Last week SPA co-sponsored Leadership in Action: Criminal Justice Reform, an event hosted by The Hill. I participated in the event, representing SPA, and gave remarks highlighting the overwhelming bipartisan support we saw last year when Congress passed the First Step Act. I followed the conversation when Congress was working on criminal justice reform, and while I’m glad all the talk on the Hill resulted in the passage of new legislations, I hope that the First Step Act is just that, a first step.
All the congressional participants at the February 26 event stated their support to continue working on criminal justice reform, so with March being National Criminal Justice month, I thought I’d share my ideas with them for second, third, and fourth steps.
One of the most pressing issues facing those in the criminal justice system is that we require defendants to sit in jail pretrial when they are presumed innocent simply because they cannot afford to pay a money bond set, sometimes arbitrarily, by a court or jurisdiction. I recommend that Congress take a Second Step and eliminate money bond.
Our country’s pretrial practices need to be fixed, and court officers need better solutions. We have fallen from what should be our guiding principle—liberty—penned by Justice Rehnquist in Salerno “in our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” Many of my friends and colleagues are working on this issue, and the Fifth Circuit has ruled that set money bond schedules are unconstitutional (Daves v. Dallas County) and that holding individuals in jail pretrial based on one’s inability to pay violates due process and equal protection (Caliste v. Cantrell, O’Donnell v. Harris County).
Turning next to the Sixth Amendment, the U.S. Constitution needs our help. Did you know that in many courts across the country, defendants plead guilty to charges that have detrimental life consequences without ever talking to defense counsel? Often, this happens because individuals do not want to be held in jail pretrial because of their inability to pay a money bond; instead, they are given the option of waiving their right to counsel taking a plea to be released. This may sound shocking to some of you, but I’ve seen this firsthand, visiting courts across the country when I worked for the U.S. Department of Justice for more than 15 years. Courts can be confusing and scary places for those who don’t understand the lingo or how the system works. I recognize that not everyone is as close to the problem as I am, and much of what we know about the criminal justice system is what we’ve seen on TV, which is not always an accurate representation.
Thus, to better understand the issue, my recommendation for the Third Step is for Congress to commission a study to investigate the extent to which defendants are convicted in the U.S. without access to counsel in violation of the Sixth Amendment and the different mechanisms that allow this deprivation to take place. Data collected might include the number, frequency, and nature of criminal convictions of persons without defense representation, and the fiscal impact of such convictions versus the cost of providing legal services to these defendants. The resulting study should be published by the Bureau of Justice Statics.
The good news is there is bipartisan agreement that we cannot continue to arrest and incarcerate at the current rate. My recommendation for the Fourth Step is for Congress to eliminate life sentences and consider a 20-year cap (with limited exceptions) for sentences altogether. This is not as radical as you may think. Plainly stated, America’s prison sentences are too long. Research shows that people age out of crime and longer sentences don’t necessarily make us safer[i]*. Capping sentencing alone will not end mass incarceration but it’s the place to start the conversation. We’ve been dancing around the question What is the Purpose of Our Criminal Justice System for several years now; it’s time to tackle it head on. Is it public safety? Is it punishment? Is it to perpetuate institutionalized discrimination? Is it problem solving? Is it rehabilitation? Does it need to be cost effective? To truly reform our criminal justice system and begin to tackle mass incarceration, we must reexamine and define/redefine the purpose of the criminal justice system. However, regardless of how you answer the above questions, capping sentences at 20-years is not inconsistent with our goals.
These second, third, and fourth steps and all steps toward criminal justice reform will be incremental. It took us decades to get to where we are today. We cannot readily undo the past and change the system, but we can take significant steps to continue criminal justice reform to promote human dignity, fairness, and liberty while ensuring public safety.