R Street’s First 100 Days Blueprint for Criminal Justice Reform in the 46th Presidential Administration
Human dignity, public safety, individual liberty, fiscal responsibility and strong families: We at R Street believe these principles are vital to American democracy and are all-the-more critical when deciding upon the policies and practices inherent to our criminal justice systems. After all, the criminal justice system is the only arm of local, state and federal governments given the power to take away years of an individual’s life and constrain them to a cell, away from society and often with little hope for a better future. It is also the arm of government charged with responding to crime in a way that brings justice and prevents future harm.
Yet today the aforementioned principles are more potent in rhetoric than reality. As a nation, we preach the right to the pursuit of happiness, but far too easily constrain individuals with a criminal conviction from fully participating in many parts of society. We preach limited, effective government but fail to evaluate community supervision and incarceration practices carefully that have done little to promote public safety in the long term and done much to expand the reach of government surveillance. We support human dignity but disregard statistics on sexual and physical violence behind bars, with some believing these experiences are an intrinsic part of just deserts. We preach the presumption of innocence from the lectern but are quick to support pretrial detention and bail practices that, in practice, assume the guilt of defendants when determining their right to release and punish the poor and downtrodden. We put “equal justice under the law” on our government buildings but are slow to act when data and research provides evidence of different responses to crimes committed by our Black and Brown neighbors.
While political and policy differences in this area exist between administrations and members of Congress, this is not a political issue—this is a principles issue. Our nation’s criminal justice system writ large features rampant contradictions to our purported norms. It is thus no surprise that polling data from last summer suggests 95 percent of Americans believe that our criminal justice system needs to be reformed, with a plurality of support for reform demonstrated across both racial and political lines. Nor is it a surprise that both Democratic President Barack Obama and Republican President Donald Trump championed reform alongside a bipartisan caucus of reformers in the House and Senate.
The agenda articulated below represents but another step in our path toward a more humane, effective and fiscally responsible criminal justice system. We encourage President-elect Joe Biden and both newly minted and senior members of Congress to work toward these goals hand-in-hand. Following the wisdom of the great Frederick Douglass, R Street will “unite with anybody to do right and with nobody to do wrong.”
Reduce federal overcriminalization
With almost 5,000 statutes and hundreds of thousands of regulations carrying criminal penalties on the books, the U.S. federal code is far from a simple articulation of right and wrong or being easily understood and supported by the public. Rather, it has become a complex network of laws and regulations that all too often reflect reactionary policymaking and a failure to consider the collateral consequences of over-criminalization. The agenda items described below seek to turn the tide on overcriminalization and heal the wounds that it has inflicted upon the nation.
- Support the Count the Crimes to Cut Act: On average, Congress creates around 500 new crimes every decade, but with the confusion of federal agency regulations mixed with already complex statutes, no one is truly aware of exactly how many federal crimes exist. This Act would require the attorney general to create a comprehensive report on exactly how many crimes there are, what penalties they bring and how often they are charged. In turn, this report would help Congress to identify which laws have perpetuated federal overcriminalization.
- De-schedule or decriminalize marijuana: In 2018, 40 percent of all drug arrests in the United States were for marijuana—the vast majority of said arrests being for simple possession. Currently in federal statute as a schedule one drug, marijuana is in the same category as much more potent and tremendously lethal substances such as ecstasy and heroin—a stark contradiction to the current evidence base and the reality of state policy. After the 2020 elections, 15 states and the District of Columbia have now fully legalized recreational marijuana use. The vast majority of states that have not legalized marijuana use have instead approved it for medical use or decriminalized it. At a minimum, we recommend descheduling marijuana at a level more commiserate with its harm, but would also encourage federal decriminalization of marijuana to allow states to make their own policy decisions unhindered. There is strong support in Congress for descheduling marijuana with the House of Representatives passing a bill to do so as recently as December 2020.
- Remove the crack/powder cocaine sentencing disparity: Right now, a person in possession of one gram of crack cocaine and a person in possession of 18 grams of powder cocaine are both subject to the same mandatory minimum. This unequal sentencing regime disproportionately harms low income minority communities despite the fact that there is no material pharmacological difference between the two cocaine variants.
- Rely on proven tobacco harm reduction practices in favor of flavor bans that require criminal enforcement: Tobacco flavor bans increase the amount of contact that tobacco users have with law enforcement; the reduction of these interactions is key to minimizing overcriminalization and de minimis Further investment in addiction and cessation resources are more likely to reduce tobacco usage without creating new black markets and increasing the reach of our criminal justice system.
- Remove the “zero tolerance” policy for immigration prosecutions and reinstate prosecutorial discretion: The current “zero tolerance” policy federal prosecutors must follow has resulted in an inefficient immigration system and caused turmoil by tearing families apart. This policy should be rescinded so that banal immigration cases may be heard in civil courts where collective capacity is under less stress. Prosecutorial discretion should also be reinstated with guidance on which immigration cases pose threats to public safety, a move that would allow federal prosecutors to prioritize their cases in the best interests of the nation.
- Remove VCO (valid court order) exception from the Juvenile Justice Delinquency Prevention Act (JJDPA): While the JJDPA aimed to end the incarceration of youth who were non-delinquent and had not committed crimes, the “valid court order” exception continues to incarcerate thousands of youth, for behaviors like running away or not completing schoolwork. Congress took steps to reign in the use of VCOs in 2018 but those efforts have failed to stop youth fully from being incarcerated for what are essentially non-crimes.
Protect life and liberty by rethinking policing
The tragic deaths of George Floyd, Tamir Rice, Freddie Gray, Breonna Taylor and too many others have brought long simmering problems in policing into the public eye. While there are no simple solutions to these complex issues, there are policies that can begin to unravel our flawed system of modern policing and lay the foundation for a brighter future. The policy actions presented below seek to rethink policing by solving recognized issues with common sense solutions and adjusting the role of law enforcement to better suit the modern American community.
- Support the JUSTICE Act: Several key portions of the Just and Unifying Solutions to Invigorate Communities Everywhere Act of 2020 (“JUSTICE Act”) are critical to the mission of rethinking policing. To incentivize these policy actions, full federal funding from the Office of Community Oriented Policing Services (COPS) program and the Edward Byrne Memorial Justice Assistant Grant Program (JAG) to police departments should be conditioned upon agency fulfillment of the following mandates:
- Adopt prohibitions on the use of chokeholds by members of law enforcement except when deadly force is authorized;
- Maintain employment and disciplinary records of police officers for use by other police departments when making hiring decisions; and
- Annually report use of force incidents to the FBI Use of Force Data Collection service.
- Encourage local and state adoption of smart policing practices: To incentivize these policy actions, federal funding should be used to encourage law enforcement agencies to fulfill the following mandates:
- Create publicly accountable use of force review boards: Buy-in from local stakeholders is imperative when police departments seek to build trust with their communities. These boards should have a significant amount of civilian members and regularly publish their findings concerning local use of force incidents.
- Develop a comprehensive use of force policy: Federal legislation should create a model use of force policy for police departments to abide by. This policy should emphasize de-escalation techniques, respect for constitutional norms and the sanctity of human life. Annual training units should be required for police officers that include scenario-based and cross training.
- Implement “duty to intervene” policies: Police departments should adopt a policy that requires officers to intervene if they observe a fellow officer illegitimately using deadly force. This would reinforce the moral imperative for officers to stop harmful actions by other officers with a legal imperative.
- Provide a federal option for use of force investigations: Require the attorney general to develop a mechanism by which the FBI and the Department of Justice can, at the request of state and local law enforcement agencies, assist in the investigation of use of deadly force incidents. This would provide a viable option for understaffed, untrained or similarly hindered local police departments to conduct meaningful use of force investigations.
- Eliminate civil asset forfeiture: Civil asset forfeiture incentivizes damaging policing practices and undermines public trust. Under the current regulatory framework, police departments effectively profit—adding to their budgets’ bottom line—by seizing the property of private citizens, even if the property owners in question are innocent of any crime. The forfeiture process also motivates law enforcement to pursue crimes that provide material gain, not those that actually pose significant safety risks for the public. In addition, challenging an asset seizure almost always involves legal action, draining the resources of forfeiture victims and police departments alike.
- Revise or eliminate qualified immunity: The qualified immunity defense has been crucial in protecting law enforcement and ensuring that they are not held responsible for actions that deprive citizens of their constitutional rights. Federal legislation has been introduced that would largely reform the legal machinery of qualified immunity and make it easier for citizens to hold law enforcement accountable.
- De-police unnecessary law enforcement from federal agencies: Like numerous other federal bodies, the Armed Forces Retirement Home and the Government Publishing Office both have their own dedicated police officers. This is not only a waste of government resources, but also a hindrance to trans-department police communication. The federal government would be better served by consolidating or eliminating these numerous and sometimes unnecessary police forces.
Reduce harmful pretrial detentions
On any given day, around 470,000 unconvicted individuals are waiting for a fair hearing in pretrial detention. If the United States is to live up to the promise that all people are innocent until proven guilty, then the deeply flawed pretrial detention system must be tended to. An overreliance on cash bail, stagnant prosecutorial practices and the overwhelmed offices of public defenders are all contributory to the malignancy of pretrial detention. The below policy solutions seek to streamline existing legal institutions and encourage experimentation to innovate new ones; all in the service of providing a fairer pretrial system.
- Help prosecutors innovate and embrace smart data-informed practices: It is the current zeitgeist to judge the success of prosecutors by the number of individuals that they put in prison. Things such as victim contact speed, case processing time and staff capacities are frequently overlooked. To that end, federal funding to prosecutors should be increased so that they may begin implementing robust data collection efforts. With this collected data, prosecutors can begin to make common-sense improvements to efficiency and efficacy that may have gone hitherto unnoticed. Success in this area has already been seen in pilot projects such as Prosecutorial Performance Indicators.
- Start experimenting with ways to better pretrial process: It is no secret that the cash bail system in our country tends to favor the liberty of more wealthy defendants than their less-well-off peers. To begin addressing this problem, local jurisdictions should be provisioned with grants to experiment and improve upon our existing pretrial apparatus. Reductions in pretrial detention rates should be a top priority for provided grants along with improved data collection efforts and programs such as text messaging systems that improve court appearance rates.
- Shift the federal presumption away from pretrial detention: In most cases, pretrial detention is used when individuals are unable to pay bail, only rarely is it invoked to hold those considered flight or public safety risks. For those charged with federal non-violent drug crimes, pretrial detention is the default. Support should be provided for measures like the Smarter Pretrial Detention For Drug Charges Act—legislation that would give judges the power to determine individually if people charged with non-violent drug crimes need to be detained pretrial.
- Support public defenders: There is a wide funding gap between public defenders and prosecutors. On top of this, existing grant programs from the federal government for public defenders are largely limited and predominantly focus on training. Using the Department of Justice’s (DOJ) grant funding system as a base, a new appropriations strategy should be created to help fund state and local public defenders in both the juvenile and adult systems. These grants should be used to increase staff numbers and bring state and local public defenders in compliance with caseload maximums prescribed by the National Advisory Commission on Criminal Justice Standards and Goals. When they exhibit a demonstrated need, funding for federal public defenders’ offices should also be available.
- Revive the Office for Access to Justice: In 2018, the DOJ closed the Office for Access to Justice—a group within the DOJ tasked with improving legal resources for indigent litigations. Among other projects, the Office pursued several initiatives that aimed to reduce wider inequities in the criminal, civil and tribal courts. To ensure that Americans are provided with quality legal representation regardless of their income level, the Office of Access to Justice should be restored and given a renewed mandate to continue their work. It should be noted that this idea has already found strong support in Congress.
Better promote rehabilitation behind bars
Our current criminal justice system is focused more on penalty than rehabilitation; a stance that must change if we want to combat over-incarceration and empower positive change among approximately 1.4 million Americans currently in prison. Penance for wrongdoing is one matter, but it is another to condemn an individual to live in poverty for the rest of their life. The policy actions below present options on how the federal government can rethink how we handle rehabilitation.
- Build upon the success of the First Step Act: The First Step Act (FSA) was a move in the right direction in terms of rethinking our criminal justice system, but could be improved. Individuals looking to make high impact criminal justice policy actions would benefit from building upon the FSA’s foundation in three key ways:
- Increase availability of reentry programs within prison. Currently, long waitlists are an issue, and many individuals have been unable to take a single class.
- Ensure that the PATTERN algorithm recommending release does not increase racial disparities. This can be done by making the tool transparent and accessible for critical study.
- The FSA made the Fair Sentencing Act retroactive, adjusting the sentences of millions of individuals. Other provisions, such as reductions for severe mandatory minimums, should also be made retroactive.
- Promote dignity through continuous employment: Far too often we release individuals from incarceration and expect them to become productive members of society instantly; without meaningful employment this is close to impossible. Public-private work pipelines to stable, high-quality employment should be created to allow individuals to build skills while incarcerated and then immediately put those skills to use in their communities upon release. To incentivize the creation of such programs, employer liability protections and certificate of relief systems should be considered. And federal officials should remove the current 50-site cap on the Prison Industry Enhancement Certification Program.
Promote successful reentry into society and improve community supervision
Once individuals have repaid their debt to society, we must be ready to welcome them back into everyday life. At present, the lives of formerly incarcerated individuals are seldom like the lives they had before serving their sentence. Often denied opportunities for work, housing and help, our present post-release system fails those who it seeks to serve. The policy solutions below seek to rethink probation and give deserving individuals a second chance at living the American Dream.
- Realign federal probation with fiscal responsibility in mind: While many states are quick to depend on probation as a response to crime, federal probation is currently underutilized as an alternative to incarceration. In 2018, there were approximately 12 people in federal prison for every one person on federal probation. At the same time, the average length of probation for federally charged individuals in 2019 was 44 months—just shy of four years. This is far out of line with most research which places the appropriate length of probation around one-to-three years depending on the individual’s offense, and also with research which suggests probation terms can be shortened without impacting public safety. Finally, members of Congress and the president should work together to end incarceration for technical violations—non-criminal acts such as missing a check-in with a supervision officer.
- Support rehabilitation that works: Throwing money blindly at a problem will not solve it. Support and funding should be provided to community supervision programs that employ evidence-based practices in order to determine what initiatives really help people get back on their feet. At the same time, individuals who suffer from diseases and disorders should be evaluated; not incarcerated. To that end, support for mental health specialists and reentry service professionals should be increased.
- Give rehabilitated individuals a clean slate: Even after people have paid their debts to society, lingering criminal records can still destroy lives by cutting employment prospects, foreclosing access to government assistance and making housing hard to find. With over 70 million Americans having a criminal record; this is a problem that cannot be ignored. To address this issue, the following policy actions should be undertaken:
- Establish a federal Clean Slate law, or at a minimum, a record sealing procedure. Clean Slate legislation at the state level has been met with great success, particularly in Pennsylvania where 30 million records have already been automatically sealed. Currently, there is no way for an individual to seal or clear their federal record even if they have met all conditions of their sentence. Federal Clean Slate legislation has also seen increasing bipartisan interest.
- To support Clean Slate efforts at the state level, conditional appropriations should be made available to reduce state budgetary barriers and encourage program adoption. JAG funds can likely be used without further clarification, but some may want to see executive documentation that this is a permissible use. Juvenile records are also of concern, and when applicable, funding incentives should be granted to states who clear or expunge juvenile records.
