Smart on Crime

The Smart on Crime Coalition “is comprised of more than 40 organizations and individuals, who participated in developing policy recommendations across 16 broad issue areas. These organizations and individuals represent the leading voices in criminal justice policy.”

Well, this group has just released a report of recommendations for the Administration and Congress, and I like what I’m seeing.

The Summary of Recommendations has some wonderful suggestions. Of course, I’d go further in some areas, but getting any of this agenda passed would be a good thing.

Here are a few selected recommendations…

Adopt rules and reporting requirements to stem overcriminalization and overfederalization. Congress should amend their rules to require every bill that would add or modify criminal offenses or penalties to be subject to automatic referral to the judiciary committee. Congress should also enact mandatory reporting legislation for all new or modified criminal offenses and penalties requiring the federal government to produce a standard, public report assessing the purported justification, costs, and benefits of all new or modified criminalization. […]

Curb the abuses of federal and state forfeiture powers. Congress should pass comprehensive legislation to curb abuses of federal and state forfeiture powers and fulfill the original intent of the bipartisan Civil Asset Forfeiture Reform Act and related state reforms. The Administration should issue an executive order or encourage agency rulemaking to limit or forbid the use of equitable sharing to circumvent state law.

Safeguard the rights of defendants and third parties with basic procedural reforms. Congress should pass comprehensive legislation to ensure fair procedures for the accused and third parties in criminal forfeiture proceedings, and to curtail the government’s use of criminal forfeiture as an end run around civil asset forfeiture reforms. This would include safeguarding the accused’s rights to a fair procedure for determining what is subject to criminal forfeiture, limiting the use of so-called personal “money judgments” in lieu of orders forfeiting specific property, and safeguarding the rights of third parties who have an interest in the property subject to forfeiture. […]

Support the mandatory recordation of custodial interrogations. Congress should pass legislation requiring federal law enforcement agencies to electronically record all custodial interrogations. Such legislation would allow the court to render inadmissible any unrecorded statement or confession. Alternatively, the President should issue an executive order to require the electronic recordation of all custodial interrogations. […]

Regulate the use of incentivized testimony. Congress should pass legislation that would regulate the use of incentivized informants by adopting best practices and policies designed to address the issues of reliability related to incentivized testimony. Alternatively, the President should issue an executive order that outlines best practices and policies for use of incentivized information by federal prosecutors and investigators. […]

Enhance the role of federal grand jurors and address the institution’s long-neglected shortcomings. Congress should pass comprehensive legislation to strengthen the grand jury’s screening function, empower grand jurors, and protect the rights of witnesses, subjects, and targets of grand jury investigations. The Department of Justice’s United States Attorney’s Manual includes certain admonitions regarding the conduct of grand jury investigations; the Department and its personal should adhere to the manual’s proscriptions. […]

Ensure adequate funding, staffing, and training for state indigent defense systems. Congress should address the funding disparity that cripples the provision of indigent defense, by fully funding existing programs like the John R. Justice Prosecutors and Defenders Act, encouraging states to use existing federal grants to support all components of the criminal justice system including indigent defense, and encouraging states to adopt civil infraction reform, which would relieve some of the current burden placed on indigent defenders. The Department of Justice could use current grant programs to increase indigent defense training and technical assistance for states. […]

Completely eliminate the crack cocaine sentencing disparity and make reform retroactive. Congress should pursue complete elimination of the crack cocaine sentencing disparity, which was reduced from 100:1 to 18:1 as the result of the Fair Sentencing Act of 2010. In addition, the Fair Sentencing Act must be strengthened by retroactive application of its provisions through executive, legislative or judicial branch action, so that those incarcerated pursuant to the previous sentencing scheme receive relief.

Improve and expand federal safety valves for mandatory minimum sentencing. Congress should amend the current safety valve laws to allow judges to undertake a step-by-step inquiry into such things as the circumstances of the offense and the history and characteristics of the offender in order to provide appropriate sentences.

Create sunset provisions for new mandatory minimums. Congress should subject all new mandatory minimums to a five-year sunset provision or create a sunset commission that will offer recommendations to Congress ahead of reauthorization of mandatory minimum legislation. […]

Expand alternatives to incarceration in federal sentencing guidelines. The United States Sentencing Commission should amend the Sentencing Guidelines to broadly expand the availability of alternatives to incarceration. In particular, the Commission should expand the use of alternative sentences for offenders whose crimes are associated with substance abuse or mental illness and who pose no substantial threat to the community. […]

Permit sentence reductions for extraordinary and compelling circumstances. The Attorney General should signal his intention that the Sentencing Reform Act be used as Congress originally intended by providing a guidance memo laying out support for use of the power to reduce a sentence for extraordinary and compelling circumstances. Congress should also extend and expand elderly prisoner home confinement release programs to address the rising cost of confining elderly prisoners who no longer pose public safety risks. […]

Reduce all drug guidelines indexed to mandatory minimums by two levels. The United States Sentencing Commission should reduce all drug guideline range triggers by two levels so that the corresponding mandatory minimum is at the top of the range for any given drug, not below it. This will ensure that the guideline ranges correspond with the mandatory minimums while providing additional flexibility to judges in cases where the mandatory minimum is not applicable. […]

Make granting clemency a strategic priority for the White House. The Administration should develop a strategic plan for the use of the pardon power to advance the president’s criminal justice agenda, both within the executive branch and outside of the executive branch, and with the public. It should identify the functions of clemency in the federal justice system, both to reduce prison sentences and to recognize and reward rehabilitation, and consider whether charges in the law may be in order to reduce the need for clemency. It should make public standards to guide those who wish to apply for clemency and those who are responsible for reviewing and making recommendations on clemency applications. […]

Create a National Criminal Justice Commission. Congress should authorize and fund a National Criminal Justice Commission to conduct a comprehensive review of the criminal justice system by a bipartisan panel of experts that would make thoughtful, evidence-based recommendations for reform. Absent congressional action, the President should establish an independent National Criminal Justice Commission by executive order or other administrative process.

Pass and implement the Justice Reinvestment Act. Congress should pass legislation to provide states with resources to develop and to implement data-driven, cost-saving corrections policies. This will help states increase public safety while cutting prison costs and reinvesting the savings into alternatives to incarceration, such as community corrections and programs proven to reduce recidivism.

Evaluate and limit racial and ethnic disparities. Congress should pass legislation similar to the Justice Integrity Act to establish pilot programs to evaluate issues of racial and ethnic fairness in the practices of U.S. Attorney offices. Congress should mandate “Racial Impact Statements” for any proposed sentencing legislation to enable Congress to evaluate potential racial or ethnic disparities, and to consider alternative policies that could accomplish the goals of proposed sentencing legislation without causing racial disparity. Congress should also pass legislation similar to the Byrne/JAG Program Accountability Act to assess and limit racial and ethnic disparity in state, local and tribal systems that receive federal funding through the Byrne JAG Grant Program.