration leader, with 2.2 million people behind bars.  Jails process 10 million admissions every year.  And we spend too much to incarcerate too many — at least $80 billion a year. In this country, spending on the very systems Barr and Rosen claim are working, has outpaced spending on education.

Absent from their vision is how our system punishes the most vulnerable. The median income of adults who end up in the system hovers at less than $20,000 a year for men (and about $5,000 less for women). That's half the average median income of men who never end up in prison. Every day, according to 2018 numbers, we keep about 53,000 children incarcerated in this country. And while a white man has a 1 in 17 chance of being sent to prison, those chances grow to 1 in 6 for Latino men and 1 in 3 for black men. In short, to claim that these systems are not broken shows willful blindness.

Instead of learning from past mistakes, Barr and Rosen continue to call for more of the same. They often credit law enforcement policies of the last few decades with reducing crime — without providing any evidence that mass incarceration works.

Yes, crime rates fell during the same time period that incarceration soared. But the crime drop has many causes. Studies show that tough-on-crime policies had, at best, a “modest” effect on the decline.  Prison growth in the 1990s had a limited impact on crime, but since then the effect mostly disappeared.  It is now clear that states with lower incarceration rates achieved just as much public safety as states with higher rates.  And other countries got better results with far smaller and more humane prison systems.

In sum, our bloated prison systems cost far more than necessary.  And we pay the price not only in tax dollars, but in damage to community trust. The best results for public safety happen when strong communities cooperate with prosecutors and police and other public officials.  In many places, voters have rejected the tough-on-crime mindset. Instead, they put their trust in district attorneys who campaigned to address the imbalances in the system, to correct past instances where the system failed, and to use the discretionary power all district attorneys possess to prosecute fewer people.

Which leads to perhaps their most glaring error. District attorneys that are catching criticism have listened to the voters. Then they pledged to fix the system and are doing exactly what the voters elected them to do.

All too predictably, Barr and Rosen return to the tired old argument that a prosecutor who cares about reform disrespects victims. Reformers are shifting their resources away from thefts and less damaging crimes precisely because they want to put more focus on firearms and violent crimes.  That choice of priorities takes victims seriously.  Moreover, by focusing on diversion instead of prosecution for minor and nonviolent offenses, reform prosecutors can help people address the underlying causes of criminal behavior. That makes today’s crime victims — and their communities — safer in the long run.

Barr and Rosen cast the prosecutor as a tough-on-crime warrior who exercises discretion in a few individual cases, while ignoring larger questions about the health of criminal justice.  Reform-oriented prosecutors were elected to improve criminal justice.  They listen to the lessons of history and the values and hopes of their own communities.  It requires a peculiar sort of deafness to argue for the same old prison-centered strategy that has proven too costly over many decades.

The best prosecutors are not warriors — either the tough-on-crime type or the social justice type.  The best prosecutors are problem solvers.

December 28, 2019 in Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (1)

December 27, 2019

Fitting criticisms of unfit attack on Washington DC's proposed Second Look Amendment Act

The revised sentencing provisions of the ALI's Model Penal Code include a section, titled "Modification of Long-Term Prison Sentences," calling upon jurisdictions to allow resentencing of all individuals sentenced to long terms after they have served 15 years in prison.  Senator Cory Booker has introduced a federal Second Look Act which would allow all persons to petition for resentencing after having served at least 10 years in prison.

Against backdrop, the proposed Second Look Amendment Act being considered by the Washington DC Council might look quite modest; it will allow only persons serving lengthy sentences who committed their crimes before age 25 to petition for a reduced sentence after having spending 15 years in prison (and DC law already allows this for those who committed their crimes before age 18).  But this recent Washington Post editorial, headlined "A bill to reduce sentences for violent D.C. felons goes too far," launches an immodest attack on the proposal. The very headline of this editorial had me troubled, as the DC bill does not itself actually reduce any sentences, it just provides a chance for some individual offenders serving extremely long terms to seek sentence reconsideration.

The text of the WaPo editorial is no more accurate.  In a closing paragraph, for example, the editorial asserts that "the measure would embrace a radical rejection of transparency in sentencing and straight dealings with victims."  Huh?  Given that this proposal is less ambitious than what the MPC now urges, there is really nothing "radical" about what this bill proposes.  Plus, the operation of the proposed sentence reconsideration would by entirely "transparent" and should operate with crime victims having an opportunity to be involved in sentencing reconsideration.   (Indeed, an article linked in the WaPo editorial highlights that some victims have been supportive of resentencings in the past.)

Helpfully, I have see two astute criminal justice commentators already busy on Twitter criticizing many more aspects of this WaPo editorial.  Scott Hechinger here has multiple tweets highlighting the problems in the language used throughout the editorial.  And John Pfaff here has multiple tweets highlighting how extreme US sentencing policies and practices are compared to the rest of the world.  Pfaff's tweet thread concludes with this fitting final thought: "the attitudes embodied in this editorial — the cruel punitiveness that doesn’t even require a trace of justification — is why we are where we are, and why we risk staying here indefinitely."

December 27, 2019 in Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

December 26, 2019

"Victims' Rights from a Restorative Perspective"

The title of this post is the title of this new paper authored by Lara Bazelon and Bruce Green recently posted on SSRN.  Here is its abstract:

The criminal adjudicatory process is meant in part to help crime victims heal.  But for some crime victims, the process is re-victimizing. For decades, efforts have been made to make the criminal process fairer and more humane for victims.  For example, state and federal laws are now designed to keep victims informed, allow them to be heard at sentencing, and afford them monetary restitution.  But these efforts, while important, have not persuaded crime victims to trust criminal process.  For example, sexual assaults remain grossly under-reported and under-prosecuted.  Less than 1 percent of sexual assault crimes result in a felony conviction.  Even the few victims who do receive their promised retributive outcome are not necessarily healed by the process.

Reform efforts seem to presuppose that victims of crime — or victims of particular crimes such as sexual assault — are essentially the same and have essentially the same need, namely, a need for the offender to be criminally prosecuted and sent to prison to serve the longest sentence the law allows.  However, sexual assault victims are a diverse group — racially, ethnically, socio-economically, and with respect to sexual identity – and they suffer varied harms because sexual assault encompasses a wide realm of misconduct and victim-offender relationships or lack thereof.  Even when victims suffer similar harms and come from similar backgrounds, they often have distinct, though sometimes overlapping, needs and objectives.  Some have no desire to participate in the criminal adjudication process at all.  Some will be re-traumatized by a successful criminal prosecution, even with the implementation of procedural reforms promoted by the victims’ rights movement and others.

Proceeding from the premise that victims are a diverse group with differing needs, we focus on victims who might prefer, and be better served by, a non-adversarial process that is centered on their needs, namely, restorative justice.  However much improved, adversarial adjudication directed at convicting and incarcerating offenders risks re-traumatizing victims rather than promoting healing.  It denies victims any significant control over the process, including control over their own narratives. We explore the value of restorative justice processes as an alternative that, in many criminal cases, may be preferable from victims’ perspective.  We acknowledge that restorative justice processes are rarely employed in sexual assault cases in the United States and that prosecutors may have reasons, independent of victims’ perceived interests, for preferring the adversary process, a criminal conviction and imprisonment.  Further, some victims’ advocates regard restorative justice as particularly inappropriate in the context of sexual assaults. Nonetheless, we suggest that when victims voluntarily choose to engage in a restorative justice process, it may be healing, because it gives victims agency in seeking a reckoning that fits with their particular needs and offers possibilities for addressing and repairing the harm that a criminal prosecution cannot.

December 26, 2019 in Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (2)

Tennessee Criminal Justice Investment Task Force releases extensive report with extensive criminal justice reform recommendations for the Volunteer State

As reported in this local article, the Tennessee Criminal Justice Investment Task Force recently "released its interim report, detailing problems with Tennessee's criminal justice system that have led to a high recidivism rate and 23 recommendations to fix them. Here is more about the report from the press piece:

Despite spending over a billion dollars a year and sending more people to prison, Tennessee communities are no safer than they were a decade ago.  That's the major conclusion from Governor Bill Lee's criminal justice investment task force....

Lee created the task force through an executive order in March, with the goal to help develop policies to reduce recidivism and improve public safety.  In August, the task force began reviewing the state's sentencing and corrections data, policies, practices, and programs. It also looked at what other states were doing.

Among the task force's key findings:

  • Tennessee's prison population grew 12 percent over the last decade, primarily because of longer sentences and fewer paroles
  • Three out of every four new prisoners in FY 2018 were serving time for non-violent crimes
  • Over half of prisoners released from custody are back in jail within three years
  • Half of local county jails are overcrowded
  • An increasing number of prisoners are women, with the state ranking 11th highest in the nation for female incarceration

With lawmakers set to return to Nashville in less than three weeks, the task force made 23 recommendations. The recommendations include:

  • Expanding access to sentencing alternatives, like probation and treatment programs
  • Help more inmates transition successfully back into society
  • Increase educational opportunities
  • Improve community supervision programs
  • Reduce probation terms
  • Streamline the parole process
  • Rewrite the sentencing code (replacing the current one from 1989)

This full 38-page task force report can be found at this link, and the last dozen pages has an intricate accounting of the 23 recommendations designed to "provide an avenue
for Tennessee to reduce recidivism and improve public safety."  Other states might also find these proposed avenues quite useful

December 26, 2019 in Offense Characteristics, Prisons and prisoners, Reentry and community supervision, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

December 24, 2019

"An Intellectual History of Mass Incarceration"

The title of this post is the title of this notable new article authored by Alice Ristroph now available via SSRN.  Here is its abstract:

There is much criticism of America’s sprawling criminal system, but still insufficient understanding of how it has come to inflict its burdens on so many while seemingly accomplishing so little.  This Article asks, as Americans built the carceral state, what were we thinking?  The Article examines the ideas about criminal law that informed legal scholarship, legal pedagogy, and professional discourse during the expansion of criminal legal institutions in the second half of the twentieth century.  In each of these contexts, criminal law was and still is thought to be fundamentally and categorically different from other forms of law in several respects.  For example, criminal law is supposedly unique in its subject matter, uniquely determinate, and uniquely necessary to a society’s wellbeing.  This Article shows how this set of ideas, which I call criminal law exceptionalism, has helped make mass incarceration possible and may now impede efforts to reduce the scope of criminal law.  The aim here is not to denounce all claims that criminal law is distinct from other forms of law, but rather to scrutinize specific claims of exceptionalism in the hopes of better understanding criminal law and its discontents.

December 24, 2019 in Purposes of Punishment and Sentencing, Recommended reading, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Two modern takes on the modern politics of criminal justice reform

I have recently seen these new commentaries that both speak to the interest state of modern criminal justice reform politics:

From The Conversation by Jody Armour, "How being ‘tough on crime’ became a political liability." Excerpts:

Kamala Harris recently dropped out of the presidential race after months of attacks from the left for her “tough-on-crime” record as San Francisco’s district attorney and as California’s attorney general.  A few years ago, the idea that being tough on crime would be a liability — not an asset — was unthinkable for both Democrats and Republicans.

Bill Clinton, during the 1992 presidential race, interrupted his campaign so he could return to Arkansas to witness the execution of a mentally disabled man. During Harris’ 2014 reelection campaign for attorney general, she actively sought — and won — the endorsements of more than 50 law enforcement groups en route to a landslide victory.

But something has changed in recent years. Harris’ failure to gain traction as a presidential candidate has coincided with a growing number of “progressive prosecutors.”  In the past, I would have scoffed at the notion of a progressive prosecutor. It would have seemed like a ridiculous oxymoron.

But in one of the most stunning shifts in American politics in recent memory, a wave of elected prosecutors have bucked a decades-long tough-on-crime approach adopted by both major parties. These prosecutors are refusing to send low-level, non-violent offenders to prison, diverting defendants into treatment programs, working to eradicate the death penalty and reversing wrongful convictions....

Michelle Alexander’s 2010 book, “The New Jim Crow,” deserves some credit for changing the way activists thought about crime and punishment.  Alexander cast mass incarceration as a civil rights crisis by showing that people didn’t simply end up in jail because they were bad people who made poor choices.  Nor did prison populations explode simply because there were more crimes being committed.  Instead, mass incarceration was closely intertwined with race, poverty and government policy.

Among civil rights activists, issues like affirmative action in higher education had been consuming a lot of time, energy and resources.  Alexander’s book helped redirect attention to racialized mass incarceration as a main battlefront in U.S. race relations.  Since its formation in 2013, the Black Lives Matter movement has made criminal justice reform a centerpiece of their activism.

From The Hill by Paul Samuels and Gabrielle de la Gueronniere, "Candidates take note: Strong bipartisan consensus on criminal justice reform."  Excerpts:

From the headlines these days, you might think that there is little that Republicans and Democrats agree on — but that is simply not true.  After decades of failed policies and devastating consequences, Americans on both ends of the political spectrum strongly agree about the need for bold action to reform the nation’s drug and criminal justice policies.  The question is: Will policymakers hear their unified voices urging action?

Polling recently conducted on behalf of Legal Action Center (LAC) found most Americans (71 percent) believe that treatment for addiction to opioids and other drugs should be readily available and affordable for all who need it, including 80 percent of Democrats and 64 percent of Republicans.  Most Americans (67 percent) also believe we should treat addiction to opioids and other drugs more as a health problem than a criminal problem, including 78 percent of Democrats and 55 percent of Republicans.  And there is strong support (61 percent) for expanding programs that send people arrested for drug use to treatment instead of prison.

As the polling makes clear, Americans recognize this essential truth: Addiction treatment is less expensive, more effective and simply more sensible than the current law enforcement approach, which has not worked, is racially biased and has devastated communities.

Nearly two-thirds of Americans (62 percent) believe that we should provide legal protections that help individuals leaving prison reenter society and find employment, housing and educational opportunities, including 71 percent of Democrats and 54 percent of Republicans. A majority of Americans (56 percent) also support sealing non-violent criminal records after people complete their sentences to facilitate their successful reentry into society.

December 24, 2019 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

December 23, 2019

Alice Marie Johnson and Mark Holden provide their perspective on FIRST STEP and next steps

Alice Marie Johnson and Mark Holden, two figures who surely played a major role in helping to get the FIRST STEP Act to the finish line, have this new Fox News commentary under the headline "First Step Act working — now here are the next steps in criminal justice reform."  Here are excerpts:

The pursuit of criminal justice reform has done what some might have thought unthinkable in this bitter political environment. Only this could bring together the likes of Snoop Dogg with Donald Trump, Democratic Sen. Cory Booker with Republican Sen. Mike Lee, Kim Kardashian West with a grandmother from Tennessee serving a life sentence for a first-time nonviolent offense, and thousands of families in communities across the United States.

 In the last 12 months, more than 4,000 individuals have rejoined their communities thanks to the First Step Act, and more than 1,600 who were not part of the Fair Sentencing Act of 2010 have had their federal prison sentences reduced.

More than 600,000 people return home and rejoin their communities each year.  They face a myriad of challenges, from acquiring proper identification to finding a job to securing housing and building a supportive network of family, friends and community partners....

We need people in our communities, in groups such as Americans for Prosperity, Cut50, the American Civil Liberties Union, and Prison Fellowship, to unite over where they can make a difference, not on their differences.  That is why we are both working with Stand Together to unite with anyone who seeks to improve our justice system.

We also need partners in business to help individuals take the next step as productive members of society. Across the nation, companies like Koch Industries, Butterball, Uber and others have partnered with the Society for Human Resource Management (SHRM) on the Getting Talent Back to Work initiative, which aims to help businesses recruit, train and hire qualified applicants who might not otherwise get an opportunity with a record.

Criminal justice reforms like the First Step Act have enhanced public safety and reduced crime and recidivism across the country.  Look at Pennsylvania and Utah, where lawmakers recently enacted clean slate legislation that has enabled millions of eligible people to have their records expunged.  Other states are considering similar proposals, with the potential to open opportunities for millions more.

States that have implemented data-driven prison and sentencing reforms, from Michigan to Georgia to South Carolina to Texas and beyond, have reduced crime while giving people opportunities to improve their lives and their communities.  In the Lone Star State alone, crime rates have dropped to some of their lowest since the 1960s while saving taxpayers $3 billion.    They may have come for the savings, but they’re staying for the salvation.  Together, we can take the next step, and we must.

December 23, 2019 in FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (2)

Another round of headlines highlighting continuing controversies surrounding former Kentucky Gov Bevin's pardon flourish

In this post nine days ago, I rounded up some representative headlines and stories covering former Kentucky Gov Matt Bevin's considerable and controversial clemency grants as he relinquished power in December.  As I mentioned before, there are many elements to what Bevin did with his clemency pen, and the resulting controversies have continued to rage.  Once again, I will try to use headlines and links to numerous pieces to provide even more flavor of the grants and some commentary that has followed:

From the Louisville Courier Journal, "Working weekends, late nights, Gov. Matt Bevin rushed to issue hundreds of pardons"

From the Louisville Courier Journal, "Former Kentucky Gov. Matt Bevin defends controversial pardons, blames outrage on 'political opportunism'"

From USA Today, "Republican mega-donor urged ex-Kentucky Gov. Matt Bevin to pardon convicted killer"

From the New York Times, "Matt Bevin Drew Outrage Over His Pardons. These Governors Have, Too."

From WHAS11, "Man pardoned by Bevin, gives back to Chickasaw community: Tod Moore created New Day Ministries while in prison and handed out new bikes to kids in time for Christmas"

From the Louisville Courier Journal, "Opinion: Feds should investigate child molesters pardoned by Bevin"

From the Lexington Herald Leader, Opinion: "Don’t let Bevin’s pardons slime the legislature’s important work on criminal justice reform"

From Patheos, "On Bevin’s Pardons and Prison Abolitionism"

I would need dozens more links to adequately cover all the important facets of this story, and so I will conclude with a link to this effective piece titled simply "A lawyer looks at Bevin’s pardons." The piece, which is authored by Jazmin Smith, merits a read in full and it starts and ends this way:

Kentucky is one of only three states that have no form of civil rights restoration by statute. If you listen to My Old Kentucky Podcast, you’ve only heard me say that 100 times. That’s why pardons, commutations, and executive orders are so important. Only our executive has the ability to restore a person’s rights....

A few things have been really frustrating about Pardon-Gate. Pardons are good and so many people are worthy of them. This negativity may make executives less willing to use their pardon power and I think the reaction, especially by those who claim to be progressive or passionate about criminal legal reform, is imprudent and bad for the reform movement.

The way the media treated the pardons is also upsetting. The NPR headline “On His Way Out, Kentucky Gov. Matt Bevin Pardons Murderers, Rapists, Hundreds More” is extremely unhelpful, as is the Courier-Journal article that decided the 12 “most controversial pardons.” Many stories in the media also featured only interviews from the prosecutors on the case, and of course, the prosecutor wants the person they prosecuted to be in prison. Choosing to feature only interviews from prosecutors in articles about pardon reactions is just bad and lazy journalism.

Finally, Matt Bevin pardoned many people who have turned their lives around and have done awesome work, like Amanda Hall at the ACLU, and that is getting overshadowed. Horrific comments and racial data aside, I’m still glad he pardoned these people. They all served time, and though maybe some were more deserving than others, I don’t think the Commonwealth is less safe than it was before.

While I think those pardons are good, Bevin is definitely not blameless. Pardoning your friend’s kid and people who financially supported you is a super easy way to get the media to attack you. The huge reaction has been frustrating, but Bevin is the one to blame for creating it. The fact remains that Kentucky is incarcerating people too often and for too long. Any limits on the pardon power that come from this will be a real shame.

December 23, 2019 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Noticing that little has been done since Prez Trump's executive order to establish a "Commission on Law Enforcement and the Administration of Justice"

This new Washington Post piece, fully headlined "Trump signs order creating national commission to study police and justice system: The composition of the commission is unclear; prosecutor and defense groups not yet contacted," highlights the interesting reactions (and lack of reactions) to this executive order that Prez Trump signed in late October 2019.  Here are excerpts:

With little fanfare, President Trump in late October signed an executive order creating the Commission on Law Enforcement and the Administration of Justice.  The commission is one that police and civil rights groups have sought for years, looking for big ideas on how to approach national problems confronting law enforcement, such as diversifying police forces, addressing racial inequities and using technology to improve crime-fighting.

An identically named panel was formed by President Lyndon B. Johnson in 1965, and led to advances such as the creation of the 911 emergency call system and improved training for law enforcement.  A bill to once again create such a commission was introduced in the Senate in 2017, and again this year, but never moved even though senators on both sides of the political aisle declared their support and it didn’t seem particularly controversial.  The NAACP Legal Defense Fund, the National Urban League and the Leadership Conference on Civil and Human Rights also endorsed the bill as a way to enact criminal justice reform on a large scale.

So police groups such as the International Association of Chiefs of Police and the Fraternal Order of Police turned to the White House for help.  “From the IACP’s perspective,” said Terry Cunningham, deputy executive director of the IACP, “we honestly didn’t care whether it got done through legislation or an executive order, we just wanted to see it come to fruition. It’s an opportunity to recalibrate everything we do and how we do it in policing.”  He noted that President Barack Obama’s 21st Century Task Force on Policing in 2015 called for “the creation of a National Crime and Justice Task Force to review and evaluate all components of the criminal justice system for the purpose of making recommendations to the country on comprehensive criminal justice reform.”

Jim Pasco, executive director of the National Fraternal Order of Police, said the police union had opposed such a commission “and effectively blocked it legislatively, because there was no provision for a rank-and-file representative on the commission. Ninety-four percent of law enforcement members are state and local, and 99 percent are rank-and-file, they should be represented.” He said the IACP had helped create the commission, “but we did extract a commitment that we’ll be on it.”

But where the legislation called for co-chairs appointed by the president and Congress, and required at least four law enforcement and two tribal law enforcement officials, Trump’s executive order merely states, “The attorney general shall determine the composition of and procedures for the functioning of the commission,” to include naming the chairman and also for the attorney general to invite elected state, local and tribal officials.

The composition of the commission hasn’t been announced, and Cunningham said, “We want to make sure we have people that are not in lockstep with law enforcement. That gives the commission the credibility that it needs to create a living, breathing document.” A number of groups that might be expected to be part of the discussion said they had not yet been invited, including the National District Attorneys Association, the National Association of Criminal Defense Lawyers, the NAACP Legal Defense Fund, the Leadership Conference on Civil and Human Rights and the Major Cities Chiefs Association, a much smaller group than the IACP that focuses on issues specific to large cities. Art Acevedo, the Houston police chief and head of the Major Cities Chiefs, said, “We fully anticipate being part of it.”

The legislation envisioned the commission having 18 months to complete its work, but the president’s executive order requires a report to be completed within a year of the Oct. 28 signing date, meaning it has roughly 10 months left to work.

Supporters of the legislation aimed to create a body to discuss challenges such as overburdened courts, unsustainable incarceration costs, national security, prisoner reentry, victims’ rights and civil rights and liberties. But the new executive order is more police-centric, calling on the commission to examine such issues as challenges police face as they encounter those suffering mental illness and substance abuse and the homeless. It also will look at recruitment and training of police, physical safety and health of police officers, and both the benefits and challenges to law enforcement of technological advances.

The order also calls on the commission to study “the need to promote public respect for the law and law enforcement officers” and “refusals by state and local prosecutors to enforce laws or prosecute categories of crimes.”

“The thrust of the order,” said Nina J. Ginsberg, a Virginia-based lawyer who is president of the defense lawyers’ association, "begs the question as to how interested this commission will be in solving the deep and structural problems in America’s criminal justice system, as opposed to simply delivering on certain law enforcement requests.” Ginsberg said the order “altogether fails to acknowledge or propose solutions to critical criminal justice issues like mass incarceration, systemic racism, disparate policing of minority and poor communities” and “reads like a road map for repeating precisely the same mistakes that brought America’s criminal justice system to its current, abysmal state.” She said the defense group stood ready to help....

Cunningham said he expected the commission would create working groups on a wide range of topics. “It’s not just policing, it’s the broken criminal justice system,” Cunningham said.  He said the working groups would look at how police handle mental health calls and how other social service agencies can help.  He said the commission also needs to examine not only using new technology, but figuring ways to overcome technology that is used to commit crime, as well as recruitment of new officers and getting more women and minorities to put the badge on. “Everything the working groups do,” Cunningham said, “they have to find a bipartisan way in Congress to implement all of these things. We’ll have their report, but how do you get it funded?”...

Cunningham said the Justice Department would commit significant resources to support the commission.  He said Dean M. Kueter Jr., an adviser in the Office of Legislative Affairs at the Justice Department, would be the commission’s executive director, and Tim Shea, senior counsel to Attorney General William P. Barr, would also work with the commission. The Justice Department declined to comment for this story.

Because this executive order does not once mention sentencing or punishment or incarceration, I do not think this still-to-be-constituted Commission is likely to do much more than address a variety of police-focus concerns.  That said, there is plenty of work needing to be done to address the many modern challenges of modern policing, and I want to be hopeful that this Commission can and will be able to provide an informed and productive perspective on needed reforms to this important aspect of our criminal justice system.

December 23, 2019 in Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (0)