Recommendations
for the Administration
and Congress

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Recommendations for the
Administration and Congress

The Smart on Crime Coalition

The efforts of the Smart on Crime Coalition*1are coordinated by the Constitution Project.
The Constitution Project (TCP) brings together unlikely allies—experts and practitioners
from across the political spectrum—in order to promote and safeguard America’s founding
charter. TCP is working to reform the nation’s broken criminal justice system and to
strengthen the rule of law through scholarship, consensus policy reforms, advocacy, and
public education. More information about the Constitution Project is available at
http://constitutionproject.org/.
© 2011 The Constitution Project

PROJECT COORDINATOR
Adrienne Lee Benson
The Constitution Project
1200 18th Street, NW, Suite 1000
Washington, DC 20036
(202) 580 – 6931
abenson@constitutionproject.org
EDITORIAL CONSULTATION
Hogan Lovells, LLP
Columbia Square
555 Thirteenth Street, NW
Washington, DC 20004
(202) 637 5600
www.hoganlovells.com

* Note that each participant only formally endorses the particular chapters in this list, and may not
necessarily endorse the principles expressed in other chapters.

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TABLE OF CONTENTS

EXECUTIVE SUMMARY .............................................................................................................. ii
The Smart on Crime Coalition............................................................................................... vi
Contributors by Chapter………………………………………………………………………………………………….vii
SUMMARY OF RECOMMENDATIONS ...................................................................................... xi
CHAPTER 1: Overcriminalization of Conduct, Overfederalization of Criminal Law, and
Exercise of Enforcement Discretion.....................................................................1
CHAPTER 2: Asset Forfeiture ...................................................................................................18
CHAPTER 3: Federal Investigations .........................................................................................27
CHAPTER 4: Federal Grand Juries ............................................................................................40
CHAPTER 5: Forensic Science ..................................................................................................48
CHAPTER 6: Innocence Issues..................................................................................................59
CHAPTER 7: Indigent Defense .................................................................................................70
CHAPTER 8: Juvenile Justice ....................................................................................................90
CHAPTER 9: Federal Sentencing ............................................................................................119
CHAPTER 10: Improving the Prison System ..........................................................................154
CHAPTER 11: Death Penalty ..................................................................................................189
CHAPTER 12: Fixing Medellín: Ensuring Consular Access Through Compliance with
International Law ................................................................................................211
CHAPTER 13: Pardon Power & Executive Clemency .............................................................224
CHAPTER 14: Reentry: Ensuring Successful Reintegration After Incarceration ....................234
CHAPTER 15: Victims Issues & Restorative Justice................................................................260
CHAPTER 16: System Change ................................................................................................276

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Smart on Crime: Recommendations for the Administration and Congress provides the
112 Congress and the Administration with analysis of the problems plaguing our state and
federal criminal justice systems and a series of recommendations to address these failures. It
provides a comprehensive examination of the criminal justice system, from the creation of
new criminal laws to ex-offenders’ reentry into communities after serving their sentences.
Our broad recommendations range from helping to restore and empower victims to
identifying ways to protect the rights of the accused.
th

Americans depend on the criminal justice system to maintain our safety and security.
We expect the system to effectively deter crime and punish offenders, and rehabilitate those
who have served their sentences. We also demand that it treat victims and their families with
compassion and provide justice and safety for all Americans. We insist that it be fair, reliable
and accurate. Yet, too frequently, these laudable—but daunting—goals go unmet.
Central to our mission is offering recommendations that achieve these goals, while
reflecting the economic realities and acknowledging the new priority of return on investment.
Today, budget shortfalls and economic distress are plaguing states and placing greater
burdens on the federal government. States are confronting budge crises that threaten all
facets of the criminal justice system, including courts, prisons, police departments,
prosecutors, and public defenders.
To effectively tackle these challenges, we must abandon heated rhetoric and explore
policies based not on ideology, but on evidence. We must come together to forge a system
that works for everyone. For this reason, Smart on Crime incorporates cost-effective,
evidence-based solutions to address the worst problems in our system.
Unfortunately, since the initial publication of Smart on Crime in 2009, too little has
been accomplished. We continue to see our criminal codes and sentences—and, therefore,
the demand on law enforcement, prosecutors, and prisons—expand. At the same time,
resources for indigent defense decline, forensic labs operate without enforceable standards,
and scores of individuals are exonerated after serving years in prison, too often because our
federal courts are not permitted to rectify errors. We release offenders without support
systems, with significant restrictions that continue punishment rather than protect society,
preventing them from effectively and safely reentering society. We fail to treat victims with
respect and to implement principles of restorative justice designed to make victims whole.
Due to the undeniable human costs and the overwhelming fiscal costs, Americans of
all political stripes, particularly professionals with experience in every aspect of the criminal
justice system, recognize that the system is failing too many, costing too much, and helping
too few. Smart on Crime embodies the most promising recommendations that have arisen out
of this growing awareness of the crisis.

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EXECUTIVE SUMMARY

THE SMART ON CRIME COALITION
The Smart on Crime Coalition has re-convened to provide the 112th Congress and
the Administration with a comprehensive view of the federal government’s role in
improving criminal justice systems. The 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. Coalition members focus their efforts on such diverse and varied areas as combating
unnecessary expansions of criminal law, advocating for improvements to investigatory and
forensic science standards, ensuring that persons accused of crimes have an opportunity to
receive a fair trial, helping persons who have served their sentences successfully reenter
their communities, and protecting the rights and dignity of victims of crime.
The Coalition, with experts and advocates spanning the criminal justice system, is
particularly troubled by the budget crises plaguing states and placing greater burdens on
the federal government. To address this concern, the Coalition has expanded its
membership since first convening in 2008, and has consulted a broad array of experts
representing a diversity of philosophies and points of view. Our dedication to exploring all
options means that Smart on Crime focuses on providing non-ideological, cost-effective, and
evidence-based solutions to address the worst problems in our system.
For ease of reference, a list of participants and the chapters which they endorse
follows the Executive Summary. Note that each participant only formally endorses the
particular chapters in this list, and may not necessarily endorse the principles expressed in
other chapters. The decision of a group not to sign on to a chapter does not necessarily
indicate an opposition to the policies proposed; some participants were limited by issue
area or by other factors.
MISSION AND SCOPE
Smart on Crime seeks to provide federal policymakers in both Congress and the
Administration a comprehensive, systematic analysis of the current challenges facing state
and federal criminal justice systems and recommendations to address those challenges.
The main focus of Smart on Crime is the steps the federal government can take to improve
federal criminal justice and support states seeking to improve their own systems.
While justice cannot be reduced to dollars and cents on a balance sheet, Smart on
Crime endeavors to examine policy proposals that reflect the reality that resources at both
the state and federal level are scarce. As a consequence, the recommendations in this

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EXECUTIVE SUMMARY

report seek to be cost-effective and, to the extent possible, contain costs in all facets of the
system. Most importantly, these recommendations eschew ideology and focus on
evidence-based approaches that aim to improve the system for all its participants.
Smart on Crime is organized into 16 chapters, each of which discusses a particular
area of criminal justice policy. This report is premised on the idea that to successfully
confront the crises in the criminal justice system, we must fully understand the nature of
the problems, the context in which the problems arose and in which they continue to exist,
and the manner in which recommendations will best address the problem. Thus, each
chapter:

•
•
•
•

Identifies the issue

•
•
•

Identifies experts who can provide further analysis

Provides a history and summary of the problems
Proposes specific recommendations
Identifies the role of Congress, the Administration and the judiciary in
implementing recommendations

Refers readers to further resources that provide additional depth and research
Provides primary policy contacts available for further inquiries

The reader should feel free to contact any of the primary policy contacts listed in
each chapter for more information.
PRINCIPLES OF REFORM
Embodied in Smart on Crime are five basic principles the Coalition considers
foundational, which Congress, the Administration and the judiciary should always consider
when contemplating improvement to the criminal justice system. These principles include:
Fair — The criminal justice system should provide access to all safeguards the U.S.
Constitution, state and federal laws, and common sense afford. These include, but are not
limited to, guaranteeing the presumption of innocence, providing effective representation,
ensuring equal access to a fair day in court for all people charged with crimes, and
eliminating policies that create improper disparities. Fairness also requires working towards
a restorative justice system that treats victims with respect and compassion.

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EXECUTIVE SUMMARY

Accurate — Efforts to keep communities safe and secure must include safeguards to ensure
that law enforcement policies and practices employed to investigate, charge, and prosecute
individuals are appropriate and accurate.
Effective — The goal of the criminal justice system is to protect the public and punish
blameworthy activity. Therefore, to ensure an effective system, policymakers should
evaluate any proposed recommendation to determine that it increases public safety and
regulates conduct that truly rises to a level that justifies its criminalization.
Proven — All strategies and practices that the criminal justice system employs should meet
evidence-based or, when possible, scientific standards of effectiveness. This will improve
law enforcement, investigation, prosecution, and punishment. It will also increase the public
faith and trust in the system by minimizing mistakes and improving results.
Cost-Efficient — State and federal governments annually spend billions of dollars on the
criminal justice system. In the current economic climate, the country literally cannot afford
to maintain a status quo that fails too many. While justice cannot be reduced to dollars and
cents on a balance sheet, any changes to the system must be considered with concern for
cost efficiency.

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vi

THE SMART ON CRIME COALITION - 2011
American Bar Association

Innocence Project

American Bar Association Standing
Committee on Legal Aid & Indigent
Defendants

Institute for Justice

American Civil Liberties Union
American Psychological Association
Americans for Forfeiture Reform
Amnesty International
Brennan Center for Justice at New York
University School of Law
Campaign for Fair Sentencing of Youth
Campaign for Youth Justice

Just Detention International
Law Enforcement Against Prohibition
Law Office of Margaret Love
Phyllis Lawrence (Independent Consultant)
Leadership Conference Education Fund
Legal Action Center
National Association for the Advancement of
Colored People Legal Defense & Educational
Fund, Inc.

Center for Children’s Law and Policy

National Association of Criminal Defense
Lawyers

Coalition for Juvenile Justice

National Juvenile Justice Network

Constitution Project

National Legal Aid & Defender Association

Council of State Governments

Neufeld Scheck & Brustin, LLP

Criminal Justice Policy Foundation

New Jerseyans for Alternatives to the Death
Penalty

D.C. Prisoners’ Project of the Washington
Lawyers’ Committee for Civil Rights and
Urban Affairs

Open Society Institute
Open Society Policy Center

Drug Policy Alliance

Prison Fellowship

English & Smith

The Raben Group

Families Against Mandatory Minimums

The Sentencing Project

Heritage Foundation

David Udell (National Center for Access to
Justice)

Human Rights Watch
Independent Consultant, Innocence Project

PROJECT COORDINATOR
Adrienne Lee Benson
The Constitution Project
1200 18th Street, NW, Suite 1000
Washington, DC 20036
(202) 580 - 6931
abenson@constitutionproject.org

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CONTRIBUTORS

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CONTRIBUTORS BY CHAPTER
CHAPTER 1: OVERCRIMINALIZATION OF CONDUCT, OVERFEDERALIZATION OF CRIMINAL LAW,
AND EXERCISE OF ENFORCEMENT DISCRETION
American Bar Association
American Civil Liberties Union
Families Against Mandatory Minimums
Heritage Foundation
National Association of Criminal Defense Lawyers
CHAPTER 2: ASSET FORFEITURE
Americans for Forfeiture Reform
Criminal Justice Policy Foundation
English & Smith, LLP
Institute for Justice
National Association of Criminal Defense Lawyers
CHAPTER 3: FEDERAL INVESTIGATIONS
Innocence Project
CHAPTER 4: FEDERAL GRAND JURIES
American Bar Association
National Association of Criminal Defense Lawyers
CHAPTER 5: FORENSIC SCIENCE
Innocence Project
National Association of Criminal Defense Lawyers
National Legal Aid and Defender Association
CHAPTER 6: INNOCENCE ISSUES
Innocence Project

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CONTRIBUTORS

CHAPTER 7: INDIGENT DEFENSE
American Bar Association
Brennan Center for Justice
Constitution Project
National Association for the Advancement of Colored People Legal Defense and Education Fund
National Legal Aid and Defender Association
CHAPTER 8: JUVENILE JUSTICE
American Psychological Association
Campaign for the Fair Sentencing of Youth
Campaign for Youth Justice
Center for Children’s Law and Policy
Coalition for Juvenile Justice
Just Detention International
Phyllis Lawrence, Restorative Justice and Capital Mitigation Specialist
National Juvenile Justice Network
Sentencing Project
RFK Juvenile Justice Collaborative
CHAPTER 9: FEDERAL SENTENCING
American Bar Association
American Civil Liberties Union
Drug Policy Alliance
Families Against Mandatory Minimums
Law Offices of Margaret Love
National Association for the Advancement of Colored People Legal Defense and Education Fund
National Association of Criminal Defense Lawyers
National Legal Aid and Defender Association
Sentencing Project

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CONTRIBUTORS

CHAPTER 10: IMPROVING THE PRISON SYSTEM
ACLU National Prison Project
ACLE Washington Legislative Office
D.C. Prisoner’s Project
Families Against Mandatory Minimums
Just Detention International
Law Offices of Margaret Love
Legal Action Center
National Legal Aid and Defender Association
Open Society Policy Center
Prison Fellowship
CHAPTER 11: DEATH PENALTY
American Bar Association
Amnesty International
Constitution Project
National Association for the Advancement of Colored People Legal Defense and Education Fund
The Raben Group
CHAPTER 12: FIXING MEDELLÍN: ENSURING CONSULAR ACCESS THROUGH COMPLIANCE WITH
INTERNATIONAL LAW
Amnesty International
Constitution Project
The Raben Group
CHAPTER 13: PARDON POWER & EXECUTIVE CLEMENCY
American Civil Liberties Union
Criminal Justice Policy Foundation
Families Against Mandatory Minimums
Law Offices of Margaret Love

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CONTRIBUTORS

CHAPTER 14: REENTRY: ENSURING SUCCESSFUL REINTEGRATION AFTER INCARCERATION
Brennan Center for Justice
Jennifer Collier
Council of State Governments
Drug Policy Alliance
Legal Action Center
Open Society Policy Center
The Sentencing Project
CHAPTER 15: VICTIMS ISSUES & RESTORATIVE JUSTICE
Just Detention International
Phyllis Lawrence, Restorative Justice Consultant and Capital Mitigation Specialist
Prison Fellowship
CHAPTER 16: SYSTEM CHANGE
Brennan Center for Justice
Council on State Governments
Families Against Mandatory Minimums
Innocence Project
Pew Center on the States
The Sentencing Project

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SUMMARY OF RECOMMENDATIONS

xi

CHAPTER 1: OVERCRIMINALIZATION
There are over 4,450 criminal offenses scattered through the federal criminal code, as well
as untold numbers of federal regulatory criminal provisions. Congress routinely creates and
amends federal criminal offenses, too often in response to a newsworthy problem for which a new
federal law will provide no additional protection or safety.
Recommendation: 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.
Recommendation: Enact default mens rea rules. Congress should enact legislation that specifically
directs federal courts to read a protective, default mens rea requirement into any criminal offense
that lacks one and to apply any introductory or blanket mens rea terms in a criminal offense to each
element of the offense.
Recommendation: Codify the Common-Law Rule of Lenity. Congress should enact legislation
codifying the common-law rule of lenity, which directs a court, when construing an ambiguous
criminal law, to resolve the ambiguity in favor of the defendant.
Recommendation: Enact the Attorney-Client Privilege Protection Act and issue executive order to
preserve its protections. Congress should pass legislation and the Administration should issue an
executive order barring federal prosecutors and investigators in all federal agencies from pressuring
companies to waive their attorney-client privilege, work product privilege, or employee’ legal rights
in return for cooperation credit, with certain exceptions.
CHAPTER 2: ASSET FORFEITURE
Asset forfeiture has become an important part of our legal framework, and it can be a
powerful crime control weapon. Unfortunately, due to the steady erosion of procedural
protections, forfeiture powers often skew law enforcement priorities in ways that threaten
individual rights.
Recommendation: 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.

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Recommendation: 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.
CHAPTER 3: FEDERAL INVESTIGATIONS
Public confidence in the criminal justice system requires the best possible evidence be
available at trial and that the procedures and practices used to obtain that evidence are designed to
provide the most accurate results possible. Enabling more reliable investigations will curb wrongful
convictions and accurately identify the perpetrators of crime.
Recommendation: Support eyewitness identification reform measures. Congress should pass
legislation requiring federal law enforcement agencies to adopt and implement eyewitness
identification procedures shown by reliable, scientifically-supported evidence to minimize the
likelihood of misidentification. Alternatively, the President should issue an executive order requiring
the promulgation of federal standards for federal law enforcement agencies—grounded in best
practices and scientifically-supported research—with respect to eyewitness identification
procedures.
Recommendation: 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.
Recommendation: Fund measures that support the states’ preservation of biological evidence.
Congress should fully fund all measures it has previously authorized that would aid state and
federal law enforcement in preserving biological evidence and increasing access to post-conviction
DNA testing.
Recommendation: 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.
Recommendation: Permit crime scene comparisons to CODIS and IAFIS. Congress should pass
legislation to enable federal judicial orders of comparisons of crime scene DNA and fingerprint

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evidence to relevant databases: the Combined DNA Index System (CODIS) and Integrated
Automated Fingerprint Identification System (IAFIS). Alternatively, the Executive Branch should
clarify, through executive order or other policy guidance, that CODIS and IAFIS administrators
should be responsive to judicial orders requesting such comparisons.
CHAPTER 4: FEDERAL GRAND JURIES
The federal grand jury was originally intended to serve both a screening and investigative
function; however, modern grand jury procedures are incompatible with this screening function.
The current allocation of power in federal grand juries is completely at odds with the constitutional
responsibilities (not to mention considerable burdens) of grand jury service.
Recommendation: Enhance the role of federal grand jurors and address the institution’s longneglected 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.
CHAPTER 5: FORENSIC SCIENCE
In the landmark 2009 report, Strengthening Forensic Science in the United States: A Path
Forward, the National Academy of Sciences made a number of recommendations to bring forensic
science in line with validated life and physical sciences and ensure that forensic science is applied
scientifically, consistently, and fairly in the legal system.
Recommendation: Coordinate federal agencies to create scientific forensic standards. Congress
should direct the National Science Foundation to perform research to validate forensic techniques,
and the National Institute for Standards and Technology to develop standards for forensic science
methods and practice. If the task of overseeing accreditation of laboratories, certification of
forensic practitioners, compliance, and enforcement is assigned to the Department of Justice, this
function must be completely independent from the Department’s law enforcement function.
CHAPTER 6: INNOCENCE ISSUES
Across the nation, 265 wrongfully convicted individuals have been exonerated through postconviction DNA testing since 1989. Collectively, these men and women served more than 3,370
years in prison for crimes they did not commit. In 116 of the nation’s first 255 DNA exonerations,
the true perpetrators were identified in the process of settling claims of innocence; while free,
many of them had gone on to commit additional serious crimes while the innocent languished
behind bars.

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Recommendation: Ensure effective administration of the Justice for All Act. Congress should
reauthorize the Justice for All Act. The incentives and programs it created, which were originally
enacted by a bipartisan Congress to facilitate the testing of DNA post-conviction—and thus, the
discovery of the wrongly convicted and the real perpetrators, must continue to be enforced and
funded. In addition, Congress should consider amending the Act to include language that will more
easily allow for the disbursement of program funds.
Recommendation: Establish a federal commission that would address the causes and remedies of
wrongful convictions. Congressional members should reintroduce the National Criminal Justice
Commission Act, and ensure that innocence issues are included in the Commission’s work. Absent
legislative action, the President should issue an executive order establishing a presidential
innocence commission.
Recommendation: Exempt compensation to the wrongfully convicted from federal income tax.
Congress should enact the legislation similar to the Wrongful Convictions Tax Relief Act of 2010,
which would amend the Internal Revenue Code to clarify that wrongful conviction compensation
packages are not subject to federal income tax.
CHAPTER 7: INDIGENT DEFENSE
Indigent defense services in the United States remain in a perpetual state of crisis. States
are failing to meet their constitutional responsibilities to provide effective, independent counsel,
while the federal government’s funding preferences create further resource imbalances between
law enforcement and indigent defense systems.
Recommendation: 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.
Recommendation: Increase transparency in expenditure of federal taxpayer money by the states.
Congress should reauthorize the Justice for All Act with the requirement that recipients of federal
grant money for criminal justice indicate the recipient’s intended indigent defense expenditures
and report back to the Bureau of Justice Assistance the recipient’s actual indigent defense
expenditures. The Department of Justice should strengthen existing regulations to increase
transparency in state spending of federal grants.

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Recommendation: Establish accountability for violations of individual liberty by state and local
government. Congress should provide the Department of Justice with the authority to bring suit
against those states or local governments that fail to protect the individual liberty of persons within
their jurisdictions by providing inadequate counsel or no counsel to indigent defendants.
Recommendation: Establish national standards for indigent defense services. Congress should
adopt national standards, based on the American Bar Association’s The Ten Principles of a Public
Defense Delivery System, for adequate indigent defense. The Department of Justice should use
these standards as the basis by which it evaluates states’ indigent defense systems.
Recommendation: Increased independence of federal defender funding and policies. Congress
should establish an independent, non-partisan federal program for federal defense that possesses
funding and oversight responsibilities to reduce the conflict of interest that arises when a public
defender is beholden to the opposing party (the state) or to the judge for funding. The Department
of Justice should formalize the criminal defense functions of the Access to Justice Initiative as an
Office of Public Counsel Services (OPCS) within the Department of Justice tasked with developing
objectives, priorities and a long-term plan for federal support of state and local indigent defense
systems.
CHAPTER 8: JUVENILE JUSTICE
The United States incarcerates more youth than any other country in the world. Every day
in America there are over 80 thousand youth incarcerated in juvenile facilities and another 10
thousand youth who are held in adult jails and prisons. Unfortunately, far too many children are
held in dangerous conditions where they can be pepper-sprayed, hog-tied, or sexually assaulted.
These policies have the unintended consequence of increasing, not decreasing, crime. They are also
extremely costly. The good news is that we know how to fix these problems. Our recommendations
have a broad base of support from juvenile justice advocates, attorneys, and system stakeholders
and spell out in greater detail what the problems are and how to solve them.
Recommendation: Restore the federal leadership role in juvenile justice policy. Congress should
reauthorize the Juvenile Justice and Delinquency Prevention Act and ensure that states have the
necessary guidance and resources to create and sustain cost-effective juvenile systems that both
enhance public safety and treat court-involved youth age appropriately. In light of state budget
crises, Congress should restore federal investments in state and local juvenile justice reform efforts.
Furthermore, the President must appoint a competent Office of Juvenile Justice and Delinquency
Prevention Administrator.
Recommendation: Prevent crime and divert youth from the justice system. Too many children end
up in our justice system because of mental health problems or school-related problems, and these
youth should be handled differently. Congress should pass the Youth Prison Reduction through
Opportunities, Mentoring, Intervention, Support, and Education (PROMISE) Act to implement and
fund evidence-based practices to prevent delinquency and gang involvement. Additionally, the Office

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of Juvenile Justice and Delinquency Prevention should help states and localities prevent and reduce
the use of out of home placements, by supporting community-based alternatives to incarceration.
Recommendation: Prevent dangerous confinement conditions in the juvenile justice system.
Congress should work to improve conditions of confinement for youth in juvenile facilities. The
Department of Justice should enact and enforce national standards protecting youth from sexual
abuse.
Recommendation: Remove youth from the adult criminal justice system. Congress should extend
Juvenile Justice and Delinquency Prevention Act protections to keep youth out of adult facilities.
Congress should amend the Juvenile Justice and Delinquency Prevention Act to extend the jail
removal and sight and sound protections of the Act to all youth, regardless of whether they are
awaiting trial in juvenile or adult court. The Department of Justice must enact standards to protect
youth from sexual abuse and help states remove youth from adult facilities.
Recommendation: Help youth successfully reenter their communities. Congress should increase its
focus on and funding for youth in the reauthorization of the Second Chance Act. Congress should
also work to improve the education of incarcerated youth.
CHAPTER 9: FEDERAL SENTENCING
There is no doubt that our enormous prison populations are driven in large measure by our
sentencing policies, which favor incarceration over community-based alternatives or rehabilitation.
We spend enormous amounts of money keeping people in prison; money that in many cases would
be better spent treating addiction or funding community-based programs to reduce recidivism.
Moreover, our federal prison population is largely made up of non-violent and low-level offenders.
While incarceration at modest levels has some impact on crime, we are now long past the point of
diminishing returns in the cost-effectiveness of our vastly expanded prison system. Too many
people are locked up and many for far too long without evidence that the length or sometimes even
the very fact of incarceration makes our communities safer or otherwise serves any legitimate
purpose of punishment.
Recommendation: 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.
Recommendation: 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.

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Recommendation: 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.
Recommendation: Apply stacking provision only to true recidivists. Congress should pass
legislation to ensure that individuals who carry a firearm while committing a violent crime or drug
trafficking offense face the 25-year mandatory minimum for repeat offenses only if they have been
previously convicted and served a sentence.
Recommendation: Expand federal statutory authority for deferred adjudication. Congress should
enact a statute permitting individuals charged with certain federal crimes to avoid a conviction
record by successfully completing a period of probation.
Recommendation: 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.
Recommendation: Expand the Residential Drug Abuse Program to makes its sentence reduction
opportunities available to a larger pool of deserving individuals. The Attorney General should
issue a memorandum directing the Bureau of Prisons to administer the sentence reduction
incentive consistent with federal law and to ensure that it be made available to all prisoners with
detainers and that the planning be done far enough in advance to ensure that qualified prisoners
receive the full benefit Congress intended to bestow.
Recommendation: Clarify and expand good time conduct credit calculations. Congress should pass
legislation similar to the Prisoner Incentive Act, which would rewrite the good time statute to make
clear that a prisoner serving a sentence of over one year may earn up to 54 days of good time credit
per every year of his sentence. Congress should also pass legislation similar to the Literacy,
Education, and Rehabilitation Act that would provide credit toward service of sentence for
satisfactory participation in designated prison programs.
Recommendation: 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.
Recommendation: Add a federal public defender as ex-officio member of the United States
Sentencing Commission. Congress should add a federal public defender to the Commission to

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improve the quality and accuracy of the Commission's work and the transparency and neutrality of
the Commission's proceedings.
Recommendation: 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.
CHAPTER 10: PRISONS
Critical reforms to our prison system are necessary. We must address the high incidence of sexual
assault and rape in our nation’s correctional facilities; return the rule of law to U.S. prisons and jails;
end over-reliance on the use of solitary confinement and long-term isolation; reduce recidivism;
and improve transparency in the world’s largest prison system.
Recommendation: The Prison Rape Elimination Act should be fully implemented. Congress should
fully fund the Prison Rape Elimination Act to realize the full benefits of the law, including grants to
states and county to address prison rape, which have not been funded since 2006. Congress should
also hold oversight hearings to ensure that the Department of Justice is meeting its obligations
under the law. The Attorney General should ratify national standards to address sexual violence in
detention and establish meaningful compliance monitoring of the standards.
Recommendation: Address conditions of confinement. Congress should pass the Prison Abuse
Remedies Act to correct provisions in the Prison Litigation Reform Act that too severely restrict a
prisoner’s ability to address violations of his or her rights and thereby hold prison officials
accountable for those violations. Congress should also reauthorize the Deaths in Custody Reporting
Act and pass a strengthened Juvenile Justice and Delinquency Prevention Act. Congress should also
pass the Private Prison Information Act, which would subject private prisons to the same Freedom
of Information Act provisions as the Federal Bureau of Prisons. Finally, Congress should hold an
oversight hearing on conditions at Bureau of Prisons facilities. Similarly, the Department of Justice
Office of the Inspector General should exercise its authority to review and evaluate the Bureau of
Prisons and the Department should zealously enforce the Civil Rights for Institutionalized Persons
Act to investigate and bring suits against state and local institutions, including jails, prisons, and
youth detention centers, that violate the law.
Recommendation: Reduce recidivism and increase effective rehabilitation. Congress and the
Administration should pursue policies that better prepare prisoners for reentry following the
completion of their sentences at the federal and state level. These include a variety of policies, a
few of which include drug treatment programs, alternatives to incarceration for non-violent
offenders, access to educational programs and job training, and coordination between prison
programs and communities.

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Recommendation: Reduce the use of long-term isolation and build effective alternatives. Congress
should introduce a bill limiting the use of long-term isolated confinement in Bureau of Prisons
facilities. Additionally, the GAO should conduct a study of the effectiveness and availability of
mental health care in the Bureau of Prisons generally and for prisoners confined to long-term
isolated confinement, and the Bureau of Prisons should adopt policies and practices for its use of
long-term isolation consistent with the standards established by the ABA’s the ABA’s Criminal
Justice Standards on the Treatment of Prisoners.
CHAPTER 11: DEATH PENALTY
The death penalty, as currently applied, is in urgent need of reform. Capital defendants are
too often not afforded adequate legal representation or a fair trial. Furthermore, alarming racial
disparities exist in the application of the death penalty. The failure to provide even basic fairness in
the systems leads to an incontrovertible truth: the death penalty is a “broken system.” Despite
these grave concerns, since the 1996 passage of the Antiterrorism and Effective Death Penalty Act
(AEDPA), federal courts have been severely constrained in their ability to vindicate the
constitutional rights of individuals convicted of crimes in state and federal courts.
Recommendation: Reform habeas corpus to address damage caused by AEDPA. Congress should
amend the federal habeas statute to address the damage AEDPA has wrought in federal habeas
corpus over the past fifteen years. Congress should revise the statute of limitations, exhaustion
requirements, and procedural default standards, as well as eliminate federal court deference to
state court interpretations of constitutional and federal law and restrictions on successive habeas
petitions.
Recommendation: Creating safeguards against racially biased capital prosecutions. Congress
should seek to address the disproportionate application of the federal death penalty to defendants
of color. Congress should commission an independent study of the federal death penalty system to
examine racial disparities, prejudicial errors, adequacy of counsel, and other inequities in capital
prosecutions, and make recommendations for legislative reform. The Department of Justice should
also revise its policies and regulations to ensure greater consistency and fairness in the application
of the federal death penalty.
Recommendation: Protecting the mentally ill from execution. Congress should exempt people with
severe mental illness and/or developmental disabilities from capital prosecution. Even without
legislative action, the Department of Justice should adopt a policy that exempts people with severe
mental illness and/or developmental disabilities from capital prosecutions.
Recommendation: Provide adequate counsel in capital prosecutions. Congress should increase
federal defender independence from the federal judiciary. Giving the judiciary control over defense
functions creates a conflict of interest. Federal defenders would be able to operate more
effectively and efficiently if the judiciary no longer appointed counsel or approved budgets for

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experts and other resources at any stage of a federal death penalty case, including post-conviction
review.
CHAPTER 12: FIXING MEDELLÍN
In 2005, President Bush withdrew from the Vienna Convention on Consular Relations’
Optional Protocol concerning the Compulsory Settlement of Disputes. Additionally, in 2008 the
Supreme Court held that the Vienna Convention on Consular Relations was unenforceable against
states absent implementing legislation. The effect was that foreign nationals who had improperly
been denied access to their consulate upon their arrest in the U.S. had no remedy in court. Because
rights and obligations under the Optional Protocol are entirely reciprocal, the decision to withdraw
also stripped U.S. citizens abroad of a binding enforcement mechanism for their right to access their
consulate when detained or arrested outside of the U.S.
Recommendation: The U.S. should rejoin the optional protocol. The President should rejoin the
Optional Protocol. In the interim, the House and Senate Judiciary and Foreign Relations Committees
should examine the impact of our withdrawal from the Optional Protocol on U.S. citizens living,
working, and traveling abroad.
Recommendation: Pass legislation implementing Avena. Congress should pass legislation providing
foreign nationals with judicial remedies for violations of their rights under the Vienna Convention
on Consular Relations. The President should also require the Department of State and the
Department of Justice to provide further education and support to state and local law enforcement
about the right to consular access and compliance with this obligation going forward.
CHAPTER 13: PARDON POWER & EXECUTIVE CLEMENCY
With the rapid growth of the federal prison population and the expansion of legal barriers to
reentry, the President's pardon power can and should play a central operational role in the federal
criminal justice system. Despite its importance, during the past several administrations the pardon
power has fallen into disuse, and the Justice Department has neglected its historical role as steward
of the pardon power.
Recommendation: 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.

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Recommendation: Make the process for administering the pardon power more independent,
efficient, and accountable. The Administration should consider removing the pardon administrative
process from the Justice Department and placing it in an independent board of appointees (possibly
a panel of retired federal judges) that could operate with a degree of independence from federal
prosecutors and give the president additional protection from political pressure. Alternatively, if
the pardon advisory function remains in the Justice Department, those tasked with the performing
this function should have a clear mandate to carry out the president’s direction and sufficient
resources to do so. A senior official in the White House Counsel's office should be assigned to
advise the president on pardon matters and to review clemency recommendations on a regular
basis. The president should have regularly-scheduled opportunities to review and act on clemency
requests with his counsel.
CHAPTER 14: REENTRY
Reentry is critical to achieving the public safety and the rehabilitation goals of our criminal justice
system. Many obstacles stand between the individual with a criminal record and successful reentry.
Policies that create barriers to successfully reintegrating into one’s community make it increasingly
difficult for ex-offenders to become contributing members of their communities.
Recommendation: Reauthorize and fully fund the Second Chance Act.
Congress should reauthorize and appropriate sufficient funds for the Second Chance Act
Reauthorization. The Second Change Act makes possible the development and testing of program
models, the introduction of different approaches to successful reentry and the dissemination of
information and research to guide states as they address the complex challenge of prisoner reentry.
Recommendation: Provide persons reentering communities the resources to encourage successful
reintegration. Congress should pass legislation and the Administration should pursue executive
action that encourages successful reintegration by balancing public safety with efforts to eliminate
counterproductive stigmatization of persons who have served their sentences. This should include
extending federal voting rights, removing unfair barriers to housing, and expanding employment
opportunities for people released from prison. It should also include restoring welfare and food
stamp benefits, and repealing or reducing the unintended impact of the financial aid ban for
individuals with drug felony convictions. Congress and the Administration should also support
expanding access to drug, alcohol and mental health treatment.
Recommendation: Expand and improve legal mechanisms for individuals to obtain relief from
collateral consequences. Congress should enact an authority to permit individuals charged with
certain federal crimes to avoid a conviction record by successfully completing a period of
probation. This could achieve the goals of public safety and rehabilitation without unnecessarily
and permanently stigmatizing individuals.

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CHAPTER 15: VICTIMS RIGHTS AND RESTORATIVE JUSTICE
The failure to incorporate victims’ perspectives in the criminal justice can result in victims feeling
frustrated by the lengthy processes of the traditional system, the evidentiary rules which do not
permit their questions to be asked, and the lack of compliance with restitution orders. Even more
troubling, victims are too often unwilling to report crimes or participate in the traditional criminal
justice system, making convictions more difficult. Restorative justice approaches can reduce
recidivism, cut costs, and improve victims’ satisfaction with the system.
Recommendation: Establish and fund a National Commission on Restorative Justice. Congress
should establish and fund a National Commission on Restorative Justice to study the effectiveness
of restorative justice programs in serving the needs of victims and communities and supporting
offender accountability and competency. Absent congressional action, the President should
establish a Task Force on Restorative Justice within the DOJ Office of Justice Programs to explore
the creation of a national strategy and action plan directed at supporting and expanding the use of
restorative approaches at the local, state and federal level.
Recommendation: Expand funding streams for victims of crime. Congress should create a
restitution fund, expand judicial discretion in restitution orders, and permit the use of forfeiture
funds to improve likelihood of victims receiving restitution. Congress should also raise the cap on
expenditures from the Victims of Crime Fund to provide services to victims. The Department of
Justice could aid Congress by establishing an advisory committee to provide recommendation for
altering the cap. The Department of Justice should also amend its guidelines regarding use of
money from the Fund to ensure its goals are being met.
CHAPTER 16: SYSTEM CHANGE
Americans are calling for broad reform to address the affordability, accountability and accuracy of
the criminal justice system. Over the past few decades, prison populations have expanded, state
and federal spending on the criminal justice system has exploded, and communities across the
nation have suffered. We are in dire need of an honest, level-headed examination of the policies
that have led us to this place and what can be done to improve the system.
Recommendation: 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.
Recommendation: 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

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reinvesting the savings into alternatives to incarceration, such as community corrections and
programs proven to reduce recidivism.
Recommendation: 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.

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CHAPTER 1
OVERCRIMINALIZATION OF CONDUCT,
OVERFEDERALIZATION OF CRIMINAL LAW, AND THE
EXERCISE OF ENFORCEMENT DISCRETION

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THE ISSUE
The American Bar Association’s (ABA) Task Force on the Federalization of Crime
observed in 1998, “So large is the present body of federal criminal law that there is no
conveniently accessible, complete list of federal crimes.”1 As of 2007, there were more than
4,450 offenses that carried criminal penalties in the United States Code.2 In addition, an
estimated 10,000, and possibly as many as 300,000 federal regulations can be enforced
criminally.3 Despite Supreme Court cases in the last 15 years cautioning against the federal
assumption of plenary police power,4 Congress continues to introduce new criminal
legislation. Recent studies demonstrate that from 2000 through 2007, Congress created
452 new federal crimes—that is, on average, one new crime a week for every week of every
year.5
This over-federalization of criminal law is often a product of political considerations,
wherein the response to a newsworthy problem is the introduction of federal legislation
containing new criminal provisions or increased criminal penalties. So routine is this
response that practitioners, academics, and even the Department of Justice (DOJ) have
struggled to document the actual number of federal statutory offenses.6
The explosive growth of the federal criminal code in recent decades is noteworthy
on its own, but it is only one part of the problem. Many of these new offenses do not
punish conduct that is universally considered to be “criminal.” This is because an increasing
number of statutes lack an adequate criminal intent requirement to protect innocent
people who act without intent to violate the law or knowledge that their conduct was
illegal. For example, Abner Schoenwetter, a 64-year-old sea food importer with no criminal
record, served six years in federal prison because he purchased a shipment of lobsters that
were the wrong size and in the wrong packaging under Honduran treaty regulations.7 The
absence of strong criminal intent requirements weakens protections for due process and
civil liberties, especially where Congress criminalizes conduct involving regulatory violations
1

AMERICAN BAR ASSOCIATION, CRIMINAL JUSTICE SECTION, THE FEDERALIZATION OF CRIMINAL LAW 9 (1998) [hereinafter
FEDERALIZATION OF CRIMINAL LAW].
2
John S. Baker, Jr., Revisiting the Explosive Growth of Federal Crimes, Heritage Foundation L. Memo. No.
26, June 16, 2008, at 5.
3
FEDERALIZATION OF CRIMINAL LAW, supra note 2, at 9 n.11, app. C; See also John C. Coffee, Jr., Does
“Unlawful” Mean “Criminal”?: Reflections on the Disappearing Tort/Crime Distinction in American Law, 71
B.U. L. REV. 193, 216 (1991).
4
See, e.g., U.S. v. Lopez, 514 U.S. 549 (1995); U.S. v. Morrison, 529 U.S. 598 (2000).
5
Baker, supra note 3, at 2.
6
JOHN BAKER, REVISITING THE EXPLOSIVE GROWTH OF FEDERAL CRIMES (Heritage Foundation June 16, 2008),
available at: http://www.heritage.org/research/reports/2008/06/revisiting-the-explosive-growth-offederal-crimes.
7
Reining in Overcriminalization: Assessing the Problems, Proposing Solutions: Hearing Before the
Subcomm. on Crime, Terrorism & Homeland Security of the H. Comm. on the Judiciary, 111th Cong. (Sept.
28, 2010) (statement of Abner Schoenwetter), available at:
http://judiciary.house.gov/hearings/pdf/Schoenwetter100928.pdf.

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and highly technical prohibitions. Further, vague criminal laws, coupled with an expanding
list of federal crimes, have led to abuses by the executive branch in the exercise of its
prosecutorial discretion.
Enforcing this unwieldy criminal code has contributed to a backlogged judiciary,
overflowing prisons, and the incarceration of innocent individuals who plead guilty not
because they actually are, but because exercising their constitutional right to a trial is
prohibitively expensive and too much of a risk.8 This enforcement scheme is inefficient,
ineffective, and maintained at tremendous taxpayer expense.
HISTORY OF THE PROBLEM
The overcriminalization of conduct that is not inherently wrong9 and the
overfederalization of criminal law enforcement are two faces of the same problem: the
attractive but ineffective use of criminal sanctions as a solution for whatever current crisis
faces the American public, be it a surge in gang crime or a breakdown on Wall Street. The
new criminal offenses that result are frequently drafted in a vague and overly broad
manner, without adequate criminal intent requirements, and enacted into law without any
consideration of whether such criminalization is necessary and appropriate.
Overcriminalization occurs when federal policymakers enact criminal statutes
lacking meaningful mens rea (criminal intent) requirements; federalize crimes traditionally
reserved for state jurisdiction; adopt duplicative and overlapping statutes; expand criminal
law into economic activity and regulatory and civil enforcement areas; impose vicarious
liability with insufficient evidence of personal awareness or neglect; and create mandatory
minimum sentences unrelated to the wrongfulness or harm of the underlying crime. These
inevitably increase the size of the already massive federal criminal code.
Given the sheer number of criminal prohibitions, it is not surprising that only a small
fraction of these offenses require “criminal intent.” Indeed, federal statutes provide for
more than 100 types of mens rea.10 As a prominent casebook notes, “*e+ven those terms
most frequently used in federal legislation—‘knowing’ and ‘willful’—do not have one
8

The Innocence Project, When the Innocent Plead Guilty, available at:
http://www.innocenceproject.org/Content/When_the_Innocent_Plead_Guilty.php (last visited Jan. 25,
2010).
9
Crimes that are inherently wrong because of the intrinsic immoral nature of the act, such as rape or
murder, are considered malum in se, or “wrong in itself.” These are acts that any reasonable person will
know are wrong, regardless of whether or not that person knows they are illegal. In contract, acts that
are malum prohibitum, or “wrong due to being prohibited,” are those illegal acts that, on their face,
would not immediately appear wrong to a reasonable person. For this latter category of crimes,
reasonable notice of their illegality is necessary for effective compliance. See, e.g., United States v.
Bajakajian, 524 U.S. 321 (1998).
10
JOHN S. BAKER, JR., THE FEDERALIST SOC’Y FOR LAW & PUB. POLICY STUDIES, MEASURING THE EXPLOSIVE GROWTH OF
FEDERAL CRIME LEGISLATION 10 (2004) available at
http://fedsoc.server326.com/Publications/practicegroupnewsletters/criminallaw/crimreportfinal.pdf.

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invariable meaning. . . . Another layer of difficulty is attributable to the fact that Congress
may impose one mens rea requirement upon certain elements of the offense and a
different level of mens rea, or no mens rea at all, with respect to other elements.”11 The
erosion of mens rea is especially problematic in the white collar arena, where potential
defendants often have little (or no) notice that the conduct in which they have engaged is
unlawful, much less criminal.
Similarly, through the imposition of vicarious liability for the acts of others,
defendants can be prosecuted, convicted and punished without any evidence of personal
awareness or neglect. Under this theory, off-duty supervisors can be criminally punished for
the accidental acts of their employees, even if they did not know of, approve of, or benefit
from the conduct.12 Corporate criminal liability employs the doctrine of respondeat
superior, which is identical to the standard used in civil tort law. This means that as long as
an employee is acting within the scope of his or her employment (broadly defined), the
corporation is deemed criminally liable for that employee’s actions, despite the
corporation’s best efforts to deter such behavior. Regardless of compliance programs,
employment manuals, or even strict instructions to the contrary, if an employee violates the
law, then the corporation can be criminally punished.
Past attempts to reform these problems have been unsuccessful. In the 1970s and
early 1980s, Congress produced several iterations of a comprehensive and cohesive federal
criminal code.13 After hundreds of markups and passage through the Senate, the effort
finally died due lack of support from major stakeholders.14 Throughout the 1990s, then
Chief Justice William Rehnquist and the Judicial Conference advocated a five-point, limited
basis for federal criminal jurisdiction in order to ease the burden on federal courts and
return plenary police power to the states. 15 The Judicial Conference advocated the exercise
of federal criminal jurisdiction in the following cases: (i) offenses against the federal
government or its inherent interests; (ii) criminal activity with substantial multi-state or
international aspects; (iii) criminal activity involving complex commercial or institutional
enterprises most effectively prosecuted using federal resources or expertise; (iv) serious
high level or widespread state or local government corruption; and (v) criminal cases raising
highly sensitive local issues.16 In 1998, the ABA issued nearly identical recommendations for

11

Id.
th
See United States v. Hanousek, 176 F.3d 1116, 1120-23 (9 Cir. 1999) (upholding the conviction of an
off-duty construction supervisor under the Clean Water Act when one of his employees accidentally
ruptured an oil pipeline with a backhoe).
13
University of Buffalo Criminal Law Center, Federal Criminal Code Reform: A Selected Bibliography,
available at: http://wings.buffalo.edu/law/bclc/biblio.htm (last visited Jan. 25, 2010).
14
Ronald L. Gainer, Federal Criminal Code Reform: Past and Future 2 BUFF. L. REV. 45 (1998), available at:
http://wings.buffalo.edu/law/bclc/bclrarticles/2%281%29/Bclrgain.pdf.
15
WILLIAM H. REHNQUIST, 1998 YEAR-END REPORT OF THE FEDERAL JUDICIARY (Jan. 1, 1999). See also, Rehnquist
Blames Congress for Courts’ Increased Workload, WASH. TIMES, A6 (Jan. 1, 1999).
16
Id. at 4-5. See also e.g., Rehnquist Blames Congress for Courts’ Increased Workload, WASH. TIMES, A6
(Jan. 1, 1999).
12

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curbing the excessive costs of overcriminalization and overfederalization, and preventing
the further diminishment of criminal enforcement.17
Despite these efforts, the dismal state of federal criminal law remains and the trend
proceeds unabated. A prime example of overcriminalization is the honest services fraud
statute,18 which is responsible for victimizing countless law-abiding individuals. Criticized by
legal experts as vague and overbroad, it fails to define or limit the phrase “intangible right of
honest services.” According to Justice Scalia, if “taken seriously and carried to its logical
conclusion,” the statute makes it criminal for an elected official to vote for a bill because it
will help secure the support of a particular constituency group in his re-election campaign; a
mayor to use the prestige of his office to get a table at a restaurant without a reservation;
or a public employee to call in sick to work in order to go to a baseball game.19
The failure of Congress to define criminal conduct in a clear and specific manner
encourages prosecutors to charge criminally all sorts of conduct—from errors in judgment
to behavior that is the slightest bit unsavory. Congress frequently relies on prosecutorial
discretion to shape the contours of criminal offenses.20 And, rather than limit the reach of
prosecution to conduct truly belonging in the federal realm, these laws allow the federal
government to directly encroach upon intra-state conduct and even criminalize behavior
that state governments have deemed legal.
Another vague, poorly defined law that is subject to expansive application by
prosecutors is the Foreign Corrupt Practices Act (FCPA).21 The law does not make clear what
conduct is permissible and what is prohibited. To whom the law applies and the precise
contours of the phrase “foreign official” are equally unclear.22 DOJ has had a free hand
interpreting FCPA provisions, which have been virtually untested in the courts, since a
criminal indictment would be a death sentence for corporations and going to trial is too
risky and costly for most individual defendants. Thus, most FCPA investigations result in the
settlement of allegations before there has been an opportunity to challenge a prosecutor’s
interpretation of the statute’s application. Such risk and legal uncertainly is undoubtedly
bad for business and decreases the competitiveness of American businesses abroad.

17

FEDERALIZATION OF CRIMINAL LAW, supra note 2, at 51.
18 U.S.C. § 1346.
19
See Sorich v. United States, 129 U.S. S. Ct. 1308, 1300 (2009) (Scalia, J., dissenting from denial of
certiorari).
20
BRIAN WALSH AND TIFFANY JOSLYN, WITHOUT INTENT: HOW CONGRESS IS ERODING THE CRIMINAL INTENT REQUIREMENT
IN FEDERAL LAW (Heritage Foundation and National Association of Criminal Defense Lawyers, 2010),
available at: http://www.heritage.org/Research/Reports/2010/05/Without-Intent.
21
The Foreign Corrupt Practices Act of 1977, 15 U.S.C. § 78dd-1, et seq.
22
James R. Doty, Toward a Reg. FCPA: A Modest Proposal for Change in Administering the Foreign Corrupt
Practices Act 62 BUS. LAW. 1233 (2006 – 2007).
18

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The most recent evidence of overcriminalization is found in the newly enacted 884page Dodd-Frank Wall Street Reform & Consumer Protection Act.23 This law contains more
than two dozen new criminal offenses, prohibiting conduct ranging from public disclosure of
certain broadly defined information, to margin lending, to failure to reasonably foresee the
bad acts of others.24 In addition to creating these new criminal offenses, virtually every
provision of the Act includes regulatory criminalization wherein Congress hands over the
power to define criminally punishable conduct to unelected agency bureaucrats.25 Like
many new crimes created by Congress in recent years, these new criminal provisions were
not reviewed by the Judiciary Committee of either the House or Senate, despite the fact
that those committees are granted express jurisdiction over new criminal laws. And
unsurprisingly, most of the criminal laws that are contained in the financial reform
legislation lack an adequate criminal intent requirement.26 This financial services reform bill
demonstrates that Congress continues to criminalize business and economic conduct
without appropriate care and consideration.
Because businesses are automatically held liable for the criminal acts of their
employees—regardless of how high up the wrongdoing went and who knew of it—the
executive branch has tremendous leverage when it threatens to indict an entire business.
Coupled with the erosion of mens rea, this makes cases involving honest services fraud,
environmental regulatory offenses, and any law that requires only a “knowing” violation,
easy to win. And, until recently, DOJ exercised unprecedented leverage through policies
that included threatening a business with indictment unless it turned over “culpable”
employees and refused to indemnify those employees’ legal costs.27
Currently, there is a groundswell of unprecedented, bi-partisan support for
stemming the tide of increasingly broad, vague, and unnecessary criminal laws. Both the
business and legal communities share a concern about the vast amount of discretion that
vague criminal laws give to the executive branch. For the past five years, a coalition of
diverse groups that includes the ABA, the U.S. Chamber of Commerce, the American Civil
Liberties Union (ACLU), the National Association of Criminal Defense Lawyers (NACDL), the
Heritage Foundation, and the Association of Corporate Counsel (ACC), has pressured DOJ to
limit its scope in investigating corporate crime.28 Successful lobbying by this large and
diverse coalition, has led DOJ to retract some of these policies.29

23

Dodd-Frank Wall Street Reform & Consumer Protection Act, Pub. L. 111-203 (2010).
See National Association of Criminal Defense Lawyers, Dodd-Frank Wall Street Reform & Consumer
Protection Act, http://www.nacdl.org/public.nsf/whitecollar/HR4173 (last visited Jan. 20, 2010).
25
Id.
26
Id.
27
See Brian W. Walsh & Stephanie A. Martz, No Retreat Now: The Long Fight to protect the attorney-client
relationship against aggressive prosecutors can only end with legislation, LEGAL TIMES (Sept. 1, 2008),
available at http://www.law.com/jsp/nlj/legaltimes/PubArticleLT.jsp?id=1202424094454.
28
See Walsh & Martz, supra note 19.
29
Id.
24

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In the last two years, the overcriminalization coalition has expanded both in
membership and scope. Washington Legal Foundation, the Federalist Society, the Cato
Institute, Families Against Mandatory Minimums (FAMM), and the Constitution Project
(TCP), among others, have joined the existing coalition to express support for positive
reform.30
Increased attention on the problem of overcriminalization helped spur two
congressional hearings and a surge of attention to the topic by academics, legislators, and
press. On July 22, 2009, under the bipartisan leadership of Reps. Bobby Scott (D-VA) and
Louie Gohmert (R-TX), the House Judiciary Subcommittee on Crime, Terrorism, and
Homeland Security held a hearing to learn about the trend of overcriminalizing conduct and
overfederalizing crime. The hearing received attention from national media and further
ignited the overcriminalization reform movement.31
Shortly thereafter, two coalition organizations, NACDL and The Heritage Foundation,
published a groundbreaking, non-partisan, joint report entitled: Without Intent: How
Congress Is Eroding the Criminal Intent Requirement in Federal Law.32 At the official release
event, held on May 5, 2010 on Capitol Hill, Rep. Scott heralded the report as a “road map”
for reform and Rep. Gohmert lamented the victimization of citizens by criminal laws lacking
adequate intent requirements.33
On September 28, 2010, the crime subcommittee held a second hearing to examine
the problems through the lens of the Without Intent report and explored the report’s
recommendations.34 The coalition of organizations explicitly supporting this hearing
included the ABA, ACLU, the Constitution Project, FAMM, The Heritage Foundation,
Manhattan Institute, NACDL, and the National Federation of Independent Business (NFIB).
The explosive growth of federal criminal law in recent decades, the failure to
guarantee adequate mens rea requirements, the proliferation of vague and overbroad
criminal offenses, the expansion of vicarious criminal liability, and the increase in delegating
Congress’s criminalization authority to unelected officials are all issues that Congress and
the Obama administration need to address. Without reform, the federal criminal law is in
30

Press release, National Association of Criminal Defense Lawyers, Diverse Coalition Urges Congress to
Rein in Overcriminalization (Sept. 29, 2010), available at:
http://www.nacdl.org/public.nsf/NewsReleases/2010mn32?OpenDocument.
31
See, e.g., Lesley Clark, Congress looks at laws that criminalize non-criminal behavior, MIAMI HERALD (Oct.
3, 2010), available at: http://www.miamiherald.com/2010/10/03/1855997/congress-looks-at-laws-thatcriminalize.html.
32
WITHOUT INTENT, supra note 1.
33
Heritage Foundation Symposium: Without Intent: How Congress Is Eroding the Criminal Intent
Requirement in Federal Law, Washington, DC: May 24, 2010. Video available at:
http://www.heritage.org/Events/2010/05/Without-Intent.
34
Reining in Overcriminalization: Assessing the Problems, Proposing Solutions: Hearing Before the
th
Subcomm. on Crime, Terrorism, and Homeland Security of the H. Comm. on the Judiciary. 111 Cong.
(2010).

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danger of becoming a broad template for abuse of government power. The current fragile
state of the economy, growing deficit, and calls for a smaller, more efficient, and less
intrusive government demand that we revisit and reform our federal criminal code and
lawmaking process.
Further, recent history has witnessed an erosion of important attorney-client
privilege protections. In recent years, many federal government agencies have adopted
policies that erode the attorney-client privilege, the work product doctrine, and employee
legal protections in the corporate context. Each of these policies—including DOJ’s 2006
“McNulty Memorandum,” the SEC’s 2001 “Seaboard Report,” the Environmental Protection
Agency’s “Audit Policy,” and similar policies by other agencies—pressure companies and
other organizations to waive their attorney-client privilege and work product protections as
a condition of receiving full cooperation credit during investigations. These policies also
contain separate provisions that weaken employees’ Sixth Amendment right to counsel,
Fifth Amendment right against self-incrimination, and other fundamental legal rights by
pressuring companies not to pay their employees’ legal fees during investigations, to fire
them for not waiving their rights, and to take other punitive actions against them long
before any guilt has been established.
After considering the concerns raised by the ABA, NACDL, former DOJ officials,
congressional leaders, and others during the course of congressional hearings, the U.S.
Sentencing Commission (USSC) and the Commodity Futures Trading Commission voted to
reverse their privilege waiver policies in April 2006 and March 2007, respectively.35 In
addition, in August 2008, DOJ replaced the McNulty Memorandum with revised corporate
charging guidelines that generally bar prosecutors from pressuring companies to waive their
attorney-client privilege, work product, or employee legal rights in return for cooperation
credit, with certain exceptions. 36 The SEC also issued a revised Enforcement Manual on
January 13, 2010 that provides additional guidance for agency staff but does not formally
change the SEC’s waiver policy outlined in the Seaboard Report.37 Although the Manual
generally directs agency staff not to request waiver of the privilege during most
investigations, it also contains several significant exceptions and does not provide adequate
protection for the privilege and employee legal rights. Comprehensive reform is needed to
maintain attorney-client privilege in all federal agencies.
35

Michael S. Greco, President of the American Bar Association, Statement re: U.S. Sentencing Commission
Vote Rescinding 2004 Privilege Waiver Amendment (Apr. 6, 2006), available at:
http://www.abanow.org/2006/04/statement-re-u-s-sentencing-commission-vote-rescinding-2004privilege-waiver-amendment/; Douglas Koff and Jason Jurgens, CFTC Yields More Conflicting Advice on
Privilege Waivers, 237 NEW YORK L. J. (Apr. 13, 2007), available at:
http://www.cadwalader.com/assets/article/041307KoffJurgensNYLJ_.pdf.
36
AMERICAN BAR ASSOCIATION, INDEPENDENCE OF THE LEGAL PROFESSION: ATTORNEY-CLIENT PRIVILEGE, WORK PRODUCT,
AND EMPLOYEE LEGAL PROTECTIONS (Oct. 2010), available at:
http://www.abanet.org/poladv/priorities/privilegewaiver/.
37
Press release, Securities and Exchange Commission,
SEC Announces Initiative to Encourage Individuals and Companies to Cooperate and Assist in
Investigations (Jan. 13, 2010), available at: http://www.sec.gov/news/press/2010/2010-6.htm.

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These problems transcend political affiliation or ideology; the need for reform is an
increasingly commonly held view from those on both the right and the left. Congress and
the administration should work toward stemming the growth of federal crimes, creating
tighter mens rea requirements, and supporting more Congressional oversight of executive
branch discretion. Otherwise, even more law-abiding individuals may find themselves
facing unjust prosecution and punishment.
RECOMMENDATIONS
1. Resist Overcriminalization and Overfederalization
A. Insufficient Oversight of New and Modified Criminal Offenses and Penalties
While the House and Senate Judiciary Committees have jurisdiction over federal
criminal law, congressional rules do not require bills containing criminal offenses to be
referred to and reported out by the respective judiciary committee before floor
consideration by the full chamber. Further, Congress is not required to assess the
justification for, and cost of, new criminal offenses or penalties before legislative action or
enactment.
B. Amend Rules and Reporting Requirements to Stem Overcriminalization and
Overfederalization
Legislative
Congress should amend its rules to require that every bill that would add or modify
criminal offenses or penalties is automatically referred to the House or Senate Judiciary
Committee, as appropriate. This “sequential” referral requirement would give the Judiciary
Committees exclusive control over a bill until they either report the bill out or the time limit
for its consideration expires; only at that time could the bill move to another committee or
to the full chamber. This reform will require changes to the rules of the House and Senate
through the Rules Committees.
Because of their jurisdiction over federal criminal law, the House and Senate
Judiciary Committees have special expertise in drafting criminal offenses and knowledge of
federal law enforcement priorities and resources. Therefore, requiring Judiciary Committee
oversight of bills containing criminal offenses or penalties would produce clearer, more
specific criminal laws. It should also help protect against overcriminalization and foster a
measured, prioritized approach to congressional criminal lawmaking.
Currently, there is no comprehensive process for Congress to determine whether
new offenses or penalties are necessary and appropriate. Therefore, Congress should enact
legislation mandating reporting for all new or modified criminal offenses and penalties.

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Mandatory reporting would increase accountability by requiring the federal government to
perform a basic analysis of the grounds and justification for all new and modified criminal
offenses and penalties. Working together with the sequential referral reform, this
mandatory reporting requirement would decrease overcriminalization and
overfederalization.
Congress should pass legislation similar to the Federalization of Crimes Uniform
Standards Act of 2001 (Manzullo bill)38, requiring mandatory reporting by which the federal
government produces a standard public report assessing the purported justification, costs,
and benefits of all new or modified criminalization. This report should also include an
assessment of whether the criminal offense or penalty is duplicative of state law; a
comparison to similar offenses or penalties in existing federal, state, and local laws; and an
analysis of any overlap between the conduct to be criminalized and conduct already
criminalized by existing laws. The report should be available to the public before any major
legislative action on a proposed bill. Federal agencies should also be subject to mandatory
reporting prior to issuance of new guidance or rules.
2. Prevent the Further Erosion of Mens Rea Requirements
A. The Omission of Mens Rea Terminology and Use of Blanket or Introductory Mens
Rea Terms Jeopardizes Innocent Individuals
Where Congress omits mens rea terminology from a statute defining a criminal
offense, innocent individuals are at risk of unjust conviction.39 Similarly, when Congress
uses a mens rea term in a blanket or introductory manner, all parties—defendants, the
government, and the courts—are forced to litigate the proper application of such term,
again, placing innocent individuals at risk of unjust conviction.40
B. Congress Should Enact Default Mens Rea Rules
Legislative
Congress should enact legislation specifically directing federal courts to grant a
criminal defendant the benefit of the doubt when Congress has failed to adequately and
clearly define the mens rea requirements for criminal offenses and penalties. This statutory
38

Federalization of Crimes Uniform Standard Act of 2001, H.R. 1998, 107th Cong. (2001).
WITHOUT INTENT, supra note 1, at 14-15 (explaining the danger of “strict liability” offenses, i.e. offenses
that do not contain any mens rea terminology, and providing examples of such offenses contained in bills
th
introduced in the 109 Congress).
40
See Flores-Figueroa v. United States, 129 S. Ct. 1886, 509 U.S. ___ (2009) (exploring the difficulties of
interpretation caused by an introductory mens rea term in the one-sentence long federal aggravated
identity theft statute and reversing the appellate court’s affirmance of a jury conviction on the grounds
that the statute’s “knowingly” mens rea term applies to its “a means of identification of another person”
clause).
39

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enactment should be two-fold. First, Congress should direct federal courts to read a
protective, default mens rea requirement into any criminal offense that lacks one. This will
address the problems that arise when Congress omits mens rea terminology. Second,
Congress should direct federal courts to apply an introductory or blanket mens rea term in a
criminal offense to each element of the offense. This reform will eliminate much of the
uncertainty that exists in federal criminal law over the extent to which an offense’s mens
rea terminology applies to all of the offense’s elements.
3. Increase Fairness in the Interpretation of Vague, Unclear, or Ambiguous Statutes
A. Vague, Unclear, or Ambiguous Statutes Put Individuals at Risk of Unjust
Prosecution and Punishment
Vague, unclear, or ambiguous statutes violate the principle of due process because
they fail to put individuals on notice of what conduct is criminal. Further, these statutes put
federal courts in the position of legislating from the bench.
B. Codify the Common-Law Rule of Lenity
Legislative
Congress, through its Judiciary Committees, should enact legislation codifying the
common-law rule of lenity. The rule of lenity directs a court, when construing an
ambiguous criminal law, to resolve the ambiguity in favor of the defendant. Codification of
this rule should reduce the risk of injustice stemming from criminal offenses that lack clarity
or specificity. Further, giving the benefit of the doubt to the defendant is consistent with
traditional rules presuming all defendants are innocent and placing the burden of proof of
every element of a crime beyond a reasonable doubt on the government.
Explicitly codifying the rule of lenity into federal law would simply codify a longstanding principle upheld by the Supreme Court, and which the Court has called a
fundamental rule of statutory construction.41 It would also help federal courts treat
defendants uniformly, thereby restricting the instances in which federal courts are forced to
legislate from the bench. This would protect Congress’s lawmaking authority and advance
separation of powers principles. Finally, this reform should encourage Congress to speak
with more clarity and legislate more carefully.

41

See United States v. Santos, 553 U.S. 507, 514, 128 S. Ct. 2020, 2025 (2008) (“Under a long line of our
decisions, the tie must go to the defendant. The rule of lenity requires ambiguous criminal laws to be
interpreted in favor of the defendants subjected to them. . . . The venerable rule not only vindicates the
fundamental principle that no citizen should be held accountable for a violation of a statute whose
commands are uncertain, or subjected to punishment that is not clearly prescribed. It also places the
weight of inertia upon the party that can best induce Congress to speak more clearly and keeps courts
from making criminal law in Congress’s stead.”) (internal citations omitted).

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4. Reject and Repeal Mandatory Minimum Sentences
A. Mandatory Minimum Sentences Result in Overcriminalization
Mandatory minimum sentencing policies come with billions in direct costs. In 2008,
American taxpayers spent over $5.4 billion on federal prisons,42 a 925 percent increase since
1982.43 This explosion in costs is driven, in part, by the expanded use of prison sentences
for drug crimes and longer sentences required by mandatory minimums. The federal prison
population has increased nearly five-fold since mandatory minimums were enacted in the
mid-80s and mandatory guidelines became law.44 About 75 percent of the increase was due
to mandatory minimums and 25 percent due to guideline increases above mandatory
minimums.45
B. Reject and Repeal Mandatory Minimum Sentences
Legislative
Congress should reject proposals for new mandatory sentencing minimums and
work to repeal existing mandatory sentencing minimums.46
5. Preservation of the Attorney-Client Privilege in Federal Investigations and Proceedings
A. The Attorney-Client Privilege is Under Federal Governmental Assault
In recent years, many federal government agencies have adopted policies that erode
the attorney-client privilege, the work product doctrine, and employee legal protections in
the corporate context. Each of these policies—including DOJ’s 2006 “McNulty
Memorandum,” the SEC’s 2001 “Seaboard Report,” the Environmental Protection Agency’s
“Audit Policy,” and similar policies by other agencies—pressure companies and other
organizations to waive their attorney-client privilege and work product protections as a
condition of receiving full cooperation credit during investigations. These policies also
contain separate provisions that weaken employees’ Sixth Amendment right to counsel,
Fifth Amendment right against self-incrimination, and other fundamental legal rights by
pressuring companies not to pay their employees’ legal fees during investigations, to fire
them for not waiving their rights, and to take other punitive actions against them long
before any guilt has been established.
42

U.S. DEP’T OF JUST., FY 2009 BUDGET AND PERFORMANCE SUMMARY, FEDERAL PRISON SYSTEM,
available at http://www.usdoj.gov/jmd/2009summary/html/127_bop.htm .
43
BUREAU OF JUST. STAT., U.S. DEP’T OF JUST., JUSTICE EXPENDITURE AND EMPLOYMENT IN THE UNITED
STATES, 2003 (2006), at 3, available at http://www.ojp.usdoj.gov/bjs/pub/pdf/jeeus03.pdf.
44
U.S. Bureau of Prisons, A Brief History of the Bureau of Prisons, http://www.bop.gov/about/history.jsp.
45
U.S. SENT’G COMMISSION, FIFTEEN YEARS OF GUIDELINES SENTENCING (2004), at 54,available at
http://www.ussc.gov/15_year/15year.htm
46
See Federal Sentencing Reform, SMART ON CRIME (2011).

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B. Enact Attorney-Client Privilege Protection Act or Issue Executive Order to Preserve
Its Protections
Legislative
Congress should enact comprehensive legislation like the Attorney-Client Privilege
Protection Act (ACPPA) to ensure that the basic reforms implemented by DOJ apply to all
federal agencies. The Senate and House Judiciary Committees have held four separate
hearings on this issue since early 2006. At each hearing, a broad range of concerned
organizations and constituents testified in support of legislative reform.
In November 2007, the House overwhelmingly approved the ACPPA, sponsored by
Reps. John Conyers (D-MI), Bobby Scott (D-VA), and Lamar Smith (R-TX).47 The reforms in
this bill were comprehensive, applying to all federal agencies. A Senate companion bill,
sponsored by then-Senators Arlen Specter (R-PA), Joseph Biden (D-DE), and 12 others from
both parties, was also introduced in the 110th Congress but failed to receive a vote.48 On
February 13, 2009, Senator Specter reintroduced similar legislation, and 49 on December 16,
2009, Rep. Scott subsequently reintroduced the House version of the bill.50 Many of the
bill’s reforms were later adopted by the Justice Department (DOJ) in its revised corporate
charging guidelines.51 The 112th Congress should reintroduce and pass the ACCPA.
However, Unlike the reforms in the House bill—sponsored by Representatives John
Conyers (D-MI), Bobby Scott (D-VA), and Lamar Smith (R-TX)—which apply to all federal
agencies, the DOJ policy was limited in scope.52 A Senate companion bill, S. 3217,
sponsored by then-Senators Arlen Specter (D-PA, then R-PA), Joseph Biden (D-DE) and 12
others from both parties, was also introduced in the 110th Congress but failed to receive a
vote. On February 13, 2009, Senator Specter reintroduced similar legislation, S. 445 in the
111th Congress. Representative Scott subsequently reintroduced the House version of the
bill on December 16, 2009 as H.R. 4326.
Enactment of comprehensive legislation like the Attorney-Client Privilege Protection
Act (ACPPA) is needed to ensure that the basic reforms implemented by DOJ apply to all
federal agencies.

47

th

Attorney-Client Privilege Protection Act of 2007, H.R. 3013, 110 Cong. (2007)
th
Attorney-Client Privilege Protection Act of 2008, S. 3217, 110 Cong. (2008).
49
Attorney-Client Privilege Protection Act of 2009, S. 445, 111th Cong. (2009).
50
th
Attorney-Client Privilege Protection Act of 2009, H.R. 4326, 111 Cong. (2009).
51
American Bar Association, Protecting the Attorney-Client Privilege, the Work Product Doctrine, and
Employee Legal Rights: Comprehensive Reform Still Critically Needed (Oct. 2010), available at:
http://www.abanet.org/poladv/priorities/privilegewaiver/2010Oct_factsheet.pdf.
52
Id.
48

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Executive
Absent Congressional action, the President should issue an executive order
preserving the protections of the attorney-client privilege.
In August 2008, DOJ replaced the McNulty Memorandum, which limited attorneyclient privilege, with revised corporate charging guidelines that generally bar prosecutors
from pressuring companies to waive their attorney-client privilege, work product, or
employee legal rights in return for cooperation credit, with certain exceptions. The
President should issue an executive order applying DOJ’s reforms to all federal agencies to
clearly protects the sanctity of the privilege.

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APPENDICES
Experts
Overcriminalization
Shana-Tara Regon, Director of White Collar Crime, National Association of Criminal
Defense Lawyers (http://www.nacdl.org/whitecollar)
Brian Walsh, Senior Legal Research Fellow, Center for Legal and Judicial Studies, The
Heritage Foundation (http://www.heritage.org/about/staff/w/brian-walsh)
Attorney-Client Privilege
Larson Frisby, Senior Legislative Counsel, American Bar Association
(http://www.abanet.org/poladv/contact.shtml)
Barry Pollack, Member, Miller & Chevalier, Washington, D.C.
(http://www.millerchevalier.com/bpollack/)
Further Resources
Overcriminalization
BRIAN W. WALSH & TIFFANY M. JOSLYN, THE HERITAGE FOUNDATION & NATIONAL ASSOCIATION OF
CRIMINAL DEFENSE LAWYERS, WITHOUT INTENT: HOW CONGRESS IS ERODING THE INTENT
REQUIREMENT IN FEDERAL LAW 6 (2010), available at
http://www.nacdl.org/public.nsf/WhiteCollar/WithoutIntent/$FILE/WithoutIntentR
eport.pdf
ONE NATION UNDER ARREST: HOW CRAZY LAWS, ROUGE PROSECUTORS, AND ACTIVIST JUDGES
THREATEN YOUR LIBERTY ( Paul Rosenzweig & Brian W. Walsh, eds., 2010).
HARVEY SILVERGLATE THREE FELONIES A DAY: HOW THE FEDS TARGET THE INNOCENT (2009).
National Association of Criminal Defense Lawyers, Battling Overcriminalization of
Conduct, www.nacdl.org/overcrim (last visited Jan. 24, 2011).
Attorney-Client Privilege
American Bar Association, Resolution and Report 302A Regarding the Preservation
of the Attorney-Client Privilege Throughout the Audit Process (August 2006),
available at: http://www.abanet.org/leadership/2006/annual/DAILY_JOURNAL.pdf.

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American Bar Association, Resolution and Report 302B Regarding the Preservation
of Employee Legal Rights During Government Investigations (August 2006), available
at: http://www.abanet.org/leadership/2006/annual/DAILY_JOURNAL.pdf.
American Bar Association, Resolution and report Regarding Attorney-Client Privilege
and Work Product Doctrine (August 9, 2005), available at:
http://www.docstoc.com/docs/51019355/ABA-August-9-2005-Resolution-andReport-Regarding-Attorney-Client-Privilege-and-Work-Product-Doctrine.
American Bar Association, Privilege Waiver Materials, a resource webpage available
at: http://www.abanet.org/poladv/priorities/privilegewaiver/acprivilege.html.
Primary Contacts
Ivan J. Dominguez
National Association of Criminal Defense Lawyers
1660 L St., NW, 12th Floor
Washington, DC 20036
(202) 872-8600 ext. 262
ivan@nacdl.org
E. Bruce Nicholson
American Bar Association
740 15th Street, N.W.
(202) 662-1769
nicholsonb@staff.abanet.org
Mary Price
Families Against Mandatory Minimums (FAMM)
1612 K Street, N.W., Suite 700
Washington, D.C. 20006
(202) 822-6700
mprice@famm.org
Brian W. Walsh
Center for Legal & Judicial Studies
The Heritage Foundation
214 Massachusetts Avenue, NE
Washington, D.C. 20002
(202) 608-6190
brian.walsh@heritage.org

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CHAPTER 1 CONTRIBUTORS
American Bar Association (ABA)
E. Bruce Nicholson
740 15th Street, NW
Washington, DC 20005
(202) 662-1769
bruce.nicholson@americanbar.org
American Civil Liberties Union (ACLU)
Washington Legislative Office
Jennifer Bellamy
915 15th Street, NW
Washington, DC 20005
(202) 675-2312
jbellamy@dcaclu.org
Families Against Mandatory Minimums
(FAMM)
Mary Price
1612 K. Street, NW, Suite 700
Washington, DC 20006
(202) 822-6700
mprice@famm.org
Jennifer Seltzer Stitt
1612 K. Street, NW, Suite 700
Washington, DC 20006
(202) 822-6700
jstitt@famm.org

Heritage Foundation
Brian W. Walsh
Center for Legal & Judicial Studies
The Heritage Foundation
214 Massachusetts Avenue, NE
Washington, D.C. 20002
(202) 608-6190
brian.walsh@heritage.org
National Association of Criminal Defense
Lawyers (NACDL)
Shana Regon (Chapter Leader)
1660 L Street, NW, 12th Floor
Washington, DC 20036
(202) 872-8600, ext 227
shana@nacdl.org
Tiffany Joslyn
1660 L Street, NW, 12th Floor
Washington, DC 20036
202-872-8600 ext. 260
tiffany@nacdl.org
Prison Fellowship
Pat Nolan
44180 Riverside Parkway
Lansdowne, VA 20176
(703) 554-8513
pnolan@pfm.org

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CHAPTER 2
ASSET FORFEITURE

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CHAPTER 2 – ASSET FORFEITURE 19

THE ISSUE
Asset forfeiture has become an important part of our legal framework and it can be a
powerful crime control weapon. But due to the steady erosion of procedural protections,
forfeiture powers often skew law enforcement priorities in ways that threaten individual
rights.
In particular, statutes that give law enforcement agencies a direct financial stake in
forfeiture proceeds invite abuse. For law-abiding citizens, the consequences are severe:
innocent property owners are harassed and deprived of their property without due process;
law enforcement policies that explicitly or implicitly encourage racial profiling take root; and
public confidence in law enforcement deteriorates. In the area of civil asset forfeiture, the
most important reform to address the abuse of civil asset forfeiture is relatively simple:
Congress should amend the federal equitable sharing laws1 under which state police
circumvent state forfeiture laws by turning over the forfeiture to federal law enforcement
authorities in exchange for a percentage of the proceeds.
By contrast, the scope of criminal asset forfeiture laws has expanded in recent years,
while procedural protections have eroded. Comprehensive reform of criminal asset
forfeiture laws, which can impair the accused’s ability to retain counsel as well as the rights
of third parties, is long overdue. Paramount among the needed reforms are changes to the
Federal Rules of Criminal Procedure that would safeguard the accused’s right to a fair
procedure for determining the amount of any criminal forfeiture and, in particular, provide
a right to challenge ex parte restraining orders that are permitted under federal law.2
HISTORY OF THE PROBLEM
1. Civil Asset Forfeiture
In 2000, Congress unanimously enacted the Civil Asset Forfeiture Reform Act
(CAFRA),3 the only major reform of our nation’s forfeiture laws in over 200 years. CAFRA had
strong bipartisan support, reflecting the public’s concern that individual property rights were
in danger from overzealous enforcement of forfeiture laws.4 The Act delivered several
meaningful and overdue reforms. For example, it placed the burden of proof on the
government by using a “preponderance of the evidence” standard in all civil forfeiture cases
covered by the Act. It also abolished the cost bond, the fee that claimants were required to
pay before they could proceed legally for return of their own property. Unfortunately, many
1

See 21 U.S.C. § 881(e) (2006), 18 U.S.C. § 981(e)(2) (2006), and 19 U.S.C. § 1616a (2006).
See 21 U.S.C. §853(e) (2006).
3
Pub. L. No. 106-185, 114 Stat. 202-225 (2000).
4
See U.S. v. James Good Real Property, 510 U.S. 43 (1993) (“Individual freedom finds tangible expression
in property rights”).
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CHAPTER 2 – ASSET FORFEITURE 20

of the law’s important reforms have been undermined by statutory loopholes or judicial
decisions.
Several states enacted similar reforms to address concerns regarding civil asset
forfeiture laws.5 Indeed, some states enacted even broader reforms, in some cases requiring
criminal conviction prior to any asset forfeiture. However, federal law has frustrated some of
these reforms. For instance, under the federal equitable sharing law, if state police want to
circumvent state forfeiture laws — for example, because the state law allocates forfeited
assets to the state’s education fund rather than the state police — they simply turn the
forfeiture proceeding over to federal law enforcement authorities. Federal authorities keep
20% of the proceeds of the forfeiture and return roughly 80% to the state police. Federal
legislation or regulation to halt this circumvention of state law and fiscal policy should garner
strong bipartisan support, as it would serve to protect “states’ rights,” allowing states to enact
their own reforms without federal interference.6
In addition to the issues described above, judicial opinions have thwarted efforts of
those who would seek full relief from the wrongful seizure of assets. Specifically, remedies
available to those persons whose assets were wrongly seized by asset forfeiture have been
limited by judicial decisions, which have undermined the rights of prevailing parties to obtain
attorney fees and damages from the government.7 Legislation addressing this issue could
provide a useful tool to protect an individual’s property rights.
2. Criminal Asset Forfeiture
CAFRA did not contain any reforms of the criminal forfeiture laws, due in part to the
need to streamline the already complex negotiation process over civil forfeiture reforms. As a
result, changes to the Federal Rules of Criminal Procedure and judicial decisions have greatly
expanded the government’s power to obtain criminal forfeitures. Many of these changes are
at odds with the language and intent of the criminal forfeiture statutes enacted by Congress.
In short, criminal forfeiture procedure has become less fair to defendants and third parties,

5

See e.g., OR. CONST. ART. XV, § 10 (Oregon Property Protection Act of 2000); 2001 MO. SB 5 (codified in
MO. REV. STAT. §§ 513.605, 513.607, 513.647 and 513.653 (2010); 2010 MINN. LAWS 391 (codified in
scattered sections of MINN. STAT.).
6
See MARIAN R. WILLIAMS, ET AL., POLICING FOR PROFIT: THE ABUSE OF CIVIL ASSET FORFEITURE, INST. FOR JUSTICE
(2010), available at http://www.ij.org/images/pdf_folder/other_pubs/assetforfeituretoemail.pdf.
7
See, e.g., United States v. Khan, 497 F.3d 204 (2d Cir. 2007) (denying attorneys fees under CAFRA for
representation of individuals whose property was not properly subject to forfeiture under federal law);
th
Foster v. United States, 522 F.3d 1071 (9 Cir. 2008) (holding that CAFRA re-waiver of sovereign immunity
for damage to goods detained by the government applies only to property seized solely for the purpose of
forfeiture); Adeleke v. United States, 355 F.3d 144, 154 (2d Cir. 2004) (holding that sovereign immunity
bars monetary rewards for property lost or destroyed by the government being held in anticipation of
forfeiture); Diaz v. United States, 517 F.3d 608 (2d Cir. 2008) (claims for seized currency are similarly
jurisdictionally barred by the principle of sovereign immunity).

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CHAPTER 2 – ASSET FORFEITURE 21

while civil forfeiture has become fairer as a result of CAFRA. Not surprisingly, the government
has decided to use criminal forfeiture instead of civil forfeiture whenever it is able to do so.
While Congress was drafting the civil forfeiture reform legislation, the Advisory
Committee on Criminal Rules, promulgated Federal Rule of Criminal Procedure 32.2 on
December 1, 2000.8 Rule 32.2 substantially curtailed the statutory right of a defendant to
have the forfeiture issue decided by a jury, abolished the prior rule that the Federal Rules of
Evidence apply at a forfeiture hearing, and abrogated the prior rule that the government
must specifically allege what it seeks to forfeit in the indictment. It also fails to address an
individual’s right to challenge protective orders sought by the government in ex parte
proceedings and substantially restricts the rights of third parties, often innocent of any
crime, in criminal forfeiture proceedings.
In addition, the increased use of so-called personal “money judgments” in lieu of
orders forfeiting specific property has created a completely separate, judicially-created
schema apart from the policies that Congress has sought to implement.9 These money
judgments allow the government to seek money beyond those assets that would otherwise
be subject to forfeiture, increasing the threat that an individual could be unfairly deprived
of property.
RECOMMENDATIONS
1. Civil Asset Forfeiture Reform
A. Continued Abuse of Civil Asset Forfeiture
Many of the Civil Asset Forfeiture Reform Act’s important reforms have been
undermined by statutory loopholes or judicial decisions.

8

FED. R. CRIM. P. 32.2.
See, e.g., Ginsburg at 801-802 (money judgment requires the defendant to pay the total amount derived
from the criminal activity, “regardless of whether the specific dollars received from that activity are still in
his possession”); United States v. Baker, 227 F.3d 955 (7th Cir. 2000) (forfeiture order may include a
money judgment for the amount of money involved in the money laundering offense, which acts as a lien
against the defendant personally); United States v. Conner, 752 F.2d 566, 576 (11th Cir. 1985) (because
criminal forfeiture is in personam, it follows defendant; the money judgment is in the amount that came
into his hands illegally; government not required to trace the money to any specific asset); United States
v. Amend, 791 F.2d 1120, 1127 (4th Cir. 1986) (same); United States v. Robilotto, 828 F.2d 940, 949 (2d
Cir. 1987) (following Conner and Ginsburg, court may enter money judgment for the amount of the illegal
proceeds regardless of whether defendant retained the proceeds); United States v. Voigt, 89 F.3d 1050,
1084, 1088 (3d Cir. 1996) (government entitled to personal money judgment equal to the amount of
money involved in the underlying offense); and United States v. Corrado, 227 F.3d 543 (6th Cir. 2000)
(Corrado I) (ordering entry of money judgment for the amount derived from a RICO offense).
9

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CHAPTER 2 – ASSET FORFEITURE 22

B. Curb the Abuses of Federal and State Forfeiture Powers and Fulfill the Original
Intent of the Bipartisan Civil Asset Forfeiture Reform Act and Related State
Reforms.
Legislative
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. Amending the United States Code and Federal Rules of Civil
Procedure as outlined below could provide meaningful solutions to curb abuse of civil asset
forfeiture laws.

•

Amend the federal equitable sharing law, 21 U.S.C. § 881(e), under which state
police circumvent state forfeiture laws by turning over the forfeiture to federal law
enforcement authorities in exchange for a percentage of the proceeds. Any
amendment should restrict the Attorney General’s authority to transfer forfeited
property in such a manner, particularly in cases in which the property was originally
seized by state or local law enforcement and state law would otherwise prohibit or
limit law enforcement’s retaining the property.

•

Clarify CAFRA’s fee shifting provision, 28 U.S.C. § 2465(b)(1), which has been
undermined by case law, to fully enforce the government’s obligation to pay
attorney fees to prevailing claimants.

•

Close loopholes – created by judicial decisions – in the statutory right to sue the
government (i.e., waiver of sovereign immunity) for negligent or intentional
damages to or loss of seized property in its custody by amending 28 U.S.C. § 2680(c).

•

Explicitly waive sovereign immunity where the government forfeits property without
proper notice to the owner or destroys, sells, or loses property without having
forfeited it by amending Federal Rule of Civil Procedure 41(g).

In addition to these legislative solutions, Congress could prohibit or restrict the use
of Department of Justice (DOJ) funds to forfeit property under the equitable sharing law.
Executive
Absent congressional action to amend federal civil asset forfeiture law, the
President should issue an executive order or the Department of Justice should revise its
regulations and policies to limit or forbid the use of equitable sharing designed to
circumvent state law.

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CHAPTER 2 – ASSET FORFEITURE 23

2. Criminal Asset Forfeiture Reform
A. Criminal Forfeiture Rules are Unfair to Defendants and Third Parties
The government increasingly relies on criminal forfeiture proceedings, which are
less protective of property owners than civil forfeiture proceedings. Furthermore, court
decisions have modified criminal forfeiture procedures in ways that unfairly tip the balance
in favor of the government, in ways that circumvent and undermine the purposes of the
Civil Asset Forfeiture Reform Act.
B. Safeguard the Rights of Defendants and Third Parties with Basic Procedural
Reforms
Legislative
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. The reforms
proposed below fall into three broad categories. The first category is comprised of three
proposals that would help safeguard the accused’s rights to a fair procedure for determining
what is subject to criminal forfeiture. The second category contains four proposals that
would limit the use of so-called personal “money judgments” in lieu of orders forfeiting
specific property. Such money judgments are a judicially-crafted remedy that was never
authorized by Congress. The third category of proposed reforms is intended to safeguard
the rights of third parties who have an interest in the property subject to forfeiture.
Amending the Federal Rules of Criminal Procedure and United States Code, as
suggested below, could provide meaningful solutions to the issues identified above.
i. Amend Rules 7 and 32.2 of the Federal Rules of Criminal Procedure
Congress should safeguard the accused’s right to a fair procedure for determining
the amount of any criminal forfeiture by: (i) requiring fair notice through a bill of particulars;
(ii) providing the right to challenge ex parte restraining orders; and (iii) restricting the use of
hearsay.
ii. Amend Rule 32.2 of the Federal Rules of Criminal Procedure and 21 U.S.C. §
85
Congress should amend these provisions to limit the use of money judgments in lieu
of forfeiture of specific property by: (i) providing the right to a jury trial; (ii) limiting the use
of joint and several liability; (iii) clarifying that the relation back principle does not apply to

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CHAPTER 2 – ASSET FORFEITURE 24

substitute (i.e., “clean”) assets; and (iv) limiting the amount of money judgments to the
defendant’s known current assets, unless the government proves that the defendant has
concealed assets. Short of abolishing the money judgment, Congress needs to rein in the
abuses that have arisen in connection with the use of money judgments.
iii. Amend Rule 32.2 of the Federal Rules of Criminal Procedure and 21 U.S.C. §
85
Congress should seek to safeguard the rights of third parties with interests in the
property the government seeks to forfeit by: (i) providing the right to a jury trial, (ii)
allowing a third party with standing to contest the forfeiture on the merits; (iii) requiring a
finding that the defendant has some forfeitable interest in the property before a
preliminary order of forfeiture is entered; and (iv) treating both court-ordered child support
obligations and claims for compensation by the defendant’s employees like secured
interests, with priority over the government’s forfeiture claims.

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CHAPTER 2 – ASSET FORFEITURE 25

APPENDICES
Experts
David B. Smith, English & Smith, Alexandria, VA; member, Board of Directors,
National Association of Criminal Defense Lawyers
(http://www.englishandsmith.com/attorneys/smith-bio/)
Roger Pilon, Vice President for Legal Affairs, Cato Institute
(http://www.cato.org/people/roger-pilon)
Scott Bullock, Senior Attorney, Institute for Justice
(http://www.ij.org/index.php?option=com_content&task=view&id=604&Itemid=16
5)
Further Resources
DAVID B. SMITH, PROSECUTION AND DEFENSE OF FORFEITURE CASES (2010).
MARIAN R. WILLIAMS, JEFFERSON E. HOLCOMB, TOMISLAV V. KOVANDZIC & SCOTT BULLOCK,
POLICING FOR PROFIT: THE ABUSE OF CIVIL ASSET FORFEITURE, INST. FOR JUSTICE (2010)
http://www.ij.org/images/pdf_folder/other_pubs/assetforfeituretoemail.pdf.
Primary Contacts
Kyle O’Dowd
Associate Executive Director for Policy
National Association of Criminal Defense Lawyers
1660 L Street NW, 12th Floor
Washington, DC 20036
(202) 872-8600 x226
kyle@nacdl.org
Eapen Thampy
3630 Holmes Street
Kansas City, MO 64109
(573) 673-5351
Eapen@forfeiturereform.com

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CHAPTER 2 CONTRITBUTORS
Americans for Forfeiture Reform
Eapen Thampy
3630 Holmes Street
Kansas City, MO 64109
(573) 673-5351
Eapen@forfeiturereform.com
English & Smith
David B. Smith
526 King Street, Suite 213
Alexandria, VA 22314
(703) 548-8911
dsmith@englishandsmith.com
Institute for Justice (IJ)
Scott Bullock
901 North Glebe Road, Suite 900
Arlington, VA 22203
(703) 682-9320
sbullock@ij.org
National Association of Criminal Defense Lawyers (NACDL)
Kyle O’Dowd (Chapter Leader)
1660 L Street, NW, 12th Floor
Washington, DC 20036
(202) 872-8600, ext 226
kyle@nacdl.org

CHAPTER 2 – ASSET FORFEITURE 26

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27

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CHAPTER 3
FEDERAL INVESTIGATIONS

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CHAPTER 3 – FEDERAL INVESTIGATIONS 28

THE ISSUE
In order to engender public confidence in the criminal justice system, it is imperative that
the best possible evidence be available at trial, and that the procedures and practices used to
obtain that evidence are designed to provide the most accurate results possible. A number of
reforms could be employed on the federal level to enable more reliable investigations, curb
wrongful convictions, and accurately identify the perpetrators of crime. The implementation of
these reforms could be accomplished through legislation, executive order, or changes to agency
policies and procedures.
The continuing improvement of existing federal investigatory procedure will not only serve
to aid federal investigations, but will also provide a strong example to state and local jurisdictions
which are also constantly seeking to improve their own criminal justice systems. It is therefore
critical that federal practices provide both direction and resources to help ensure accuracy in the
criminal justice system, from the investigative phase through post-conviction proceedings.
HISTORY OF THE PROBLEM
Since 1989, DNA exonerations have worked to reveal disturbing fissures in our criminal
justice system. The nation’s 265 DNA exonerations have exposed an array of factors that lead to
wrongful convictions.1 The leading contributing factors to the wrongful convictions in those 265
cases – including eyewitness misidentification, false confessions, and incentivized informant
testimony, and invalid or improper forensic evidence2 – are present not just in “DNA” cases, but
also in cases where DNA evidence is not probative. This is an important point to recognize, as
criminalists estimate that probative DNA evidence is available in less than 10% of all serious criminal
cases.3 As such, the improvement of investigative techniques promises to prevent miscarriages of
justice not just in the small percentage of cases where DNA testing would potentially identify errors,
but in all criminal cases.4

1

The Innocence Project, http://www.innocenceproject.org/know/ (last visited Jan. 19, 2011).
Id.
3
Department of Justice Oversight: Funding Forensics Sciences – DNA and Beyond: Hearing Before the S. Subcomm.
on Admin. Oversight and the Courts, 108th Cong. (2003) (statement of Michael M. Baden, M.D., Director of the
Medicological Investigations Unit of the New York State Police) ( “In less than 10 percent of murders the criminal
leaves DNA evidence behind. About 5 percent of a crime lab’s workload involves DNA analysis.”); Kelly M. Pyrek,
editor of FORENSIC NURSE MAG. (Sept. 2005) (quoting a chair of a consortium of four major crime laboratory
associations: requests for DNA analysis is “only 5 percent of what comes in the door.”); Cara Garretson, Cybercrime
Conference Highlights RFID Security, Mar. 6, 2007 (quoting Jim Christy, Director of the Future Explorations unit of
the Department of Defense’s Cyber Crime Center: “Only about 1 percent of criminal cases introduce DNA evidence
-- contrary to what typically is portrayed on television crime dramas -- because most of the time it’s not relevant”).
4
Unvalidated and improperly applied forensic science also numbers among the documented factors of wrongful
convictions, contributing to approximately half of the nation’s 265 DNA exonerations. See generally, Forensic
Science Reform, SMART ON CRIME (2011).
2

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CHAPTER 3 – FEDERAL INVESTIGATIONS 29

Across the country, states have acknowledged the importance of reforming investigative
practices to improve the quality of the justice system, particularly those relating to eyewitness
evidence. Under Attorney General Janet Reno, the National Institute of Justice (NIJ) convened a
criminal justice system-wide Technical Working Group for Eyewitness Evidence, which closely
studied the issue and developed recommendations.5 Since then, ten more years of peer-reviewed
scientific research and jurisdictional practice has made the value of eyewitness identification reform
even clearer. Ohio,6 North Carolina,7 New Jersey8 and West Virginia9 have all implemented at least
some eyewitness identification reforms, with Georgia,10 Maryland,11 Vermont12 and Wisconsin13
also taking statewide action on the issue. In addition, cities across the nation such as Dallas, Texas 14
and Denver, Colorado,15 as well as small jurisdictions such as Northampton, Massachusetts,16 have
adopted and implemented such reforms. During her tenure as Hennepin County Attorney, Senator
Amy Klobuchar (D-MN) instituted the entire eyewitness reform package; she also has been a public
advocate of eyewitness reform, writing favorably about the practice in a law review article.17
Additionally, many jurisdictions have taken strides to update their policies on eyewitness
identification and the use of line-ups, especially in response to the formal adoption of Standards
42.2.11 and 42.2.12 by the Commission on Accreditation for Law Enforcement Agencies, Inc., which
require accredited bodies to have written policies regarding their administration of identification
procedures.18
Critical reforms have also been undertaken in the area of custodial interrogations. Eleven
states and the District of Columbia have passed legislation requiring the recording of custodial
5

These recommendations are formalized in National Institute of Justice manuals. See U.S. DEPT. OF JUSTICE, OFFICE OF
JUSTICE PROGRAMS, NAT’L INST. OF JUSTICE, EYEWITNESS EVIDENCE: A GUIDE FOR LAW ENFORCEMENT (1999), available at
http://www.ncjrs.gov/pdffiles1/nij/178240.pdf; U.S. DEPT. OF JUSTICE, OFFICE OF JUSTICE PROGRAMS, NAT’L INST. OF JUSTICE,
EYEWITNESS
EVIDENCE:
A
TRAINER’S
MANUAL
FOR
LAW
ENFORCEMENT
(2003),
available
at
http://www.ncjrs.gov/nij/eyewitness/188678.pdf.
6
OHIO REV. CODE ANN. § 2933.83 (2010).
7
N.C. GEN. STAT. § 15A-284.52 (2009).
8
Memorandum from John J. Farmer, Jr., N.J. Attorney General, on Attorney General Guidelines for Preparing and
Conducting Photo and Live Lineup Identification Procedures (Apr. 18, 2001) available at
http://www.state.nj.us/lps/dcj/agguide/photoid.pdf.
9
W. VA. CODE, § 62-1E-1, et seq. (West, Westlaw through 2010 2nd Extraordinary Sess.).
10
H.R. Res. 352, 149th Gen. Assem., Reg. Sess. (Ga. 2007).
11
MD. CODE ANN. PUB. SAFETY § 3-506 (2005).
12
Vt. Act No. 154 of 2010 (Adj. Sess.) § 238e.
13
WIS. STAT. ANN. § 175.50 (West, Westlaw through 2009 Act 406).
14
Dallas Police Department General Order 304.01 Eyewitness Identification.
15
DENVER POLICE DEPARTMENT, OPERATIONS MANUAL, LINE-UP PROCEDURE, § 104.44, available at
http://www.denvergov.org/Portals/326/documents/104.pdf.
16
NORTHAMPTON ADMINISTRATION & OPERATIONS MANUAL, EYEWITNESS IDENTIFICATION PROCEDURE ch. 0-408.
17
Amy Klobuchar et al., Improving Eyewitness Identifications: Hennepin County’s Blind Sequential Lineup Pilot
Project, 4 CARDOZO PUB. L. POL’Y & ETHICS J. 381 (2006).
18
Commission on Accreditation for Law Enforcement Agencies, 5th Edition Change Notices (2010), available at:
http://www.iaclea.org/visitors/professionaldevelopment/accreditation/5thEditionChangeNotices.pdf.

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CHAPTER 3 – FEDERAL INVESTIGATIONS 30

interrogations in at least some crime categories statewide, and seven state supreme courts have
taken action to accomplish the same.19 In addition, over 750 jurisdictions nationwide, including
large metropolitan areas such as Atlanta, Boston, Denver, Las Vegas, Louisville and San Francisco,
regularly record police interrogations.20 The Effective Law Enforcement Through Transparent
Interrogations Act of 2007,21 introduced by Representative Keith Ellison (D-MN), would have
required the electronic recording of custodial interrogations in federal criminal cases. A similar bill
was introduced in the House in September 2010 by Representative Hank Johnson (D-GA).22 Further,
the Uniform Law Commission recently approved a uniform law on the Electronic Recordation of
Custodial Interrogations in order to spur needed reform.23
Additionally, the use of “incentivized” informant testimony is being steadily recognized as
dangerously unreliable in its present form. The state of Illinois was the first to officially recognize
this, passing legislation that would regulate the use of incentivized informants, and thus enhance
jurors’ ability to properly assess the credibility of such evidence.24 The California Commission on
the Fair Administration of Justice and the New York State Bar Association Task Force on Wrongful
Convictions have also publicly recognized the need to reform this area of evidence, such as by
requiring the electronic recording of the informant’s statements and holding pre-plea and pre-trial
reliability/corroboration hearings.25
Recognizing that invalid or improper forensic evidence leads to false convictions, 32 states
and the District of Columbia have created legislation that compels the automatic preservation of
biological evidence upon conviction.26 The preservation of evidence is critical to preserving the
possibility of exoneration for the innocent; none of the nation’s 265 DNA exonerations would have
19

725 ILL. COMP. STAT. ANN. 5/103-2.1 (West, Westlaw through P.A. 96-1482 of the 2010 Reg. Sess.); ME. REV. STAT.
ANN. tit. 25, § 2803-B (West, Westlaw through the 2009 2nd Reg. Sess. of the 124th Leg.); MD. CODE ANN., CRIM.
PROC. § 2-402(West, Westlaw through 2010 Reg. Sess. of Gen. Assem.); MO. ANN. STAT. § 590.700 (West, Westlaw
through 2010 1st Extraordinary Sess. of the 95th Gen. Assem.); MONT. CODE ANN. § 46-4-401, et seq. (1999); NEB.
REV. STAT. ANN. § 29-4501, et seq. (West, Westlaw through the 101st Leg. 2nd Reg. Sess. 2010); N.C. GEN. STAT. ANN.
§ 15A-211 (West, Westlaw through 2010 Sess.); OHIO REV. CODE ANN. § 2933.81 (West, Westlaw through 2010 File
58 of the 128th GA); OR. REV. STAT. ANN. § 133.400 (West, Westlaw through 2010 Spec. Sess.); WIS. STAT. ANN. §
972.115 (West, Westlaw through 2009 Act 406); D.C. Code § 5-116.01 (2005).
20
H.R. 3027, 110th Cong. (2007), available at http://www.gpo.gov/fdsys/pkg/BILLS-110hr3027ih/pdf/BILLS110hr3027ih.pdf.
21
H.R. 3027, 110th Cong. (2007).
22
H.R. 6245; 111th Cong. (2010).
23
NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS, UNIFORM ELECTRONIC RECORDATION OF CUSTODIAL
INTERROGATIONS ACT, available at http://www.law.upenn.edu/bll/archives/ulc/erci/2010final.htm.
24
725 ILL. COMP. STAT. ANN 5/115-21 (West, Westlaw through P.A. 96-1482 of the 2010 Reg. Sess.)
25
CALIFORNIA COMMISSION ON THE FAIR ADMINISTRATION OF JUSTICE, REPORT AND RECOMMENDATIONS REGARDING INFORMANT
TESTIMONY, available at http://www.ccfaj.org/documents/reports/jailhouse/official/Official%20Report.pdf; NEW
YORK STATE BAR ASSOCIATION, TASK FORCE ON WRONGFUL CONVICTIONS, FINAL REPORT (2009), at 114-20, available at
http://www.nysba.org/Content/ContentFolders/TaskForceonWrongfulConvictions/FinalWrongfulConvictionsRepor
t.pdf.
26
Innocence Project, State Laws Requiring Preservation of Evidence,
http://www.innocenceproject.org/news/LawView4.php (last visited Jan. 10, 2011)

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CHAPTER 3 – FEDERAL INVESTIGATIONS 31

been possible had the biological evidence not been available to test.27 In the wake of a national
series in the Denver Post on the failure to properly preserve evidence, Representative John Conyers
(D-MI) and then-Senator Ken Salazar (D-CO) expressed interest in pushing this reform on the federal
level.28 Recognizing the need for federal direction to the states on proper evidence retention, the
NIJ disbursed funds to the National Institute of Standards and Technology (NIST) to create a federal
working group on the issue. In the summer of 2010, the NIST/NIJ Technical Working Group on
Biological Evidence Preservation began its critical work towards identifying and recommending
model legislation and best practices for the preservation of biological evidence.29
These time-tested and scientifically supported reforms, bolstered by practitioner
experience, should be implemented across the nation. Continued federal guidance through
research, consensus, and practice will help states appreciate the value of these reforms. Prioritizing
federal funding support for agencies adopting such reforms would promote the effectiveness of
such guidance.
RECOMMENDATIONS
1. Eyewitness Identification Reform
A. Eyewitness Misidentification is the Leading Factor of Wrongful Convictions
Mistaken eyewitness identifications have contributed to approximately 75% of the 265
wrongful convictions in the United States overturned by post-conviction DNA evidence.30
Inaccurate eyewitness identifications confound investigations from the earliest stages: critical time
investigation is lost while police focus on building the case against a misidentified innocent person.

27

Innocence Project, Preservation of Evidence (last visited Jan. 20, 2011), available at:
http://www.innocenceproject.org/Content/Preservation_Of_Evidence.php.
28
See Miles Moffiet, Evidence: Case, Kin in Limbo, DENVER POST, Sept. 24, 2007; Press Release, Office of
Congresswoman Eddie Bernice Johnson, Congresswoman Eddie Bernice Johnson to hold panel discussions on
wrongful incarcerations and DNA exonerations (July 17, 2008), available at:
http://gritsforbreakfast.blogspot.com/2008/07/conyers-in-dallas-for-panel-on-wrongful.html.
29
Interview with Rebecca Brown, Policy Advocate and Member of the NIST/NIJ Technical Working Group on
Biological Evidence Preservation, Innocence Project in New York, N.Y. (Jan. 3, 2011).
30
The Innocence Project, Eyewitness Misidentification,
http://www.innocenceproject.org/understand/Eyewitness-Misidentification.php (last visited Jan. 20, 2011).

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CHAPTER 3 – FEDERAL INVESTIGATIONS 32

B. Support Eyewitness Identification Reform Measures
Legislative
Congress should pass legislation requiring federal law enforcement agencies to adopt and
implement eyewitness identification procedures shown by reliable, scientifically-supported
evidence to minimize the likelihood of misidentification.31 These measures include:

•

The requirement that the identification procedure be administered by a blind investigator
(i.e., an individual who does not know who the suspect is);

•

The issuance of instructions to the witness (i.e. a series of statements provided by the
administrator of the identification procedure to the witness that deter the witness from
feeling compelled to make a selection);

•

The requirement that a lineup be properly composed (i.e. suspect photographs should be
selected that do not bring unreasonable attention to him or her; non-suspect photographs
and/or live lineup members (fillers) should be selected based on their resemblance to the
description provided by the witness – as opposed to their resemblance to the police
suspect);

•

The requirement that immediately after the eyewitness makes an identification, the witness
provides a statement, in her or his own words, that articulates the level of confidence she or
he has in the identification made; and

•

The requirement that an identification procedure be properly documented (i.e.
electronically recorded; photographs of lineup members preserved).
Executive

The President should issue an executive order requiring the promulgation of federal
standards for federal law enforcement agencies – grounded in best practices and scientificallysupported research – with respect to eyewitness identification procedures. The issuance of such an
order would also provide much-needed guidance to state law enforcement agencies. Specifically,
the executive order should require the adoption and implementation of those eyewitness
identification procedures that have been shown by reliable, scientifically-supported evidence to
minimize the likelihood of misidentification.

31

See Stephen Saloom, Improving Eyewitness Identification Procedures (Commission on Accreditation for Law
Enforcement Agencies, Inc., October 2009), available at: http://www.calea.org/calea-update-magazine/issue101/improving-eyewitness-identification-procedures.

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CHAPTER 3 – FEDERAL INVESTIGATIONS 33

2. Records of Custodial Interrogations
A. False Confessions Contribute to Wrongful Convictions
False confessions are a more frequent occurrence than one might think; approximately 25 %
of the nation’s 265 wrongful convictions overturned by DNA evidence involved some form of a false
confession or admission.32
B. Support the Mandatory Recordation of Custodial Interrogations
Legislative
Congress should pass legislation that would require federal law enforcement agencies to
electronically record all custodial interrogations during the time in which a reasonable person in the
subject’s position would consider himself to be in custody. Such legislation should render any untaped confession inadmissible in court.
Executive
The President’s executive order, mentioned above, should require the electronic
recordation of all custodial interrogations during the time in which a reasonable person in the
subject’s position would consider him- or herself to be in custody. This is the most reliable way to
create an objective record of what transpired during the course of the interrogation process.
3. Preservation of Biological Evidence
A. The Preservation of Biological Evidence is Integral to the Discovery of Wrongful
Convictions
Preserved evidence can help solve closed cases – and exonerate the innocent. Had the
evidence been destroyed, tainted, contaminated, mislabeled, or otherwise corrupted, the
innocence of the nation’s 265 exonerated individuals would never have come to light.
B. Fund Measures that Support States’ Preservation of Biological Evidence
Legislative
In 2004, Congress passed the Innocence Protection Act as part of the larger Justice for All
Act (JFAA).33 The JFAA included an incentive to states to enable proper post-conviction DNA testing
32

Innocence Project, Understand the Causes: False Confessions,
http://www.innocenceproject.org/understand/False-Confessions.php (last visited Jan. 10, 2011).
33
Justice for All Act of 2004, Pub. L. No. 108-405 (codified in scattered sections of 18 U.S.C. and 42 U.S.C.).

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CHAPTER 3 – FEDERAL INVESTIGATIONS 34

by providing grants to states with proper policies and practices for the preservation of biological
evidence and post-conviction DNA testing. Specifically, JFAA Section 413 awarded funds if states
could demonstrate that they had certain procedures for preserving biological evidence and
providing access to post-conviction DNA testing. The funds could be awarded in four areas:

•

DNA Training and Education for Law Enforcement, Correctional Personnel, and Court
Officers;34

•

DNA Research and Development;35

•

DNA Identification of Missing Persons;36 and

•

Kirk Bloodsworth Post-Conviction DNA Testing Grant Program (Bloodsworth Program).37

The Bloodsworth Program was the only grant program governed by the JFAA Section 413
innocence incentives that was actually funded in a manner consistent with JFAA intent. Currently,
only 23 states meet Section 413 evidence preservation requirements. In order to encourage more
states to comply, Congress should reauthorize the Section 413 requirement and appropriate the
programs according to JFAA’s original intent.
4. The Use of Incentivized Testimony
A. The Use of Incentivized Testimony is a Demonstrated Cause of Wrongful Conviction
A comprehensive study of the nation’s first 200 exonerations proven through DNA testing
concluded that 18% were wrongfully convicted, at least in part, on the basis of informant, jailhouse
informant, or cooperating alleged co-perpetrator testimony.38 Informant testimony is an
undeniably valuable law enforcement tool, but it generally functions in service of only one side of
the adversarial system and with little oversight.39

34

42 U.S.C. 14136 (corresponds to the Justice for All Act of 2004, § 303).
42 U.S.C. 14136(b) (corresponds to the Justice for All Act of 2004, § 305).
36
42 U.S.C. 14136(d) (corresponds to the Justice for All Act of 2004, § 308).
37
42 U.S.C. 14136(e) (corresponds to the Justice for All Act of 2004, § 412).
38
Innocence Project, Understand the Causes: Informants / Snitches,
http://www.innocenceproject.org/understand/Snitches-Informants.php (last visited Jan. 10. 2011).
39
See generally, ALEXANDRA NAPATOFF, SNITCHING: CRIMINAL INFORMANTS AND THE EROSION OF AMERICAN JUSTICE (NYU Press
2009).
35

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CHAPTER 3 – FEDERAL INVESTIGATIONS 35

B. Regulate the Use of Incentivized Testimony
Legislative
Congress should pass legislation that includes provisions that regulate the use of
incentivized informants by:

•

Requiring pre-plea and pre-trial hearings that assess reliability and corroborate the content
of informant testimony in all cases where informant testimony is intended for use at trial or
in connection with a plea agreement;

•

Requiring that accomplice testimony be corroborated by non-accomplice testimony and/or
evidence — both in the grand jury and at trial — before it can be deemed legally sufficient
to establish either probable cause or guilt beyond a reasonable doubt;

•

Approving jury instructions that seek both to educate jurors about the long-established
fallibility of informant testimony and the specific factors that may have influenced the
testimony in the particular case at hand;

•

Requiring that the FBI produce FD-209 forms (regarding contacts with informants) pursuant
to discovery; and

•

Establishing a uniform system of state and federal informant registries, through which law
enforcement officers would maintain information about informants, as well as a national
informant registry.
Executive

The President’s executive order should regulate the use of incentivized informants by
implementing the procedures listed above.
5. Crime Scene Comparisons to CODIS and IAFIS
A. Crime Scene Comparisons can Exculpate the Innocent and Inculpate the Guilty
In 119 of the nation’s 265 DNA exonerations, the real perpetrator was subsequently
identified, many times through the use of the Combined DNA Index System (CODIS).40 In many

40

Interview with Dr. Emily West, Research Director, Innocence Project in New York, N.Y. (Jan. 3, 2011). Among the
first 255 exonerations, 94 real perpetrators have been identified (affecting 111 exonerees), among which nearly
half were convicted of additional violent crimes. Id.

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CHAPTER 3 – FEDERAL INVESTIGATIONS 36

instances, the person subsequently identified as the real perpetrator committed additional crimes
after committing the crime for which an innocent person was convicted.41
As a result, it would be in the interest of justice to compare specific crime scene evidence to
CODIS or the Integrated Automated Fingerprint Identification System (IAFIS), the national DNA
database system administered by the FBI. Sometimes prosecutors choose not to order such
comparisons, and judges have refused to so order, believing that to do so would be beyond their
judicial authority. As a result, the lack of a clear grant of authority entitling such comparisons can
perpetuate the injustice of a wrongful conviction.42
B. Compare Crime Scene Evidence to Federal Databases
Legislative
Congress should pass legislation to enable federal judges to order comparisons of crime
scene DNA and fingerprint evidence to relevant databases.
Executive
The Executive Branch should clarify, through executive order or other policy guidance, that
CODIS and IAFIS administrators should be responsive to judicial orders requesting comparisons of
crime scene evidence to the CODIS and IAFIS databases.

41

The 44 real perpetrators who went on to commit additional violent crimes, including 61 sexual assaults, 21
murders and 9 other violent crimes. Id.
42
For example, Jeff Deskovic, an exoneree from New York, sought a comparison of crime scene evidence to the
New York DNA database. It was only after a “hit” to the database that inculpated a convicted murderer that he
was able to be exonerated. See Innocence Project, Know the Cases, Jeff Deskovic,
http://www.innocenceproject.org/Content/Jeff_Deskovic.php (last visited Jan. 10, 2011).

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CHAPTER 3 – FEDERAL INVESTIGATIONS 37

APPENDICES
Experts
Barry Scheck, Co-Founder, Innocence Project
(http://www.innocenceproject.org/about/Contact-Us.php)
Peter Neufeld, Co-Founder, Innocence Project
(http://www.innocenceproject.org/about/Contact-Us.php)
Exonerees: many of the nation’s 265 DNA exonerees will speak in support of and the need
for these reforms (http://www.ccfaj.org/m-JohnVanDeKamp.html)
Eyewitness Identification
Chief Darrel Stephens (retired), Charlotte-Mecklenburg Police Department, North Carolina
Kenneth Patenaude, Detective Lieutenant, Northampton, Massachusetts
Gil Kerlikowske, former Police Chief of Seattle, Washington; current Director of the Office of
National Drug Control Policy
Ret. Sgt. Paul Carroll, Chicago Police Department
Andrew Evans, Special Agent, Minnesota Bureau of Criminal Apprehension
Susan Gaertner, Former Ramsey County Attorney, Minnesota
Recording of Custodial Interrogations
Det. James Trainum (retired), Violent Crime Case Review Project, Violent Criminal
Apprehension Program/ViCAP, Metropolitan Police Department/OSD
Preservation
Major Kevin Wittman (retired), Charlotte-Mecklenburg Police Department
Further Resources
AMERICAN BAR ASSOCIATION, CRIMINAL JUSTICE SECTION, AD HOC INNOCENCE COMMITTEE TO ENSURE THE
INTEGRITY OF THE CRIMINAL PROCESS, ACHIEVING JUSTICE: FREEING THE INNOCENT, CONVICTING THE GUILTY
(2006).

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CHAPTER 3 – FEDERAL INVESTIGATIONS 38

ALEXANDRA NAPATOFF, SNITCHING: CRIMINAL INFORMANTS AND THE EROSION OF AMERICAN JUSTICE (NYU
Press 2009).
BARRY SCHECK, PETER NEUFELD & JIM DWYER, ACTUAL INNOCENCE: WHEN JUSTICE GOES WRONG AND HOW
TO MAKE IT RIGHT (New American Library 2000).
Justice for All Act of 2004, Pub. L. No. 108-405 (codified in scattered sections of 18 U.S.C.
and 42 U.S.C.) available at http://frwebgate.access.gpo.gov/cgibin/getdoc.cgi?dbname=108_cong_bills&docid=f:h5107enr.txt.pdf.
Innocence Project, www.innocenceproject.org (last visited Jan. 10, 2011).
U.S. DEPT. OF JUSTICE, OFFICE OF JUSTICE PROGRAMS, NAT’L INST. OF JUSTICE, EYEWITNESS EVIDENCE: A
GUIDE FOR LAW ENFORCEMENT (1999), available at
http://www.ncjrs.gov/pdffiles1/nij/178240.pdf.
U.S. DEPT. OF JUSTICE, OFFICE OF JUSTICE PROGRAMS, NAT’L INST. OF JUSTICE, EYEWITNESS EVIDENCE: A
TRAINER’S MANUAL FOR LAW ENFORCEMENT (2003), available at
http://www.ncjrs.gov/nij/eyewitness/188678.pdf.
Primary
Stephen Saloom
Policy Director
Innocence Project
40 Worth Street, Suite 701
New York, NY 10013
212-364-5394
ssaloom@innocenceproject.org

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CHAPTER 3 CONTRIBUTORS
Independent Consultant, Innocence Project
Jenny Collier (Chapter Leader)
405 Constitution Avenue NE
Washington, DC 20002
(202) 295-7188
jennycollierjd@yahoo.com
Innocence Project
Rebecca Brown
40 Worth Street, Suite 701
New York, NY 10013
(212) 364-5340
rbrown@innocenceproject.org
Nicole Harris
40 Worth Street, Suite 701
New York, NY 10013
(212) 364-5340
nharris@innocenceproject.org
National Association of Criminal Defense Lawyers
Kyle O’Dowd
1660 L Street, NW, 12th Floor
Washington, DC 20036
(202) 872-8600, ext 226
kyle@nacdl.org

CHAPTER 3 – FEDERAL INVESTIGATIONS 39

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CHAPTER 4
FEDERAL GRAND JURY REFORM

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CHAPTER 4 – FEDERAL GRAND JURY REFORM 41

THE ISSUE
In the words of William J. Campbell, a former federal chief judge in Chicago, “*t+he grand
jury is the total captive of the prosecutor, who, if he is candid, will concede that he can indict
anybody, at any time, for almost anything before any grand jury.”1 This allocation of power is
completely at odds with the constitutional responsibilities (not to mention considerable burdens) of
grand jury service. Congress should work with the administration to empower federal grand jurors
and address the institution’s long-neglected shortcomings. Most importantly, anyone facing the
awesome power of a federal prosecutor armed with a federal grand jury should be allowed to have
counsel.
HISTORY OF THE PROBLEM
While the federal grand jury was originally intended to serve both a screening and
investigative function,2 modern grand jury procedures are incompatible with the screening
function. It is only before a grand jury that the government can compel someone to appear and
face questioning without an attorney.3 The rules of evidence that govern trials do not apply to
grand jury proceedings, opening the door to illegally seized evidence, coerced statements, and
hearsay.4 The target of an investigation has no right to testify or present evidence, nor is the
prosecutor required to present the grand jury with evidence that would exculpate the target.5
Many states have fixed these and other flaws without impairing the effectiveness of their grand jury
systems, as evidenced by a report from National Association of Criminal Defense Lawyers (NACDL)
examining the experience in Colorado and New York.6
Congressional attempts at federal grand jury reform date back to the late 1970s. From
1977-1987, Representative John Conyers (D-MI), among others, introduced various bills
incorporating reforms to grand jury procedures.7 In 1998, Senator Dale Bumpers (D-AR) introduced
the Grand Jury Due Process Act8, to provide a right to assistance of counsel in the grand jury room,
and the more comprehensive Grand Jury Reform Act9. In July 1998, Senator Bumpers offered his
right-to-counsel proposal as an amendment to an appropriations bill,10 but it was defeated 59-41.11
1

William J. Campbell, Eliminate the Grand Jury, 64 J. CRIM. L. & CRIMINOLOGY 174, 180 (1973).
Id. at 175.
3
John Weasley Hall, A Fairer and More Democratic Federal Grand Jury System, 20 FED. SENT’G REP. 334, 334 (June
2008).
4
Id.
5
Id.
6
National Association of Criminal Defense Lawyers, Proposals of Commission to Reform the Grand Jury,
http://www.nacdl.org/public.nsf/freeform/grandjuryreform?opendocument (last visited Jan. 21, 2011).
7
See id. at note 27 (providing examples of various bills incorporating grand jury reforms).
8
S. 2030, 105th Cong. (1998).
9
S. 2289, 105th Cong. (1998).
10
S. Amdt. 3243 to S. 2260, 105th Cong. (1998).
11
National Association of Criminal Defense Lawyers, Federal Grand Jury Reform,
http://www.nacdl.org/public.nsf/freeform/grandjury?opendocument.
2

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CHAPTER 4 – FEDERAL GRAND JURY REFORM 42

In 1999, in the wake of alleged grand jury abuses by Independent Counsel Kenneth Starr,
Representative Bill Delahunt (D-MA), a former state prosecutor, announced his intention to
introduce a bill mandating comprehensive changes in the way federal grand juries operate.12 In
2000, the House Constitution Subcommittee held a hearing on grand jury reform, but Rep.
Delahunt’s grand jury bill was never introduced.13 Senator Arlen Specter, who had voted in favor of
the 1998 Bumpers amendment, scheduled a Judiciary Committee hearing regarding the federal
grand jury system for November 16, 2005, but other matters forced him to postpone.
The courts have largely abdicated any responsibility for policing the conduct of prosecutors
within the grand jury room. Chapter 9-11 of the United States Attorneys’ Manual (USAM), which
contains the Department of Justice’s (DOJ) policy on grand jury practice,14 does not contain
guidance on filling this power vacuum. Further, the USAM is not enforceable at law, and fails to
address the most glaring grand jury inequities. Where the USAM does speak to a particular issue—
such as the naming of an unindicted coconspirator or a target’s request to testify—the policy is
generally consistent with the proposals outlined here.15 In these areas, DOJ’s opposition, essentially
an effort to avoid being bound by its own policies, is particularly unjustifiable.
As required by the Departments of Commerce, Justice, and State, the Judiciary and Related
Agencies Appropriations Act of 199916, the Advisory Committee on Criminal Rules of the Judicial
Conference Committee on Rules of Practice and Procedure (Judicial Conference) submitted a
report17 evaluating whether an amendment to the Federal Rules of Criminal Procedure governing
grand juries18 to permit the presence of counsel for a witness testifying before the grand jury in the
grand jury room would further the interests of justice and law enforcement. In recommending
against such an amendment, the Judicial Conference’s five-page report relies extensively on a 1975
Judicial Conference report, which identified the three principal reasons for not allowing an attorney
in the attorney room as concern that such practice would result in : “(i) loss of spontaneity in
testimony; (ii) transformation of the grand jury into an adversary proceeding; and (iii) loss of
secrecy, with a resultant chilling effect on witness cooperation, particularly in cases involving
multiple representation.”19

12

Sam Skolnik, Grand Jury: Power Shift?, LEGAL TIMES, Apr. 12, 1999, available at
http://truthinjustice.org/grandjury.htm.
13
See Constitutional Rights and the Grand Jury: Oversight Hearing Before the Subcomm. on the Constitution of the
H. Comm. on the Judiciary, available at http://judiciary.house.gov/legacy/constitution.htm.
14
U.S. DEPT. OF JUST., U.S. ATTORNEYS’ MANUAL, CRIMINAL DIVISION, GRAND JURY, § 9-11.000 (2002), available at
http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/11mcrm.htm#.
15
Id. at §9-11.130.
16
H.R. 4276, 105th Cong. (1998), § 622.
17
U.S. Judicial Conference Committee on Rules of Practice and Procedure, Meeting Minutes (Jan. 7-8, 1999),
available at http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Minutes/jan1999.pdf.
18
FED. R. CRIM. P. 6, available at http://www.law.cornell.edu/rules/frcrmp/Rule6.htm.
19
U.S. Judicial Conference, supra note 17, at 14 (noting time frame provided by Congress was too short for
comprehensive study and indicating reliance on past study).

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CHAPTER 4 – FEDERAL GRAND JURY REFORM 43

RECOMMENDATIONS
1. A Fairer and More Democratic Federal Grand Jury System
A. The Federal Grand Jury Process Fails to Respect the Constitutional Responsibilities and
Burdens of Grand Jury Service and Fails to Protect Citizens and Businesses
The federal grand jury today functions primarily as a tool of the federal prosecutor.
Employing the power of compulsory process in a secret proceeding, the prosecutor investigates and
determines, with virtually no check, who will be indicted and on what charges. The grand jury
process is largely devoid of legal rules, allowing the prosecutor to exercise enormous power
unrestrained by law or judicial supervision.
B. Enhance the Role of Federal Grand Jurors and Address the Institution’s Long-Neglected
Shortcomings
Legislative
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. Congress should make the following changes to existing legislation:

20

•

Amend Rule 6 of the Federal Rules of Criminal Procedure to allow a witness before the
grand jury who has not received immunity to be accompanied by counsel in his or her
appearance before the grand jury;20

•

Amend Rule 6 of the Federal Rules of Criminal Procedure to require that prosecutors
present evidence in their possession that tends to exonerate the target or subject (other
than prior inconsistent statements or Giglio material);21

•

Prohibit prosecutors from presenting to the federal grand jury evidence they know to be
constitutionally inadmissible at trial because of a court ruling on the matter by amending
Rule 6 of the Federal Rules of Criminal Procedure;22

•

Amend Rule 6 of the Federal Rules of Criminal Procedure to provide a target or subject of a
grand jury investigation the right to testify before the grand jury;23

FED. R. CRIM. P. 6(d), available at http://www.law.cornell.edu/rules/frcrmp/.
Id. at 6.
22
Id.
23
Id.
21

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CHAPTER 4 – FEDERAL GRAND JURY REFORM 44

•

Provide witnesses the right to receive a transcript of their federal grand jury testimony by
amending Rule 6 of the Federal Rules of Criminal Procedure and 18 U.S.C. § 3500.24

•

Amend Rule 7 of the Federal Rules of Criminal Procedure to prohibit the practice of naming
persons in an indictment as unindicted co-conspirators to a criminal conspiracy;25

•

Require that prosecutors give Miranda warnings to all non-immunized subjects or targets
called before a federal grand jury by amending Rule 6 of the Federal Rules of Criminal
Procedure;26

•

Require that all subpoenas for witnesses called before a federal grand jury are issued at
least 72 hours before the date of appearance, not to include weekends and holidays, unless
good cause is shown for an exemption by amending Rule 6 or 17 of the Federal Rules of
Criminal Procedure;27

•

Amend Rule 6 of the Federal Rules of Criminal Procedure to: (i) give federal grand jurors
meaningful jury instructions, on the record, regarding their duties and powers as grand
jurors, and the charges they are to consider; (ii) record and make available to the accused all
of the prosecutor’s instructions, recommendations, and commentary to grand jurors after
an indictment and during pre-trial discovery; and (iii) grant the court discretion to dismiss an
indictment, with or without prejudice, in the event of prosecutorial impropriety reflected in
the transcript;28 and

•

Prohibit the practice of calling before the federal grand jury subjects or targets who have
stated personally or through counsel that they intend to invoke the constitutional privilege
against self-incrimination by amending Rule 6 of the Federal Rules of Criminal Procedure.29
Executive

DOJ should amend the United States Attorney’s Manual (USAM). While the USAM States
includes certain admonitions regarding the conduct of grand jury investigations,30 the Executive has
authority to strengthen the USAM’s language. Moreover, the existing guidelines do not adequately
protect against grand jury abuse, in part because the manual is unenforceable.

24

Id.; 18 U.S.C. §3500.
Id. at 7.
26
Id. at 6.
27
Id. at 6, 17.
28
Id. at 6.
29
Id.
30
See generally, U.S. ATTORNEYS’ MANUAL, supra note 14, at §§ 9-11.101-9-11.140, 9-11.160.
25

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CHAPTER 4 – FEDERAL GRAND JURY REFORM 45

APPENDICES
Experts
Larry Thompson, Sr. Vice President and General Counsel, PepsiCo; former Deputy Attorney
General and U.S. Attorney (http://www.pepsico.com/Download/Pepsico_Thompson.pdf)
Gerald B. Lefcourt, Gerald B. Lefcourt, P.C., New York, NY; Past President, National
Association of Criminal Defense Lawyers
(http://www.nacdl.org/public.nsf/0/58729FD48A2F614E85256F500073AB94?OpenDocume
nt#ljerry)
Neal R. Sonnett, Neal R. Sonnett, P.A., Miami, Florida; former Chief, Criminal Division, U.S.
Attorney’s Office for the Southern District of Florida; Past President, National Association of
Criminal Defense Lawyers; Past Chair, American Bar Association Criminal Justice Section;
Executive Committee Member, American Judicature Society
(http://www.sonnettlaw.com/Firm%20Info/Lawyers/800700.aspx)
W. Thomas Dillard, Ritchie, Dillard & Davies, Knoxville, Tennessee; former U.S. Magistrate;
former U.S. Attorney (E.D. TN & N.D. FL) (http://www.rddlawfirm.com/atty_dillard.html)
June B. Kress, Executive Director, Council for Court Excellence
(http://www.courtexcellence.org/AboutUsNew/Final%20KressJune.htm)
Further Resources
National Association of Criminal Defense Lawyers, Federal Grand Jury Reform, available at
http://www.nacdl.org/grandjury (last visited Jan. 19, 2011).
Stanley S. Arkin, Sour Spot No Magisterial Review in Accusatory Process, N.Y. LAW JOURNAL, May
3, 2007, available at:
http://www.nacdl.org/public.nsf/legislation/grandjury_attachments/$FILE/NYLJ_050307.pdf
Jay A. Brozost and Lawrence S. Goldman, Grand Jury Investigations: A Guide for In-house
Counsel, ACCA DOCKET 21, NO. 7 (July/August 2003): 58–72, available at:
http://www.nacdl.org/public.nsf/8c23d7a1b54f29cf852569f900744ee0/grandjury/$FILE/AC
CA_grand_jury.pdf.
COMMISSION TO REFORM THE FEDERAL GRAND JURY, FEDERAL GRAND JURY REFORM REPORT AND BILL OF
RIGHTS (National Association of Criminal Defense Lawyers, May 18, 2000), available at:
http://www.nacdl.org/public.nsf/freeform/grandjuryreform?opendocument.

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CHAPTER 4 – FEDERAL GRAND JURY REFORM 46

W. Thomas Dillard, Stephen R. Johnson, and Timothy Lynch, A Grand Façade:
How the Grand Jury Was Captured by Government, CATO POLICY ANALYSIS (May 13, 2003),
available at: http://www.cato.org/pubs/pas/pa476.pdf.
DISTRICT OF COLUMBIA GRAND JURY STUDY COMMITTEE, THE GRAND JURY OF TOMORROW: NEW LIFE FOR AN
ARCHAIC INSTITUTION (Council for Court Excellence, July 2001), available at:
http://www.courtexcellence.org/PublicationsNew/policy_reform_reports/grand_jury_of_to
morrow_2001.pdf.
Letter from Robert D. Evans, American Bar Association, to Peter G. McCabe, Secretary of the
Committee on Rules of Practice and Procedure, Judicial Conference of the United States
(Mar. 2, 2001), available at
http://www.nacdl.org/public.nsf/legislation/grandjury_attachments/$File/01CRBSuggestion
ABA.pdf.
John Gibeaut, Indictment of a System, ABA JOURNAL, Jan. 2001, at 34, available at:
http://www.nacdl.org/public.nsf/8c23d7a1b54f29cf852569f900744ee0/grandjury/$FILE/AB
Agrandjury.pdf.
Frederick P. Hafetz and John M. Pellettieri, Time to Reform the Grand Jury, NACDL CHAMPION
MAGAZINE, Jan./Feb. 1999, at 12, available at:
http://www.nacdl.org/public.nsf/ChampionArticles/19990112?OpenDocument.
John Wesley Hall, A Fairer and More Democratic Federal Grand Jury System, 20 FED. SENT’G
REP.334 (2008), available at:
http://www.nacdl.org/public.nsf/legislation/grandjury005/$FILE/JWH_GJ.pdf.
J. CLARK KELSO AND MICHAEL VITIELLO, TENTATIVE RECOMMENDATION: REFORM OF CALIFORNIA GRAND JURY
STATUTES (Capital Center for Government Law & Policy, University of the Pacific McGeorge
School of Law 2001), available at
http://www.nacdl.org/public.nsf/legislation/grandjury_attachments/$FILE/UPLaw_Cali.pdf.
Primary Contact
Kyle O’Dowd
Associate Executive Director for Policy
National Association of Criminal Defense Lawyers
1660 L Street NW, 12th Floor
Washington, DC 20036
(202) 872-8600 x226
kyle@nacdl.org

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CHAPTER 4 – FEDERAL GRAND JURY REFORM 47

CHAPTER 4 CONTRIBUTORS
American Bar Association (ABA)
Bruce Nicholson
740 15th Street, NW
Washington, DC 20005
(202) 662-1769
bruce.nicholson@abanet.org
National Association of Criminal Defense Lawyers (NACDL)
Kyle O’Dowd (Chapter Leader)
1660 L Street, NW, 12th Floor
Washington, DC 20036
(202) 872-8600, ext 226
kyle@nacdl.org

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CHAPTER 5
FORENSIC SCIENCE

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CHAPTER 5 – FORENSIC SCIENCE 49

THE ISSUE
Unvalidated or improperly applied forensic science contributed to approximately half of the
265 wrongful convictions overturned by post-conviction DNA testing,1 leading to serious questions
about the reliability of forensic analyses that the police and legal system use to determine
innocence or guilt. In the landmark 2009 report, Strengthening Forensic Science in the United
States: A Path Forward, the National Academy of Sciences recommended additional research and
development of forensic science based on their finding that the validity and reliability of certain
non-DNA forensic techniques had not yet been proven.2 To accomplish the NAS report’s goals,
researchers must conduct more rigorous studies of non-DNA forensic techniques3, Congress must
implement national standards based on this research, and the Department of Justice (DOJ) must
oversee the system to ensure compliance and enforcement.
HISTORY OF THE PROBLEM
At its best, forensic science can help identify the perpetrator of a crime and help prevent
the innocent from being wrongfully convicted. At its worst, it is the second-greatest contributing
factor to wrongful convictions.4 As a consequence, not only are innocent individuals imprisoned but
dangerous criminals remain free, posing significant risks for public safety. Indeed, those identified
as the true perpetrators by post-conviction DNA testing have, as a group, been convicted of at least
81 violent crimes committed while free because of faulty forensic techniques.5 All of these later
crimes occurred while the innocent person was either imprisoned or identified as the prime suspect
in the criminal investigation.6

1

See The Innocence Project, http://www.innocenceproject.org (last visited Jan. 10, 2011).
NAT’L RESEARCH COUNCIL, NAT’L ACADEMY OF SCIENCES, STRENGTHENING FORENSIC SCIENCE IN THE UNITED
STATES: A PATH FORWARD 42 (2009) (hereinafter NAS Report), at 8.
3
The NAS report discusses a selected number of forensic science disciplines in Ch. 5 of the report. Forensic science
disciplines such as “DNA analysis, serology, forensic pathology, toxicology, chemical analysis, and digital and
multimedia forensics – are built on solid bases of theory and research, many other techniques have been
developed heuristically. That is, they are based on observation, experience, and reasoning without an underlying
scientific theory, experiments designed to test the uncertainties and reliability of the method, or sufficient data
that are collected and analyzed scientifically.” (p. 128) Among the non-DNA forensic disciplines that fall under the
“heuristic” category are: friction ridge analysis, pattern/impression evidence such as shoeprints and tire tracks,
tool mark and firearms identification, analysis of hair evidence, analysis of fiber evidence, questioned document
examination, forensic odontology, and bloodstain pattern analysis. Other forensic disciplines that require more
fundamental research include analysis of paint and coatings evidence and the analysis of explosives evidence and
fire debris.”
4
See The Innocence Project, Unvalidated or Improper Forensic Science,
http://www.innocenceproject.org/understand/Unreliable-Limited-Science.php (last visited Jan. 10, 2011).
5
Innocence Project internal statistics for first 254 DNA exonerations. On file with author.
http://www.innocenceproject.org/about/Contact-Us.php.
6
Id.
2

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CHAPTER 5 – FORENSIC SCIENCE 50

In contrast to post-conviction DNA testing, which has been thoroughly studied and
subjected to the rigors of scientific peer review, other forms of forensic science continue to have
glaring and persistent deficiencies. Because DNA is only available in 5 to 10 percent of violent
crimes,7 it is imperative that Congress and the Administration address these scientific shortfalls.
With this in mind and pursuant to the Justice for All Act of 2004 (JFAA), Congress and President
Bush directed the National Academy of Sciences (NAS) to examine the fundamental underpinnings
of forensic scientific evidence and its application to the criminal justice system. In February 2009,
the NAS issued the report, Strengthening Forensic Science in the United States: A Path Forward. 8
In the report, the NAS concluded that there is an insufficient scientific foundation for many
non-DNA forensic science disciplines, and recommended establishing limits for their use and
measures of performance where they are lacking.9 The NAS also described the United States
forensic system as fragmented and lacking a means through which to foster forensic science
advancements.10 Consequently, there is wide variability in the practice of forensic methods,
laboratory capacity, oversight, staffing, certification of forensic practitioners, and accreditation of
crime laboratories.11 The NAS report recommended a number of changes that would make
forensic science as reliable as life and physical sciences, and ensure that forensic science is applied
scientifically, consistently, and fairly in the legal system.12 The primary recommendation of the NAS
report is the creation of a National Institute of Forensic Science (NIFS).13 The NAS envisions NIFS as
an independent, science-based federal agency with strong ties to the forensic science community,
but not committed in any way to the current law enforcement system.14
While the National Institute of Justice (NIJ) has been the center of forensic science funding,
it did not begin to support forensic science research at the levels required until after the release of
the NAS report. Moreover, NIJ’s research was based on the mistaken assumption that the forensic
techniques in question were valid. Furthermore, a 2010 NAS report evaluating NIJ’s research
program found that the agency allows practitioners to drive research funding practices, further
calling into question NIJ’s research and conclusions.15
Recent Congressional hearings on forensic science have focused on identifying an oversight
body to coordinate research, standardize forensic techniques, and apply a more scientific
framework to the field.16 Members of Congress expressed skepticism about the notion of a NIFS.
7

GARDNER AND ANDERSON, CRIMINAL EVIDENCE: PRINCIPLES AND CASES, Seventh Addition (2010), at 271.
NAS Report, supra note 2.
9
NAS Report, supra note 2, at 7-8.
10
NAS Report, supra note 2, at 14.
11
NAS Report, supra note 2, at 14-18.
12
NAS Report, supra note 2, at 19-33.
13
NAS Report, supra note 2, at 19.
14
Id.
15
NATIONAL ACADEMY OF SCIENCES, STRENGTHENING THE NATIONAL INSTITUTE OF JUSTICE (2010).
16
Strengthening Forensic Science in the United States: the Role of the National Institute of Standards and
Technology: Hearing Before the Subcomm. on Technology and Innovation of the H. Comm. on Science and
8

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CHAPTER 5 – FORENSIC SCIENCE 51

However, the responsibilities of NIFS can be implemented using existing federal agencies in roles
that are in line with their missions to bring the foundation of non-DNA forensic sciences more
closely in line with other scientific disciplines and make the U.S. a market leader in forensic science
technology. To ensure impartial funding, development, implementation and oversight of forensic
science, the National Science Foundation (NSF) should provide research funding, and the National
Institute for Standards and Technology (NIST) should develop standards for forensic science
methods and practice. Further, if the DOJ is to oversee accreditation of laboratories, certification of
forensic practitioners, compliance, and enforcement, lawmakers must ensure transparency and
complete independence from the Department’s law enforcement function.
The Senate Judiciary, House Judiciary, and House Science & Technology Committees have
demonstrated interest in reforming forensic science in the wake of the NAS report. The House
Committee on Science & Technology’s Subcommittee on Technology and Innovation held a hearing
on March 10, 2009, less than one month after the release of the report, to discuss the role of NIST
in addressing the NAS report’s recommendations. The next week, on March 18, 2009, the Senate
Judiciary Committee held a hearing inviting the report’s co-chair, Judge Harry T. Edwards, to discuss
its recommendations. On May 13, 2009, the House Judiciary Committee’s Subcommittee on Crime,
Terrorism, and Homeland Security held a hearing to gain a similar general understanding of the
report. On September 9, 2009, the Senate Judiciary Committee then held a second hearing to
examine the report’s recommendations with a broad array of criminal justice stakeholders.
Further, The White House Office of Science and Technology Policy has chartered a
Subcommittee on Forensic Science under the National Science and Technology Council, which
convenes a group of federal agencies with an interest in forensic science. Its role is to deliberate on
how immediate Executive Branch actions might address the NAS report’s recommendations and lay
the groundwork for Congressional legislation.
The U.S. has already demonstrated that it can lead in the field of forensic science. Under
President Bush, the United States both funded and supported the use of forensic DNA technology.
This investment made the U.S. the world leader in DNA technology, while also creating public and
private sector jobs. One example is the success of Bode Technology, one of the world's largest
forensic DNA analysis firms. In 2010, it sold more than 3.5 million units of a DNA collection device
and achieved its greatest sales ever, even in a struggling economy.17 Because fingerprint and
th

Technology, 111 Cong. (2009); The Need to Strengthen Forensic Science in the United States: The National
th
Academy of Science's Report on a Path Forward: Hearing Before the S. Comm. on the Judiciary, 111 Cong. (2009);
The National Research Council's Publication "Strengthening Forensic Science in the United States: A Path Forward":
th
Hearing Before the Subcomm. on Crime, Terrorism, and Homeland Security of the H. Comm on the Judiciary, 111
Cong. (2009); Strengthening Forensic Science in the United States: Hearing Before the S. Comm. on the Judiciary,
th
111 Congress (2009).
17
Bode Technology Surpasses Sales Mark of 3.5 Million Buccal DNA Collectors, Expands With New Global And
Domestic Territories, MARKET WATCH, Nov. 12, 2010, available at: http://www.marketwatch.com/story/bodetechnology-surpasses-sales-mark-of-35-million-buccal-dna-collectors-expands-with-new-global-and-domesticterritories-2010-11-12?reflink=MW_news_stmp.

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CHAPTER 5 – FORENSIC SCIENCE 52

firearms toolmarks are collected for use in criminal cases as frequently as DNA,18 a forensic system
supported by robust research could open more new market opportunities. Such an investment,
especially at this early stage, could yield commercial benefits and help maintain the U.S. leadership
position in forensic science technology.

18

PETERSON, ET AL., THE ROLE AND IMPACT OF FORENSIC EVIDENCE IN THE CRIMINAL JUSTICE PROCESS, GRANT REPORT, NCJ 231977
(2010), available at: http://www.icpsr.umich.edu/icpsrweb/ICPSR/studies/29203.

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CHAPTER 5 – FORENSIC SCIENCE 53

RECOMMENDATIONS
1. Nurturing Forensic Science To Increase Public Safety and Access to Justice
A. Non-DNA Forensic Science Requires Additional Research and Support
Non-DNA forensic science lacks the foundational research, reliability and the national
standards that characterize DNA forensics. Researchers must conduct more rigorous studies of
non-DNA forensic disciplines to increase their validity and reliability.” This research must be used,
in turn, to set national standards for how to handle forensic evidence, and establish appropriate
enforcement and compliance measures to ensure that forensic sciences can be applied accurately,
consistently, and fairly in our legal system.
B. Coordinate Federal Agencies to Create a Scientific Forensic Solution
Legislative
Congress should continue to focus on forensic science reform, starting with taking steps
toward improving the accuracy of forensic science. As a starting point, Congress should assign
responsibility for funding research to the NSF and should direct NIST to use the NSF research to set
national standards for the use of forensic methods. Congress should also direct the DOJ to oversee
accreditation of laboratories, certification of forensic practitioners, compliance, and enforcement.
Funding to support development and marketing new technologies should be distributed through
NIST as well.
Executive
The executive branch should direct the NSF to develop a research agenda for forensic
science. Additionally, the executive branch should direct NIST to develop a model laboratory report
and model terminology for testimony to help make forensic services uniform and transparent to the
courts. NIST should also consider other opportunities to address the need for uniform forensicsrelated standards where a body of research is sufficient.
DOJ could also support transparency by reinforcing the Congressional intent of the Paul
Coverdell Forensic Science Improvement Grant Program. To accomplish this goal, the Office of
Justice Programs (OJP) should provide better guidance to applicants about naming a qualified
independent external government entity to conduct investigations under the Coverdell program’s
forensic oversight requirements. Additionally, OJP should make it easier for forensic employees,
criminal justice practitioners and members of the public to file allegations of forensic negligence or
misconduct and make sure labs are referring allegations to their investigative entities; and
investigations taking place subsequent to the filing of allegations should be monitored to confirm
the thoroughness and independence of investigations.

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CHAPTER 5 – FORENSIC SCIENCE 54

Judicial
Few judges across the country, especially those at the trial level, are aware of the NAS
report or its implications. As gatekeepers of scientific evidence, it is imperative that local, state and
federal judges receive adequate training on the NAS report and judicial decisions on the
admissibility and treatment of forensic evidence in criminal courts. To this end, federal funding
must be made available to judicial organizations to coordinate and conduct such trainings.

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CHAPTER 5 – FORENSIC SCIENCE 55

APPENDICES
Experts
Itiel Dror, Principal Consultant and Researcher, Cognitive Consultants International
(http://www.cognitiveconsultantsinternational.com).
Brandon Garrett, Associate Professor, University of Virginia School of Law
(http://www.law.virginia.edu/html/index.htm).
Paul C. Giannelli, Professor, Case Western Reserve University School of Law
(http://law.case.edu/Default.aspx).
Jonathan Koehler, Professor of Behavioral Decision Making, University of Texas at Austin
(http://www.utexas.edu).
Peter Neufeld, Co-Director, Innocence Project (http://www.innocenceproject.org).
D. Michael Risinger, Professor, Seton Hall Law School (http://law.shu.edu).
Dr. Michael Saks, Professor of Law and Psychology, Arizona State University
(http://www.asu.edu).
Harry T. Edwards, Judge, U.S. Court of Appeals for the District of Columbia Circuit, Co-Chair,
NAS Committee on Identifying the Needs of the Forensic Sciences Community
(http://www8.nationalacademies.org/cp/projectview.aspx?key=48741)
Dr. Constantine Gatsonis, Director, Center for Statistical Sciences, Brown University, CoChair, NAS Committee on Identifying the Needs of the Forensic Sciences Community
(http://www8.nationalacademies.org/cp/projectview.aspx?key=48741)
Dr. Clifford Spiegelman, Distinguished Professor of Statistics, Texas A&M University
(http://www.tamu.edu)
Dr. Karen Kafadar, Professor of Statistics, Indiana University (http://www.indiana.edu).

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CHAPTER 5 – FORENSIC SCIENCE 56

Further Resources
COMMITTEE ON IDENTIFYING THE NEEDS OF THE FORENSIC SCIENCES COMMUNITY, NATIONAL RESEARCH
COUNCIL, STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES: A PATH FORWARD, (National
Academy of Sciences, Aug. 2009). Available at
http://www.ncjrs.gov/pdffiles1/nij/grants/228091.pdf.
COMMITTEE ON ASSESSING THE RESEARCH PROGRAM OF THE NATIONAL INSTITUTE OF JUSTICE, STRENGTHENING
THE NATIONAL INSTITUTE OF JUSTICE, (Charles F. Wellford, Betty M. Chemers, and Julie A. Schuck
eds., National Academy of Sciences 2010). Available at:
http://www.nap.edu/openbook.php?record_id=12929&page=R1.
INNOCENCE PROJECT, INVESTIGATING FORENSIC PROBLEMS IN THE UNITED STATES: HOW THE FEDERAL
GOVERNMENT CAN STRENGTHEN OVERSIGHT THROUGH THE COVERDELL GRANT PROGRAM, (The Innocence
Project, 2009). Available at:
http://www.innocenceproject.org/Content/Investigating_Forensic_Problems_in_the_Unite
d_States_Executive_Summary.php.
Judge Harry T. Edwards, Conference on The Role of the Court in an Age of Developing
Science & Technology, Washington D.C.: Remarks on The National Academy of Science
Report on Forensic Sciences: What it Means for the Bench and Bar, (May 6, 2010).
NATIONAL INSTITUTE OF JUSTICE, FORENSIC SCIENCES: A REVIEW OF STATUS AND NEEDS (National Institute
of Justice, Department of Justice Feb. 1999). Available at:
http://www.ojp.usdoj.gov/nij/pubs-sum/173412.htm.
NATIONAL INSTITUTE OF JUSTICE, STATUS AND NEEDS OF FORENSIC SCIENCE SERVICE PROVIDERS: A REPORT TO
CONGRESS (National Institute of Justice, Department of Justice 2004). Available at:
http://www.ojp.usdoj.gov/nij/pubs-sum/213420.htm.
OFFICE OF THE INSPECTOR GENERAL OF THE DEPARTMENT OF JUSTICE, REVIEW OF THE OFFICE OF JUSTICE
PROGRAMS’ PAUL COVERDELL FORENSIC SCIENCE IMPROVEMENT GRANTS PROGRAM ii (Office of the
Inspector General, Department of Justice Jan. 2008). Available at
http://www.justice.gov/oig/reports/OJP/e0801/final.pdf.

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Primary Contact
Stephen Saloom
Policy Director
Innocence Project
40 Worth Street, Suite 701
New York, NY 10013
(212) 364-5394
ssaloom@innocenceproject.org

CHAPTER 5 – FORENSIC SCIENCE 57

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CHAPTER 5 CONTRIBUTORS
Independent Consultant, Innocence Project
Jennifer Collier (Chapter Leader)
405 Constitution Avenue NE
Washington, DC 20002
(202) 295-7188
jennycollierjd@yahoo.com
Innocence Project
Sarah Chu
100 5th Avenue, 3rd Floor
New York, NY 10011
(212) 364-5340
schu@innocenceproject.org
National Association of Criminal Defense Lawyers (NACDL)
Kyle O’Dowd
1660 L Street, NW, 12th Floor
Washington, DC 20036
(202) 872-8600, ext 226
kyle@nacdl.org

CHAPTER 5 – FORENSIC SCIENCE 58

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CHAPTER 6
INNOCENCE ISSUES

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CHAPTER 6 – INNOCENCE ISSUES 60

THE ISSUE
Across the nation, 265 wrongfully convicted individuals have been exonerated through postconviction DNA testing since 1989.1 Collectively, these men and women served more than 3,370
years in prison for crimes they did not commit. In 119 of the nation’s first 265 DNA exonerations,
the true perpetrators were identified in the process of settling claims of innocence, many of who
had gone on to commit additional serious crimes while the innocent languished behind bars. 2
These exonerations have demonstrated with absolute certainty that mistaken convictions
can and do happen, in states across the country. Without access to DNA testing and preserved
evidence, however, none of these exonerations would have been possible. Indeed, it is beyond
question that many more wrongful convictions will never be identified because DNA evidence was
destroyed and/or the innocent were prevented from having DNA evidence tested after their
wrongful conviction.
HISTORY OF THE PROBLEM
1. History of the Justice for All Act
Recognizing this need, Congress passed, with overwhelming bi-partisan support, the Justice
for All Act (JFAA) in 2004.3 Title IV of the JFAA, the Innocence Protection Act (IPA), established a
funding mechanism to settle claims of innocence through post-conviction DNA testing, and
produced a set of innocence protections. The Act has long been championed by Senator Patrick
Leahy (D-VT), and members on both sides of the aisle, in both the House and Senate, have taken
strides to reauthorize and re-appropriate its provisions.
Specifically, the innocence protection provisions of the JFAA include: a requirement that
recipients of Paul Coverdell Forensic Science Improvement Grants (Coverdell Program)4 – a source
of financial support to crime labs – certify the presence of a governmental entity positioned to
conduct independent, external investigations into allegations of serious negligence or misconduct
substantially affecting the integrity of forensic results; the creation of the Kirk Bloodsworth Post
Conviction Review Grant Program (Bloodsworth Program),5 which provides funding for postconviction DNA case review and testing; and a directive that recipients of DNA Training and
Education for Law Enforcement, Correctional Personnel and Court Officers, DNA Identification of
Missing Persons, and DNA Research and Development) (Section 413 Programs) create statewide
1

Innocence Project, Know the Cases, http://www.innocenceproject.org/know/ (last visited Jan. 10, 2011).
Among the first 255 exonerations, 94 real perpetrators have been identified (affecting 111 exonerees, among
which nearly half were convicted of additional violent crimes. These 44 real perpetrators went on to commit 61
sexual assaults, 21 murders and nine other violent crimes. Interview with Dr. Emily West, Research Director,
Innocence Project in New York, N.Y. (Jan. 3, 2011).
3
Justice for All Act, Pub. L. No 108-405 (codified in scattered sections of 42 U.S.C.).
4
42 U.S.C. § 3797k(4).
5
42 U.S.C. 14136(e).
2

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CHAPTER 6 – INNOCENCE ISSUES 61

schema for both access to post-conviction DNA testing and adequate preservation of biological
evidence.6
The Bloodsworth Program, in particular, has aided agencies seeking to help free the
wrongfully convicted. The program’s administrator, the National Institute of Justice (NIJ) has
encouraged state applicants to draft proposals that fund a range of entities involved in settling
innocence claims, from law enforcement agencies to crime laboratories. Additionally, the
Bloodsworth Program has fostered the cooperation of innocence projects and state agencies. For
example, with the $1,386,699 that Arizona was awarded for fiscal year 2008, the Arizona Justice
Project, in conjunction with the Arizona Attorney General’s Office, began the Post-Conviction DNA
Testing Project.7 Together, they have canvassed the Arizona inmate population, reviewed cases,
worked to locate evidence, and filed joint requests with courts to have evidence released for DNA
testing. In addition to identifying the innocent, Arizona Attorney General Terry Goddard has noted
that the “grant enables *his+ office to support local prosecutors and ensure that those who have
committed violent crimes are identified and behind bars.”8 Similar joint efforts have followed in
Connecticut, Louisiana, Minnesota, North Carolina, and Wisconsin.9
In a laudable move that will help the Bloodsworth program – and, indeed, all states and
localities – realize the probative potential of preserved biological evidence, the NIJ recently funded
a National Institute of Standards and Technology project to create a national working group with
the goal of identifying best practices relating to proper evidence preservation. The group had its
first meeting in August 2010, and hopes to promulgate its recommendations and guidance to states
by early fall 2012.10
2. Causes of Wrongful Convictions
It is not enough, however, to ensure that those wrongfully convicted men and women who
remain in prison have the tools with which to prove their innocence. These compelling cases of
wrongful convictions demand a conscientious review of what went wrong in these cases leading factfinders to believe beyond a reasonable doubt that an innocent person was guilty of every element of
these serious crimes. Those exonerated by DNA testing are not, after all, the only people who have
been wrongfully convicted in recent decades. For every case that involves DNA evidence, there are
6

42 U.S.C. § 14136 note.
Sandra Day O’Connor College of Law, Arizona receives federal DNA grant, COLLEGE OF LAW NEWS (Oct. 21, 2008),
available at: http://community.law.asu.edu/news/19167/Arizona-receives-federal-DNAgrant.htm%20%28last%20visited%20Jan.%2010,%202011%29.
8
Press release, Justice Project, Arizona Receives Federal DNA Grant (October 9, 2008), available at:
http://www.azag.gov/press_releases/oct/2008/Justice%20Project%20Release.pdf.
9
Strengthening Our Criminal Justice System: Extending the Innocence Protection Act, Hearing Before the S. Comm.
on the Judiciary, 110th Cong. (2009) (statement of Keith Findley, Professor of Law, University of Wisconsin),
available at: http://judiciary.senate.gov/hearings/testimony.cfm?id=4162&wit_id=8302.
10
Interview with Rebecca Brown, Policy Advocate and Member of the NIST/NIJ Technical Working Group on
Biological Evidence Preservation, Innocence Project in New York, N.Y. (Jan. 3, 2011).
7

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CHAPTER 6 – INNOCENCE ISSUES 62

many that do not. Reviewing the cases of those for whom DNA has proven innocence helps to
pinpoint weaknesses in the justice system that, if addressed, can reduce the number of wrongful
convictions. Learning from wrongful convictions does not just protect the innocent; it also enhances
the accuracy and efficacy of our criminal investigations. Every time an innocent person is wrongfully
suspected, arrested, prosecuted, or convicted, the justice system’s focus is distracted from the real
perpetrators of these serious crimes, and public safety is put at risk.
In response to the proliferation of wrongful convictions across the country, many states have
formed statewide commissions to identify and remedy the causes of wrongful conviction.11 These
efforts have proven incredibly valuable in those states, but because these causes transcend state
borders, a more uniform and comprehensive approach to learning from wrongful convictions would
be of tremendous value to the nation as a whole.
Last year, Senators Jim Webb (D-VA), Lindsey Graham (R-SC), and Orrin Hatch (R-U), along
with Representatives William Delahunt (D-MA), Darrell Issa (R-CA), Marcia Fudge (D-OH), Tom Rooney
(R-FL), and House Crime Subcommittee Chairman, Robert Scott (D-VA), introduced the National
Criminal Justice Commission Act of 2010 (S. 714 111th Cong. (2010); H.R. 5143, 111th Cong. (2010)),
which would create a commission to study and recommend reform of the broader criminal justice
system.12 The bill passed in the House in July with a voice vote and awaited passage in the Senate.13
Integral to such an examination of criminal justice reform is an analysis of wrongful convictions and
their causes, as they reflect deeper concerns with the system as a whole. Indeed, a federal inquiry
into the causes of wrongful convictions will strengthen the capacity of the criminal justice system to
make guilt/innocence determinations more accurate, promising in turn to provide guidance to states
in their efforts to bolster their respective fact-finding endeavors.
3. Compensation for the Wrongfully Convicted
Just as it is important to learn from and seek to prevent wrongful convictions, it is also
imperative that those men and women who suffered wrongful conviction and imprisonment be fully
compensated for that harm. Twenty-seven states and Washington D.C. provide a statutory scheme
by which to compensate the exonerated.14 Such compensation is critical to the ability of the
wrongfully convicted to rebuild their lives in earnest. These men and women face a myriad of
significant challenges to successfully returning to the community from which they were wrongfully
removed. Upon their release from prison, these individuals deserve, at a minimum, the removal of
avoidable financial roadblocks in their efforts to begin their lives anew.
In an effort to ensure that wrongful conviction recoveries are not unfairly taxed as income,
Representative John Larson (D-CT) and Senator Charles Schumer (D-NY) introduced the Wrongful
11

See, Innocence Project, Innocence Commissions in the U.S.,
http://www.innocenceproject.org/Content/Innocence_Commissions_in_the_US.php (last visited Jan 20, 2011).
12
S. 714, 111th Cong. (2010); H.R. 5143, 111th Cong. (2010).
13
H.R. 5143: National Criminal Justice Commission Act of 2010, NEW YORK TIMES,
http://politics.nytimes.com/congress/bills/111/hr5143.
14
Innocence Project, State Compensation Laws, http://www.innocenceproject.org/news/LawView1.php (last
visited Jan. 10, 2011).

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Conviction Tax Relief Act of 2010 (H.R. 4743, 111th Cong. (2010)).15 The bill would have clarified
federal tax law so that compensation awards received are not subject to federal income tax. The
legislation would have also provided the wrongfully convicted with an income tax credit on payroll
taxes paid over the same earnings.
The unique horrors suffered by the 265 men and women who have spent an average of 13.2
years behind bars for crimes they did not commit compel action. Otherwise, their lost years – and the
relationships, professional development and life experiences that they lost with them – will have
been in vain.
RECOMMENDATIONS
1. The Justice for All Act
A. The Justice for All Act is Not Being Enforced to its Full Potential.
The JFAA, legislation passed by a bi-partisan Congress, represents a significant step towards
uncovering and preventing wrongful convictions. The incentives and programs it created to make
testing post-conviction DNA – and thus the discovery of the wrongly convicted and the real
perpetrator – possible, must continue to be enforced and funded.
B. Ensure Effective Administration of the Justice for All Act.
Legislative
Congress, through its Judiciary Committees, should ensure the reauthorization of all four
programs governed by the Section 413 innocence protection requirements, through FY 2014. These
Section 413 programs were written to ensure that states and localities receiving federal funding
possess schema for biological evidence retention and post-conviction DNA testing. In doing so,
Judiciary Committee members should consider the Department of Justice’s proposal to amend the
JFAA’s language to more easily allow for the disbursal of program funds.
As a result of its stated difficulty in administering the Bloodsworth Program in years past,
the Department of Justice sought the following provisional language to loosen Section 413 grant
requirements and assure the disbursal of unspent, unobligated funds, as well as those funds for the
remaining fiscal years in the funding cycle:16

15

H.R. 4743, 111th Cong. (2010).
Oversight of the Justice for All Act: Has the Justice Department Effectively Administered the Bloodsworth and
Coverdell DNA Grant Programs? Hearing Before the S. Comm. on the Judiciary,. 110th Cong., 2d Sess., 27 (2008)
(testimony of Dr. John Morgan).
16

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$5,000,000 shall be for the purposes described in the Kirk
Bloodsworth Post-Conviction DNA Testing Grant Program (Public Law
108-405, section 412): Provided, that unobligated funds
appropriated in FY 2006 and FY 2007 for grants as authorized under
sections 412 and 413 of the foregoing Public Law are hereby made
available, instead, for the purposes herein before specified….17
The Department of Justice represented that this provisional language freed them from the
constraints of the JFAA’s authorizing language, and would ultimately allow for the disbursal of funds
associated with this grant program.18 This language should also apply to the other Section 413
Programs when reauthorized, so that states have a strong incentive to comply with the innocence
protections sought in the JFAA.
The Appropriations Committees should continue to fund these critical programs at current
levels, through either the current or proposed disbursal language discussed above.
Finally, Congress, through the work of the Judiciary Committees, should maintain the
present statutory forensic oversight requirements for the Coverdell Program. These oversight
requirements are central to ensuring that the states are equipped to discover errors in forensic
examinations – errors that may lead to wrongful convictions.
Executive
The Department of Justice, through the Office of Justice Programs (OJP), is well-positioned
to ensure vigorous enforcement of the JFAA. OJP should loosen current procedural and
administrative burdens on potential Bloodsworth Program applicants (e.g. certification from the
Chief Legal Officer) to achieve even distribution of post-conviction DNA testing monies across
deserving applicant states and localities in need.
Additionally, OJP should more rigorously enforce the forensic oversight requirements of the
Coverdell Program by verifying the existence of the appropriate forensic oversight entity and
process upon an applicant’s application for such funds. OJP should also track state and local
responses to allegations of negligence or misconduct in forensic analyses in a way that ensures that
such responses are in line with the program’s purpose, and that allow it to take appropriate
measures if such responses are not.

17
18

Consolidated Appropriations Act, 2008, Pub. L. No. 110-161.
Id.

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2.

CHAPTER 6 – INNOCENCE ISSUES 65

Addressing Innocence through a Federal Commission
A. Wrongful Convictions are an Issue Nationwide; They do not Stop at State Borders

Each DNA exoneration should be looked upon as an opportunity to identify both the
criminal justice system’s shortcomings, and the remedial steps that can be taken to prevent other
wrongful convictions. The federal government is particularly well-positioned to help analyze the
nation’s exonerations and to promulgate suggestions for state reforms.
B. Establish a Federal Commission to Address Causes and Remedies of Wrongful
Convictions
Legislative
Congressional members should reintroduce and work to pass the National Criminal Justice
Commission Act,19 a legislative proposal which would create a commission to study and recommend
reform of the broader criminal justice system, and ensure that innocence issues are included in the
commission’s work.
In the alternative, Congress should pass legislation that would establish an independent,
federal innocence commission. Appropriate appointments are critical. Whether established
through legislative action or executive order, as suggested below, such a commission should have
independent investigative powers, and be comprised of key players from throughout the criminal
justice system, including: prosecutors, judges, law enforcement officials, defense attorneys, forensic
scientists, crime lab representatives, victim advocates, the wrongfully convicted, and Innocence
Project representatives.
This commission should be charged with examining post-conviction DNA exoneration cases
to establish the causes of wrongful conviction in each case. The commission should also be
responsible for recommending reforms to the federal criminal justice system, and creating a
template of such legislative and administrative reforms that could then be adopted by the
individual states. Key features of an effective commission include access to first-rate investigative
resources, political independence, and subpoena power.
Executive
The President should issue an Executive Order establishing a presidential innocence
commission with the same foci as discussed above.

19

S. 714, 111th Cong. (2010); H.R. 5143, 111th Cong. (2010); See System Change, in SMART ON CRIME (2011).

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3. Wrongful Conviction Tax Relief
A. It is Unclear Whether Wrongful Conviction Recoveries are Subject to Federal Taxation
When an innocent person is convicted of a crime, that person is robbed of his or her
freedom, family, and livelihood to be put through the unique horror of prison. The difficulty of
reentering society is profound. To make matters worse, all compensation packages are, in theory,
currently subject to federal taxation.
B. Exempt Compensation to the Wrongfully Convicted from Federal Income Tax
Legislative
Congress should work to pass a reintroduced version of Wrongful Convictions Tax Relief Act
of 2010, which would amend the Internal Revenue Code to clarify that wrongful conviction
compensation packages are not subject to federal income tax.20

20

H.R. 4743, 111th Cong. (2010).

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CHAPTER 6 – INNOCENCE ISSUES 67

APPENDICES
Experts
Barry Scheck, Co-Founder, Innocence Project
(http://www.innocenceproject.org/about/Contact-Us.php)
Peter Neufeld, Co-Founder, Innocence Project
(http://www.innocenceproject.org/about/Contact-Us.php)
Exonerees: many of the nation’s 265 DNA exonerees will speak in support of and the need
for these reforms (http://www.innocenceproject.org/know/)
Innocence Commissions
Hon. John K. Van de Kamp, Chair, California Commission on the Fair Administration of
Justice (http://www.ccfaj.org/m-JohnVanDeKamp.html)
Senator Stewart J. Greenleaf, Pennsylvania Republican Senate Judiciary Chair and Sponsor
of legislation establishing an Advisory Committee on Wrongful Conviction in Pennsylvania
(http://www.legis.state.pa.us/cfdocs/legis/home/member_information/senate_bio.cfm?id=
173)
Beverley Lake, Jr., former Chief Justice of the North Carolina Supreme Court and creator of
the North Carolina Actual Innocence Commission
(http://www.shanahanlawgroup.com/Bio/ILake.asp)
Further Resources
BARRY SCHECK, PETER NEUFELD & JIM DWYER, ACTUAL INNOCENCE: WHEN JUSTICE GOES WRONG AND HOW
TO MAKE IT RIGHT (New American Library 2000).

CALIFORNIA COMMISSION ON THE FAIR ADMINISTRATION OF JUSTICE, FINAL REPORT (2008), available at
http://ccfaj.org/documents/CCFAJFinalReport.pdf.
NEW YORK STATE BAR ASSOCIATION, TASK FORCE ON WRONGFUL CONVICTIONS, FINAL REPORT (2009),
available at:
http://www.nysba.org/Content/ContentFolders/TaskForceonWrongfulConvictions/FinalWro
ngfulConvictionsReport.pdf.

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CHAPTER 6 – INNOCENCE ISSUES 68

Innocence Project, www.innocenceproject.org (last visited Jan 10, 2011).
Justice for All Act, Pub.L. No 108-405, available at: http://frwebgate.access.gpo.gov/cgibin/getdoc.cgi?dbname=108_cong_bills&docid=f:h5107enr.txt.pdf.
Primary Contact
Stephen Saloom
Policy Director
Innocence Project
40 Worth Street, Suite 701
New York, NY 10013
212-364-5394
ssaloom@innocenceproject.org

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CHAPTER 6 CONTRIBUTORS
Independent Consultant, Innocence Project
Jennifer Collier (Chapter Leader)
405 Constitution Avenue NE
Washington, DC 20002
(202) 295-7188
jennycollierjd@yahoo.com
Innocence Project
Rebecca Brown
40 Worth Street, Suite 701
New York, NY 10013
(212) 364-5340
rbrown@innocenceproject.org
Nicole Harris
40 Worth Street, Suite 701
New York, NY 10013

CHAPTER 6 – INNOCENCE ISSUES 69

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CHAPTER 7
INDIGENT DEFENSE:
ENSURING THE CONSTITUTIONAL RIGHT TO COUNSEL

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CHAPTER 7 – INDIGENT DEFENSE 71

THE ISSUE
In the landmark case Gideon v. Wainwright, the Supreme Court acknowledged the “obvious
truth” that “lawyers in criminal courts are necessities, not luxuries” given that “*g+overnments, both
state and federal, quite properly spend vast sums of money to establish machinery to try
defendants accused of crime.”1 Yet, almost fifty years later, the promise of Gideon remains
unfulfilled. According to Justice Denied, a 2009 report of the Constitution Project’s National Right to
Counsel Committee, public defense systems—which handle the vast majority of representation for
defendants in criminal cases—fail to provide adequate representation for those the government
accuses of crimes.2 Public defenders’ offices are understaffed, underfunded, undertrained, and
overworked, and they often lack the oversight necessary to ensure constitutionally adequate
representation for indigent defendants. As experts from the Cato Institute observed, “the great
majority of defender systems are understaffed and underfunded; they cannot provide their clients
with even the basic services that a non-indigent defendant would consider essential for a minimally
tolerable defense.”3
When the government accuses, convicts, and incarcerates its citizens without providing
them adequate counsel, it disrupts the basic structure of our adversarial system, endangering both
its people’s constitutional rights and the rule of law. The inevitable consequence of a dysfunctional
system is the conviction and incarceration of innocent people. Wrongful convictions not only
unjustly deprive people of their liberty, but also risk public safety by allowing the real perpetrators
to remain free. Moreover, without proper representation, many non-violent offenders are
sentenced to inappropriately lengthy prison terms, unnecessarily driving up taxpayer costs.
The Administration and the members of the 112th Congress have an important opportunity
to address the current crisis in indigent defense, and to realize the promise of the constitutional
right to counsel. Reforms should be adopted to strengthen public defender training; increase
transparency in federal grants to state criminal justice systems; create accountability for inadequate
provision of representation to state indigent defendants; and increase independence for federal
defenders. Each of these reforms is both constitutionally required and long overdue.
HISTORY OF THE PROBLEM
1. The Constitutional Right to Counsel
The Constitution affords people charged with crimes due process, the presumption of
innocence, and equal access to a fair day in court. The Founders understood the danger of a
1

Gideon v. Wainwright, 372 U.S. 335, 344 (1963).
CONSTITUTION PROJECT, NATIONAL RIGHT TO COUNSEL COMMITTEE, JUSTICE DENIED, 49-101 (2009), available at
http://www.constitutionproject.org/pdf/139.pdf.
3
Stephen J. Schulhofer & David D. Friedman, Reforming Indigent Defense: How Free Market Principles Can Help to
Fix a Broken System, CATO INST., 7 (Sept. 2010). available at http://www.cato.org/pubs/pas/pa666.pdf.
2

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CHAPTER 7 – INDIGENT DEFENSE 72

powerful government exercising arbitrary control over the freedom of the People through
mechanisms of the justice system and criminal law. For this reason, the Sixth Amendment
guarantees, among other fundamental rights, that “*i+n all criminal prosecutions, the accused shall
enjoy the right…to have the Assistance of Counsel for his defence [sic+.” Although the Sixth
Amendment’s right to counsel provision was originally interpreted to apply only in federal
prosecutions, in the twentieth century the Supreme Court interpreted the due process clause of the
Fourteenth Amendment to also apply the Sixth Amendment right to counsel in state prosecutions.
In the 1932 case Powell v. Alabama, the Supreme Court held that defendants in capital
cases, even at the state level, were entitled to due process, including the right to counsel.4 Justice
Sutherland wrote in his majority opinion that the right to counsel is among the “immutable
principles of justice which inhere in the very idea of free government…”5 In 1963, the Supreme
Court issued the landmark decision Gideon v. Wainwright, holding that states are required to
provide representation for defendants who cannot afford private counsel in felony cases. Since
then, the right to counsel has been consistently extended to any case that may result in a person’s
potential loss of liberty.6
In addition to a basic right to counsel, a defendant in a criminal case has a right to “effective
assistance of counsel” under the Supreme Court’s decision in Strickland v. Washington.7 In practice,
courts have set a very low standard for effective assistance of counsel,8 and it is difficult for
defendants to meet the Supreme Court’s demand that they affirmatively prove that their attorney’s
errors were “so serious” that her or his performance fell below an “objective standard of
reasonableness.” Under the Strickland standard, defendants are also required to affirmatively
prove that the result of the proceeding would have been different with more effective counsel.9
These nearly insurmountable standards have undermined the right to effective counsel necessary
for our adversarial system of justice to operate properly.
2. Indigent Defense Systems
The method by which a government provides indigent defense services varies by
jurisdiction. At the federal level, public defenders are provided in two ways: federal public
4

Powell v. Alabama, 287 U.S. 45 (1932)
Id. at 68 (quoting Holden v. Hardy, 169 U.S. 366, 389 (1898).
6
Gideon established the right to counsel for felony trials. Subsequent cases extend that right. See.Douglas v.
California, 372 U.S. 353 (1963) (direct appeals); Miranda v. Arizona, 384 U.S. 436 (1966) (custodial interrogation);
In Re Gault, 387 U.S. 1 (1967) (juvenile proceedings resulting in confinement); Coleman v. Alabama, 399 U.S. 1
(1970) (critical stages of preliminary hearings); Argersinger v. Hamlin, 407 U.S. 25 (1972) (misdemeanors involving
possible imprisonment); Shelton v. Alabama, 535 U.S. 654 (2002) (misdemeanors involving a suspended
sentence).,
7
Strickland v. Washington, 466 U.S. 668 (1984).
8
See, e.g., US v. Cronic, 466 U.S. 648, 666-67 (1984), holding that ineffective assistance of counsel cannot be
inferred by surrounding circumstances but rather must be demonstrated affirmatively “only by pointing to specific
errors made by trial counsel.”
9
JUSTICE DENIED, supra note 2, at 39- 43.
5

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CHAPTER 7 – INDIGENT DEFENSE 73

defender organizations and community defender organizations.10 In the first system, a federal
defender is appointed to a four-year term by the court of appeals for the district in which he or she
serves, and the staff in his or her office are federal employees. In a community defender system,
non-profit entities incorporated under state law operate with grants from the federal judiciary and
are supervised by a board of directors or a local legal services organization. Funding for federal
indigent defense is authorized by the Criminal Justice Act of 1964.11
At the state level, indigent defense is usually provided in one of three ways.12 First, many
populous jurisdictions have a local office of the public defender staffed by government employees
which handles almost all indigent defense in the jurisdiction. Second, some jurisdictions contract
with private firms or individual attorneys to represent indigent defendants or a particular class of
indigent defendants for a fixed fee. Third, many jurisdictions use an “assigned counsel” model in
which the court assigns attorneys to indigent defendants on a case-by-case basis. Funding is
provided by the state, the county, and, sometimes, by federal grant programs administered by the
Bureau of Justice Assistance within the Department of Justice (DOJ).13
3. The Executive and Indigent Defense
The executive branch has a special responsibility to enforce the federal mandate announced
in Gideon v. Wainwright and is uniquely situated to pursue indigent defense reform. Not only are
federal defenders employees of the executive branch, but DOJ also directly assists state and local
indigent defense systems with federal grant funding. Within DOJ, the Office of Justice Programs
administers the Edward Byrne Memorial Justice Assistance Grant program (Byrne JAG). This
program is the largest single federal grant program for funding of state law enforcement, court,
prosecution, indigent defense, and related programs. While Byrne JAG grants can be used by states
to fund indigent defense services, the formulation used for awarding grants has been criticized
because it neither (i) conditions federal funding on the establishment of statewide public defense
systems, nor (ii) requires any percentage of the federal grant go toward indigent defense
programs.14

10

See United States Courts, The Defender Services Program,
http://www.uscourts.gov/FederalCourts/AppointmentOfCounsel.aspx (last visited Dec. 10, 2010).
11
18 U.S.C. § 3006A.
12
JUSTICE DENIED, supra note 2, at 53-57.
13
Id. at 53-60.
14
See e.g., Hearing before the Subcomm. on Commerce, Justice, Science and Related Agencies of the H. Comm. on
Appropriations, 111th Cong. (2010) (statement of Virginia E. Sloan, President, The Constitution Project), available
at http://www.constitutionproject.org/pdf/389.pdf; National Legal Aid and Defender Association, Make Our Justice
System Fair and Our Communities Safer by Supporting Quality Public Defense Systems (2008), available at
http://www.nlada.org/DMS/Documents/1232143408.49/NLADA%20DOJ%20Transition%202-pager.pdf.

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CHAPTER 7 – INDIGENT DEFENSE 74

4. Congress and Indigent Defense
In 1964, Congress passed the Criminal Justice Act (CJA), “*t+o promote the cause of criminal
justice by providing for the representation of defendants who are financially unable to obtain an
adequate defense in the criminal cases in the courts of the United States.”15 The Act established a
system, administered by the federal judiciary, for the appointment and compensation of counsel to
represent indigent defendants charged with federal crimes. In 1970, the CJA was amended to
authorize districts with large numbers of indigent defendants to establish federal defender
organizations as counterparts to federal prosecutors in U.S. Attorneys’ offices.16
The Innocence Protection Act (IPA) sponsored by Senator Patrick Leahy (D-VT) in the Senate,
and Representatives Ray LaHood (R-IL) and Bill Delahunt (D-MA) in the House, and with support
from Representative James Sensenbrenner (R-WI) and Senator Orrin Hatch (R-UT), was passed by
Congress as part of the Justice for All Act of 2004 (JFAA).17 The IPA was intended to help reduce the
risk of wrongful convictions and executions in capital cases, and the JFAA was also intended to
improve access to forensic evidence in criminal trials. The IPA includes a provision authorizing
grants to states to improve their appointment of qualified defense counsel in capital cases, and
conditions those grants on states adopting minimum standards for defense counsel and prosecutors
in capital cases.18 Grants for such a purpose must be matched by equal-sized grants to prosecutors
to enhance their ability to effectively prosecute state capital cases and vice versa. In September
2010, Senator Leahy introduced a reauthorization of the JFAA that would also extend provisions of
the IPA.19 Though the legislation never came before the Judiciary Committee for markup, according
to his staff, Senator Leahy intends to reintroduce the JFAA reauthorization in early 2011.
Finally, the John R. Justice Prosecutors and Defenders Incentive Act of 2008 (J.R. Justice Act)
authorizes a program for student loan repayment for prosecutors and public defenders.20 This
piece of legislation, which passed both chambers with overwhelming bipartisan support, increases
the incentive for the best and the brightest young lawyers to enter public services as public
defenders and prosecutors.
5. Resources Available to Indigent Defense Attorneys
In our adversarial legal system, the truth is expected to emerge from the clash of two wellprepared, opposing sides, each of which has the ability to present its arguments, evidence, and
witnesses with full knowledge of the rules of engagement. However, especially at the state and
15

18 U.S.C. § 3006A.
Pub. L. No. 91-447, Sec. 1(b), 84 Stat. 916 (1970) (codified in 18 U.S.C. § 3006A(g)).
17
Innocence Protection Act of 2004, Pub. L. No. 108-405, 118 Stat. 2260 (codified in scattered sections of 18, 42
U.S.C).
18
42 U.S.C. § 14163.
19
S. 3842, 111th Cong. (2010).
20
John R. Justice Prosecutors and Defenders Incentive Act of 2008, Pub. L. No. 110-315, §§ 951-52, 122 Stat. 3078
(codified as amended in scattered sections of U.S.C.).
16

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CHAPTER 7 – INDIGENT DEFENSE 75

local level, the resources available to the district attorney or prosecutor often far exceed those
available to the defender, creating a favorable situation for government power and a dangerous
situation for individual liberty. For example, defenders, who most often depend on the very
government they are opposing in court for their salary, frequently lack the time or funding to pay
for necessary expert witnesses.21
Additionally, inadequate funding leads to insufficient staffing of defenders’ offices. As a
result, many public defenders have caseloads so large that they risk violating the oaths they took as
members of the bar to provide adequate attention to each client, and also violate, by a large
margin, the American Bar Association’s (ABA’s) guidelines for attorney caseloads.22 In fact, the
Bureau of Justice Statistics reports that in 2007, 73% of county-based public defender offices
exceeded the maximum caseload per attorney.23 Similarly, state public defender offices had a
median 67% of the attorneys necessary to comply with caseload limits.24 The Cato Institute
reported that “*i+n one highly publicized case, the Atlanta public defender demoted a staff attorney
because she had filed a motion asking the local judges to appoint her to no more than six cases per
day” (emphasis added).25
The federal government exacerbates already existing resource imbalances between the
prosecution and defense by furnishing funding to the states for prosecution and law enforcement
functions, as well as for training and technical assistance for prosecutors and law enforcement
agencies, while providing almost no analogous support for state-based public defense services. The
administration proposed $3.4 billion in federal funding for state, local, and tribal law enforcement
assistance programs in fiscal year (FY) 2011, a $722.5 million increase from FY 2010.26 Of that $3.4
billion in federal funding, a total of $1.3 million would be specifically directed to indigent defense
programs.27 An additional $2.5 million would fund the hiring of personnel for the Access to Justice
Initiative, a DOJ program launched in March 2010 whose mission is to improve the availability and
quality of indigent defense.28 This means that under the President’s FY 2011 budget, less than 0.1%
of federal funding for state law enforcement programs would be specifically directed to indigent
defense services.
21

JUSTICE DENIED, supra note 2, at 95-97.
AMERICAN BAR ASSOCIATION, GIDEON’S BROKEN PROMISE: AMERICA’S CONTINUING QUEST FOR EQUAL JUSTICE (2004), available
at http://www.abanet.org/legalservices/sclaid/defender/brokenpromise/fullreport.pdf.
23
BUREAU OF JUSTICE STATISTICS, U.S. DEPT. OF JUSTICE, CENSUS OF PUBLIC DEFENDER OFFICES, 2007: COUNTY-BASED AND LOCAL
PUBLIC DEFENDER OFFICES 8 (2010), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/clpdo07.pdf.
24
For FY2011, the Department of Justice requested $2.5 million and 10 positions for the Access to Justice Initiative.
BUREAU OF JUSTICE STATISTICS, U.S. DEPT. OF JUSTICE, CENSUS OF PUBLIC DEFENDER OFFICES, 2007: STATE PUBLIC DEFENDER
PROGRAMS 13 (2010), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/spdp07.pdf.
25
SCHULHOFER, supra note 3, at 8.
26
U.S. DEPT. OF JUSTICE, FY 2011 BUDGET REQUEST: ASSIST STATE, LOCAL, AND TRIBAL LAW ENFORCEMENT (2010), available at
http://www.justice.gov/jmd/2011factsheets/pdf/law-enforcement.pdf.
27
Id. at 3.
28
U.S. Dept. of Justice, FY 2011 BUDGET REQUEST: RESTORE CONFIDENCE IN OUR MARKETS, PROTECT THE FEDERAL FISC, AND
DEFEND THE INTERESTS OF THE UNITED STATES 5 (2010), available at
http://www.justice.gov/jmd/2011factsheets/pdf/defend-interests-unitedstates.pdf.
22

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There are many examples of this imbalance. For instance, state prosecutors receive millions
of dollars each year in direct federal funding through Byrne JAG, while public defense attorneys
receive virtually no federal funding. Although indigent defense is currently a permitted expenditure
of Byrne JAG funds, states may be unaware of this because it is not explicit in the statute. 29 States
consistently spend either none or only a miniscule portion of the grant money for public defense
programs, directing a vastly greater share to law enforcement and prosecutorial programs. In 2009,
of the $1.2 billion in federal funding to states, only $3.2 million was spent on indigent defense,
while prosecutors and courts received over $171 million and law enforcement received more than
$521 million.30 The disparity is staggering.
Likewise, prosecutors often have ready access to federally funded crime labs, while too
often public defense attorneys are denied access or provided inadequate funding for essential
testing. Similarly, state prosecutors have access to excellent training resources through the
federally funded Ernest F. Hollings National Advocacy Center on the campus of the University of
South Carolina,31 while the federal government provides no funding for public defense professionals
(and funding for state prosecutors in this training program has currently been removed for FY2011).
These resource imbalances make it extremely difficult for publicly funded defense counsel to assess
the reliability of the prosecution’s evidence and to validate their own evidence. The end result is
that juries and judges are deprived of critical information necessary to ensuring accurate verdicts
and fair sentences.
6. Transparency, Oversight and Accountability in Indigent Defense
Transparency regarding government support of public defenders is necessary for the
effective representation of indigent defendants. Without transparency in the manner in which
federal, state, and local governments allocate funds and resources for indigent defense, it is nearly
impossible to accurately assess the disparity in spending between indigent defense and prosecutors
and law enforcement, fix deficiencies in systems, or hold anyone accountable for infringing upon
the constitutional rights of indigent defendants. As Erica Hashimoto, associate professor of law at
the University of Georgia Law observed, “we have no idea how many defendants are represented
by the indigent defense systems in the country, how many misdemeanor defendants have a right to
counsel, or how what percentage of defendants who are entitled to court-appointed representation
go unrepresented.”32

29

42 U.S.C. § 3751.
National Criminal Justice Association, Byrne JAG Funding: A Snapshot from the States,
http://www.ncja.org/NCJA/Policies_and_Practices/Byrne_JAG_Data_Collection/NCJA/Navigation/PoliciesPractices
/Byrne_JAG_Data_Collection.aspx?hkey=8bd3d63b-a641-4009-a9a1-bb977cc00e31 (last visited January 14, 2011).
31
See generally Hollings National Advocacy Center, http://www.ndaa.org/nac.html (last visited January 14, 2011).
32
Erica Hashimoto, Assessing the Indigent Defense System, AM. CONST. SOCIETY 9 (2010), available at
http://www.acslaw.org/node/16836.
30

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CHAPTER 7 – INDIGENT DEFENSE 77

The current system does not provide the requisite transparency. The Bureau of Justice
Statistics collects indigent defense data, but only for felony cases and only in very large jurisdictions.
There is little data available for either misdemeanor representation or felony representation in
smaller districts. Moreover, when the Bureau of Justice Assistance accepts grant applications from
state and local criminal justice entities, it does not require reporting on indigent defense. Thus, the
data necessary to evaluate indigent defense in a specific district simply does not exist.
Even if this data were available and violations of the constitutional right to counsel were
detectable, it would be very difficult to hold state governments accountable should they abrogate
the constitutional right to counsel. DOJ currently does not have the authority to hold state and
local governments accountable for failing to meet their constitutional obligations, even if these
jurisdictions use DOJ funding for their criminal justice systems. As a result, the responsibility for
monitoring local governments and identifying constitutional violations falls to the defendants
themselves—the very individuals who lack adequate legal counsel and access to knowledge of the
law.
RECOMMENDATIONS
1. Funding, Staffing and Training
A. Public Defense Systems Lack Adequate Funding
Inadequate funding, insufficient staffing, and unequal training opportunities are consistent
challenges for public defense systems in all jurisdictions. Especially at the state and local level, the
resources available to the district attorney or prosecutor often far exceed those available to the
defender, creating a favorable situation for government power and a dangerous situation for
individual liberty. With states facing budget shortfalls and the federal government under pressure
to reduce the deficit, the already-underfunded indigent defense programs that protect the life,
liberty, and property of Americans are particularly vulnerable.

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B. Congress and the Administration Should Ensure Adequate Funding, Staffing, and
Training
Legislative
i.

Provide Funding for John R. Justice Prosecutors and Defenders Act

Congress should fully fund the John R. Justice Act, which authorizes student loan repayment
assistance for prosecutors and public defenders.33 This program improves public safety by assisting
prosecutor and defender offices in their ability to hire and retain high-quality lawyers.34 The law
authorizes up to $10,000 per year in education debt assistance for prosecutors and defenders who
agree to maintain that employment for three years.35 Unfortunately, the current FY 2010
appropriation of $10 million, $5 million of which goes to prosecutors, limits the program’s impact
on indigent defense systems.
Congress could make it financially feasible for young attorneys to serve in indigent defense
systems by supporting a national fellowship program to cultivate and train the next generation of
defenders. The fellowship could combine loan forgiveness with federal funding for hiring entrylevel attorneys. This program could be modeled on Public Defender Corps, a project of Equal
Justice Works and the Southern Public Defender Training Center that is currently funded by a grant
from the Bureau of Justice Assistance.36 Public Defender Corps is a three-year fellowship program
for bright young attorneys dedicated to providing excellent representation to indigent clients. The
program matches these attorneys with public defender offices and sponsors their work for three
years. Congress should support and provide resources to expand such efforts.
ii. Dedicate Indigent Defense Funding in Federal Grant Programs
Congress should provide sufficient financial support to states, local governments, and
territories for the provision of indigent defense services comparable to federal support for
prosecution. To this end, Congress should allow for exceptions to the required equal allocation
between prosecutors and defenders for federal grants for capital case training. This would enable
states to use the grants to create parity between prosecution and indigent defense resources.37
Additionally, Congress should permit states to use grants under this program to hire counsel for
capital defendants.
33

42 U.S.C. § 3797cc-21. In 2007 the Congressional Budget Office estimated that the John R. Justice loan
repayment assistance program, if fully funded, would cost $83 million over the 2008 – 2012 period. CONGRESSIONAL
BUDGET OFFICE, H.R. 4127: HIGHER EDUCATION AMENDMENTS OF 2007, available at:
http://www.cbo.gov/ftpdocs/88xx/doc8899/hr4137.pdf.
34
42 U.S.C. § 3797cc-21.
35
Id. at § 3797cc-21(d)(3).
36
See Equal Justice Works, Public Defender Corps, http://www.equaljusticeworks.org/programs/public-defendercorps/general.
37
See 42 U.S.C. § 14163 et seq.

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Although indigent defense is currently a permitted expenditure of Byrne JAG funds, states
may be unaware of this because it is not explicit in the statute.38 Congress should amend the Byrne
JAG authorizing legislation, adding indigent defense to the list of seven specific program categories
identified in the statute. This will clarify for DOJ and state personnel that support for indigent
defense services is one of the central purposes of the Byrne JAG programs.39 Furthermore, either
Congress, through legislation, or the DOJ, through its rulemaking authority,40 can require that each
state include at least one representative of the state’s indigent defense systems as a member of its
State Administering Agency (SAA), which distributes the funds. This will ensure, at a minimum, that
the needs and interests of indigent defendants are considered during the SAA’s deliberation
process, and will highlight to the indigent defense community its right to seek Byrne JAG funding.
iii.

Reduce Overcriminalization through Civil Infraction Reform

To relieve the overwhelming caseloads of public defenders, states should re-classify certain
non-violent crimes as civil infractions for which civil fines would be imposed rather than prison
sentences. This would reduce the number of cases that public defenders must handle at a single
time. To aid in states’ civil infraction reform efforts, Congress should provide funding for states to
establish criminal justice coordinating committees to consider reclassification of certain non-violent
crimes to civil infractions, thereby alleviating some of the burden currently placed on indigent
defense systems.41
iv.

Create an Independent National Center for Public Defense Services

Congress should adopt the recommendation of the ABA that the federal government
establish and fund a National Center for Public Defense Services to serve as an independent,
national oversight authority that would strengthen state public defense services by conducting and
hosting public defense training programs, and administering federal funds for state public defense
programs. For the past thirty years, the ABA has supported the establishment of an independent

38

42 U.S.C. § 3751.
Violence Against Women and Department of Justice Reauthorization Act of 2005 §1111, Pub. L. 109-162, merged
the Byrne Grant program with the Law Enforcement Block Grant program to create the Edward Byrne Memorial
Justice Assistance Grant Program, 42 U.S.C. § 3751 et. seq. Previously, the authorizing legislation for these grant
programs (Omnibus Crime Control and Safe Streets Act of 1968, 42 U.S.C § 3711) listed indigent defense as an
authorized use of grant funds. However, the streamlined language of the 2005 reauthorization did not explicitly
list indigent defense and instead stated that a Byrne JAG grant “may be use for any purpose for which a grant was
authorized to be used” in the previous legislation. 42 U.S.C. § 3751(a)(2). Thus, Byrne JAG funds are authorized for
indigent defense expenditures, but this is not explicit in the DOJ grant solicitation given to states, which includes
only the streamlined language from the 2005 reauthorization.
40
The Department of Justice can amend 28 C.F.R. § 33.12(a) to achieve this result.
41
For more information on the potential benefits of civil infraction reform, see COMMITTEE FOR PUBLIC COUNSEL
SERVICES OF THE COMMONWEALTH OF MASSACHUSETTS, 2009 REPORT TO THE LEGISLATURE, available at
http://www.publiccounsel.net/report_to_the_legislature.html.
39

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CHAPTER 7 – INDIGENT DEFENSE 80

federal Center for Defense Services to serve this function.42 The concept was also endorsed in the
2009 report Justice Denied issued by the National Right to Counsel Committee. DOJ’s Access to
Justice Initiative, launched in March 2010, is an important first step. Under Professor Laurence
Tribe’s leadership it has brought needed attention to public defense reforms. However, as
discussed above, it is critical that public defenders have the independence that a National Center
for Public Defense Services would provide, especially given the potential for serious conflict of
interest inherent in indigent defense work.
Executive
Each year, the Bureau of Justice Assistance within DOJ is allocated a certain amount of
discretionary funds. In past administrations, a portion of these funds have been used to provide
federal technical assistance and training for state, local, and territorial public defense systems, and
the attorneys who participate in them.43 The Bureau of Justice Assistance should use a portion of
its discretionary funding for these functions, as it did under Attorney General Janet Reno.
2. Transparency, Oversight and Accountability in Indigent Defense
A. The Current System Suffers from a Lack of Transparency, Oversight and Accountability
Currently, there is no mechanism for the collection, analysis, and dissemination of
nationwide indigent defense data. In addition, despite statutory and regulatory reporting
requirements,44 many states do not fully account for the manner in which they spend federal grant
money for criminal justice initiatives.45 Without such data, decision-makers are left to form policy
based on anecdotal information, speculation, intuition, presumption, and even bias. Furthermore,
the federal government lacks a sufficiently strong mechanism for holding state and local
governments accountable for violations of the Sixth Amendment right to effective assistance of
counsel.

42

AMERICAN BAR ASSOCIATION, STANDING COMMITTEE ON LEGAL AID AND INDIGENT DEFENDANTS, RECOMMENDATION FOR
ESTABLISHMENT OF A CENTER FOR DEFENSE SERVICES (1979), available at
http://www.abanet.org/legalservices/downloads/sclaid/121.pdf; AMERICAN BAR ASSOCIATION, supra note 22, at 41.
43
See, Bureau of Justice Assistance, National Training and Technical Assistance Center, available at
http://www.bjatraining.org (last visited Jan. 18, 2011).
44
See 28 C.F.R. § 33.41(b) (requiring states receiving Byrne Justice Assistance Grant money to “designate which
statutory purpose the program or project is intended to achieve, identify the state agency or unit of local
government that will implement the program or project, and provide the estimated funding level for the program
or project including the amount and source of cash matching funds.”); see also 42 U.S.C. § 3752.
45
The Constitution Project has requested information on state spending of Byrne Justice Assistance Grant money
from both State Administering Agencies (SAAs) as well as the Department of Justice, but has never received the
requested information. In a July 27, 2010 letter responding to a Freedom of Information Act (FOIA) request
submitted by the Constitution Project, the Department of Justice FOIA office indicated that the Department does
not keep separate account of the manner in which states spend grant money.

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B. Transparency, Oversight, and Accountability will Protect Taxpayer Money and Individual
Liberty
Legislative
i.

Increase Transparency in Expenditure of Taxpayer Money by the States

Congress should reauthorize the Justice for All Act with the requirement that recipients of
federal grant money for criminal justice indicate the recipient’s intended indigent defense
expenditures and report the recipient’s actual indigent defense expenditures to the Bureau of
Justice Assistance.
ii. Establish Accountability for Violations of Individual Liberty by State and Local
Government
Congress should provide DOJ with a cause of action to bring suit against those state or local
governments that fail to protect the individual liberty of persons within their jurisdictions by
providing inadequate counsel or no counsel to indigent defendants. DOJ’s authority to sue is
currently limited to cases demonstrating a “pattern or practice of conduct by law enforcement
officers or by officials or employees of any governmental agency with responsibility for the
administration of juvenile justice or the incarceration of juveniles that deprives persons of rights,
privileges, or immunities secured or protected by the Constitution or laws of the United States.”46
By extending this authority beyond juvenile justice to include all criminal justice systems, Congress
would empower DOJ to rectify states’ systemic violations of the Sixth Amendment. Congress could
also authorize DOJ to “deputize” private litigants to file federal suits on behalf of the United States,
thereby ensuring that enforcement actions against non-compliant states could be sought without
overburdening the Department.47
iii. Fund Research to Determine Whether Unequal Access to Counsel Contributes to
Racial Disparities
Congress should coordinate and fund a study to determine whether failure by states to
provide constitutionally adequate public defense systems contributes to racial disparities within the
criminal justice system. Because of the dearth of data on indigent defense, it is almost impossible
to measure the impact of inadequate public defense systems on racial disparities in the criminal
justice system. This study should be conducted by an entity that is independent of government,
such as a university or impartial research foundation.

46

42 U.S.C. § 14141.
For discussion of a private litigation strategies see Eve Brensike Primus, Litigation Strategies for Dealing with the
Indigent Defense Crisis, AM. CONST. SOCIETY 9 (2010), available at http://www.acslaw.org/files/Primus%20%20Litigation%20Strategies.pdf.
47

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CHAPTER 7 – INDIGENT DEFENSE 82

Executive
i.

Require Transparency in Federal Grants

Because there is so little public data on indigent defense, it is extremely difficult to identify
quantitatively measurable deficiencies in specific jurisdictions, and to hold accountable those
responsible for violations of the right to counsel. The collection, analysis, and public presentation of
this data would provide the transparency necessary for proper oversight. Therefore, DOJ should
annually collect and publish data pertaining to: state-by-state indigent defense expenditures and
funding sources; caseloads by provider and case types; methods of providing counsel; number of
persons under the age of 18 tried in adult courts; indigency rates and criteria; race and ethnicity
demographics of defendants and victims; and staffing of public defense agencies.
Additionally, DOJ should strengthen its regulations related to reporting requirements for
state grant recipients and, if necessary, Congress should empower the DOJ to withhold a portion of
a state’s formula grant for failure to meet reporting requirements. Finally, if granted by Congress,
the DOJ should use its authority to pursue causes of action against states violating the Sixth
Amendment to engage those states in negotiations to help them improve their indigent defense
systems, and, if necessary, hold accountable with litigation those jurisdictions that continue to
deprive people of the right to counsel.
ii.

Establish National Standards for Indigent Defense Services

The ABA provides objective guidelines for the provision of indigent defense services. This
document, titled The Ten Principles of a Public Defense Delivery System, should form the basis for
national standards for adequate indigent defense promulgated by DOJ.48 This document should
also inform standards by which the federal government evaluates all state indigent defense
systems, including standards for the awarding of grants and for state opt-in applications under
Chapter 154 of Title 28.49

48

AMERICAN BAR ASSOCIATION, TEN PRINCIPLES OF A PUBLIC DEFENSE DELIVERY SYSTEM (2002), available at
http://www.abanet.org/legalservices/downloads/sclaid/indigentdefense/tenprinciplesbooklet.pdf.
49
As part of the 1996 Anti-Terrorism and Effective Death Penalty Act (AEDPA), Chapter 154 mandates greater
restrictions on federal habeas corpus review of state capital cases if a state establishes a mechanism for appointing
competent counsel to indigent capital defendants for state post-conviction review. A 2005 amendment to the
statute moved the authority to certify that a state is eligible from the federal courts to the Attorney General of the
United States, subject to review by the Court of Appeals for the District of Columbia Circuit. The Bush
Administration issued a final rule that provided no standards for competent counsel; it was never implemented
due to an injunction. The Department of Justice recently issued a notice removing this rule and is currently in the
process of developing a new rule.

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iii.

CHAPTER 7 – INDIGENT DEFENSE 83

File Amicus Briefs to Support Individual Liberty against State Governments

DOJ should support current private litigation efforts by filing amicus briefs in support of
cases that seek redress from states and localities that provide constitutionally inadequate indigent
defense representation.50 The Attorney General should also continue to speak to criminal justice
stakeholders, through speeches, op-eds, and briefings, about the need for indigent defense reform,
with special focus on prosecutors and law enforcement.
3. Independence of Indigent Defense Attorneys
A. Public Defenders Currently Lack Independence, Hampering Performance
By design, public defense is necessarily provided by the same government that is accusing
a defendant in a criminal case. As a result, conflicts of interest can easily arise in indigent defense
systems. This is especially true in jurisdictions where politicians or judges appoint public defenders,
pushing a defender’s economic interest in a different—and sometimes opposite—direction from
the interests of his or her client. Attorneys representing indigent defendants but beholden to the
prosecuting party or the judiciary for funding or employment may focus not on their client’s best
interest, but rather on reducing backlogs of cases at the court, appearing “tough” on crime, or just
keeping their jobs.51
B. Providing Independence for Public Defenders in both Funding and Decision-making will
Reduce Central Government Control and Improve Representation
Legislative
Congress should establish an independent, non-partisan federal agency for federal defense
that possesses funding and oversight responsibilities. This will reduce the conflict of interest that
arises when a public defender is beholden to the opposing party (the state) or to the judge for
funding. When a defender’s budget is dependent on the approval of judges, elected local boards,
or others to whom she may be politically or professionally accountable, she will often come under
pressure to shape defense strategies not according to the interests of her clients, but rather
according to the political interests of those who control her budget. 52 Achieving systemic
improvements may require an autonomous and permanent office with greater resources and
authority at its disposal. For the past thirty years, the ABA has supported the establishment of an

50

See, e.g., Duncan v. State 784 N.W.2d 51(Mich., 2010). This case is currently before the Michigan Supreme
Court, with the plaintiffs arguing that systemic deficiencies in Michigan’s public defense system deprive indigent
defendants of their Sixth Amendment rights to counsel.
51
SCHULHOFER, supra note 3 at 2.
52
For specific examples of the political pressure facing public defenders, see JUSTICE DENIED, supra note 2, at 80-84.

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CHAPTER 7 – INDIGENT DEFENSE 84

independent federal Center for Defense Services to serve this function. In addition, the concept
was endorsed in the 2009 report issued by the National Right to Counsel Committee.53
Alternatively, Congress could make local federal defender organizations, or the
Administrative Office of U.S. Courts (for those districts without federal defender organizations),
responsible for the appointments and budgets of federal defenders.54 If the judiciary remains
responsible for appointing federal defenders, Congress should require federal courts to accept
(absent good cause to the contrary) recommendations for counsel made by federal public
defenders, federal defender community organizations, the Capital Habeas Unit, or the
Administrative Office. These organizations, each of which has a role in providing federal indigent
defense services, are better positioned to offer independent, expert recommendations for the
appointment of counsel, as compared with judges, who are meant to be the impartial arbiters
between prosecutors and defense attorneys.
Executive
The Access to Justice Initiative, which was established within DOJ in March 2010, represents
a positive first step in the creation of an independent federal voice for indigent defense. It has
already served as an important voice within DOJ by advocating reforms to federal policies related to
indigent defense. The creation of the initiative marks an important first step in the federal
government’s acceptance of responsibility for addressing the national indigent defense crisis. In
addition, the initiative’s efforts have resulted in states taking notice and seeking to engage the
Department regarding ways to improve indigent defense at the state level. The Access to Justice
Initiative should be maintained and strengthened.
If Congress chooses not to pursue an independent federal defender agency (see legislative
recommendation above), an alternative approach is to formalize the criminal defense functions of
the Access to Justice Initiative as an Office of Public Counsel Services (OPCS) within DOJ.55 The OPCS
would be a congressionally created office headed by an assistant attorney general, who is
appointed by the president, confirmed by the Senate, and reports directly to the Attorney General.
The OPCS would develop objectives, priorities, and a long-term plan for federal support of state and
local indigent defense systems. The office would have primary authority for the implementation of
federal indigent defense policy and strategies necessary to carry out that policy.

53

Id., at 200.
See 18 U.S.C. §§ 3005, 3006A, 3599; 28 U.S.C. § 2254.
55
See ABA STANDING COMMITTEE ON LEGAL AID AND INDIGENT DEFENDANTS, supra note 42; AMERICAN BAR ASSOCIATION, supra
note 22, at 41.
54

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CHAPTER 7 – INDIGENT DEFENSE 85

APPENDICES
Experts
Nicole Austin-Hillery, DC Office Director and Counsel, Brennan Center for Justice
(http://www.brennancenter.org/people/austin-hillery_nicole)
Malia Brink, Counsel for Special Projects, National Association of Criminal Defense Lawyers
(http://www.nacdl.org/public.nsf/staff+pages/Malia+Brink)
Edwin A. Burnette, Vice President of Defender Legal Services, National Legal Aid & Defender
Association (http://www.nlada.net/library/people/burnette_ed)
Thomas Giovanni, Director of the Community Oriented Defender Network, Brennan Center
for Justice (http://www.brennancenter.org/content/people/thomas_giovanni)
Christopher Durocher, Government Affairs Counsel, The Constitution Project
(http://www.constitutionproject.org/staff/durocher.php)
Richard Goemann, Executive Director, DC Law Students in Court
(http://www.dclawstudents.org/ourstaff.htm#goemann)
Norman Lefstein, Professor of Law and Dean Emeritus, Indiana University School of Law,
Indianapolis (http://indylaw.indiana.edu/people/profile.cfm?Id=80)
Bruce Nicholson, Criminal Justice Section, American Bar Association
(http://new.abanet.org/sections/criminaljustice/Pages/Contact.aspx)
Robert L. Spangenberg, Professor of Law, George Mason University
(http://www.nlada.net/library/people/spangenberg_bob)
Johanna Steinberg, Assistant Counsel of Criminal Justice Practice, National Association for
the Advancement of Colored People Legal Defense Fund (http://naacpldf.org/johannasteinberg)
David Udell, National Center For Access to Justice
(http://www.cardozo.yu.edu/MemberContentDisplay.aspx?ccmd=ContentDisplay&ucmd=U
serDisplay&userid=246)
Georgia N. Vagenas, Standing Committee on Legal Aid & Indigent Defendants, American Bar
Association (http://www.abanet.org/legalservices/sclaid/)

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CHAPTER 7 – INDIGENT DEFENSE 86

Jo-Ann Wallace, President, National Legal Aid and Defender Association
(http://www.nlada.org/About/About_President).
Further Resources
AMERICAN BAR ASSOCIATION, GIDEON’S BROKEN PROMISE: AMERICA’S CONTINUING QUEST FOR EQUAL
JUSTICE (2004), available at
http://www.abanet.org/legalservices/sclaid/defender/brokenpromise/fullreport.pdf.
AMERICAN BAR ASSOCIATION, TEN PRINCIPLES OF A PUBLIC DEFENSE DELIVERY SYSTEM (Feb. 2002),
available at
http://www.abanet.org/legalservices/downloads/sclaid/indigentdefense/tenprinciplesbookl
et.pdf.
AMERICAN BAR ASSOCIATION STANDING COMMITTEE ON LEGAL AID AND INDIGENT DEFENDANTS, EIGHT
GUIDELINES OF PUBLIC DEFENSE RELATED TO EXCESSIVE WORKLOADS (2009), available at
http://www.abanet.org/legalservices/sclaid/defender/downloads/eight_guidelines_of_publ
ic_defense.pdf.
AMERICAN BAR ASSOCIATION STANDING COMMITTEE ON LEGAL AID AND INDIGENT DEFENDANTS,
RECOMMENDATION FOR ESTABLISHMENT OF A CENTER FOR DEFENSE SERVICES (1979), available at
http://www.abanet.org/legalservices/downloads/sclaid/121.pdf
COMMITTEE FOR PUBLIC COUNSEL SERVICES OF THE COMMONWEALTH OF MASSACHUSETTS, 2009 REPORT TO
THE LEGISLATURE, available at http://www.publiccounsel.net/report_to_the_legislature.html.
Erica Hashimoto, Assessing the Indigent Defense System, AM. CONST. SOCIETY 9 (2010),
available at http://www.acslaw.org/node/16836.
LYNN LANGTON AND DONALD FAROLE, JR., U.S. DEPARTMENT OF JUSTICE BUREAU OF JUSTICE STATISTICS,
STATE PUBLIC DEFENDER PROGRAMS, 2007 (2010), available at
http://bjs.ojp.usdoj.gov/content/pub/pdf/spdp07.pdf.
ANTHONY LEWIS, GIDEON’S TRUMPET (Knopf Doubleday, 1965).
NATIONAL LEGAL AID AND DEFENDER ASSOCIATION, MAKE OUR JUSTICE SYSTEM FAIR AND OUR COMMUNITIES
SAFER BY SUPPORTING QUALITY PUBLIC DEFENSE SYSTEMS (2008), available at
http://www.nlada.org/DMS/Documents/1232143408.49/NLADA%20DOJ%20Transition%20
2-pager.pdf.
CONSTITUTION PROJECT, NATIONAL RIGHT TO COUNSEL COMMITTEE, JUSTICE DENIED (2009), available at
http://www.constitutionproject.org/pdf/139.pdf.

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CHAPTER 7 – INDIGENT DEFENSE 87

Eve Brensike Primus, Litigation Strategies for Dealing with the Indigent Defense Crisis, AM.
CONST. SOCIETY 9 (2010), available at http://www.acslaw.org/files/Primus%20%20Litigation%20Strategies.pdf.
THE SPANGENBERG PROJECT, STATE, COUNTY, AND LOCAL EXPENDITURES FOR INDIGENT DEFENSE SERVICES
FISCAL YEAR 2008 (2008), available at
http://www.abanet.org/legalservices/sclaid/defender/downloads/Indigent_Defense_Expen
ditures_FY08.pdf.
Stephen J. Schulhofer & David D. Friedman, Reforming Indigent Defense: How Free Market
Principles Can Help to Fix a Broken System, CATO INST. 7 (Sept. 2010), available at
http://www.cato.org/pubs/pas/pa666.pdf.
Primary Contact
Christopher Durocher
Government Affairs Counsel
The Constitution Project
1200 18th Street, NW
Suite 1000
Washington, DC 20036
(202) 580-6939
cdurocher@constitutionproject.org

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CHAPTER 7 – INDIGENT DEFENSE 88

CHAPTER 7 CONTRIBUTORS
American Bar Association (ABA)
Bruce Nicholson
740 15th Street, NW
Washington, DC 20005
(202) 662-1769
bruce.nicholson@americanbar.org
American Bar Association Standing
Committee on Legal Aid & Indigent
Defendants
Georgia N. Vagenas
321 North Clark Street
Chicago, IL 60654
(312) 988-5765
georgia.vagenas@americanbar.org
Brennan Center for Justice at New York
University School of Law
Laura Abel
161 Avenue of the Americas
12th Floor
New York, NY 10013
(646) 292-8310
laura.abel@nyu.edu
Nicole Austin-Hillery
1730 M Street, NW, Suite 413
Washington, DC 20036
(202) 785-4747
nicole.austin-hillery@nyu.edu
Thomas Giovanni
161 Avenue of the America
12th Floor
New York, NY 10013
(646) 292-8310
thomas.giovanni@nyu.edu

Matthew Welch
1730 M Street, NW, Suite 413
Washington, DC 20036
(202) 785-4776
matthew.welch@nyu.edu
National Access to Justice Initiative
David Udell
55 5th Avenue
New York, NY 10003
(212) 790-0869
udell@yu.edu
Constitution Project (CP)
Adrienne Lee Benson
1200 18th Street, NW, Suite 1000
Washington, DC 20036
(202) 580-6920
abenson@constitutionproject.org
Christopher Durocher (Chapter Leader)
1200 18th Street, NW, Suite 1000
Washington, DC 20036
(202) 580-6920
cdurocher@constitutionproject.org
National Association for the Advancement of
Colored People Legal Defense & Educational
Fund, Inc.
Johanna Steinberg
99 Hudson Street, Suite 1600
New York, NY 10013
(212) 965-2200
jsteinberg@naacpldf.org

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National Legal Aid & Defender Association
(NLADA)
Edwin A. Burnette
1140 Connecticut Avenue, 9th Floor
Washington, DC 20036
(202) 452-0620, ext 221
e.burnette@nlada.org
Jo-Ann Wallace
1140 Connecticut Avenue, 9th Floor
Washington, DC 20036
(202) 452-0620, ext 212
j.wallace@nlada.org

CHAPTER 7 – INDIGENT DEFENSE 89

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CHAPTER 8
JUVENILE JUSTICE

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CHAPTER 8 – JUVENILE JUSTICE 91

THE ISSUE
The juvenile justice system in the United States is in urgent need of reform. Nationwide
each year, police make 2.1 million juvenile arrests;1 1.7 million cases are referred to juvenile
courts;2 and over 200,000 youth are prosecuted in the adult criminal justice system. 3 The United
States incarcerates more youth than any other country in the world such that on any given night,
approximately 81,000 youth are confined in juvenile facilities,4 and 10,000 children are held in adult
jails and prisons.5 Wherever they are held, incarcerated youth are particularly vulnerable to
victimization and abuse.6 The United States is also alone in imposing the sentence of life without
parole for crimes committed as children. Recent estimates find that 2,589 people are currently
serving a juvenile life without parole sentence.7
Over the past 20 years, however, scientific research has vastly increased our understanding
of how to best approach juvenile delinquency and system reform. Promising reforms are being
implemented in many jurisdictions, and there is an increasingly clear path for moving from
counterproductive, dangerous, and wasteful practices toward more effective and just approaches
to addressing adolescent crime. Leaders in the Executive and Legislative branches have the
opportunity and the obligation to help establish a meaningful system of justice for all of our youth,
and should begin by focusing on (i) restoring the federal leadership role in juvenile justice policy, (ii)
preventing crime and diverting youth from the justice system, (iii) keeping court-involved youth
safe, (iv) removing youth from the adult criminal justice system, and (v) helping youth return to
their communities.

1

CHARLES PUZZANCHERA, U.S. DEPT. OF JUST., OFFICE OF JUV. JUST. AND DELINQ. PREVENTION, JUVENILE ARRESTS, 2008, (2009),
available at http://www.ncjrs.gov/pdffiles1/ojjdp/228479.pdf.
2
CRYSTAL KNOLL & MELISSA SICKMUND, U.S. DEPT. OF JUST., OFFICE OF JUV. JUST. AND DELINQ. PREVENTION, DELINQUENCY CASES IN
JUVENILE COURT, 2007 (2010), available at http://ncjrs.gov/pdffiles1/ojjdp/230168.pdf.
3
J. Woolard, Juveniles within adult correctional settings: legal pathways and developmental considerations, 4 INT’L
J. OF FORENSIC MENTAL HEALTH. 18 (2005); COALITION FOR JUVENILE JUSTICE, CHILDHOOD ON TRIAL: THE FAILURE OF TRYING AND
SENTENCING YOUTH IN ADULT CRIMINAL COURT (2005).
4
MELISSA SICKMUND, JUVENILES IN RESIDENTIAL PLACEMENT, 1997-20008, U.S. DEPT. OF JUST., OFFICE OF JUV. JUST. AND DELINQ.
PREVENTION ( 2010), available at http://www.ncjrs.gov/pdffiles1/ojjdp/229379.pdf.
5
TODD D. MINTON, U.S. DEPT. OF JUST., BUREAU OF JUST. STAT., JAIL INMATES AT MIDYEAR 2009 (2010); HEATHER C. WEST U.S.
DEPT. OF JUST., BUREAU OF JUST. STAT., PRISON INMATES AT MIDYEAR 2009 (2010).
6
Campaign for Youth Justice, Jailing Juveniles, http://www.campaignforyouthjustice.org/key-research/nationalreports.html#jailingjuveniles (last visited Jan. 17, 2011). See also A.J. BECK ET. AL., U.S. DEPT. OF JUST., BUREAU OF JUST.
STAT., SEXUAL VICTIMIZATION IN JUVENILE FACILITIES REPORTED BY YOUTH, 2008-09 (2010).
7
Human Rights Watch, State distribution of youth offenders serving juvenile life without parole ,
http://www.hrw.org/en/news/2009/10/02/state-distribution-juvenile-offenders-serving-juvenile-life-withoutparole (last visited Jan. 17, 2011).

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HISTORY OF THE PROBLEM
Greater federal assistance is needed for key juvenile justice programs. Since FY2002, the
operational budget for Office of Juvenile Justice and Delinquency Prevention (OJJDP) has
plummeted 90%. In that time period, funding for the Juvenile Justice and Delinquency Prevention
Act (JJDPA) Title II State Formula Grants Program has declined 16%; Title V funding for incentive
grants to local delinquency prevention programs has declined 34%, with between 53% and 97% of
the limited dollars appropriated for the Title V program earmarked for non–JJDPA programs.8 Title
II funds provide essential support for state and local agencies to develop and strengthen juvenile
justice systems to reduce youth offending, meet vital standards for care and custody of juvenile
offenders, and ensure community safety. Equally importantly, Title V Incentive Grants for Local
Delinquency Prevention Programs are the only federal funding source dedicated solely to the
prevention of youth crime and violence. These small grants fund a range of innovative and effective
programs, from home visitation by nurses and preschool-parent training programs, to youth
development initiatives involving the use of mentoring, after-school activities, tutoring, truancy
prevention, and dropout reduction strategies. Research has shown that every dollar spent on such
evidence-based programs can yield up to $13 in cost savings.9 Furthermore, each child prevented
from engaging in repeat criminal offenses can save the community $2.6 to $4.4 million.10
Current juvenile justice practices too often ignore children's age and amenability to
rehabilitation, increase crime, endanger young people, damage their future prospects, waste
billions of taxpayer dollars, and violate our deepest held principles about equal justice under the
law. Our justice system is riddled with racial and ethnic disparities, a lack of mental health and drug
treatment services, and disproportionate sanctions for minor and nonviolent adolescent
misbehavior.
1. Overincarceration and Non-treatment of Vulnerable Youth
Misguided policies that purport to be “tough on crime” increase incarceration rates,
disproportionately impact poor youth and youth of color, exacerbate the problem of gang-related
crime, funnel a disproportionate number of youth who have a cognizable mental health and/or
substance abuse disorder into the justice system, and often make our communities vulnerable to
crime. Research from top scholars in a variety of fields including economics, educational
psychology, and public health reveals that public dollars spent on effective prevention and
education programs are far more effective at reducing crime than broadening prosecutorial powers

8

COALITION FOR JUVENILE JUSTICE, UNLOCKING THE FUTURE OF JUVENILE JUSTICE: A POLICY AGENDA FOR THE 111TH CONGRESS
(2009), available at http://www.juvjustice.org/media/resources/public/resource_240.pdf .
9
ANNIE E. CASEY FOUNDATION, JUVENILE DETENTION ALTERNATIVES INITIATIVE, DETENTION REFORM BRIEF 1: DETENTION REFORM: A
COST-SAVING APPROACH (2007), available at http://www.aecf.org/upload/PublicationFiles/jdai_facts1.pdf.
10
Mark A. Cohen & Alex R. Piquero, New Evidence on the Monetary Value of Saving a High Risk Youth, (Vanderbilt
Law and Economics Research Paper No. 08-07, 2007), available at http://ssrn.com/abstract=1077214.

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CHAPTER 8 – JUVENILE JUSTICE 93

or stiffening criminal penalties for young people.11 Public opinion polls similarly reveal that
taxpayers overwhelmingly favor paying for prevention, education, and rehabilitation programs over
prosecution and incarceration of youthful offenders.12
Far too many youth in the juvenile justice system are in desperate need of mental health
treatment. Recent studies indicate that up to 70% of youth in the juvenile justice system may have
a diagnosable mental health disorder, and 60% may also meet the criteria for a substance use
disorder, and 27% may experience disorders so severe that their ability to function is significantly
impaired.13 Moreover, according to recent data released by OJJDP, 44% of youth in custody say
they were under the influence of alcohol or drugs during the commission of their offense.14 These
youth should be provided treatment and alternatives to incarceration.
Academic success plays a crucial role in preventing delinquent behavior and promoting
positive outcomes for youth and safer communities. Youth who drop out or are pushed out of
school find themselves with fewer opportunities for gainful employment and are more likely than
youth who remain in school to commit delinquent acts. Nearly 10% of young male high school
dropouts were institutionalized on a given day in 2006-2007 compared to only 3% of high school
graduates and less than .1% of college graduates.15 In addition, out-of-school suspension and
expulsion are being overused and disproportionately affect youth of color and students with
disabilities. According to the Dignity in Schools campaign, each year more than three million
students are suspended and over 100,000 are expelled nationally.16 More than 5.2 million young
people between the ages of 18 and 24 (17%) do not have a high school diploma. Approximately 4.4
million young people within the same age span are neither in school, working, nor have a degree

11

In recent years, a range of organizations have commissioned or conducted related research and reached similar
conclusions, including the American Psychological Association, the Washington State Institute for Public Policy, the
Social Development Research Group of Seattle, Washington, and the Office of Juvenile Justice and Delinquency
Prevention. For more information, see
http://chhi.podconsulting.com/assets/documents/publications/NO MORE CHILDREN LEFT BEHIND.pdf
12
ALEX PIQUERO & LAURENCE STEINBERG, MODELS FOR CHANGE, SYSTEMS REFORM IN JUVENILE JUSTICE, REHABILITATION VERSUS
INCARCERATION OF JUVENILE OFFENDERS: PUBLIC PREFERENCES IN FOUR MODELS FOR CHANGE STATES (2007), available at
http://www.modelsforchange.net/publications/186; CENTER ON CHILDREN’S LAW AND POLICY, POTENTIAL FOR CHANGE:
PUBLIC ATTITUDES AND POLICY PREFERENCES FOR JUVENILE JUSTICE SYSTEMS REFORM, MODELS FOR CHANGE, SYSTEMS REFORM IN
JUVENILE JUSTICE (2007), available at http://www.modelsforchange.net/publications/121.
13
JOSEPH CONCOZZA, J. ET AL, ADDRESSING THE MENTAL HEALTH NEEDS OF YOUTH IN CONTACT WITH THE JUVENILE JUSTICE SYSTEM IN
SYSTEM OF CARE COMMUNITIES: AN OVERVIEW AND SUMMARY OF KEY ISSUES (2010), available at
http://www.tapartnership.org/docs/jjResource_overview.pdf.
14
ANDREA J. SEDLAK, & C. BRUCE, U.S. DEPT. OF JUST., OFFICE OF JUV. JUST. AND DELINQ. PREVENTION, YOUTH’S CHARACTERISTICS
AND BACKGROUNDS (2010).
15
ANDREW SUM ET. AL, THE CONSEQUENCES OF DROPPING OUT OF HIGH SCHOOL: JOBLESSNESS AND JAILING FOR HIGH SCHOOL
DROPOUTS AND THE HIGH COST FOR TAXPAYERS (2009), available at
http://www.clms.neu.edu/publication/documents/The_Consequences_of_Dropping_Out_of_High_School.pdf.
16
National Center for Education Statistics, Contexts of Elementary and Secondary Education,
http://nces.ed.gov/programs/coe/2009/section4/indicator28.asp (last visited Jan. 17, 2011).

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CHAPTER 8 – JUVENILE JUSTICE 94

beyond high school.17 Individually, each of these young people are at risk of long-term
unemployment, living in poverty, and engaging in criminal activity. Collectively, these disconnected
youth represent a generation of lost potential. African-American students (nearly three times as
likely to be suspended and 3.5 times as likely to be expelled as white students) and Latino students
(1.5 times as likely to be suspended and twice as likely to be expelled as white students) bear a
disproportionate burden of these punishments when compared to their white peers,18 while
students with disabilities also experience disciplinary removal from the classroom at rates that are
disproportionate to their overall representation in the K-12 population.19
Lesbian, gay, bisexual, or transgender (LGBT) youth encounter the juvenile justice system at
a disproportionately high rate, creating a need for greater sensitivity toward the issues faced by
LGBT youth in the system. Recent research shows that up to 13% of youth in juvenile detention
identify as (LGBT).20 In their homes, schools, and communities, LGBT youth face challenges related
to their sexual orientation and/or gender identity that can increase their risk of coming into contact
with the juvenile justice system. A recent study in Pediatrics found that adolescents who selfidentified as LGBT were about 50 percent more likely to be stopped by the police than other
teenagers. In particular, girls who labeled themselves as lesbian or bisexual reported about twice as
many arrests and convictions as other girls who had engaged in similar behavior.21
2. Dangerous Conditions in the Juvenile Justice System
Far too often, incarcerated youth endure abusive conditions. In a recent study by the
Bureau of Justice Statistics (BJS), a shocking one in eight youth in juvenile facilities reported
experiencing sexual abuse at their current facility in the past year alone.22 An earlier BJS survey,
which focused solely sexual violence reports filed with prison officials, confirmed that young
inmates are also more likely to be victimized when in adult facilities.23 Reports of widespread
abuses in juvenile institutions in California,24 Indiana,25 Mississippi,26 Ohio,27 Texas,28 and other
17

PHILLIP LOVELL & JACQUE MINOW, FIRST FOCUS, RECLAIMING OUR NATION’S YOUTH (2009), available at
http://www.firstfocus.net/sites/default/files/r.2009-8.6.lovell.pdf
18
US Department of Education Office of Civil Rights, 2006 Data Collection,
http://ocrdata.ed.gov/Projections_2006.aspx (last visited Jan. 20, 2011).
19
American Psychological Association Zero Tolerance Task Force, Are Zero Tolerance Policies Effective in the
Schools? An Evidentiary Review and Recommendations, 63(9) AM. PSYCHOL., 852-862, available at
http://www.apa.org/pubs/info/reports/zero-tolerance.pdf
20
THE EQUITY PROJECT, LEGAL SERVICES FOR CHILDREN, NATIONAL JUVENILE DEFENDER CENTER, & NATIONAL CENTER FOR LESBIAN
RIGHTS, HIDDEN INJUSTICE: LESBIAN, GAY, BISEXUAL, AND TRANSGENDER YOUTH IN JUVENILE COURTS (2009), available at
http://www.equityproject.org/pdfs/hidden_injustice.pdf.
21
Kathryn E.W. Himmelstein & Hannah Bruckner, Criminal Justice and School Sanctions against Nonheterosexual
Youth: A National Longitudinal Study, PEDIATRICS (2011), available at
http://pediatrics.aappublications.org/cgi/reprint/peds.2009-2306v1 .
22
A.J. BECK ET. AL., supra note 6.
23
A.J. BECK & P.M. HARRISON, U.S. DEPT. OF JUST., BUREAU OF JUST. STAT., SEXUAL VIOLENCE REPORTED BY CORRECTIONAL
AUTHORITIES, 2005 (2006).
24
In California, authorities failed to provide adequate medical and mental health treatment and facility staff
regularly used pepper spray on youth. Michael Rothfeld, Juvenile Prison System Needs Reform Lawyers Say, LOS

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states demonstrate the importance of using federal laws to ensure the safety of children in custody.
Abuses have included frequent use of pepper spray, sexual assaults by staff, hog-tying, and
shackling youth. Youth who commit crimes must be held accountable, but no court disposition,
regardless of the offense, should ever include abuse, mental health deterioration, or death in
prison. Currently, there are no national standards in federal rule or law regulating conditions of
confinement in facilities in the juvenile justice system, and there is little or no federal monitoring or
oversight to hold these facilities accountable for how they care for and supervise youth.29
In the original JJDPA, Congress recognized that status offenses (truancy, curfew violations,
runaways, disobeying parents) are non-delinquent and non-criminal and, therefore, detention was
ANGELES TIMES, Feb., 18, 2008 available at http://www.latimes.com/news/local/la-meyouth18feb18,0,5845357.story; Ralph Boyd, Investigative Findings Letter, U.S. DEPT. OF JUSTICE, CIV. RTS. DIVISION,
April 9, 2003, available at http://www.justice.gov/crt/about/spl/documents/la_county_juvenile_findlet.pdf.
25
In Indiana, staff sexually assaulted youth in one facility, and failed to protect youth from violence in several
juvenile facilities. Wan Kim, Investigative Findings Letter, U.S. DEPT. OF JUSTICE, CIV. RTS. DIVISION, Aug. 6, 2007,
available at http://www.justice.gov/crt/about/spl/documents/marion_findlet_5-9-07.pdf; Justice Department
Reaches Settlement Regarding Conditions at Two Indiana Juvenile Justice Facilities, U.S. DEPT. OF JUSTICE, Feb. 8,
2006, available at http://www.usdoj.gov/opa/pr/2006/February/06_crt_066.html; Bradley Schlozman,
Investigative Findings Letter, U.S. DEPT. OF JUSTICE, CIV. RTS. DIVISION, Sept.. 9, 2005, available at
http://www.justice.gov/crt/about/spl/documents/split_indiana_logansport_juv_findlet_9-9-05.pdf.
26
In Mississippi, staff in state facilities hog-tied youth, put them in shackles, and stripped youth and put them in
dark rooms for 12 hours a day for up to one month at a time. Adam Nossiter, Lawsuit Filed Over Treatment of Girls
at State Reform School in Mississippi, N.Y. TIMES, July 12, 2007, available at
http://www.nytimes.com/2007/07/12/us/12prison.html; Mississippi Center Accused of Abuse, USA TODAY, July 12,
2007, available at http://www.usatoday.com/news/nation/2007-07-12-mississippi_N.htm (July 12, 2007).
27
In Ohio, girls in a state facility were sexually assaulted by male staff. Ohio Settles Suit Over Juvenile Jails, CNN,
April 4, 2008; Investigative Findings Letter, U.S. DEPT. OF JUSTICE, CIV. RTS. DIVISION, May 9, 2007, available at
http://www.justice.gov/crt/about/spl/documents/marion_findlet_5-9-07.pdf.
28
In Texas, youth filed hundreds of complaints over physical and sexual abuse and repeated use of pepper spray by
staff in juvenile facilities. Doug Swanson, Officials Indicted in Abuse at TYC, THE DALLAS MORNING NEWS, April 10,
2007, available at
http://www.dallasnews.com/sharedcontent/dws/news/texassouthwest/stories/041107dntextyc.be59c6b.html;
Emily Ramshaw, Complaints Pour In to TYC Abuse Inquiry, DALLAS MORNING NEWS, March 13, 2007, available at
http://www.dallasnews.com/sharedcontent/dws/news/texassouthwest/stories/DNtyc_13tex.ART.State.Edition1.44911b8.html; Becka, Holly, et al., Young Inmates Endured ‘Deplorable Conditions’,
Dallas Morning News, Oct. 3, 2007, available at
http://webcache.googleusercontent.com/search?q=cache:SVNMM3EVCHEJ:www.dallasnews.com/sharedcontent/
dws/dn/latestnews/stories/100307dntextyc.35bdf47.html+Young+Inmates+Endured+%E2%80%98Deplorable+Con
ditions%E2%80%99,+Dallas+Morning+News,+Oct.+3,+2007&cd=1&hl=en&ct=clnk&gl=us&client=firefox-a.
29
Beginning in 1995, OJJDP funded the Council of Juvenile Correctional Administrators (CJCA) to develop national
performance-based standards (now called the PbS program) and more than 100 outcome measures reported twice
a year to monitor conditions of confinement and the practices and services in juvenile institutions. For more
information, go to http://cjca.net/initiatives/performance-based-standards-pbs. While more than 200 facilities
voluntarily participate with the program, participation is not mandatory, so there is no federal oversight or
enforcement for the remaining – more than 2,000 – juvenile detention and correctional facilities that do not
participate with the program. See NATIONAL EVALUATION AND TECHNICAL ASSISTANCE CENTER, FACT SHEET ON JUVENILE
FACILITIES (January 2010). Available at http://www.neglected-delinquent.org/nd/docs/factSheet_facilities.pdf.

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not appropriate. Rather than resolve the factors that lead to a status offense, detention often
aggravates them because children held in secure facilities are often exposed to abusive conditions
and youth with more serious delinquency histories.30 The Deinstitutionalization of Status Offenders
(DSO) provision was designed to ensure that status offenders receive the services they need
through the appropriate human services agency rather than the justice system.31 However, the
valid court order (VCO) exception allows status offenders to be locked up for their second and
subsequent status offenses, i.e., for violating a court order not to commit another status offense.
Girls are disproportionally affected as they are 170% more likely than boys to be arrested for status
offenses and to receive more severe punishment.32 Many states no longer allow the incarceration
of status offenders under the VCO exception.
Further, the Prison Litigation Reform Act (PLRA)33 has kept countless juveniles from
protecting their constitutional rights in courts. PLRA was enacted to curb frivolous lawsuits brought
by adult prisoners; however, the law applies to all inmates, regardless of age or status. Whether
housed in a juvenile facility or with adults, detained youth are among the most vulnerable to
constitutional violations, but they rarely file lawsuits.34 Youth generally lack the literacy skills,
knowledge of the court system, and access to legal materials that would be needed to bring about
litigation.35 Moreover, youth under age 18 cannot file lawsuits on their own under federal law. As
youth are not similarly situated to adults, the PLRA provisions should not apply to them. Rather
than benefiting the public, the PLRA’s application to youth actually reduces public safety by allowing
serious abuses to occur without the availability of judicial recourse. Youth are sent to the juvenile
justice system for rehabilitation, and these systems should be held accountable for improving
youths’ lives, and ensuring that they do not cause more harm.
The Sex Offender Registration and Notification Act (SORNA)36 is also inappropriate to
address the needs of incarcerated youth. SORNA, as currently applied to youth, is contraindicated
by research that shows that youth who commit sex-based offenses are more amenable to
30

BARRY HOLMAN & JASON ZIEDENBERG, JUSTICE POLICY INSTITUTE, THE DANGERS OF DETENTION; THE IMPACT OF INCARCERATING
YOUTH IN DETENTION AND OTHER SECURE FACILITIES at 9 (2006), available at
http://www.justicepolicy.org/images/upload/06-11_REP_DangersOfDetention_JJ.pdf.
31
S. REP. NO. 93-1011, at 5287-88 (1974).
32
SUSANNA ZAWACKI, GIRLS INVOLVEMENT IN PENNSYLVANIA’S JUVENILE JUSTICE SYSTEM, PENN. JUV. JUST. STAT. BULL. (2005) at 1.
33
18 U.S.C. §3626(e)(2).
34
As of 1998, there were fewer than a dozen reported opinions directly involving challenges to conditions in
juvenile detention centers, and around two dozen cases with unreported opinions or settlements. Michael J. Dale,
Lawsuits and Public Policy: The Role of Litigation in Correcting Conditions in Juvenile Detention Centers, 32 U.S.F. L.
Rev. 675, 681-98 (1998). This figure contrasts strongly with the much larger number of reported and unreported
opinions arising from challenges to adult prison conditions. The authors of this report are generally familiar with
institutional litigation and can confirm that this large disparity persists.
35
See Alexander S. v. Boyd, 876 F. Supp. 773, 790 (D.S.C. 1995) (holding that juvenile detainees had no
constitutional right to a law library because, in light of their limited capacity, they “would not benefit in any
significant respect from a law library, and the provision of such would be a foolish expenditure of funds”); accord,
Shookoff v. Adams, 750 F.Supp. 288 (M.D.Tenn. 1990), aff’d in pertinent part, reversed in part on other grounds sub
nom. John L. v. Adams, 969 F.2d 228 (6th Cir. 1992).
36
42 U.S.C. §16913.

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treatment and have significantly lower recidivism rates than adults. SORNA also fails to recognize
that if a youth is being adjudicated within the juvenile court, the youth’s offense is not serious
enough to warrant criminal prosecution. SORNA has great potential to disrupt families and
communities across the nation because public registration and notification does not just stigmatize
the youth; it stigmatizes the entire family, including the parents and other children in the home.
Finally, SORNA has a chilling effect on the identification and proper treatment of youth who exhibit
inappropriate sexual behavior. Instead of seeking appropriate treatment for their child, parents
may be inclined to hide their child’s problem when they learn that their child may be required to
register for life as a sex offender.
3. Youth Tried and Incarcerated in the Adult Criminal Justice System
An estimated 200,000 youth are tried, sentenced, or incarcerated in the adult criminal
justice system every year across the United States.37 Trying youth as adults is bad for public safety
and for youth. Youth incarcerated in the adult system are more likely to reoffend than similarly
situated youth who are retained in the juvenile system, and these offenses tend to be more violent.
According to the Centers for Disease Control and Prevention, youth who are transferred from the
juvenile court system to the adult criminal system are approximately 34% more likely than youth
retained in the juvenile court system to be re-arrested for violent or other crime.38
Youth are at greater risk of sexual abuse and suicide when housed in adult jails and prisons.
The National Prison Rape Elimination Commission found that “more than any other group of
incarcerated persons, youth incarcerated with adults are probably at the highest risk for sexual
abuse.”39 Youth are also often placed in isolation and locked down 23 hours a day in small cells
with no natural light, conditions which cause anxiety and paranoia, exacerbate existing mental
disorders, and heighten the risk of suicide. In fact, youth housed in adult jails are 36 times more
likely to commit suicide than are youth housed in juvenile detention facilities.40
The most youth tried in the adult system are charged with non-violent offenses,41 and yet
still suffer the lifelong consequences from an adult criminal conviction. Youth are often denied
employment and educational opportunities,42 which makes transitioning to adulthood difficult. If
37

J. Woolard, Juveniles within adult correctional settings: legal pathways and developmental considerations, 4 (1)
INT’L J. OF FORENSIC MENTAL HEALTH.18 (2005); COALITION FOR JUVENILE JUSTICE, CHILDHOOD ON TRIAL, supra note 3.
38
CENTERS FOR DISEASE CONTROL AND PREVENTION, EFFECTS ON VIOLENCE OF LAWS AND POLICIES FACILITATING
THE TRANSFER OF YOUTH FROM THE JUVENILE TO THE ADULT JUSTICE SYSTEM: A REPORT ON RECOMMENDATIONS OF THE TASK FORCE
ON COMMUNITY PREVENTIVE SERVICES (2007), available at http://www.cdc.gov/mmwr/pdf/rr/rr5609.pdf.
39
NATIONAL PRISON RAPE ELIMINATION COMMISSION, REPORT (2009) at 18, available at
http://www.ncjrs.gov/pdffiles1/226680.pdf.
40
Campaign for Youth Justice, Jailing Juveniles, supra note 6.
41
Campaign for Youth Justice, The Consequences Aren’t Minor: the Impact of Trying Youth as Adults and Strategies
for Reform (2007), available at
http://www.campaignforyouthjustice.org/Downloads/NationalReportsArticles/JPI014-Consequences_exec.pdf.
42
Id.

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sentenced to an adult prison, approximately 80 percent of youth convicted as adults will be
released from prison before their 21st birthday, and 95 percent will be released before their 25th
birthday.43 At the other extreme, however, some young people will spend the rest of their lifetimes
behind bars. Human Rights Watch reported in 2009 that an estimated 2,589 people were serving
life without parole for crimes they committed while under age 18.44
4. Youth Reentry
Approximately 100,000 young people under age 18 leave secure juvenile facilities and
return to their communities each year.45 Youth are often discharged from care back to families
struggling with domestic violence, drug and alcohol abuse, and unresolved mental health
disabilities. Many youth are placed back into neighborhoods with few youth support programs,
high crime rates, poverty, and poor performing schools. Public safety is compromised when youth
leaving out-of-home placement are not afforded necessary supportive services upon reentering
their communities and are therefore at great risk to recidivate into delinquency.
Reentry services and aftercare for youth exiting juvenile justice facilities reduce recidivism
and support their successful reintegration back into families and communities. By fostering
improved family relationships, reintegration into school, and mastery of independent life skills,
reentry services help youth build resiliency and positive development to divert them from harm and
delinquent behaviors. In order to reduce recidivism, we must establish a national policy agenda
which supports reentry services to connect youth with meaningful opportunities for self-sufficiency
and community integration that is grounded in evidence-based practices and stresses cooperation
among existing federal and state agencies, local stakeholders, juvenile justice experts, and reform
advocates.
Youth coming out of secure placement face serious barriers to education. Attendance at
school is a strong protective factor against delinquency; youth who are engaged in school are much
less likely to commit crime in the short-term and also in the long-term. Yet, more than half of youth
in secure placements have not completed the eighth grade and two-thirds of those leaving formal
custody do not return to school.46 Emphasis on returning to school upon exit from out-of-home
placement should be a high priority for any reentry initiative because of the strong connection
between school engagement and delinquency. Despite the strong association between school
truancy, dropouts, and delinquency, reenrollment in school for youth exiting detention is
sometimes challenging. Some schools place obstacles to reenrollment for formerly incarcerated
youth because these youth are considered difficult to manage. In the absence of federal policy
43

RICHARD E. REDDING, U.S. DEPT. OF JUST., OFFICE OF JUV. JUST. AND DELINQ. PREVENTION, JUVENILE TRANSFER LAWS: AN EFFECTIVE

DETERRENT TO DELINQUENCY? (2008), available at: http://www.ncjrs.gov/pdffiles1/ojjdp/220595.pdf.

44

Human Rights Watch, State distribution of youth offenders serving juvenile life without parole, supra note 7.
H. Snyder, An Empirical Analysis of the Youth Reentry Population 2(1) YOUTH VIOLENCE AND JUV. JUST. 39-55 (2004).
46
C. ROY-STEVENS, U.S. DEPT. OF JUST., OFFICE OF JUV. JUST. AND DELINQ. PREVENTION, OVERCOMING BARRIERS TO SCHOOL
REENTRY (2004).
45

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disallowing it, states have enacted laws that create clear obstacles for youth attempting to re-enroll
in high school upon reentry.
As discussed above, youth in the justice system often have serious health and mental health
needs. Prior to their incarceration many youth have access to health services through Medicaid or
the State Children’s Health Insurance Program (SCHIP), but youth are terminated from these
services upon entering a secure detention or correctional facility. These youth are forced to reapply
for benefits upon their release, a process which may take up to 90 days to complete. 47 This delay
seriously threatens successful reintegration to the community, and often results in long delays in
obtaining vital treatment, medication, and services at a time when they are most needed. Gaps in
services significantly increase the risk of reoffending and recommitment to an institution.48
RECOMMENDATIONS
1. Restore the Federal Leadership Role in Juvenile Justice Policy
A. Federal Abdication of Responsibility for Juvenile Justice

The Office of Juvenile Justice and Delinquency Prevention (OJJDP) is the federal agency
responsible for juvenile justice and delinquency prevention issues, and is tasked with assisting state
and local governments in addressing juvenile delinquency. Over the past decade, OJJDP suffered a
drastic depletion of funding and support, and the agency’s commitment to the most important
issues confronting youth steadily waned.49 Making matters worse, the Juvenile Justice and
Delinquency Prevention Act (JJDPA) is long overdue for reauthorization.
B. Meeting Federal Juvenile Justice Obligations

Legislative
Congress should reauthorize the Juvenile Justice and Delinquency Prevention Act (JDDP).
Congress should use the reauthorization of the JJDPA as an opportunity to restore the federal
government’s leadership role on these issues, and ensure that states have the necessary guidance
and resources to create and sustain cost-effective juvenile systems that both enhance public safety
and treat court-involved youth age appropriately. Congress should pass a JJDPA reauthorization bill
47

C. Brown, Jailing the Mentally Ill, 44(4) ST. GOV’T NEWS 28 (2001); S. EIKEN & S. GALANTOWICZ, U.S. DEPT. OF HUMAN
SERVICES, CENTERS FOR EDICARE AND MEDICAID SERVICES, DISABLED AND ELDERLY HEALTH PROGRAM DIVISION, IMPROVING MEDICAID
ACCESS FOR PEOPLE EXPERIENCING CHRONIC HOMELESSNESS: STATE EXAMPLE (2004).
48
BAZELON CENTER FOR MENTAL HEALTH LAW, CREATING NEW OPTIONS: TRAINING FOR CORRECTIONS ADMINISTRATORS AND STAFF ON
ACCESS TO FEDERAL BENEFITS FOR PEOPLE WITH MENTAL ILLNESS LEAVING JAIL OR PRISON (2007), available at:
http://www.bazelon.org/LinkClick.aspx?fileticket=b7UagW8enCw%3D&tabid=104.
49
For more information, see Hearing on the Department of Justice, Office of Justice Programs Oversight Before the
th
H. Comm on the Judiciary Subcomm. on Crime Terrorism and Homeland Security, 100 Cong. (2008) (statement of
Shay Bilchik, former OJJDP Administrator), available at http://judiciary.house.gov/hearings/pdf/Bilchik080918.pdf.

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that will:

• Extend the jail removal and sight and sound separation core protections to all youth under the
age of 18 held pre-trial, whether charged in juvenile or adult court;

• Modify the definition of “adult inmate,” and thereby codify current state flexibility for housing
youth convicted in adult court in juvenile facilities rather than adult prisons;

• Strengthen the Disproportionate Minority Contact (DMC) core protection by requiring states to
take concrete steps to reduce racial and ethnic disparities in the juvenile justice system. The
JJDPA’s currently requirement that states “address” DMC with the juvenile justice system is
vague and lacks clear guidance on how to reduce racial and ethnic disparities. By strengthening
the DMC core protection, Congress would allow states to: (i) establish coordinating bodies to
oversee efforts to reduce disparities; (ii) identify key decision points in the system and the
criteria by which decisions are made; (iii) create systems to collect local data at every point of
contact youth have with the juvenile justice system (disaggregated by descriptors such as race,
ethnicity and offense) to identify where disparities exist and the causes of those disparities; (iv)
develop and implement plans to address disparities that include measurable objectives for
change; (v) publicly report findings; and (vi) evaluate progress toward reducing disparities.

• Strengthen the Deinstitutionalization of Status Offenders (DSO) core protection, which prohibits
the locked detention of status offenders, by removing the Valid Court Order (VCO) and
Interstate Compact exceptions;

• Provide safe and humane conditions of confinement for youth in state and local custody by
restricting the use of JJDPA funds for dangerous practices, thereby encouraging states to adopt
best practices for confinement;

• Provide a research-based continuum of mental health and substance abuse services to meet
unmet needs of court-involved youth and their families, including diversion and reentry
services;

• Assist states in complying with JJDPA, and establish Incentive Grants to encourage states to
adopt evidence-based or promising best practices that improve outcomes for youth and their
communities. For states out of compliance with any of the core requirements, Congress should
require that JJDPA funds that would have been withheld for non-compliance be used as
improvement grants to bring states into compliance;

• Enhance the partnership between states and OJJDP by expanding training, technical assistance,
research, and evaluations. Enhance the partnership between OJJDP and Congress by
encouraging transparency, timeliness, public notice, and communication;

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• Incentivize juvenile justice systems to ensure that all policies, practices, and programs recognize
the unique needs of girls by: (i) adding an accountability mechanism for states to meet the
needs of female offenders; (ii) ensuring expertise about girls on state advisory groups by
increasing research and information dissemination; and (iii) providing direct funding to genderspecific prevention and treatment programs under Title V Delinquency Prevention grants.
Congress should also restore and increase funding for JJDPA. Successful support of state
efforts to reduce juvenile delinquency and protect youth in the system requires adequate federal
assistance. Federal appropriations for key federal juvenile justice programs have suffered in the last
decade. Congress should restore federal investments in state and local juvenile justice reform
efforts to their FY 2002 levels, adjusted for inflation, and increase these investments over the next
five years.
Executive
The Administration must move quickly to appoint an experienced and competent OJJDP
Administrator. The OJJDP has been without permanent leadership since 2008. Strong, new leadership
will provide the voice and commitment necessary to move important system reforms forward.
The Administration should also encourage Congress to fully fund the OJJDP. The
Administration must request and advocate for sufficient appropriations for OJJDP and the juvenile
justice programs it administers. The Administration’s budget should restore juvenile justice funding
to their FY 2002 levels, adjusted for inflation, and increase these investments over the next five
years.
The time is ripe for OJJDP, as a national leader with access to and command of national
resources, to restore and increase funding for research driven reforms. With increased funding,
OJJDP could focus on identifying, developing and promoting what works to reduce delinquency and
to advance youth, family and community success. OJJDP should continue to support Blueprints for
Violence Prevention and other research to evaluate the evidence base for other promising
programs; support increased research to find new evidence-based programs that work; and
discontinue federal funding for programs that are ineffective, such as boot camps and Scared
Straight programs.
The Department of Justice (DOJ) should strengthen partnerships between OJJDP and the
states. The partnership between states and OJJDP should be strengthened by expanding training,
technical assistance, research, and evaluation. Further, there should be greater transparency and
accountability by making state plans and reports on compliance with the core protections publicly
available on the OJJDP website. The OJJDP Administrator should be required to investigate and
make a public report available when a state is out of compliance with any of the core protections.
OJJDP should increase family and youth involvement in policy decisions. Consistent with its
2011 Program Plan, OJJDP should continue to maintain an intentional focus on increasing family

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and youth involvement in all its program planning and grant making activities. At a minimum, these
activities should include focus groups to hear the concerns of families, information and resources
online to assist families understand and navigate the justice system, and funding of parent
resource, support, and training centers to provide direct services to families.
DOJ should also strengthen OJJDP reporting requirements. Few states and localities are
able to achieve meaningful changes in their juvenile justice systems without adequate data,
particularly data disaggregated by race and ethnicity, so communities are able to develop culturally
and linguistically appropriate services for youth and their families. OJJDP should further its existing
efforts by solidifying the requirement that states report disaggregated race and ethnicity data to
OJJDP through policy guidance or regulations. Data on youth prosecuted in the adult criminal
justice system via judicial, statutory, or prosecutorial waiver mechanisms, and age of jurisdiction
laws are also lacking. The Administration has made progress on collecting this information at the
federal level by funding the Survey of Juveniles Charged in Criminal Courts through the Bureau of
Justice Statistics. The Administration should further its efforts by assisting states in collecting these
data at the state and local levels to track and evaluate the impact of prosecuting youth as adults.
Finally, there must be better data collection on the consequences of school discipline (e.g., in- and
out-of school suspensions, expulsions, instances of corporal punishment, referrals to disciplinary
alternative schools and court referrals). The Administration should require that measures of school
discipline and climate are used in assessments of school success as part of the Elementary and
Secondary Education Act. Signs of poor school climate, high disciplinary rates and subgroup
disparities in particular, should trigger required assistance and support from local, state and federal
educational agencies.
The Administration should increase involvement of the Federal Coordinating Council on
Juvenile Justice Commissioners. The Federal Coordinating Council on Juvenile Justice and
Delinquency Prevention (the Council) plays an important role in ensuring that all federal agencies
effectively serve youth at risk of entering the system, youth in the system and youth transitioning
back into their community. As members of this Council, the agency directors should personally
attend these meetings to assess the effectiveness of current programming, and determine where
systems and agency practices can be improved. The Council should regularly hold “listening
sessions” to hear directly from current or formerly court-involved youth and their families. Further,
the Council should be expanded to include two new positions for family members and youth who
have been directly affected by the justice system.
2. Prevent Crime and Divert Youth from the Justice System
A. Overincarceration and Non-treatment of Vulnerable Youth
Misguided policies that purport to be “tough on crime” increase incarceration rates,
disproportionately impact poor youth and youth of color, exacerbate gang-related crime, funnel a
disproportionate number of youth who have a cognizable mental health and/or substance abuse

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disorder into the justice system, and often make our communities vulnerable to crime. Research
from top scholars in a variety of fields including economics, educational psychology, and public
health reveals that public dollars spent on effective prevention and education programs are far
more effective at reducing crime than broadening prosecutorial powers or stiffening criminal
penalties for young people.50
B. Reduce Youth Crime and Incarceration
Legislative
In addition to reauthorizing and adequately funding the JJDPA, as discussed above, Congress
should take the following steps to reduce the number of children in the justice system.
Congress should pass the Youth Prison Reduction through Opportunities, Mentoring,
Intervention, Support, and Education (PROMISE) Act51 to implement and fund evidence-based
practices to prevent delinquency and gang involvement. Under the Act, local communities form
PROMISE councils with representatives from schools, social services, health and mental health
providers, community-based and faith-based organizations, court services, and law enforcement.
Each council assesses the community’s needs and strengths, evaluates current funding priorities –
including local jail and prison expenditures – and then develops a comprehensive plan for
implementing evidence-based and promising prevention and intervention strategies.
Congress should create incentives, such as grants administered by the Department of
Justice, and requirements that would meet the needs of particularly vulnerable youth, including
youth with disabilities and LGBT youth involved in the justice system. Juvenile justice agencies are
ill-equipped to manage the mental health and substance abuse needs of youth effectively.
Congress should work to address the barriers to service identified by juvenile justice agencies,
including: insufficient resources, inadequate administrative capacity, lack of appropriate staffing,
and lack of training for staff.52 Also, Congress should pass federal protections against discrimination
in juvenile justice systems based on actual or perceived sexual orientation or gender identity.
Congress should also create incentives for states to reduce the inappropriate detention of
youth with mental health disabilities. Congress should encourage states to : (i) identify vulnerable
youth through consistent use of screening and assessments; (ii) divert youth with mental health
disorders from detention and incarceration into home- and community-based treatment; (iii) make
50

In recent years, a range of organizations have commissioned or conducted related research and reached similar
conclusions, including the American Psychological Association, the Washington State Institute for Public Policy, the
Social Development Research Group of Seattle, Washington, and the Office of Juvenile Justice and Delinquency
Prevention. For more information, see
http://chhi.podconsulting.com/assets/documents/publications/NO MORE CHILDREN LEFT BEHIND.pdf
51
H.R. 1064, 111th Cong. (2009); S.435, 111th Cong. (2009).
52
Federal Advisory Committee on Juvenile Justice, Annual Report (2006), available at
http://www.ncjrs.gov/pdffiles1/ojjdp/218367.pdf

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training and technical assistance available for law enforcement officers, judges, probation officers,
and other decision makers; and (iv) require individualized discharge plans to link youth to
appropriate aftercare services, including mental health and substance abuse services and supports
for the youth and his/her family.
Congress should pass the RAISE UP Act (Reengaging Americans in Serious Education by
Uniting Programs)53, which challenges every high school dropout to attain a high school diploma, a
postsecondary credential, and a family supporting career – and provides them with the support to
succeed.
Executive
OJJDP should do more to support community-based alternatives to incarceration. OJJDP
has a vital role to play in helping states and localities prevent and reduce the use of out of home
placements. For example, the Annie E. Casey Foundation’s Juvenile Detention Alternatives Initiative
(JDAI)54, which is aimed at reducing pre-adjudication detention through a variety of tools and
principles, such as objective risk assessment tools, has been replicated in more than 100
jurisdictions across the country. OJJDP has begun to partner with the Annie E. Casey Foundation to
replicate JDAI in additional jurisdictions and should continue to use its discretionary budget to
support efforts to reduce the use of incarceration and other residential facilities.
The Administration should grant technical assistance to improve school safety and reduce
exclusionary disciplinary practices through. To this end, the Administration should provide schools
with training and technical assistance on the use of alternatives to suspension and expulsion, family
and tutoring supports, social and emotional learning, positive youth development programming,
bullying prevention, threat assessment, positive behavior supports, and restorative justice
practices.
OJJDP, in coordination with the Substance Abuse and Mental Health Services
Administration, should conduct a major study regarding the prevalence of mental health and
substance abuse disorders among juvenile justice populations served by all states and territories.
Additionally, OJJDP should increase training and technical assistance related to mental health and
substance abuse, including best practices for law enforcement and probation officers,
detention/corrections and community corrections personnel, and court services personnel.
The Administration should promote LGBT cultural competence in Safe Schools/Healthy
Students (SS/HS)55, a program widely recognized as a model for achieving effective collaboration
53

th

H.R. 3982, 111 Cong. (2009).
See Annie E. Casey Foundation, Juvenile Detention Alternatives Initiative,
http://www.aecf.org/MajorInitiatives/JuvenileDetentionAlternativesInitiative.aspx (last visited Jan. 17, 2011).
55
Substance Abuse and Mental Health Services, Safe Schools/ Healthy Students, http://www.sshs.samhsa.gov/
(last visited Jan. 17, 2011).
54

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across public education, local mental health, and the juvenile justice system. SS/HS evaluations
should reflect efforts to meet the needs of LGBT students, including decreasing the rate of arrest
and referral to the juvenile court of LGBT youth.
3. Keep Court-Involved Youth Safe
A. Dangerous Conditions in the Juvenile Justice System.
The JJDPA and other relevant legislation do not address abusive conditions and practices, as
well as other age-inappropriate settings in juvenile facilities. To address the recent and welldocumented abuses in juvenile facilities nationwide, juvenile justice facility staff need to be trained
on effective behavior-management techniques to respond to dangerous or threatening situations.
Additionally, PLRA keeps countless use from addressing these conditions and other constitutional
violations in court.
B. Ensure Safe Conditions for Youth
Legislative
Congress should remove the VCO and Interstate Compact exceptions from the DSO
provision of the JJDPA. This will ensure that status offenders are served in more appropriate
settings, and will allow the juvenile justice system to focus on youth charged with delinquent
offenses.
Congress should work to improve conditions of confinement for youth in juvenile facilities.
Congress should restrict the use of federal funds for the most dangerous practices such as hogtying, fixed restraints, psychotropic medications, and pepper spray, which create an unreasonable
risk of physical injury, pain, or psychological harm. Congress should also fund training and technical
assistance to help jurisdictions reduce unnecessary use of isolation and restraint, require increased
collection of data on isolation and restraint, and allow states to use JJDPA funds to develop
independent monitoring bodies (e.g, creating ombudsmen programs, creating family monitoring
panels, or partnering with Protection and Advocacy organizations) and to institute programs to
reduce unnecessary isolation and restraint.
Congress should pass the Family Justice Act56. The Family Justice Act of 2010 would provide
grants to non-profits to establish monitoring panels that involve youth, families, and other
community members in developing better policies and practices to protect youth, support their
rehabilitation and reduce recidivism. This would increase both oversight of and family engagement
with juvenile justice systems.

56

th

H.R. 6361, 111 Cong. (2010).

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Congress should also ensure that Prison Rape Elimination Act of 2003 (PREA)57
implementation addresses the needs of detained youth. PREA was passed in recognition of the
serious crisis of rampant sexual abuse in corrections and detention facilities nationwide. Youth are
especially vulnerable to this abuse, but the bulk of attention and resources devoted to PREA have
focused on adult prisons and jails. PREA appropriations have never reached the levels approved by
Congress when the law passed. As a result of limited funding, the state grant program – a key
component in the statute – has been defunct since FY2006, and focused on state prison systems.
Congress should provide sufficient appropriations to implement PREA, including funds dedicated to
reducing the sexual abuse of youth in all types of facilities and in community corrections.
Congress should amend the PLRA to define ‘prisoner’ as an adult, and exclude youth from
the law’s application. Also, Congress should amend Title I of the Adam Walsh Child Protection and
Safety Act of 2006 – the Sex Offender Registration and Notification Act (SORNA)58 – to exclude
youth adjudicated for certain sex-based offenses within the juvenile court from mandatory
registration on a public offender registration.
Executive
DOJ should enact and enforce national standards protecting youth from sexual abuse. In
accordance with PREA, which required the Attorney General to ratify binding national standards
addressing sexual abuse in detention within one year from receiving the June 2009 recommended
standards from the bipartisan National Prison Rape Elimination Commission (NPREC), the Attorney
General should ratify binding standards. The standards enacted by the Attorney General should
ensure that:

57
58

•

Responsible, professional adults trained in adolescent behavior and development provide
continuous, direct supervision of youth, and do not rely on video surveillance;

•

The Adult and Lockup Standards prohibits holding youth in adult facilities to protect youth
from sexual abuse and dangers associated with isolation;

•

Youth are protected from harmful cross-gender interactions, recognizing that a large
percentage of sexual abuse of young people in facilities is perpetrated by staff members of
the opposite sex. The standards should prohibit one-on-one cross-gender supervision and
provide additional guidance on how these prohibitions apply to transgender residents;

•

Specific guidance is available on how to use individual safety plans to keep vulnerable youth
safe without resorting to blanket policies for certain groups, such as LGBT youth;

45 U.S.C. §15601.
42 U.S.C. §16913.

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•

The Juvenile Standards do not treat voluntary consensual sexual activity as sexual abuse,
even if facilities prohibit voluntary consensual sexual activity among residents by rule.
Conflating abuse and voluntary consensual sexual activity often leads to overly harsh
responses that misuse limited resources and have a disproportionately negative impact on
certain groups, such as LGBT youth;

•

The Juvenile Standards include a clear statement of the dangers associated with isolation in
order to reinforce a facility’s responsibility to keep children safe without resorting to that
practice. Additionally, youth who engage in sexual abuse should not be subjected to
prolonged disciplinary isolation as punishment for that behavior;

•

Employees, volunteers, and contractors working in all facilities that house youth receive
training on adolescent development, the prevalence of trauma and abuse, mandatory
reporting requirements, and the agency’s zero tolerance policy on sexual abuse of
incarcerated persons;

•

The caretaking relationship between medical and mental health professionals and youth is
preserved, by eliminating inquiries into prior offending behavior and obtaining informed
consent before sharing sensitive information;

•

Medical and mental health programs engage in quality assurance activities, including
monitoring with the standards;

•

Access to prophylactic HIV treatment and emergency contraception and pregnancy-related
services is available;

•

Limited English Proficient (LEP) children not only understand sexual misconduct policies and
reporting procedures, but are also able to communicate with staff during other important
phases, including investigation, medical and mental health care, and other supportive
services; and

•

Agencies only hire, retain, and promote staff members who are qualified by experience,
education, and background to protect children by considering information from civil
protection orders and annual criminal background checks.

The Attorney General should move quickly to ratify the standards after addressing the
unique concerns and development needs of youth in juvenile and adult facilities. DOJ must ensure
that agencies comply with these standards, including by providing the needed training and technical
assistance.
OJJDP should work to improve the conditions of incarceration for youth. In recognition of
its national role in ensuring that incarcerated youth are held in safe conditions, OJJDP recently

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initiated a new Center on Youth in Custody. This new entity should have an advisory board that
includes youth and family voices. This new entity should also make best practices and standards
available nationwide, and help states to provide necessary training for facility staff to adopt best
practices in programming, behavior management, and security while eliminating dangerous
practices and unnecessary isolation. In conjunction with this new effort, OJJDP should also
encourage states to establish community advisory boards or other independent monitoring
structures to monitor conditions in juvenile facilities and support their improvement.
DOJ should encourage states to keep youth off public sex offender registries. In the absence
of Congressional action on SORNA, the Attorney General should refrain from promulgating policies
or promoting practices that unnecessarily stigmatize youth. The Attorney General should maintain
a policy that allows states to exercise discretion in establishing or maintaining a separate juvenile
registry that is accessible to the relevant authorities but not the general public, and allow for the
courts or designated agency to determine whether community notification is required.
4. Remove Youth from the Adult Criminal Justice System
A. Youth Tried, Sentenced, and/or Incarcerated as Adults
An estimated 200,000 youth are tried, sentenced, or incarcerated in the adult criminal
justice system every year across the United States.59 Trying youth as adults is bad for public safety
and for youth. Youth incarcerated in the adult system are more likely to reoffend, are at greater
risk of sexual abuse and suicide, and more likely suffer lifelong employment and education
consequences than similarly situated youth who are retained in the juvenile system.
B. Treat Youth as Youth
Legislative
Congress should extend JJDPA protections to keep youth out of adult facilities and extend
the jail removal and sight and sound protections of the Act to all youth, regardless of whether they
are awaiting trial in juvenile or adult court. In the limited exceptions allowed under the JJDPA
where youth can be held in adult facilities, they should have no sight or sound contact with adult
inmates. Congress should also revise the definition of “adult inmate” to codify the recent guidance
issued by OJJDP by excluding youth who, at the time of the offense, are under the age of 18 and are
below the maximum age for youth held at a juvenile facility under state law.
Congress should raise the age of juvenile court jurisdiction. In accordance with the
recommendations of the Federal Advisory Council on Juvenile Justice and Coordinating Council,
Congress should both encourage states to set the age of adulthood to 18 at the time of the
59

J. Woolard, Juveniles within adult correctional settings: legal pathways and developmental considerations, supra
note 3; COALITION FOR JUVENILE JUSTICE, CHILDHOOD ON TRIAL, supra note 3.

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commission of the crime and to provide financial incentives for states to do so. Further, Congress
should encourage states to raise the extended age of juvenile court jurisdiction to at least the age
of 21.
Congress should end the practice of sentencing youth tried and convicted in federal court to
life without parole, and instead require review after ten years for any person incarcerated in federal
prison for a crime committed when they were under the age of 18. Just this past year, in Graham v.
Florida60 the United States Supreme Court reiterated that youth are fundamentally different than
adults by declaring it unconstitutional to sentence youth to life without parole for a non-homicide
crime. Although we know that young people have a greater capacity to be rehabilitated, the United
States alone continues to sentence youth to die in prison.
Executive
In accordance with PREA, the Attorney General must enact standards to protect youth from
sexual abuse. In light of the overwhelming evidence that youth cannot be kept safe in adult
facilities and the research demonstrating that keeping youth in adult facilities is harmful to the
youth and to public safety, these PREA standards should be modified to require removal of youth
from adult jails and prisons altogether. This change would be consistent with existing laws and
policies used by the Federal Bureau of Prisons that prohibit the placement of youth in adult jails and
prisons in federal custody.
DOJ should help states remove youth from adult facilities. Roughly one in four incarcerated
youth are held in adult jails or prisons instead of juvenile facilities. Several jurisdictions including
Virginia, Colorado, and Multnomah County, Oregon have recently changed their state laws to allow
youth tried in the adult system to be housed in juvenile facilities. OJJDP should fund a
demonstration program to help these jurisdictions remove youth from adult jails and prisons.
5. Reentry of Youth into their Communities
A. Lack of Reentry and Treatment Assistance for Youth
Approximately 100,000 young people under age 18 leave secure juvenile facilities and
return to their communities each year.61 Youth are often discharged from care back to families
struggling with domestic violence, drug and alcohol abuse, and unresolved mental health
disabilities. Many youth are placed back into neighborhoods with few youth support programs,
high crime rates, poverty, and poor performing schools. Public safety is compromised when youth
leaving out-of-home placement are not afforded necessary supportive services, including access to
education and physical and mental health care, upon reentering their communities and are
therefore at great risk to recidivate into delinquency.
60
61

Graham v. Florida, 130 S. Ct. 2011.
H. Snyder, supra note 44 at 39-55.

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B. Provide Support for Youth After Incarceration
Legislative
Congress should increase its focus on youth in the reauthorization of the Second Chance Act
by increasing funding dedicated to youth.62 Federal commitment to improving reentry is evident in
the passage of the Second Chance Act in 2008, which authorized $165 million in federal spending on
reentry, including competitive grants to government agencies and nonprofit organizations to
provide employment assistance, substance abuse treatment, housing, family services, mentoring,
victims support, and other services that help reduce recidivism. While the Second Chance Act is a
vehicle for improved reentry programs and services, its focus on young people must be
strengthened.
Congress should work to improve the education of incarcerated youth. Congress should use
the Elementary and Secondary Education Act of 1965 (ESEA)63 reauthorization as an opportunity to
begin addressing some of the education barriers that returning youth face. Specifically, Congress
should support the inclusion of incentives for jurisdictions to appropriately handle the educational
needs of these vulnerable youth.64
Congress should suspend and/or restore Medicaid and other health benefits for
incarcerated youth. Congress should end the practice of terminating Medicaid, and State Children’s
Health Insurance Program (SCHIP) coverage for youth who enter secure detention or correctional
facilities. Instead, the law should be amended to only suspend coverage so that it can be
immediately reinstated upon exit from the facility.
Executive
The Administration should ask Congress to increase funding for youth reentry by requesting
that funding be specifically allocated for youth under the Second Chance Act. In addition, all youthserving federal agencies, including the U.S. Departments of Labor, Education, and Health and
Human Services, should work together to educate states and localities on the availability of federal
funds that support youth reentry.
DOJ should increase federal coordination on youth reentry. The Attorney General should
oversee and coordinate youth reentry issues with other reentry programming administered by
62

For more information, see The Sentencing Project and National Network for Youth, Memo to Senate and House
Judiciary Committee Staff from Robert F. Kennedy Juvenile Justice Collaborative,
http://www.ceanational.org/phorum/file.php?9,file=126,filename=Juv.Second_Chance_Act.doc. (last visited Jan.
20, 2011).
63
20 U.S.C. § 6301 et. seq.
64
For more information on the educational barriers that youth face upon exit from secure placement, see J.
Feierman et al, The School to Prison Pipeline…and Back: Obstacles and Remedies for the Re-enrollment of
Adjudicated Youth, 54 N.Y.L. SCH. L. REV. 1115 (2009).

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other federal agencies through DOJ’s new Inter-agency Reentry Working Group, announced by
Attorney General Holder in July 2010. The Inter-agency Reentry Working Group also should
coordinate its work on youth reentry with DOJ’s Federal Coordinating Council on Juvenile Justice
and Delinquency Prevention Subcommittees on Youth Reentry and Education.
The Administration should promote a continuum of education for delinquent youth. The
Administration should incentivize state departments of education to focus on vulnerable school
populations to ensure youth experience no interruptions in their education during out-of-home
placement, and are assisted with reenrollment in school upon exit from placement. The
Administration should also call for the inclusion of an individualized education assessment as a part
of each youth’s reentry planning.
The Administration should actively educate states and support efforts to suspend, rather
than terminate, Medicaid or other health coverage for incarcerated youth.

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APPENDICES
Experts
Nick Alexander, Federal Policy Director, Fight Crime Invest in Kids
(http://www.fightcrime.org/state/usa/staff-list).
Tara Andrews, Deputy Executive Director, Policy and Programs, Coalition for Juvenile Justice
(http://www.juvjustice.org/about_staff.html).
Neelum Arya, Research and Policy Director, Campaign for Youth Justice
(http://www.ncai.org/ncai/events2008/Neelum_Arya_Bio.pdf).
Jennifer Bellamy, Criminal Justice Legislative Counsel, ACLU - Washington Legislative Office
(http://www.aclu.org/racial-justice_prisoners-rights_drug-law-reform_immigrantsrights/human-rights-justice-advocate-jenn).
Sarah Bryer, Director, National Juvenile Justice Network,
(http://www.njjn.org/about_staff.html).
Jennifer Collier, Federal Policy Consultant, Robert F. Kennedy Juvenile Justice Collaborative
(jennycollierjd @ yahoo.com)
Corryne Deliberto, Domestic Policy Advisor, World Vision, International
(http://www.worldvision.org/content.nsf/6d1210430917461d8825735a007e2f2b/pressbio-corryne-deliberto).
Nancy Gannon Hornberger, Executive Director, Coalition for Juvenile Justice
(http://www.juvjustice.org/about_staff.html)
Micah Haskell-Hoehl, Senior Policy Associate, Public Interest Government Relations Office,
American Psychological Association (http://www.apa.org/about/gr/contact.aspx)
Jody Kent, Director, Campaign for Fair Sentencing of Youth,
(http://www.endjlwop.org/home/staff-andadvisory-committee/jody-kent-director-andnational-coordinator/)
Phyllis Lawrence, Consultant in Victim Services, Restorative Justice and Sentencing
(phyllislaw @ comcast.net)

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Ashley Nellis,, Research Analyst, The Sentencing Project
(http://www.sentencingproject.org/detail/person.cfm?person_id=16&backto=63&backtype
=Staff)
Melissa Rothstein, Senior Program Director, Just Detention International
(http://www.justdetention.org/en/staff.aspx#MelissaRothstein)
Liz Ryan, Chief Executive Officer, Campaign for Youth Justice
(http://www.campaignforyouthjustice.org/contact-us.html)
Dana Shoenberg , Deputy Director, Center for Children's Law and Policy
(http://www.cclp.org/Shoenberg.php)
Tracy Velazquez, Executive Director, Justice Policy Institute
(http://www.justicepolicy.org/content-hmID=1810&smID=1544.htm#TV)
Further Resources
CHARLES PUZZANCHERA, U.S. DEPT. OF JUST., OFFICE OF JUV. JUST. AND DELINQ. PREVENTION, JUVENILE
ARRESTS, 2008, (2009), available at http://www.ncjrs.gov/pdffiles1/ojjdp/228479.pdf.
CRYSTAL KNOLL & MELISSA SICKMUND, U.S. DEPT. OF JUST., OFFICE OF JUV. JUST. AND DELINQ. PREVENTION,
DELINQUENCY CASES IN JUVENILE COURT, 2007 (2010), available at
http://ncjrs.gov/pdffiles1/ojjdp/230168.pdf.
J. Woolard, Juveniles within adult correctional settings: legal pathways and developmental
considerations, 4 INT’L J. OF FORENSIC MENTAL HEALTH. 18 (2005); COALITION FOR JUVENILE JUSTICE,
CHILDHOOD ON TRIAL: THE FAILURE OF TRYING AND SENTENCING YOUTH IN ADULT CRIMINAL COURT (2005).
MELISSA SICKMUND, JUVENILES IN RESIDENTIAL PLACEMENT, 1997-20008, U.S. DEPT. OF JUST., OFFICE OF
JUV. JUST. AND DELINQ. PREVENTION ( 2010), available at
http://www.ncjrs.gov/pdffiles1/ojjdp/229379.pdf.
Campaign for Youth Justice, Jailing Juveniles, http://www.campaignforyouthjustice.org/keyresearch/national-reports.html#jailingjuveniles (last visited Jan. 17, 2011).
A.J. BECK ET. AL., U.S. DEPT. OF JUST., BUREAU OF JUST. STAT., SEXUAL VICTIMIZATION IN JUVENILE FACILITIES
REPORTED BY YOUTH, 2008-09 (2010).
Human Rights Watch, State distribution of youth offenders serving juvenile life without
parole, available at: http://www.hrw.org/en/news/2009/10/02/state-distribution-juvenileoffenders-serving-juvenile-life-without-parole (last visited Jan. 17, 2011).

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COALITION FOR JUVENILE JUSTICE, UNLOCKING THE FUTURE OF JUVENILE JUSTICE: A POLICY AGENDA FOR THE
111TH CONGRESS (2009), available at
http://www.juvjustice.org/media/resources/public/resource_240.pdf .
ANNIE E. CASEY FOUNDATION, JUVENILE DETENTION ALTERNATIVES INITIATIVE, DETENTION REFORM BRIEF 1:
DETENTION REFORM: A COST-SAVING APPROACH (2007), available at
http://www.aecf.org/upload/PublicationFiles/jdai_facts1.pdf.
Mark A. Cohen & Alex R. Piquero, New Evidence on the Monetary Value of Saving a High
Risk Youth, (Vanderbilt Law and Economics Research Paper No. 08-07, 2007), available at
http://ssrn.com/abstract=1077214.
ALEX PIQUERO & LAURENCE STEINBERG, MODELS FOR CHANGE, SYSTEMS REFORM IN JUVENILE JUSTICE,
REHABILITATION VERSUS INCARCERATION OF JUVENILE OFFENDERS: PUBLIC PREFERENCES IN FOUR MODELS FOR
CHANGE STATES (2007), available at http://www.modelsforchange.net/publications/186
CENTER ON CHILDREN’S LAW AND POLICY, POTENTIAL FOR CHANGE: PUBLIC ATTITUDES AND POLICY
PREFERENCES FOR JUVENILE JUSTICE SYSTEMS REFORM, MODELS FOR CHANGE, SYSTEMS REFORM IN JUVENILE
JUSTICE (2007), available at http://www.modelsforchange.net/publications/121.
JOSEPH CONCOZZA, J. ET AL, ADDRESSING THE MENTAL HEALTH NEEDS OF YOUTH IN CONTACT WITH THE
JUVENILE JUSTICE SYSTEM IN SYSTEM OF CARE COMMUNITIES: AN OVERVIEW AND SUMMARY OF KEY ISSUES
(2010), available at http://www.tapartnership.org/docs/jjResource_overview.pdf.
ANDREA J. SEDLAK, & C. BRUCE, U.S. DEPT. OF JUST., OFFICE OF JUV. JUST. AND DELINQ. PREVENTION,
YOUTH’S CHARACTERISTICS AND BACKGROUNDS (2010).
ANDREW SUM ET. AL, THE CONSEQUENCES OF DROPPING OUT OF HIGH SCHOOL: JOBLESSNESS AND JAILING FOR
HIGH SCHOOL DROPOUTS AND THE HIGH COST FOR TAXPAYERS (2009), available at
http://www.clms.neu.edu/publication/documents/The_Consequences_of_Dropping_Out_o
f_High_School.pdf.
PHILLIP LOVELL & JACQUE MINOW, FIRST FOCUS, RECLAIMING OUR NATION’S YOUTH (2009), available at
http://www.firstfocus.net/sites/default/files/r.2009-8.6.lovell.pdf
American Psychological Association Zero Tolerance Task Force, Are Zero Tolerance Policies
Effective in the Schools? An Evidentiary Review and Recommendations, 63(9) AM. PSYCHOL.,
852-862, available at http://www.apa.org/pubs/info/reports/zero-tolerance.pdf.

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Kathryn E.W. Himmelstein & Hannah Bruckner, Criminal Justice and School Sanctions
against Nonheterosexual Youth: A National Longitudinal Study, PEDIATRICS (2011), available
at http://pediatrics.aappublications.org/cgi/content/abstract/peds.2009-2306v1.
A.J. BECK & P.M. HARRISON, U.S. DEPT. OF JUST., BUREAU OF JUST. STAT., SEXUAL VIOLENCE REPORTED BY
CORRECTIONAL AUTHORITIES, 2005 (2006).
Justice Department Reaches Settlement Regarding Conditions at Two Indiana Juvenile Justice
Facilities, U.S. DEPT. OF JUSTICE, Feb. 8, 2006, available at
http://www.usdoj.gov/opa/pr/2006/February/06_crt_066.html
BARRY HOLMAN & JASON ZIEDENBERG, JUSTICE POLICY INSTITUTE, THE DANGERS OF DETENTION; THE IMPACT
OF INCARCERATING YOUTH IN DETENTION AND OTHER SECURE FACILITIES at 9 (2006), available at
http://www.justicepolicy.org/images/upload/06-11_REP_DangersOfDetention_JJ.pdf.
SUSANNA ZAWACKI, GIRLS INVOLVEMENT IN PENNSYLVANIA’S JUVENILE JUSTICE SYSTEM, PENN. JUV. JUST.
STAT. BULL. (2005).
Michael J. Dale, Lawsuits and Public Policy: The Role of Litigation in Correcting Conditions in
Juvenile Detention Centers, 32 U.S.F. L. Rev. 675, 681-98 (1998).
J. Woolard, Juveniles within adult correctional settings: legal pathways and developmental
considerations, 4 (1) INT’L J. OF FORENSIC MENTAL HEALTH.18 (2005); COALITION FOR JUVENILE JUSTICE,
CHILDHOOD ON TRIAL.
CENTERS FOR DISEASE CONTROL AND PREVENTION, EFFECTS ON VIOLENCE OF LAWS AND POLICIES FACILITATING
THE TRANSFER OF YOUTH FROM THE JUVENILE TO THE ADULT JUSTICE SYSTEM: A REPORT ON
RECOMMENDATIONS OF THE TASK FORCE ON COMMUNITY PREVENTIVE SERVICES (2007), available at
http://www.cdc.gov/mmwr/pdf/rr/rr5609.pdf.
NATIONAL PRISON RAPE ELIMINATION COMMISSION, REPORT (2009), available at
http://www.ncjrs.gov/pdffiles1/226680.pdf.
RICHARD E. REDDING, U.S. DEPT. OF JUST., OFFICE OF JUV. JUST. AND DELINQ. PREVENTION, JUVENILE
TRANSFER LAWS: AN EFFECTIVE DETERRENT TO DELINQUENCY? (2008), available at
http://www.ncjrs.gov/pdffiles1/ojjdp/220595.pdf.
H. Snyder, An Empirical Analysis of the Youth Reentry Population, YOUTH VIOLENCE AND JUV.
JUST. (2004).
C. ROY-STEVENS, U.S. DEPT. OF JUST., OFFICE OF JUV. JUST. AND DELINQ. PREVENTION, OVERCOMING
BARRIERS TO SCHOOL REENTRY (2004).

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C. Brown, Jailing the Mentally Ill, 44(4) ST. GOV’T NEWS 28 (2001); S. EIKEN & S. GALANTOWICZ,
U.S. DEPT. OF HUMAN SERVICES, CENTERS FOR EDICARE AND MEDICAID SERVICES, DISABLED AND ELDERLY
HEALTH PROGRAM DIVISION, IMPROVING MEDICAID ACCESS FOR PEOPLE EXPERIENCING CHRONIC
HOMELESSNESS: STATE EXAMPLE (2004).
BAZELON CENTER FOR MENTAL HEALTH LAW, CREATING NEW OPTIONS: TRAINING FOR CORRECTIONS
ADMINISTRATORS AND STAFF ON ACCESS TO FEDERAL BENEFITS FOR PEOPLE WITH MENTAL ILLNESS LEAVING JAIL
OR PRISON (2007), available at:
http://www.bazelon.org/LinkClick.aspx?fileticket=b7UagW8enCw%3D&tabid=104.
Hearing on the Department of Justice, Office of Justice Programs Oversight Before the H.
Comm on the Judiciary Subcomm. on Crime Terrorism and Homeland Security, 100th Cong.
(2008) (statement of Shay Bilchik, former OJJDP Administrator), available at
http://judiciary.house.gov/hearings/pdf/Bilchik080918.pdf.
J. Feierman et al, The School to Prison Pipeline…and Back: Obstacles and Remedies for the
Re-enrollment of Adjudicated Youth, 54 N.Y.L. SCH. L. REV. 1115 (2009).
Primary Contact
Neelum Arya
Research and Policy Director
Campaign for Youth Justice
1012 14th Street, NW, Suite 610
Washington, DC 20005
202-558-3580
narya@cfyj.org

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CHAPTER 8 CONTRIBUTORS
American Psychological Association (APA)
Micah A. Haskell-Hoehl
750 1st Street, NE
Washington, DC 20002
(202) 336-5500
mhaskell-hoehl@apa.org
Campaign for Fair Sentencing of Youth
Michael Berrios
1630 Connecticut Avenue, NW
Suite 500
Washington, DC 20009
(202) 319-3013
mberrios@endjlwop.org
Allison Conyers
1630 Connecticut Avenue, NW
Suite 500
Washington, DC 20009
(202) 319-3013
aconyers@fairsentencingofyouth.org
Jody Kent
1630 Connecticut Avenue, NW
Suite 500
Washington, DC 20009
(202) 319-3013
jkent@endjlwop.org
Campaign for Youth Justice (CFYJ)
Neelum Arya (Chapter Leader)
1012 14th Street, NW, Suite 610
Washington, DC 20005
(202) 558-3580, ext 13
narya@cfyj.org

Center for Children’s Law and Policy (CCLP)
Dana Shoenberg
1701 K Street, NW, Suite 1100
Washington, DC 20006
(202) 637-0377, ext 107
dshoenberg@cclp.org
Coalition for Juvenile Justice (CJJ)
Tara Andrews
1710 Rhode Island Avenue, NW
10th Floor
Washington, DC 20036
(202) 467-0864, ext 109
andrews@juvjustice.org
Consultant in Victim Services, Restorative
Justice and Sentencing
Phyllis Lawrence
1608 Kenwood Avenue
Alexandria, VA 22302
(703) 868-9320
phyllislaw@comcast.net
Independent Consultant, Innocence Project
Jenny Collier
405 Constitution Avenue NE
Washington, DC 20002
(202) 295-7188
jennycollierjd@yahoo.com
Just Detention International
Melissa Rothstein
1900 L Street, NW, Suite 601
Washington, DC 20036
(202) 506-3333
mrothstein@justdetention.org

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National Juvenile Justice Network (NJJN)
Sarah Bryer
1710 Rhode Island Avenue, NW
10th Floor
Washington, DC 20036
(202) 467-0864, ext 105
bryer@juvjustice.org

CHAPTER 8 – JUVENILE JUSTICE 118
The Sentencing Project
Ashley Nellis
1705 Desales Street, NW, 8th Floor
Washington, DC 20036
(202) 628-0871
anellis@sentencingproject.org

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FEDERAL SENTENCING

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THE ISSUE
Sentencing policies enacted over the past 30 years have turned the United States from the
land of the free into the home of the incarcerated. One in every 31 Americans is either in prison or
jail, on probation or on parole, according to the Pew Center on the States, and there are 2.3 million
people in prison.1 That number represents 25 percent of the world’s prison population and yet the
United States is home to just five percent of the world’s population. 2 This mass incarceration
comes with an extraordinarily high price for both state budgets as well as for families. Financially,
prison budgets have become the fastest growing segment of state budgets, outpacing investments
in education and transportation.3 Socially, families are being torn apart as more and more parents
are behind bars. And, morally, communities are becoming fractured by a criminal justice system
that fails to treat all people alike.
While the high costs to society of incarceration might be tolerable were more effective and
less expensive alternatives to reducing crime not available--but they are. Thirty years of academic
research and real-world experience have demonstrated that incarceration is valuable for removing
the most dangerous, violent individuals from our streets, but counterproductive to efforts to
rehabilitate those who commit less serious offenses before they re-enter society. Community
corrections, treatment and rehabilitation, and other alternatives to prison have proven to be far
more effective at reducing recidivism rates and at less cost to taxpayers.4
Criminal justice reformers from across the ideological spectrum are working together to
promote smarter sentencing solutions. Blue states, like New York, and red states, such as South
Carolina, have led the way by either repealing or significantly reforming their costly and ineffective
mandatory minimum sentencing regimes.5 In 2010, Congress showed that bipartisan sentencing
reform is possible at the federal level, too. An overwhelming majority approved legislation to

1

PEW PUBLIC SAFETY PERFORMANCE PROJECT, ONE IN 100: BEHIND BARS IN AMERICA 2008. (Pew Center on the States
February 2008), available at http://www.pewcenteronthestates.org/uploadedFiles/8015PCTS_Prison08_FINAL_21-1_FORWEB.pdf.
2
Adam Liptak, Inmate Count in U.S. Dwarfs Other Nations’, N.Y. TIMES, Apr. 23, 2008, available at:
http://www.nytimes.com/2008/04/23/us/23prison.html.
3
National Association of State Budget Officers, Expenditure Reports 2005 – 2009, available at :
http://nasbo.org/Publications/StateExpenditureReport/StateExpenditureReportArchives/tabid/107/Default.aspx
(last visted Jan. 24, 2011).
4
See, e.g., Joan Persilia, A Crime Control Rationale for Community Corrections 74 PRISON J. 479 – 496, available at:
http://tpj.sagepub.com/content/75/4/479.abstract.
5
Press release, Families Against Mandatory Minimums, Historic Agreement to Reform Rockefeller Drug Laws (Mar.
27. 2009), available at:
http://www.famm.org/NewsandInformation/PressReleases/HistoricAgreementtoReformRockefellerDrugLaws.aspx
; Prisons Full, Coffers Empty, ECONOMIST (July 22, 2010), available at: http://www.economist.com/node/16636019
(last visited Jan. 24, 2011).

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repeal a mandatory minimum for the first time since the Nixon Administration.6 It also reduced the
infamous 100:1 disparity between crack and powder cocaine sentences.
The new Congress and administration should continue to work together to improve our
federal sentencing system in ways that protect the public, reduce crime rates, and save taxpayers
money. Specifically, Congress should repeal all mandatory minimums or, in the alternative, expand
the federal safety valve, which authorizes judges to avoid imposing a mandatory minimum in
certain circumstances. Moreover, Congress and the administration should expand alternatives to
incarceration in the federal sentencing guidelines. Finally, Congress should act to expand the
Residential Drug Abuse Program (RDAP), provide more good time credit for model prisoners, and
expand the release program for elderly inmates.
HISTORY OF THE PROBLEM
There are two types of federal sentencing laws addressed in this chapter: (1) mandatory
minimum sentencing laws, enacted by Congress, and (2) 18 U.S.C. § 3553(a). A mandatory
minimum sentence is a required minimum term of imprisonment. When it applies, a judge is forced
to impose it, even if the circumstances of the offense or the culpability of the defendant warrant a
lower sentence. In cases where mandatory minimums do not apply, judges are directed by the
sentencing statute, 18 U.S.C. § 3553(a), to impose a sentence “sufficient but no greater than
necessary” to comply with the enumerated purposes of sentencing. Judges are directed to consult
the advisory sentencing guidelines (promulgated by the U.S. Sentencing Commission) as well as
undertake a step-by-step inquiry into such things as the circumstances of the offense and the
history and characteristics of the offender. The resulting sentence is more likely to be a better fit
than the one-size fits all mandatory sentence.
Mandatory minimums were created as part of a larger effort to create more uniform
sentencing. Mandatory minimums first appeared only a few years after Congress created the U.S.
Sentencing Commission (USSC) in 1984.7 This expert body wrote and implemented the Federal
Sentencing Guidelines (Sentencing Guidelines), with the mandate that equally blameworthy
offenders get similar sentences.8 At the same time, the guidelines also gave courts some flexibility
to tailor sentences to fit individuals or special circumstances.9 The discretion exercised by judges
was not extinguished, but simply transferred to prosecutors. Prosecutors now have control over
sentencing through their charging decisions.

6

Molly M. Gill, Correcting Course: Lessons from the 1970 Repeal of Mandatory Minimums, 21 FED. SENT’G REP. 55 2008) available at: http://www.famm.org/Repository/Files/11.FSR.21.1_55-68%5B1%5D.pdf.
7
Pub. L. No. 98-473, 98 Stat. 2017 (codified as amended at 28 U.S.C. § 991 (2007)).
8
See 28 U.S.C. § 991(b)(1)(B) (2007); See also Pub. L. No. 98-473, 98 Stat. 2019 (codified as amended at 28 U.S.C. §
994 (2007)) (describing the Commission’s duties and powers).
9
See, e.g., U.S.S.G. § 5K2.0 (2008) (describing when a sentence may be increased or decreased based on factors
“not adequately taken into consideration by the Sentencing Commission in formulating the guidelines”).

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In the mid-1980s, Congress responded to concerns about crime by adopting mandatory
minimums of five or more years for a variety of drug and gun offenses.10 These were expanded in
following years to apply to a growing number of offenses, including gun offenses, sex crimes,
identity fraud, and some crimes of violence.11 In 1988, they were expanded to include
conspirators.12 Sentence triggers were simple, for example, drug type and weight or presence of a
gun. Some judges found they could not impose appropriate sentences in many cases because such
simplistic factors did not account for culpability and distorted the criminal sentencing process.13
But, their hands were tied by these mandatory minimums. One size fits all penalties have extracted
a heavy economic and social price without providing results.
Mandatory minimum sentencing policies come with billions in direct costs. In 2008,
American taxpayers spent over $5.4 billion on federal prisons,14 a 925 percent increase since 1982.15
This explosion in costs is driven, in part, by the expanded use of prison sentences for drug crimes
and longer sentences required by mandatory minimums. The federal prison population has
increased nearly five-fold since mandatory minimums were enacted in the mid-80s and mandatory
guidelines became law.16 The major cause is the increase in sentence length for drug trafficking
from 23 months17 before mandatory minimums to 83.2 months in 2008.18 About 75 percent of the
increase was due to mandatory minimums and 25 percent due to guideline increases above
mandatory minimums.19 Despite more than 50 years of experimenting with mandatory minimums,
however, backers can point to no conclusive studies that demonstrate any positive impact of

10

Gill, supra note 6, at 59.
Id.
12
Id.
13
For example, the policy body of the federal judiciary expressed its view in testimony by Judge Vincent Broderick
on mandatory minimums in 1993 before the Crime subcommittee of the House Judiciary Committee “I warrant
that there is no single issue affecting the work of the federal courts with respect to which there is such unanimity:
most federal judges . . . whatever their background, believe – and this is predicated on their experience – that
mandatory minimums are the major obstacle to the development of a fair, rational, honest and proportional
federal criminal justice sentencing system.” Federal Mandatory Minimum Sentencing: Hearing Before the
rd
Subcomm. on Crime and Criminal Justice of the H. Comm. of the Judiciary, 103 Cong. 104 (1993) (statement of the
Honorable Vincent L. Broderick, Chair of the Conference Committee on Criminal Law of the Judicial Conference of
the United States), available at http://www.archive.org/stream/federalmandatory00unit#page/n0/mode/2up
14
U.S. DEP’T OF JUST., FY 2009 BUDGET AND PERFORMANCE SUMMARY, FEDERAL PRISON SYSTEM, available at
http://www.usdoj.gov/jmd/2009summary/html/127_bop.htm.
15
BUREAU OF JUST. STAT., U.S. DEP’T OF JUST., JUSTICE EXPENDITURE AND EMPLOYMENT IN THE UNITED STATES,
2003 (2006), at 3, available at http://www.ojp.usdoj.gov/bjs/pub/pdf/jeeus03.pdf.
16
U.S. Bureau of Prisons, A Brief History of the Bureau of Prisons, http://www.bop.gov/about/history.jsp.
17
U.S. SENT’G COMMISSION, FIFTEEN YEARS OF GUIDELINES SENTENCING (2004), at 48, available at
http://www.ussc.gov/15_year/15year.htm *hereinafter FIFTEEN YEAR REVIEW+; U.S. SENT’G COMMISSION,
SUPPLEMENTARY REPORT ON THE INITIAL GUIDELINES AND POLICY STATEMENTS (1987), at 69-70.
18
U.S. SENT’G COMMISSION, 2008 SOURCEBOOK OF FEDERAL SENTENCING STATISTICS (2008), at Table 14,
available at http://www.ussc.gov/ANNRPT/2008/SBTOC08.htm
19
FIFTEEN YEAR REVIEW, supra note 19, at 54.
11

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federal mandatory minimum sentences on the rate at which drugs are being manufactured,
imported, and trafficked throughout the country.20
Furthermore, mandatory minimums aren’t always appropriate. Because courts cannot
tailor these sentences to fit the individual, many people get punishments that are too harsh for the
crimes they committed. For example, drug mandatory minimums are based on only the type and
weight of the drug, which prevents courts from considering other important facts, such as whether
the offender is nonviolent or a drug addict, played a minor role in the crime, or is not dangerous to
the community. Additionally, many mandatory minimum-bearing statutes overlap with state
criminal code provisions, effectively federalizing these crimes. This federalization of crime is
inconsistent with the long-standing principle that law enforcement and crime prevention are largely
state functions.
For the first time in our nation’s history, more than one in 100 adults are imprisoned.21 The
United States now imprisons its citizens at a rate roughly five to eight times higher than the
countries of Western Europe, and twelve times higher than Japan.22 Approximately one-quarter of
all persons imprisoned in the entire world are imprisoned in the United States.23 The federal
sentencing scheme has contributed to these statistics. In the past 25 years since the advent of the
Sentencing Guidelines and the mandatory minimum sentences for drug offenses, the average
federal sentence has roughly tripled in length.
1. Crack Cocaine Sentencing
Until recently, the disparity in sentencing between crack cocaine violations and other
cocaine violations was 100:1. On August 3, 2010, the Fair Sentencing Act (FSA) was signed into law,
reducing the longstanding disparity in cocaine sentencing to 18:1, such that possession with intent
to distribute 28 grams of crack now triggers a five-year mandatory minimum and 280 grams of crack
triggers a 10-year mandatory minimum .24 Although the crack sentencing disparity was not
completely eliminated, the new 18:1 sentencing ratio means relief for about 3000 defendants a
year, a reduction of the typical crack sentence by nearly 30 months and, a savings to the federal
government of $42 million over a five-year period.25
20

All sides in the debate agree that proving causality between longer mandatory sentences and crime rates is
difficult. Yet the burden falls on the proponents of mandatory minimums to provide evidence that they are
working. The proponents have shown none.
21
THE PEW CENTER ON THE STATES, ONE IN 100: BEHIND BARS IN AMERICA 2008 (2008), available at
http://www.pewcenteronthestates.org/uploadedFiles/8015PCTS_Prison08_FINAL_2-1-1_FORWEB.pdf.
22
William Sarbol, et al., Prisoners in 2008, NCJ 228417 (Dec. 2009), available at .
http://bjs.ojp.usdoj.gov/content/pub/pdf/p08.pdf.
23
Roy Walmsley, World Prison Population List. (Eighth Edition), INT’L CENTRE FOR PRISON STUD., SCH. OF L., KING'S
COLLEGE LONDON. http://www.kcl.ac.uk/depsta/law/research/icps/downloads/wppl-8th_41.pdf.
24
Pub. L. No. 111-220, 124 Stat. 2372..
25
CONGRESSIONAL BUDGET OFFICE, COST ESTIMATE: FAIR SENTENCING ACT OF 2010 (2010), available at:
http://www.cbo.gov/ftpdocs/114xx/doc11413/s1789.pdf.

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Under the FSA, the U.S. Sentencing Commission (USSC) was granted emergency authority to
amend the crack sentencing guidelines to ensure that the guidelines are consistent with the new
law.26 The temporary amendment took effect on November 1, 2010, and established the base
offense level at 26 and without retroactive application of the guideline amendment. The USSC will
promulgate its permanent guideline amendment in May 2011. The Commission should act to set its
permanent guidelines for crack at offense levels 24 and 30, rather than 26 and 32, and make the
guideline applicable to persons sentenced for offenses that took place prior to enactment of the
FSA.
Senators Richard Durbin and Patrick Leahy, the lead sponsors of the Senate-passed FSA,
urged that prosecutorial discretion be exercised by the Department of Justice (DOJ) such that the
new sentencing guidelines be applied to all defendants who have not yet been sentenced, including
those whose conduct predates the legislation’s enactment.27 In the words of Senators Durbin and
Leahy, “justice requires that defendants not be sentenced for the next five years under a law that
Congress has determined is unfair.”28 Any other interpretation of the law ensures extensive, costly
federal litigation, and will likely ensure disparate sentencing outcomes in different parts of the
country for many years.
Many federal judges agree with the position taken by Senators Durbin and Leahy. Judges
are starting to apply the FSA to pending cases over the Government’s objection. George H.W. Bush
appointee Judge D. Brock Hornby has held that the FSA’s reduced mandatory minimums apply to
defendants who have not yet been sentenced. In his opinion, Judge Hornby wrote, “what possible
reason could there be to want judges to continue to impose new sentences that are not ‘fair’ over
the next five years while the statute of limitations runs? … I would find it gravely disquieting to
apply hereafter a sentencing penalty that Congress has declared to be unfair.”29 As of January 10,
2011, at least 16 courts had followed Judge Hornby’s lead.30
2. Federal Safety Valve
In recognition of the constraints placed on judges’ ability to impose appropriate sentences
by mandatory minimums, Congress installed a statutory safety valve in 1994, which applies only to

26

Id. § 8.
Letter from Richard Durbin and Patrick Leahy, United States Senators, to Eric Holder, Attorney General of the
United States (November 17, 2010).
28
Id. at 1.
29
United States v. Douglas, 2010 WL 4260221 (D. Me. 2010).
30
See, e.g., United States v. Johnson, No. 6:08-cr-270 (M.D. Fla. 2011); United States v. Cox, No. 3:10-cr-85 (W.D.
Wis. 2011);United States v. Jones, No. 4:10 CR 233 (N.D. Ohio 2011); United States v. English, No. 3:10-cr-53 (S.D.
Iowa 2010). For full list of district court cases applying the ameliorative changes to the Fair Sentencing Act of 2010
to defendants whose conduct occurred before its passage but who had not yet been sentenced, see also
http://www.fd.org/pdf_lib/District%20courts%20applying%20FSA.pdf.
27

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drug mandatory minimums.31 The safety valve directs the court to waive the mandatory minimum
in drug cases if the defendant meets five statutory criteria. The defendant must have: (i) been a
low-level participant, (ii) not used a weapon, (ii) been involved in a violence-free crime, (iv) little or
no criminal history, and (v) told the government the truth about his or her involvement in the
instant and related offenses – the so-called “tell-all” requirement.32 Today, the safety valve is used
to lower the sentences of 25% of all deserving drug defendants otherwise subject to mandatory
minimums of five, 10 or more years.33
3. Sentence Stacking Provisions
Federal law requires judges to impose a mandatory minimum sentence of five, seven or 10
years on defendants who, during and in relation to or in furtherance of a crime of violence or drug
trafficking, possess, brandish, or fire a firearm, respectively.34 This mandatory sentence is imposed
on top of any other sentence in the case. Second and subsequent convictions under the law trigger
a consecutive 25-year mandatory minimum sentence.
Though the 25-year recidivism enhancement appears designed to punish true repeat
offenders -- that is, people convicted and who have served their sentence for using a firearm who
then re-offend – it is also used on true first offenders.35 In 1993, the Supreme Court ruled that the
25-year enhancement applies to defendants convicted of two or more separate instances of
possessing a firearm, even when the defendant sustains the two convictions in the same court
proceeding. Because the sentences are mandatory and consecutive, first offenders who are
convicted in their first appearance in court of possessing a gun three times in violation of § 924(c) will
be sentenced to 55 years. That is five years for the first possession conviction and 25 years each for
the other two incidents. This results in unduly severe sentences that bear no relation to deterring
true recidivists. Perversely, a true recidivist can serve a shorter sentence than a true first offender.
4. Alternative Sentencing
Federal judges currently have little authority to impose sentences other than jail or
incarceration, even when the offense is relatively minor. As a result, while the federal justice system
authorizes probation as an alternative to incarceration, the use of probation has declined since the

31

18 U.S.C. § 3553(f).
Id.
33
U.S. SENT’G COMMISSION, OVERVIEW OF STATUTORY MANDATORY MINIMUM SENTENCING 8, tbl. 4 (July 10, 2009), available
at http://www.ussc.gov/MANMIN/man_min.pdf.
34
18 U.S.C. § 924(c).
35
Recidivists in criminal law are generally only considered such after they have had an opportunity to reflect on
their conduct following apprehension, prosecution and punishment. For example, the recidivist provisions in 18
U.S.C. § 841 only kick in after a conviction has been finalized, as do most other recidivist and two and three strike
provisions in state and federal law.
32

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advent of the Sentencing Guidelines. In 1984, more than 30% of defendants were sentenced to
probation without any term of imprisonment; by 2006, that figure had declined to 7.5%. 36
Alternative sentences to incarceration under the Sentencing Guidelines should be
expanded. Virtually every state criminal justice system makes use of a various forms of punishment
short of pure incarceration, such as probation, home detention, intermittent confinement, and
community services. In the federal criminal justice system, these alternatives have been greatly
curtailed since the adoption of the Guidelines.
In 1984, more than 30% of defendants received sentences of probation without any term of
incarceration.37 This reflected the considered judgment of the judiciary as a whole that in nearly
one-third of cases, the purposes of sentencing could be fully achieved without a period of
imprisonment. By fiscal year 2008, only 7.4% percent of federal defendants received probationary
sentences, 6.2% received “split” sentences of both imprisonment and home or community
confinement, and the remaining 86.4% of defendants received sentences of straight incarceration.38
At the same time, utilization of community confinement has been curtailed and shock incarceration
(“boot camp”) programs have been eliminated.
The current federal criminal justice system, in which a prison sentence is the default and
alternative sentences remain the relatively rare exception, is not what Congress envisioned in 1984
when it instructed the Commission to “insure that the guidelines reflect the general
appropriateness of imposing a sentence other than imprisonment in cases in which the defendant is
a first offender who has not been convicted of a crime of violence or an otherwise serious offense.”
18 U.S.C. § 994(j). The current Guidelines treat nearly every case as “otherwise serious” – in fiscal
year 2008, 92.6% of offenders were sentenced to imprisonment.39
5. Residential Drug Abuse Program
The Residential Drug Abuse Program (RDAP) is a voluntary six-to-twelve-month program of
individual and group therapy for federal prisoners with substance abuse problems. Authorized by
18 U.S.C. § 3621, it directs the Federal Bureau of Prisons (BOP) to provide "residential substance
abuse treatment and make arrangements for aftercare ... for all eligible prisoners," giving priority to

36

See BUREAU OF JUST. STAT, , SPECIAL REPORT: TIME SERVED IN PRISON BY OFFENDERS, 1986-97; BUREAU OF JUST. STAT., FEDERAL
CRIMINAL JUSTICE TRENDS (2003), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/fcjt03.pdf; U.S. SENT’G
COMMISSION, SOURCEBOOKS, available at http://www.ussc.gov/annrpts.htm.
37
FIFTEEN YEAR REVIEW, supra note 19, Fig. 2.2 at 43.
38
SOURCEBOOK OF FEDERAL SENTENCING STATISTICS, supra note 20, Fig. D, at 27.
39
Proposed Amendments to the Federal Sentencing Guidelines Regarding Alternatives to Incarceration: Hearing
Before the U.S. Sentencing Comm., Mar. 17, 2010 (statement of James E. Felman, Co-Chair, American Bar Assoc.
Criminal Justice Section Committee on Sentencing), available at:
http://www.abanet.org/crimjust/docs/felman.pdf.

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eligible prisoners closest to their release dates. As an incentive to participate, Congress authorized,
in 1995, a sentence reduction of up to one year for prisoners convicted of a non-violent offense.40
By unilateral BOP rule, the one-year sentence reduction is not available to certain classes of
prisoners who are eligible under the statute, including those with immigration or state court
detainers (eliminating 26.2 percent of prisoners who are removable aliens) and those who BOP
classifies as having committed a "crime of violence," which includes an offense that involves the
mere possession of a weapon.41
RDAP is proven to reduce the likelihood of recidivism and drug abuse relapse, as well as
reduce prison costs.42 However, as a result of the rigid eligibility requirements, only a small
percentage of prisoners who could take advantage of the incentive are allowed to receive it.
Among those who do qualify, few receive the maximum benefit Congress authorized. As of
January 2009 there was a waiting list for RDAP that exceeded 7,600 prisoners.43 Because priority is
given to those who are closest to their release dates (without regard to whether they are RDAP
participants), and there are a limited number of openings, few prisoners complete the program in
time to receive the maximum sentence reduction of one year. As of January 2009, the average
RDAP participant received a sentence reduction of only 7.6 months.44
6. Good Time Credit
Good time credit is earned for good behavior, described in the law as "exemplary
compliance with institutional disciplinary regulations."45 Good time credit reduces a prisoner's
sentence such that prisoners serving a term of imprisonment of more than a year may "receive
credit toward the service of the prisoner's sentence, beyond the time served, of up to 54 days a
year."46
Since 1988, BOP has awarded good time credit based on the time actually served by the
prisoner, not the sentence (or "term of imprisonment") imposed by the judge. As a result, based on
the way BOP calculates good time, prisoners only earn a maximum of 47 days of good time for each
year to which they are sentenced, instead of the 54 days per year contemplated by the statute. The
decision results in unnecessary increases in prison sentences at significant cost to BOP.

40

18 U.S.C. § 3621(e)(2).
Id.
42
U.S. BUREAU OF PRISONS, ANNUAL REPORT ON SUBSTANCE ABUSE TREATMENT PROGRAMS, FISCAL YEAR 2008, REPORT TO
CONGRESS (2009).
43
U.S. DEPT. OF JUSTICE, FEDERAL BUREAU OF PRISONS, STATE OF THE BUREAU 2009 (2009), available at:
http://www.bop.gov/news/PDFs/sob09.pdf.
44
Id.
45
18 U.S.C. § 3624(b).
46
Id.
41

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In 2010, The United State Supreme Court upheld BOP’s interpretation of good time in a 6-3
decision, with strong dissent by Justice Kennedy, joined by Justices Stevens and Ginsburg.47 It is up
to Congress to address the problem.
Studies show that prisoner participation in educational, vocational, and job training, work
skills development and drug abuse, mental health and other treatment programs, all reduce
recidivism significantly. Thus, proposals that reward good behavior and efforts by prisoners to
improve themselves have the potential not only to reduce victimization, but to significantly reduce
taxpayer’s burden, by reducing time served in prison, reducing recidivism, and saving policing and
prosecution costs.
7. Sentence Reductions for Extraordinary and Compelling Circumstances
The Sentencing Reform Act includes provisions for a second look at federal sentences to
account for certain kinds of changed circumstances or events. [cite] As illustrated by the recent
retroactive crack cocaine amendments, the sentencing court has discretion to reduce a sentence
where the USSC determines that a guideline should be reduced and the reduction should apply
retroactively. Congress also provided for discretion by the sentencing judge to reduce a prison term
where later changes of fact make the sentence too harsh, if the court finds that "extraordinary and
compelling reasons warrant such a reduction."48 Congress realized that a wide variety of
circumstances, including but not limited to "cases of severe illness, cases in which other
extraordinary and compelling circumstances justify a reduction . . . ." could fit into the description of
"extraordinary and compelling" circumstances and delegated to the Sentencing Commission the
task of setting criteria and providing examples, which it did in 2007.49
The statute contemplates that BOP would perform a gatekeeper function, but that
sentencing discretion would be exercised by the sentencing judge. This is where practice has
broken down. Essentially ignoring the USSC’s guidelines, BOP has persisted in following a policy
that defense practitioners have called the "Death Rattle Rule."50 Under this rule, the only
circumstance that can be considered "extraordinary and compelling" is imminent proximity to
death. Because BOP has sole authority to bring a sentence reduction motion to the courts, courts
have no jurisdiction to consider any case, however extraordinary and compelling, that is not
initiated by a BOP motion. BOP has filed fewer than 20 motions each year for the past two
decades, though its prisoner population has swelled to over 210,000.51

47

Barber v. Thomas, 560 U.S. ____ (2010)
18 U.S.C. § 3582(c)(1)(A).
49
See USSG 1B1.13.
50
Margaret Colgate Love, Sentence Reduction Mechanisms in a Determinate Sentencing System: Report of the
Second Look Roundtable 216, 21 FED. SENT’G REP. 211 – 225 (February 2009), available at:
http://www.pardonlaw.com/materials/12.FSR.21.3_211-226.pdf.
51
Id. at 224.
48

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8. Growing Population of Elderly Prisoners
The nation’s state and federal prison systems are confronting the complicated and costly
problem of a growing population of elderly prisoners. Mandatory minimum sentencing, the
abolition of parole, and advent of truth-in-sentencing laws ensure the number of elderly prisoners
will continue to rise. The Bureau of Justice Statistics reports that between 1999 and 2007 the
population of inmates aged 55 or older grew 76.9% to 76,600.52 Elderly prisoners may someday
soon make up fully one third of our prison populations.53
The average cost of housing elderly prisoners is approximately twice that of those in the
general population.54 Gross functional disabilities, impaired movement, mental illness, hearing loss,
vision impairment, arthritis, hypertension, and dementia are common as is the need for more
frequent dental care and assistive devices. Inmates older than 55 suffer from an average of three
chronic health conditions and 20 percent suffer from some form of mental illness. The increased
costs stem in large measure from their significant physical and mental health treatment needs and
prison systems spend two to three times more for geriatric prisoners than younger inmates, on
average, $70,000.55
At the same time, research has conclusively shown that aging is correlated with diminishing
risk of recidivism: 9.5% of former federal inmates 50 years or older reoffended within two years of
release compared with 35.5 percent of their under-20 counterparts.56 The incarceration of older
prisoners who represent the smallest threat to public safety but the largest cost to taxpayers,
exemplifies failed public and fiscal policy. Forty-one states offer some kind of early limited release
program for elderly inmates.57
9. United States Sentencing Commission
Congress established the USSC with the Sentencing Reform Act provisions of the
Comprehensive Crime Control Act of 198458. USSC was designed to be "an ongoing, independent
agency within the judicial branch. The seven voting members on USSC are appointed by the

52

TINA CHIU, IT’S ABOUT TIME: AGING PRISONERS, INCREASING COSTS, AND GERIATRIC RELEASE (Vera Institute of Justice, April
2010), available at: http://www.vera.org/download?file=2973/Its-about-time-aging-prisoners-increasing-costsand-geriatric-release.pdf.
53
Molly Fairchild James, The Sentencing of Elderly Criminals, 29 AM. CRIM. L. REV. 1025, 1026 (1992).
54
Chiu, supra note 52.
55
Id.
56
Id.
57
Anthony Sterns et al., A National Survey of Older Prisoner Health, Mental Health, and Programming, CORRECTIONS
TODAY (Aug. 2008), available at: http://www.aca.org/fileupload/177/ahaidar/Stern_Keohame.pdf.
58
18 U.S.C. 5041 (1984) (repealed).

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President and confirmed by the Senate, and serve six-year terms." The Attorney General and the
Parole Commission are non-voting, ex officio members of the Commission.59
Current law requires a representative of the Federal Public Defenders to submit a report at
least annually to USSC concerning USSC's work, and USSC can invite Federal Public Defenders to
testify at open USSC meetings. However, USSC has no official representative of the defense bar to
balance the official representation of the Attorney General. This means that one interested
adversary, the prosecution, can influence the outcome of guidelines in non-public meetings, where
the real business of USSC takes place. DOJ has access to the USSC's internal information, is
permitted to communicate its own information and proposals to USSC and its staff ex parte, and
attends non-public meetings where final decisions are made. The Defenders do not have access to
the USSC's internal information, and do not receive notice of proposals submitted by DOJ or
developed by staff unless they are published for comment. Some proposals are never published for
comment, but are adopted by the USSC and forwarded to Congress. In this way, the USSC is
deprived of balanced input and debate at the relevant time. Its decisions thereby suffer, just as a
judge could not fairly or accurately decide a case without the issues being joined, argued and tested
by both sides. The presence of a Defender ex officio would ensure that all relevant issues are raised
and receive timely and balanced consideration, much as the adversary system functions, and would
thereby improve the quality of, and public confidence in, the USSC's work.
10. Unnecessarily High Drug Sentencing Guidelines
The passage of the Anti-Drug Abuse Act of 1986,60 introducing mandatory minimum
sentencing, interrupted the USSC’s development of drug offense guidelines. Striving to keep the
new sentencing guidelines and their more nuanced considerations effective,61 USSC correlated the
guideline range to the new mandatory minimums, but in all cases indexed the applicable range
above the applicable mandatory minimum, thus providing for longer guideline sentences than
called for even by the applicable mandatory minimums. This twin attack on drug offenses caused
the unprecedented and disproportionate incarceration of first-time and low-level drug offenders,
characterized by the Justice Kennedy Commission as “far beyond historical norms.” *cite?+ Because
of this grim reality, USSC has urged Congress to revise mandatory minimums and the guidelines,
without avail. In 2007, USSC acted on its own to redress the lengthy and unjust sentences being
59

See 28 U.S.C. § 991(a); Public Law No. 98-473 § 235.
th
H.R. 5484, 99 Cong. (1986).
61
In its 1991 report on mandatory minimum sentencing, USSC wrote: “*F+rom a structural standpoint, the
Sentencing Commission found that , while it theoretically could design a structure that would equate the lowest
guideline sentence with the mandatory minimum, adherence to that approach would produce in typical cases
sentences that would reach or exceed the statutory maximum and thus, there would be little if any opportunity for
consideration of aggravating factors. The Sentencing Commission therefore concluded that a more reasonable,
rational, and proportional approach to the sentencing of drug trafficking offenders would use the mandatory
minimum penalties as starting points to determine the base offense levels.” U. S. SENT’G COMMISSION, SPECIAL REPORT
TO THE CONGRESS, MANDATORY MINIMUM PENALTIES IN THE FEDERAL CRIMINAL JUSTICE SYSTEM (Aug. 1991) at 29, available at
http://www.ussc.gov/r_congress/MANMIN.PDF.
60

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served by crack offenders, calling the problem “urgent and compelling.” USSC correlated the
guideline to encompass the mandatory minimum at its high end, instead of its low end—an
enormously beneficial change.62
The “dramatic increase in time served by federal drug offenders” includes all drug offenders
and USSC admits that “relative harmfulness” of different drugs was not necessarily reflected by the
guideline sentences.63 There is no reason to maintain the guidelines at levels above those required
by the drug mandatory minimums. Reducing them would have an immediate and salutary effect on
the length of sentences for drug trafficking which have, in USSC’s words, “in combination with the
relevant conduct rule . . . had the effect of increasing prison terms far above what had been typical
in past practice, and in many cases above the level required by the literal terms of the mandatory
minimum statutes.”64
RECOMMENDATIONS
1. Crack Cocaine Sentencing Reform
A. Crack Cocaine Sentencing Reform Only Partially Done
Despite significant improvements to sentencing disparity made by the FSA, the FSA is not
retroactive and those incarcerated pursuant to the previous flawed sentencing scheme will receive
no relief. The FSA must be strengthened by retroactive application of its provisions, and by
completely eliminating the sentencing disparity.
B. Make Changes Retroactive
Legislative
Congress should enact legislation to make the FSA retroactive. The Fair Sentencing
Clarification Act (FSCA), introduced in the 111th Congress by Robert “Bobby” Scott (D-VA),65 would
extend the application of the FSA to those whose crimes were committed prior to its enactment by
permitting people incarcerated under the old crack cocaine mandatory minimums to seek a
reduction of their sentence consistent with the FSA lower mandatory minimums from the
sentencing court. Congress should reintroduce and pass FSCA.

62

Following passage of the Fair Sentencing Act of 2009, the Commission raised the crack cocaine guidelines to
their pre-November 1, 2007 levels. See S. 1789, 111th Cong. (2010) (enacted).
63
PAUL J. HOFER ET AL., FIFTEEN YEARS OF GUIDELINES SENTENCING (U.S. Sentencing Commission, Nov. 2004), available at:
http://www.ussc.gov/Research/Research_Projects/Miscellaneous/15_Year_Study/15_year_study_full.pdf.
64
Id.. at 49.
65
H.R. 6548, 111th Cong. (2010).

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Executive
The U.S. Sentencing Commission (USSC) should, in setting its permanent guidelines, restore
the crack cocaine base offense levels at 24 and 30, rather than 26 and 32.66 Restoring the base
offense levels to 24 and 30 more accurately reflects the stated goals of Congress, which are to
reduce racial disparity in drug sentencing; increase trust in the criminal justice system; reduce
overincarceration; and shift federal enforcement focus from low-level offenders to kingpins.67
Moreover, the FSA did not require the base offense levels to be set at 26 and 32. Indeed, Sen.
Richard Durbin (D-Ill.) and Rep. Scott, champions of the legislation, advised the Commission of their
intent that crack base offense levels not be increased.68
Additionally, USSC should make changes to the new crack cocaine sentencing guideline
retroactive. For almost two decades in four separate reports, USSC has urged Congress to address
the disparities in federal cocaine sentencing policy and eliminate the statutory mandatory minimum
for simple possession of crack cocaine.69 Although the FSA is silent on retroactive application of the
new sentencing structure, the USSC has authority to apply its changes to the Sentencing Guidelines
retroactively. Those sentenced under the guidelines in effect prior to November 1, 2010 are the
very people whose cases inspired passage of the FSA. They deserve to receive justice as well.
In implementing the FSA, DOJ should issue guidance to federal prosecutors, instructing
them to seek sentences consistent with the FSA’s reduced mandatory minimums for defendants
who have not yet been sentenced, regardless of when their conduct took place. At a minimum, DOJ
should issue a policy allowing prosecutors to support, or not oppose, defense motions to apply the
FSA to such “pipeline” cases. This would be consistent with congressional intent, would further the
goal of sentencing consistency, and would conserve prosecutorial and judicial resources in
addressing piecemeal dispositions.
Finally, executive clemency should be granted to those whose crack cocaine sentences are
unaffected by the FSA. Presidential commutations can ensure fair application of the principles
embodied in the FSA. The President should appoint a clemency commission or other effective
process to promptly and comprehensively identify cases that are not affected by the FSA, and grant
66

U.S. SENTENCING GUIDELINES MANUAL §§ 2D1.1, 2D1.14, 2D2.1, 2K2.4, 3B1.4, 3C1.1 (2010).
FAIRNESS IN COCAINE SENTENCING ACT, H.R. REP. No. 111 – 670 (2010).
68
Letter from Richard Durbin and Patrick Leahy, United States Senators, to William K. Sessions, Chairman, United
States Sentencing Commission (October 8, 2010), available at
http://www.ussc.gov/Meetings_and_Rulemaking/Public_Comment/20101013/SenDurbin_comment_100810.pdf ;
Letter from John Conyers and Robert Scott, United States Representatives to William K. Sessions, Chairman, United
States Sentencing Commission (October 8, 2010), available at
http://www.ussc.gov/Meetings_and_Rulemaking/Public_Comment/20101013/House_CrimeSubcomte_100810.pd
f.
69
U.S. SENT’G COMM., REPORT TO CONGRESS: FEDERAL COCAINE SENTENCING POLICY (May 2007); U.S. SENT’G COMM., REPORT TO
CONGRESS: COCAINE AND FEDERAL SENTENCING POLICY (May 2002); U.S. SENT’G COMM., SPECIAL REPORT TO CONGRESS: COCAINE
AND FEDERAL SENTENCING POLICY (Apr. 1997); U.S. SENT’G COMM., SPECIAL REPORT TO CONGRESS: COCAINE AND FEDERAL
SENTENCING POLICY (Feb. 1995).
67

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relief where appropriate. For example, many individuals sentenced to life in prison under the
“three strikes” provision of 21 USC 841(b) were not drug kingpins, did not engage in violence, and
would be subject to a term of years if sentenced under the FSA. There should be an opportunity at
some point to give a “second look” to these “three strikes” life sentences to determine whether
they are just and necessary in particular cases.
2. Improving and Expanding the Federal Safety Valve
A. The Safety Valve is Inadequate
The safety valve is inadequate to address the tension between the mandate of parsimony in
the federal sentencing statute and mandatory minimums in individual statutes other than drug
statutes, and should be replaced with a more general waiver that can be used when necessary to
mediate between conflicting demands in federal sentencing law. Barring that, the safety valve itself
can be amended to address correctable structural problems. First, it defines low-level offenders
much too narrowly, relying on a rigid criminal history point system in the Sentencing Guidelines.70
Second, the safety valve’s “tell-all” requirement is confusing and has been interpreted in many
courts as requiring that defendants provide information about other offenders, beyond the scope of
related offenses.71 Finally, there is no sound reason to limit the application of the safety valve,
which allows courts to fashion appropriate punishment for qualified offenders, to only those
convicted of drug offenses.
B. Enlarge the Safety Valve
Legislative
i. Amend the Safety Valve to Bypass Mandatory Minimums when Necessary to Comply
with Federal Sentencing Law
Congress should amend 18 U.S.C. § 3553 to bypass mandatory minimums when necessary to
comply with federal sentencing law. Congress, should pass legislation similar to the Ramos and
Compean Justice Act, a bipartisan bill introduced by Reps. Robert “Bobby” Scott (D-VA) and Ted Poe (RTX), 72 would amend the federal criminal code to authorize a federal court to impose a sentence below a
statutory minimum if necessary to avoid violating the parsimony mandate of 18 U.S.C. § 3553(a). It
would also require the court to give the parties notice of its intent to impose a lower sentence and to
state in writing the factors requiring such a sentence. The Ramos and Compean Justice Act was the
subject of a hearing in the House Judiciary Committee in 2009, and was successfully marked up that
year by the House Judiciary Subcommittee on Terrorism, Crime and Homeland Security.
70

U.S. Sentencing Guidelines Manual § 4A1.2.
Molly N. Van Etten, The Difference Between Truth and Truthfulness: Objective Versus Subjective Standards in
Applying Rule 5C1.2 56 VAND. L. REV. 1265 (2003).
72
th
H.R. 834, 111 Cong. (2009).
71

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ii. Broaden the Safety Valve
Congress should amend 18 U.S.C. § 3553(f) to broaden the safety valve and properly
account for criminal history The intent of the Safety Valve is to allow courts to recognize offenders
with limited or no criminal history. At present, the law permits only defendants with no more than
one criminal history point to benefit from the safety valve. Due to peculiarities of the Sentencing
Guidelines’ criminal history provisions, people who have been convicted of more than one even
very minor offense, such as driving on a suspended license or passing a bad check, can accumulate
too many criminal history points to qualify, even though they pose very little threat of serious
criminal conduct.
Congress should change the criminal history criteria by eliminating the requirement that
defendants have only one criminal history point. Instead, Congress can specify in the Safety Valve
criteria that defendants who fall into the Sentencing Commission’s Criminal History Category I can
qualify. Defendants qualify for Category I either because they have no more than one criminal
history point or because the sentencing judge has reduced their criminal history from a higher
category to Category I. Judges do this when they think that the calculated criminal history points
overstate the defendant’s true criminal background and risk of recidivism.
iii. Eliminate the “Tell All” Requirement
Congress should amend 18 U.S.C. § 3553(f) to eliminate the “tell all” requirement.73 The
“tell-all” requirement is confusing to judges, defense attorneys, and prosecutors, and has been
interpreted to require defendants to provide information about other offenders, not just their own
conduct.74 It has been a hotly litigated issue, as defense counsel and prosecutors argue about how
much information is enough, whether it was provided in a timely fashion, and how far beyond the
offense of conviction a defendant must go in the admission. There is already a separate provision in
criminal law that rewards cooperators with mandatory minimum waivers.75
Congress should replace the “tell all” requirement with one that the defendant accept
responsibility for the offense. Acceptance of responsibility means that the defendant acknowledges
his or her role in the offense. If done early in the process, it can save significant resources.
Substituting acceptance of responsibility will eliminate the sometimes time-and resourceconsuming process of determining whether a defendant has provided enough or timely information
about his offense, as well as settle the law about just how much about other criminal conduct the
defendant must reveal to qualify for the safety valve. Acceptance of responsibility standards are
well established as they have been a longstanding feature of the Sentencing Guidelines calculations.

73

18 U.S.C. § 3553(f)(5).
U.S. v. Johnson, 375 F.3d 1300.
75
U.S. SENT’G COMMISSION, FIFTEEN YEARS, supra note 17, at 50.
74

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iv. Apply the Safety Valve to All Mandatory Minimum Offenses
Congress should amend 18 U.S.C. § 3553(f) to apply the safety valve to all mandatory
minimum offenses. Federal mandatory minimums apply to over 700 offenses, including a number
of inherently non-violent offenses. The safety valve, however, only applies to drug offenses. The
problems associated with mandatory minimums drug sentences are replicated in other offenses to
which such sentences apply. There is no sound reason to limit the application of the safety valve,
which seeks to recognize and fashion appropriate sentences for first time, low-level, non-violent
offenders who recognize and accept responsibility, to only those defendants convicted of drug
crimes. Congress should thus amend 18 U.S.C. § 3553(f) to ensure that it applies to all statutes that
include a mandatory minimum provision.
3. Create a Sunset Provision on New and Existing Mandatory Minimums
A. Lack of Data Regarding Effectiveness of Mandatory Mimimums
Currently, there is no sunset provision or statutory review process for federal mandatory
minimums once they have been enacted. This lack of data, transparency, and reviews limits the
ability to Congress to assess the effectiveness of these laws.
B. Create a Sunset Provision for Mandatory Minimums
Legislative Changes
Congress should make all new mandatory minimum laws subject to a five-year sunset
provision. Congress may create such a sunset provision on new mandatory minimums through
either: (i) passing legislation containing a sunset provision, or (ii) creating a sunset commission to
offer recommendations to Congress ahead of reauthorization of mandatory minimum legislation. A
sunset commission would review and provide recommendations to retain, refine, or end a
mandatory minimum. The commission would provide recommendations based on analysis of
whether a mandatory minimum has achieved its goals.
4. Ensure that 18 U.S.C. § 924(c) Recidivism Provisions Apply Only to Repeat Offenders
A. Sentence Stacking Provisions Over-punish First Offenders
Federal “sentence stacking” provisions result in unduly severe sentences that bear no
relation to deterring true recidivists. Perversely, a true recidivist can serve a shorter sentence than
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B. Apply Stacking Provision to True Recidivists and Provide Predictability in Recidivist
Sentencing
Legislative
Congress should pass the Firearm Recidivist Sentencing Act of 2009.76 Introduced by
Congressman Robert “Bobby” Scott, the Firearm Recidivist Sentencing Act of 2009 would amend 18
U.S.C. § 924(c) to ensure that individuals who carry a firearm while committing a violent crime or
drug trafficking offense face the 25-year mandatory minimum for repeat offenses only if they have
been previously convicted and served a sentence for a §924(c) offense.
This bill would ensure that the recidivist enhancement is only used on true recidivists, by
requiring that a previous conviction must be final before the 25-year mandatory minimum may be
sought. Finally, the bill amends Part 1 of Title 18 of the United States Code to require the
government to file notice with the court when it intends to invoke the enhanced recidivism
penalties in the gun statutes.
5. Expand Authority to Defer Adjudication to Avoid a Conviction Record
A. Federal Judges have Only Narrow Authority to Expunge Criminal Convictions for LowLevel Offenders
Under current law, federal judges have very little authority to expunge criminal convictions.
Given the collateral consequences associated with a felony conviction, such as public assistance and
employment licensing exclusions, the lack of availability of punishment options that allow for
eventual expungement of criminal records may serve to increase recidivism. Defendants who are
not charged with offenses other than very serious offenses, such as predatory crime; a crime
involving substantial violence; a crime in which the defendant played a leadership role in large-scale
drug trafficking; or a crime of equivalent gravity, should be eligible for community placement,
community-based treatment programs, and diversion and deferred adjudication.
B. Expand Federal Statutory Authority for Deferred Adjudication
Legislative
Congress should enact a statute permitting individuals charged with certain federal crimes
to avoid a conviction record by successfully completing a period of probation. Congress could do
this in one of two ways. First, it could pass the Federal First Offender Improvement Act77,
introduced by Rep. Pedro Pierluisi in July 2010. The Act would expand the Federal First Offender

76
77

H.R. 2933, 110th Cong. (2009).
th
H.R. 6059, 111 Cong. (2010).

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Act78 to allow (but not require) a judge to place certain first-time drug offenders on probation
without entering a judgment of conviction. A drug defendant would qualify who (i) did not use
violence, a firearm or other weapon, or cause death or serious bodily injury; (ii) was not an
organizer, leader, manager, or supervisor of others; (iii) had not previously benefited from this
provision; and (iv) had not previously been convicted of a crime of violence or other offense
punishable by more than one year in prison. If, at the end of the probation term, the defendant has
not violated a condition of his or her probation, the court may dismiss the proceedings.
Alternatively, Congress could reinstate the set-aside authority in the Youth Corrections
Act, and extend it to all first felony offenders eligible for probation. In addition, for persons with a
federal conviction, Congress should enact an expungement/sealing remedy that would be available
after a waiting period (e.g., five years for misdemeanors, 10 years for felonies).
79

6. Expand Alternatives to Incarceration in Federal Sentencing Guidelines
A. Judges Have Insufficient Discretion to Impose Alternative Sentences
Under the Sentencing Guidelines, federal judges currently have little authority to impose
sentences other than jail or incarceration, even when the offense is relatively minor. As a result,
while the federal justice system authorizes probation as an alternative to incarceration, the use of
probation has declined since the advent of the Sentencing Guidelines. In 1984, more than 30% of
defendants were sentenced to probation without any term of imprisonment; by 2006, that figure
had declined to 7.5%.80 Alternative sentences to incarceration under the Guidelines should be
expanded.
B. Expand Alternatives to Incarceration in the Federal Sentencing Guidelines
Judicial
The USSC, the independent federal agency created by Congress to promulgate sentencing
guidelines for use by federal judges in criminal cases and to advise Congress on federal sentencing,
should amend the Sentencing Guidelines to broadly expand the availability of alternatives to
incarceration. In 2010, the USSC did adopt an amendment to modestly expand the availability of
alternative sentences.81 However, the USSC should adopt at least two further expansions: (i)

78

18 U.S.C. § 3607.
18 U.S.C. § 5005 et seq. (repealed in 1984).
80
See SPECIAL REPORT: TIME SERVED IN PRISON BY OFFENDERS, supra note 39; FEDERAL CRIMINAL JUSTICE TRENDS, supra note
39; U.S. SENT’G COMMISSION SOURCEBOOKS, supra note 39.
81
Commission Promulgates Amendments; Sends Package to Congress, GUIDELINES (United States Sent’g Comm’n,
Washington, DC), Spring 2010, at 1, available at
http://www.ussc.gov/Legislative_and_Public_Affairs/Newsroom/Commission_Newsletters/2010_05_GuideLines_o
ptimized.pdf.
79

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eliminating the distinction between Zones B and C of the Sentencing Table and (ii) creating a
Criminal History Category 0 for first offenders.
By merging Zone C into Zone B, the Sentencing Table would include more ranges in which a
non-prison sentence is an option. This would more accurately capture the individualized sentencing
processes through which judges must first determine whether any term of imprisonment is
necessary to satisfy the purposes of sentencing.
The USSC should also create a new Criminal History Category 0 for true first offenders. As
presently constructed, Criminal History Category I includes both first offenders and offenders who
have minimal criminal records. The USSC’s extensive study of criminal history and recidivism
demonstrates that true first offenders are simply different—they have a significantly lower risk of
recidivism than those with prior criminal experience.82 This reflects Congress’ intuitively correct
determination in the enabling legislation that first time offenders are peculiarly suited for nonimprisonment sentences. This difference between first offenders and those with prior criminal
history should thus be reflected in the Guidelines.
The USSC should also further expand the option of 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. Alternative sentencing programs in other jurisdictions
indicates that such programs are often associated with reduced recidivism rates.83 The USSC should
eliminate any offense level ceiling on treatment alternatives or, at a minimum, set offense level 16
rather than Zone C of the Sentencing Table as the ceiling for eligible offenders.
7. Prison Incentives and Management: Expand the Residential Drug Abuse Program (RDAP)
A. RDAP Requirements Are Too Restrictive
Despite the fact that the Residential Drug Abuse Program (RDAP) is proven to reduce the
likelihood of recidivism and reduce prison costs, rigid eligibility requirements result in only a small
percentage of eligible prisoners being able to take advantage of the program. BOP rules excluding
certain classes of prisoners from RDAP, as well as delayed RDAP eligibility determinations, limit the
effectiveness of RDAP by excluding prisoners who would benefit from the program. For example,
by unilateral BOP rule, the one-year sentence reduction for successful RDAP completion is not
available to certain classes of prisoners who are eligible under the statute, including those with
immigration or state court detainers (eliminating 26.2 percent of prisoners who are removable
82

UNITED STATES SENTENCING COMMISSION, RECIDIVISM AND THE “FIRST OFFENDER” 13-14 (May 2004), available at
http://www.ussc.gov/Research/Research_Publications/Recidivism/200405_Recidivism_First_Offender.pdf.
83
See, e.g., PEW CENTER ON THE STATES, WHAT WORKS IN COMMUNITY CORRECTIONS: AN INTERVIEW WITH DR. JOAN PETERSILIA
(Nov. 2007), available at http://www.pewcenteronthestates.org/uploadedFiles/Petersilia-Community-CorrectionsQandA.pdf (“*W+e know that intensive community supervision combined with rehabilitation services can reduce
recidivism between 10 and 20 percent.”).

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aliens84) and those who the BOP classifies as having committed a “crime of violence,” which
includes an offense that involves the mere possession of a weapon.85
B. Expand RDAP to Include More Offenders
Executive
The BOP should remove limitations on RDAP eligibility, and make RDAP available to those
with immigration or state court detainers, as well as more non-violent offenders. Under current
rules, anyone who is not eligible for placement in a federal halfway house is not eligible for the
RDAP. Thus, those with immigration or state court detainers are ineligible for RDAP. The Attorney
General should issue a memorandum directing the BOP to administer the sentence reduction
incentive consistent with federal law, such that it be made available to all prisoners with detainers,
and that planning be done far enough in advance to ensure that qualified prisoners receive the full
benefit Congress intended to bestow. The cost incurred in expanding the RDAP program are
outweighed by the benefits in terms of costs saved by shortening sentences as well as lower
recidivism rates.86
Additionally, the BOP should expand eligibility for RDAP to more non-violent offenders. In
2000, the BOP issued a permanent rule that categorically excluded eligibility for a sentence
reduction to anyone whose “current offense is a felony... *t+hat involved the carrying, possession, or
use of a firearm or other dangerous weapon or explosives *.+”87 By using this definition, the BOP
disqualifies from RDAP prisoners who had merely possessed a firearm. However, 18 U.S.C. § 924(c)
defines a “crime of violence” as an offense that is a felony and either (A) has as an element the use,
attempted use, or threatened use of physical force against the person or property of another, or (B)
that by its nature, involves a substantial risk that physical force against the person or property of
another may be used in the course of committing the offense.88 The BOP should change the
definition that is uses to determine who is excluded from RDAP, and use the definition of “crime of
violence” found in 18 U.S.C. § 924(c) in determining eligibility for the program. This would allow
those who had merely possessed a firearm to benefit from RDAP.

84

David Leonhardt, Immigrants and Prison, N.Y. TIMES (May 30, 2007) (“According to the Department of Justice[,]
*i+n 2000, 27 percent of the inmates in federal prisons were noncitizens.”), available at
http://www.nytimes.com/2007/05/30/business/30leonside.html.
85
28 C.F.R. § 550.58; see also FAMILIES AGAINST MANDATORY MINIMUMS, FREQUENTLY ASKED QUESTIONS ABOUT THE
RESIDENTIAL DRUG ABUSE PROGRAM (RDAP), available at
http://www.famm.org/Repository/Files/FINAL%20RDAP%20FAQs%209.9.pdf.
86
Office of National Drug Control Policy, Drug Policy Information Clearinghouse Fact Sheet, Drug Treatment in the
Criminal Justice System (Mar. 2001), http://whitehousedrugpolicy.gov/publications/factsht/treatment/index.html
(last visited Jan. 24, 2011).
87
28 C.F.R. § 550.58.
88
18 U.S.C. § 924(c)(3).

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Finally, when calculating proximity to release for purposes of who should take part in the
overall drug program, BOP should consider that a successful participant will be closer to release by
one year than prisoners who are ineligible for the sentence reduction. Priority for RDAP
participation is given to those prisoners who are closest to their release date. However, currently,
BOP does not make eligibility determinations early enough to ensure that prisoners who qualify
receive the full year credit. Thus, prisoners who are eligible for the reduction see prisoners who are
not eligible for a one-year reduction take their places in programs based on release dates that do
not include the one-year reduction.
8. Clarify and Expand Good Time Credit
A. The BOP’s Administration of Good Time Credits Limits its Effectiveness
The BOP’s method of calculating good time credit may only reduce a prisoner’s sentence to
a maximum credit of 47 days—well below the 54 days specifically mentioned in the authorizing
statute.89 This decision results in unnecessary increases in prison sentences at significant cost to
the BOP and the incarcerated individuals. As the U.S. Supreme Court has upheld BOP’s method of
calculating good time90, it is now up to Congress to ensure the BOP complies with the intent of the
statute, and reward good behavior and efforts by prisoners to improve themselves, thereby
significantly reducing taxpayers’ burden by reducing time served in prison, reducing recidivism, and
saving policing and prosecution costs.
B. Clarify and Expand Good Time Conduct Credit
Legislative
Congress should pass the Prisoner Incentive Act.91 First introduced in December 2009 by
Rep. Robert “Bobby” Scott (D-VA), the bill would rewrite the good time statute to make clear that a
prisoner serving a sentence of over one year may earn up to 54 days of good time credit per every
year of his sentence. The bill would also change the law to permit the BOP to “subsequently restore
any or all” credit previously denied the prisoner, based on his good behavior as determined by BOP.
Congress should also pass the Literacy, Education, and Rehabilitation Act92, introduced in
the 111th Congress by Rep. Robert “Bobby” Scott (D-VA), which would provide credit toward service
of sentence for satisfactory participation in a designated prison program. Under the bill, the
director of the BOP may grant up to 60 credit days per year, in addition to the good conduct credit
currently awarded, to a prisoner for successful participation in literacy, education, work training,
treatment, and other developmental programs. The BOP Director would determine the number of
89

18 U.S.C. § 3624(b).
Barber v. Thomas, 130 S. Ct. 2499 (Jun. 7, 2010).
th
91
H.R. 4327, 111 Cong. (2009).
92
th
H.R. 4328, 111 Cong. (2009).
90

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days of credit to be applied for any given program, based on its difficulty, required time,
responsibility requirements, rehabilitative benefits, and benefit to the BOP.
9. Sentence Reductions for Extraordinary and Compelling Circumstances
A. BOP Prevents Consideration by Judges of Release for Changed Circumstances
Contrary to the provisions of the Sentencing Reform Act (SRA) that granted sentencing
judges the discretion to retroactively reduce sentences for certain kinds of changed circumstances
or events (and granted BOP merely a gate-keeping function in the process), the BOP has effectively
taken over the role of exercising this discretion. By applying the so-called “Death Rattle Rule,” the
BOP has limited the sentence reduction cases that come before sentencing courts to only those
with imminent proximity to death, rather than the broader “extraordinary and compelling
circumstances” standard articulated by the statute.93 BOP has not ensured that the courts are able
to consider petitions for early release from prisoners whose conditions—medical, terminal or
otherwise—might merit it.
B. Expand BOP Motions to Consider Sentence Reductions
Executive
The Attorney General should signal his intention that the statute be used as intended by
providing a guidance memorandum laying out his support for use of the power to reduce a
sentence for extraordinary and compelling circumstances consistent with that intended by Congress
in the SRA and by the Commission in its recent conforming guideline amendment. This memo
should instruct that BOP bring motions before the sentencing judge in all cases where the
petitioner’s circumstances meet the criteria laid out in U.S.S.G. § 1B1.13. The memo may specify
additional factors that may be considered by BOP in approving a motion to be filed with the court.
10. Expand the Elderly Release Provision Program
A. Prisons Challenged by Caring for Growing Population of Elderly Prisoners
The nation’s state and federal prison systems are confronting the complicated and costly
problem of a growing population of elderly prisoners. The average cost of housing elderly prisoners
is approximately two to three times that of younger prisoners.94 At the same time, aging is
93

See William W. Berry III, Extraordinary and Compelling: A Re-examination of the Justifications for Compassionate
Release, 68 MARYLAND L. REV. 850, 852-53 (2009).
94
See NATIONAL INSTITUTE OF CORRECTIONS, UNITED STATES DEPARTMENT OF JUSTICE, CORRECTIONAL HEALTHCARE: ADDRESSING THE
NEEDS OF ELDERLY, CHRONICALLY ILL, AND TERMINALLY ILL INMATES 11 (2004), available at
http://nicic.gov/pubs/2004/018735.pdf (“The annual cost of incarcerating this population has risen dramatically to
an average of $60,000 to $70,000 for each elderly inmate compared with about $27,000 for others in

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correlated with diminishing risk of recidivism.95 The incarceration of older prisoners who represent
the smallest threat to public safety but the largest cost to taxpayers exemplifies failed public and
fiscal policy.
B. Extend and Expand Elderly Prisoner Home Confinement Release Program
Legislative
In 2008, Congress authorized a pilot program through the Second Chance Act providing for
the release to home confinement of some geriatric federal inmates.96 The Elderly and Family
Reunification for Certain Nonviolent Offenders (later renamed the Elderly Offender Home
Detention Pilot Program) provision gave BOP authority to set up demonstration projects at BOP
facilities for certain prisoners who were age 65 or older. 97 The qualified inmates must have served
at least ten years or 75% of their sentence, among other criteria. Only a handful of prisoners
benefitted from the early release program. That pilot program has expired. It should be extended
and expanded. The Judiciary Committee should hold hearings and invite BOP to testify about its
experience with the program with an eye toward expansion and improvement. Also invited to
testify should be lawmakers or correctional experts from states that have implemented successful
elderly release programs.
11. Add a Federal Public Defender as Ex Officio Member of the United States Sentencing
Commission
A. The United States Sentencing Commission Lacks Representation of the Defense
Community
The addition of a federal public defender as an ex officio member of the USSC would
improve the quality and accuracy of USSC's work and the transparency and neutrality of its
proceedings. The executive branch has two ex officio representatives on the USSC: the Attorney
General and the Parole Commission. However, the defense community is not represented on the
USSC, which means that one interested adversary, the prosecution, can influence the outcome of
guidelines in non-public meetings, where the real business of the USSC takes place. The presence
of a defender ex officio would ensure that all relevant issues are raised and receive timely and
balanced consideration, much as the adversary system functions, and would thereby improve the
quality of and public confidence in the USSC’s work.

the general population.”).
95
TIMOTHY A. HUGHES ET AL., TRENDS IN STATE PAROLE, 1990-2000 (Bureau of Justice Statistics 2001).
96
42 U.S.C. § 17541.
97
Id.; see also FAMILIES AGAINST MANDATORY MINIMUMS, FREQUENTLY ASKED QUESTIONS ABOUT THE BOP’S ELDERLY OFFENDER
HOME DETENTION PILOT PROGRAM, available at
http://www.famm.org/Repository/Files/Elderly_Offender_Program_FAQs_03_20_09FINAL.pdf.

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B. Add a Federal Defender as an Ex Officio USSC Member
Legislative
Congress should amend 28 U.S.C. § 991(a) by replacing “one nonvoting member” with “two
nonvoting members” at the end of the first sentence, and by inserting before the last sentence: “a
representative of the Federal Public Defenders, appointed by the Judicial Conference of the United
States, shall be an ex officio, nonvoting member of the commission.”
12. Reduce All Drug Guideline Levels by Two Offense Levels
A. Drug Guideline Sentences Are Set Unnecessarily High in Relation to Corresponding
Mandatory Minimums
The twin attack on drug offenses in the form of the contemporaneous passage of
mandatory minimum drug laws by Congress and the USSC’s issuance of drug offense guidelines
indexed to mandatory minimums caused the unprecedented and disproportionate incarceration of
first-time and low-level drug offenders. Because of this grim reality, the USSC has urged Congress
to revise mandatory minimums and the guidelines, without avail. There is no sound reason to
maintain the USSC drug offense guidelines at levels above those required by the drug mandatory
minimums.
B. Reduce all Drug Guidelines Indexed to Mandatory Minimums by Two Levels.
Judicial
The USSC should propose to reduce all drug guideline range triggers by two levels so that
the corresponding mandatory minimum floats 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 at issue. The
Commission should hold a hearing to take testimony about the proposed change and promulgate a
final amendment for submission to Congress.

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APPENDICES
Experts
Crack Cocaine Sentencing Reform
Wade Henderson, The Leadership Conference Education Fund
(http://www.civilrights.org/about/the-leadership-conference/biowade.html)
Marc Mauer, Executive Director, The Sentencing Project
(http://www.sentencingproject.org/detail/person.cfm?person_id=3&backto=63&backtype=
Staff)
Laura Murphy, Director, American Civil Liberties Union – Washington Legislative Office
(http://www.aclu.org/leader/laura-w-murphy)
Ethan Nadelman, President, Drug Policy Alliance
(http://www.drugpolicy.org/about/keystaff/ethannadelma/)
Bruce Nicholson, American Bar Association
(http://new.abanet.org/sections/criminaljustice/Pages/Contact.aspx)
Julie Stewart, President, Families Against Mandatory Minimums
(http://www.famm.org/AboutFAMM/StaffandBoard.aspx)
Nkechi Taifa, Open Society Policy Center
(http://www.opensocietypolicycenter.org/about/staff.php?staff_id=11)
The Federal Safety Valve
Mary Price, Vice President and General Counsel, Families Against Mandatory Minimums
(http://www.famm.org/AboutFAMM/StaffandBoard.aspx)
James Felman, ABA Criminal Justice Section, Sentencing and Corrections Committee
(http://new.abanet.org/sections/criminaljustice/Pages/default.aspx)
Federal Public and Community Defenders, Sentencing Resource Counsel
(http://www.fd.org/odstb_SentencingResource3.htm)

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Recidivism provisions
Former Judge Paul Cassell, University of Utah Law School
(http://www.law.utah.edu/faculty/faculty-profile/?id=paul-cassell)
Erik Luna, Professor, Washington & Lee Law School
(http://law.wlu.edu/faculty/profiledetailpr.asp?id=276)
Mary Price, Vice President and General Counsel, Families Against Mandatory Minimums
(http://www.famm.org/AboutFAMM/StaffandBoard.aspx)
Further Resources
Crack Cocaine Sentencing Reform
U.S. SENTENCING COMMISSION, REPORT TO CONGRESS: COCAINE AND FEDERAL SENTENCING POLICY (2002),
available at http://www.ussc.gov/r_congress/02crack/2002crackrpt.htm.
U.S. SENTENCING COMMISSION, REPORT TO CONGRESS: FEDERAL COCAINE SENTENCING POLICY (2007),
available at http://www.ussc.gov/r_congress/cocaine2007.pdf.
U.S. SENTENCING COMMISSION, FIFTEEN YEARS OF GUIDELINE SENTENCING: AN ASSESSMENT OF HOW WELL
THE FEDERAL CRIMINAL JUSTICE SYSTEM IS ACHIEVING THE GOALS OF SENTENCING REFORM (2004),
available at http://www.ussc.gov/15_year/15year.htm.
Hearing on Cocaine and Federal Sentencing Policy: Hearing Before the U.S. Sentencing
Commission (November 15, 2006), available at
http://ftp.ussc.gov/hearings/11_15_06/AGD11_15_06.HTM.
AMERICAN CIVIL LIBERTIES UNION, CRACKS IN THE SYSTEM: 20 YEARS OF THE UNJUST FEDERAL CRACK COCAINE
LAW (2006), available at
http://www.aclu.org/pdfs/drugpolicy/cracksinsystem_20061025.pdf.
THE SENTENCING PROJECT, FEDERAL CRACK COCAINE SENTENCING (Oct. 2010), available at
http://sentencingproject.org/doc/publications/dp_CrackBriefingSheet.pdf.
The Federal Safety Valve
U.S. SENTENCING COMM’N, MANDATORY MINIMUM PENALTIES IN THE FEDERAL CRIMINAL JUSTICE SYSTEM
(1991).

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CHAPTER 9 – FEDERAL SENTENCING 146

U.S. SENTENCING COMM’N, OVERVIEW OF STATUTORY MANDATORY MINIMUM SENTENCING (2009).
AMERICAN BAR ASS’N, JUSTICE KENNEDY COMM’N, REPORT WITH RECOMMENDATIONS (2004), available at
www.abanet.org/crimjust/kennedy/JusticeKennedyCommissionReportsFinal.pdf.
FAMILIES AGAINST MANDATORY MINIMUMS, CORRECTING COURSE: LESSONS FROM THE 1970 REPEAL OF
MANDATORY MINIMUMS (2008), available at
http://www.famm.org/NewsandInformation/PressReleases/CorrectingCoursereportandpoll
release.aspx.
The Sentencing Reform Act of 1984: 25 Years Later, Hearing Before the U.S. Sentencing
Commission (July 9, 2009) (testimony of Michael Nachmanoff, Federal Public Defender,
Eastern District of Virginia), available at
http://www.ussc.gov/Legislative_and_Public_Affairs/Public_Hearings_and_Meetings/20090
709/Nachmanoff_testimony_updated.pdf..
U.S. SENTENCING COMM’N, RESULTS OF SURVEY OF UNITED STATES DISTRICT JUDGES, JANUARY 2010
THROUGH MARCH 2010 (2010).
Mandatory Minimum Sentences: Hearing Before the Subcomm. on Crime, Terrorism and
Homeland Security of the H. Comm. on the Judiciary, 111th Cong. 8 (2009) (statement of the
Honorable J. Julie E. Carnes, Chair of the Criminal Law Comm. on behalf of the Judicial
Conference of the United States), available at
http://judiciary.house.gov/hearings/pdf/Carnes090714.pdf.
THE CONSTITUTION PROJECT, PRINCIPLES FOR THE DESIGN AND REFORM OF SENTENCING SYSTEMS: A
BACKGROUND REPORT (2005), available at http://www.constitutionproject.org/pdf/35.pdf.
Sunset Provisions for New and Existing Mandatory Minimums
FAMILIES AGAINST MANDATORY MINIMUMS/STRATEGY ONE, POLL ON MANDATORY MINIMUMS (August
2008), available at
http://www.famm.org/Repository/Files/FAMM%20poll%20no%20embargo.pdf.
FAMILIES AGAINST MANDATORY MINIMUMS, CORRECTING COURSE: LESSONS FROM THE 1970 REPEAL OF
MANDATORY MINIMUMS (2008), available at
http://www.famm.org/Repository/Files/8189_FAMM_BoggsAct_final.pdf
U.S. SENTENCING COMM’N, SPECIAL REPORT TO CONGRESS: MANDATORY MINIMUM PENALTIES IN THE
FEDERAL CRIMINAL JUSTICE SYSTEM (1991).
AMERICAN BAR ASS’N, JUSTICE KENNEDY COMM’N, REPORT WITH RECOMMENDATIONS (2004), available at
www.abanet.org/crimjust/kennedy/JusticeKennedyCommissionReportsFinal.pdf.

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THE CONSTITUTION PROJECT, RECOMMENDATIONS FOR FEDERAL CRIMINAL SENTENCING IN A POST-BOOKER
WORLD (2006). available at http://www.constitutionproject.org/pdf/33.pdf.
THE CONSTITUTION PROJECT, PRINCIPLES FOR THE DESIGN AND REFORM OF SENTENCING SYSTEMS: A
BACKGROUND REPORT (2006), available at
http://www.constitutionproject.org/manage/file/34.pdf.
Recidivism Provisions s
Mandatory Minimum Sentencing Laws: The Issues: Hearing before the Subcomm. on Crime,
Terrorism and Homeland Security of the H. Comm. on the Judiciary, 110th Cong. (2007)
(statement of the Honorable Paul Cassell, Chair of the Criminal Law Comm. on Behalf of the
Judicial Conference), available at
http://judiciary.house.gov/hearings/June2007/Cassell070626.pdf.
THE CONSTITUTION PROJECT, PRINCIPLES FOR THE DESIGN AND REFORM OF SENTENCING SYSTEMS: A
BACKGROUND REPORT (2005), available at http://www.constitutionproject.org/pdf/35.pdf.
Deferred Adjudication Statute
Joint policy statement adopted by the American Bar Ass’n, the National Ass’n of Criminal
Defense Lawyers, and the National District Attorneys Ass’n (Feb. 2007) (supporting deferred
adjudication and endorsing a range of alternatives to incarceration), available at
http://www.abanet.org/leadership/2007/midyear/docs/journal/hundredthreea.doc.
MARGARET COLGATE LOVE, RELIEF FROM THE COLLATERAL CONSEQUENCES OF A CRIMINAL CONVICTION: A
STATE-BY-STATE RESOURCE GUIDE (2006), available at
http://sentencingproject.org/doc/File/Collateral%20Consequences/execsumm.pdf.
Margaret Colgate Love, Alternatives to Conviction: Deferred Adjudication as a Way of
Avoiding Collateral Consequences, 22 FED. SENT. REP. 6 (2010), available at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1570205.
Alternatives to Incarceration in the Sentencing Guidelines
Alternatives to Incarceration, Hearing Before the U.S. Sentencing Commission (March 17,
2010) (testimony of James A. Felman, American Bar Association), available at http://
www.abanet.org/poladv/letters/crimlaw/2010mar12_ussc_t.pdf.
Remarks at the Symposium on Alternatives to Incarceration at the U.S. Sentencing
Commission (July 14-15, 2008) available at

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http://www.ussc.gov/Research/Research_Projects/Alternatives_to_Incarceration/NSATI_0.
htm.
Residential Drug Abuse Program
Federal Bureau of Prisons Oversight: Hearing before the Subcomm. on Crime, Terrorism, and
Homeland Security of the House Comm. on the Judiciary, 111th Cong. (2009), (statement of
Stephen R. Sady, Fed. Pub. Def., Dist. of Or.), available at
http://judiciary.house.gov/hearings/pdf/Sady090721.pdf.
Stephen R. Sady & Lynn Deffebach, THE SENTENCING COMMISSION, THE BUREAU OF PRISONS, AND THE
NEED FOR FULL IMPLEMENTATION OF EXISTING AMELIORATIVE STATUTES TO ADDRESS UNWARRANTED AND
UNAUTHORIZED OVER-INCARCERATION (June 2008), available at
http://or.fd.org/symp2.final%20for%20pdf.pdf.
Good Time Credit Calculations
Barber v Thomas, 130 S.Ct. 2499 (June 7, 2010).
Stephen R. Sady, Too Much Time In Prison, NAT’L LAW J., August 30, 2010, available at
http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202471121126&Too_much_time_in_pri
son&slreturn=1&hbxlogin=1.
Stephen R. Sady & Lynn Deffebach, THE SENTENCING COMMISSION, THE BUREAU OF PRISONS, AND THE
NEED FOR FULL IMPLEMENTATION OF EXISTING AMELIORATIVE STATUTES TO ADDRESS UNWARRANTED AND
UNAUTHORIZED OVER-INCARCERATION (June 2008), available at
http://or.fd.org/symp2.final%20for%20pdf.pdf.
FAMILIES AGAINST MANDATORY MINIMUMS, FREQUENTLY ASKED QUESTIONS ABOUT FEDERAL GOOD TIME
CREDIT (June 7, 2010), available at
http://www.famm.org/Repository/Files/Federal%20Good%20Time%20FAQs%206.7.10.pdf.
THE CONSTITUTION PROJECT, RECOMMENDATIONS FOR FEDERAL CRIMINAL SENTENCING IN A POST-BOOKER
WORLD (2006), available at http://www.constitutionproject.org/pdf/33.pdf.
THE CONSTITUTION PROJECT, PRINCIPLES FOR THE DESIGN AND REFORM OF SENTENCING SYSTEMS: A
BACKGROUND REPORT (2006), available at
http://www.constitutionproject.org/manage/file/34.pdf.

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CHAPTER 9 – FEDERAL SENTENCING 149

Sentence Reductions for Extraordinary and Compelling Circumstances
Letter from Denise Cardman, Governmental Affairs Office, American Bar Association, with
Proposed Policy Statement to Honorable Ricardo H. Hinojosa (March 12, 2007).
Mary Price, The Other Safety Valve: Motions Under 18 U.S.C. § 3582(1)(A), 13 FED. SENT. REP.
188 (2000).
Reduction in Sentence Based on BOP Motion: Hearing Before the U.S. Sentencing
Commission (Mar. 20, 2007) (testimony of Mary Price, Families Against Mandatory
Minimums), available at
http://www.ussc.gov/Legislative_and_Public_Affairs/Public_Hearings_and_Meetings/20070
320/price-testimony.pdf.
Reduction in Sentence Based on BOP Motion: Hearing Before the U.S. Sentencing
Commission (Mar. 20, 2007) (testimony of Stephen Saltzburg, American Bar Association),
available at
http://www.ussc.gov/Legislative_and_Public_Affairs/Public_Hearings_and_Meetings/20070
320/Saltzburg-testimony.pdf.
THE CONSTITUTION PROJECT, RECOMMENDATIONS FOR FEDERAL CRIMINAL SENTENCING IN A POST-BOOKER
WORLD (2006), available at http://www.constitutionproject.org/pdf/33.pdf.
THE CONSTITUTION PROJECT, PRINCIPLES FOR THE DESIGN AND REFORM OF SENTENCING SYSTEMS: A
BACKGROUND REPORT (2006), available at
http://www.constitutionproject.org/manage/file/34.pdf.
Elderly Release Provision Program
NATIONAL INSTITUTE OF CORRECTIONS, CORRECTIONAL HEALTH CARE: ADDRESSING THE NEEDS OF ELDERLY,
CHRONICALLY ILL, AND TERMINALLY ILL INMATES (2004), available at www.nicic.org/library/018735.
VERA INSTITUTE OF JUSTICE, IT’S ABOUT TIME: AGING PRISONERS, INCREASING COSTS, AND GERIATRIC RELEASE
(2010), available at http://www.vera.org/download?file=2973/Its-about-time-agingprisoners-increasing-costs-and-geriatric-release.pdf.
ANTHONY A. STERNS, GRETA LAX, ET AL., THE GROWING WAVE OF OLDER PRISONERS: A NATIONAL SURVEY OF
OLDER PRISONER HEALTH, MENTAL HEALTH AND PROGRAMMING (2008), available at
http://www.aca.org/fileupload/177/ahaidar/Stern_Keohame.pdf.

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CHAPTER 9 – FEDERAL SENTENCING 150

Primary Contacts
Crack Cocaine Sentencing Reform
Nkechi Taifa, Open Society Policy Center
Senior Policy Analyst for Civil and Criminal Justice Reform
1730 Pennsylvania Avenue NW
Washington, DC 20006
(202) 721-5618
ntaifa@osi-dc.org
The Federal Safety Valve, Sunset Provisions for New and Existing Mandatory Minimums,
Recidivism Provisions; Sentence Reductions for Extraordinary and Compelling Circumstances,
Federal Public Defender as Ex Officio Member of the United States Sentencing Commission, Drug
Guideline Levels
Mary Price
Vice President and General Counsel
Families Against Mandatory Minimums
1612 K Street, NW, Washington, DC 20006
202-822-6700
mprice@famm.org
Deferred Adjudication Statute, Elderly Release Provision Program
Margaret Colgate Love
Law Office of Margaret Love
15 Seventh Street NE, Washington, D.C. 20002
(202) 547-0453
margaretlove@pardonlaw.com
Alternatives to Incarceration in the Sentencing Guidelines
James E. Felman
Kynes Markham & Felman, and Co-Chair
Sentencing Committee, ABA Criminal Justice Section
Ste 1300, 100 S. Ashley Dr
Tampa, FL 33602-5309
(813) 229-1118
jfelman@knf-law.com

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CHAPTER 9 – FEDERAL SENTENCING 151

Residential Drug Abuse Program
Stephen R. Sady
Chief Deputy Federal Public Defender, District of Oregon
151 West 7th Avenue Suite 510, Eugene, OR 97401
(541) 465-6937
Good Time Credit Calculations
Jennifer Seltzer Stitt
Director, Federal Legislative Affairs
Families Against Mandatory Minimums
1612 K Street NW
Washington, DC 20001
202-822-6707
jstitt@famm.org

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CHAPTER 9 – FEDERAL SENTENCING 152

CHAPTER 9 CONTRIBUTORS
American Bar Association (ABA)
Bruce Nicholson
740 15th Street, NW
Washington, DC 20005
(202) 662-1769
bruce.nicholson@americanbar.org
American Civil Liberties Union Drug Law
Reform Project
Jay Rorty
915 15th Street, NW
Washington, DC 20005
(202) 544-1681
jrorty@aclu.org
American Civil Liberties Union Washington
Legislative Office
Jennifer Bellamy
915 15th Street, NW
Washington, DC 20005
(202) 675-2312
jbellamy@dcaclu.org
Drug Policy Alliance (DPA)
Jasmine Tyler
925 15th Street, NW, 2nd Floor
Washington, DC 20005
(202) 216-0035
jtyler@drugpolicy.org

Families Against Mandatory Minimums
(FAMM)
Ava Page
1612 K. Street, NW, Suite 700
Washington, DC 20006
(202) 822-6700
apage@famm.org
Mary Price
1612 K. Street, NW, Suite 700
Washington, DC 20006
(202) 822-6700
mprice@famm.org
Jennifer Seltzer Stitt
1612 K. Street, NW, Suite 700
Washington, DC 20006
(202) 822-6700
jstitt@famm.org
Law Office of Margaret Love
Margaret Colgate Love
15 7th Street, NE
Washington, DC 20002
(202) 547-0453
Margylove@aol.com
Leadership Council Education Fund
Lexer Quamie
1629 K Street, NW, 10th Floor
Washington, DC 20006
(202) 466-3311
quamie@civilrights.org

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National Association for the Advancement of
Colored People Legal Defense & Educational
Fund, Inc.
Jeff Robinson
1444 I Street, NW
Washington, DC 20005
(202) 682-1300
jrobinson@naacpldf.org
National Association of Criminal Defense
Lawyers (NACDL)
Kyle O’Dowd
1660 L Street, NW, 12th Floor
Washington, DC 20036
(202) 872-8600, ext 226
kyle@nacdl.org
National Legal Aid & Defender Association
(NLADA)
Edwin A. Burnette
1140 Connecticut Avenue, 9th Floor
Washington, DC 20036
(202) 452-0620, ext 221
e.burnette@nlada.org
Open Society Policy Center (OSPC)
Nkechi Taifa
1730 Pennsylvania Avenue, NW
7th Floor
Washington, DC 20006
(202) 721-5600
ntaifa@osi-dc.org

CHAPTER 9 – FEDERAL SENTENCING 153
The Sentencing Project
Kara Gotsch
1705 Desales Street, NW
8th Floor
Washington, DC 20036
(202) 628-0871
kgotsch@sentencingproject.org
Marc Mauer
1705 Desales Street, NW
8th Floor
Washington, DC 20036
(202) 628-0871
mauer@sentencingproject.org

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CHAPTER 10
IMPROVING THE PRISON SYSTEM

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CHAPTER 10 – PRISONS 155

THE ISSUE
The United States imprisons a higher percentage of its population than any other country. 1
More than one in every 100 adults in the United States is behind bars.2 If the approximately 2.3
million incarcerated people were a single city, it would be the fourth largest in the country.3 In
2008, federal, state, and local governments spent approximately $62 billion on adult and juvenile
corrections and were projected to need as much as $27 billion in additional operating and capital
funds over the next five years to accommodate projected prison expansion and operation.4
In the face of the financial crisis, some states have begun to recognize the need for more
cost-effective approaches to criminal justice policy. In Michigan, where government spending on
corrections exceeds spending on universities,5 the state cut its prison population by more than 10
percent in less than three years through sentencing and parole reforms.6 Similarly, New York
reformed its harsh drug laws and saw its prison population decline significantly.7 In fact, 2009 saw
prison populations drop in 26 states, causing the total number of inmates in state prisons to decline
for the first time since 1972.8 Much of this progress has been made by reducing the number of nonviolent offenders incarcerated unnecessarily and at great cost to taxpayers.
Reforms to our prison system are long overdue. This section provides a comprehensive
summary of practical policy options to bring about significant improvements to the world’s largest
prison system. Prison system reforms are especially needed to (i) end the high incidence of sexual
assault and rape in our nation’s correctional facilities; (ii) return the rule of law to U.S. prisons and
jails; (iii) improve transparency in the world’s largest prison system; (iv) reduce recidivism; and (v)
end over-reliance on the use of solitary confinement and long-term isolation.

1

JOHN SCHMITT, KRIS WARNER & SARIKA GUPTA, CENTER FOR ECONOMIC AND POLICY RESEARCH, THE HIGH BUDGETARY COST OF
INCARCERATION 1 (June 2010), available at http://www.cepr.net/documents/publications/incarceration-2010-06.pdf.
2
PEW CENTER ON THE STATES, ONE IN 100: BEHIND BARS IN AMERICA 2008 (Feb. 2008), available at
http://www.pewcenteronthestates.org/uploadedFiles/8015PCTS_Prison08_FINAL_2-1-1_FORWEB.pdf.
3
See TODD D. MINTON, U.S. DEPT. OF JUST., BUREAU OF JUST. STAT., PRISON INMATES AT MIDYEAR 2009 (June 2010), available
at http://bjs.ojp.usdoj.gov/content/pub/pdf/jim09st.pdf; HEATHER C. WEST, U.S. DEPT. OF JUST., BUREAU OF JUST. STAT ,
STATISTICAL TABLES (June 2010), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/pim09st.pdf.
4
AMERICAN BAR ASSOCIATION, CRIMINAL JUSTICE SYSTEM IMPROVEMENTS 9 (Dec. 2008), available at
http://www.abanet.org/poladv/transition/2008dec_crimjustice.pdf.
5
NATIONAL ASSOCIATION OF STATE BUDGET OFFICERS, STATE EXPENDITURE REPORT 2009 (Fall 2010), available at
http://nasbo.org/LinkClick.aspx?fileticket=%2bPqnI4oZw2I%3d&tabid=38.
6
See Families Against Mandatory Minimums, FAMM’s guide to Michigan sentencing reforms (2003),
http://www.famm.org/Repository/Files/Guide%20to%20MI%20reforms.pdf (last visited Jan. 24, 2001); MICHIGAN
TASK FORCE ON JAIL AND PRISON OVERCROWDING, FINAL REPORT (Mar. 2005), available at
http://www.michigan.gov/documents/report_119595_7.pdf.
7
DENISE E. O’DONNELL, N.Y. DIVISION OF CRIM. JUST. SERVICES, NEW YORK STATE FELONY DRUG ARREST, INDICTMENT, AND
COMMITMENT TRENDS 1973 – 2008 (2009), available at
http://criminaljustice.state.ny.us/pio/annualreport/baseline_trends_report.pdf.
8
PEW CENTER ON THE STATES, PRISON COUNT 2010: STATE POPULATION DECLINES FOR THE FIRST TIME IN 38 YEARS (2010),
available at http://www.pewcenteronthestates.org/uploadedFiles/Prison_Count_2010.pdf?n=880.

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HISTORY OF THE PROBLEM
The U.S. prison population does not reflect the demographics of America at large. Prisons
and jails not only hold far too many people, they also hold a disproportionate number of people of
color, as well as people with mental illness and addiction problems who require treatment—not
incarceration—to reduce their likelihood of recidivism.
In 2009, African-American men were incarcerated at a rate of 4,749 per 100,000—or almost
one out of 20. The comparable rate for Hispanic males was 1,822 per 100,000 and, for white males,
708 per 100,000.9 Black males were six times more likely, and Hispanic males twice as likely, to be
held in custody than white males.10 Furthermore, 56% of state prisoners, 45% of federal prisoners,
and 64% of jail inmates in the U.S. suffer from mental illness.11 Between 60 and 80 percent of
individuals under supervision of the criminal justice system in the U.S. were either under the
influence of alcohol or other drugs when they committed an offense, committed the offense to
support a drug addiction, were charged with a drug-related crime, or were using drugs or alcohol
regularly.12 Experts also estimate that people with developmental disabilities may constitute as
much as 10 percent of the prison population.13
Grossly deficient medical and mental health care also plague prisons and jails across the
country. In 2005, a federal court found that in California a prisoner dies a needless death due to
inadequate medical care or malpractice every six to seven days.14 Prisoners are also threatened
daily by sexual violence, a frighteningly common occurrence in the nation’s corrections systems.15

9

WEST, supra note 3, at 2.
Id.
11
DORIS J. JAMES & LAUREN E. GLAZE, U.S DEPT. OF JUST., BUREAU OF JUST. STAT., MENTAL HEALTH PROBLEMS OF PRISON AND JAIL
INMATES, BUREAU OF JUSTICE STATISTICS SPECIAL REPORT 1 (2006), available at
http://bjs.ojp.usdoj.gov/content/pub/pdf/mhppji.pdf..
12
Douglas B. Marlowe, Integrating Substance Abuse Treatment and Criminal Justice Supervision, 2(1) NIDA SCIENCE
AND PRACTICE PERSPECTIVES (2003), available at
http://www.drugabuse.gov/PDF/Perspectives/vol2no1/02Perspectives-Integrating.pdf (citing S. Belenko et al,
Substance abuse and the prison population: A three-year study by Columbia University reveals widespread
substance abuse among the offender population, 60(6) CORRECTIONS TODAY, 82-89, (1998)).
13
Leigh Ann Davis, People with Mental Retardation in the Criminal Justice System, available at
www.thearc.org/document.doc?&id=149 (citing JOAN PETERSILIA, CALIFORNIA RESEARCH CENTER, DOING JUSTICE? CRIMINAL
OFFENDERS WITH DEVELOPMENTAL DISABILITIES (2000)).
14
Plata v. Schwarzenegger, Slip Copy, 2005 WL 2932253 (N.D. Cal., October 2, 2005) as cited in JOHN J. GIBBONS &
NICHOLAS DE B. KATZENBACH, THE COMMISSION ON SAFETY AND ABUSE IN AMERICA’S PRISONS, CONFRONTING CONFINEMENT 38
(June 2006).
15
See ALLEN J. BECK, PAIGE M. HARRISON, ET AL, U.S. DEPT. OF JUST. BUREAU OF JUST. STAT., SEXUAL VICTIMIZATION IN PRISONS AND
JAILS REPORTED BY INMATES, 2008 – 2009 (August 2010), available at
http://bjs.ojp.usdoj.gov/content/pub/pdf/svpjri0809.pdf.
10

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Sexual Assault in Correctional Facilities

Sexual violence behind bars has reached crisis proportions. Based on a survey in prisons
and jails nationwide, the Bureau of Justice Statistics estimated that 88,500 adult inmates were
sexually abused in their current facility in the past year alone.16 In a similar survey of youth in
juvenile facilities, a shocking one in eight reported being sexually abused in the previous year.17 In
both types of facilities, staff-on-inmate abuse was more prevalent than abuse perpetrated by
inmates.18
An important step in addressing this problem has already been taken. In 2003, Congress
unanimously passed, and President George W. Bush signed into law, the Prison Rape Elimination
Act (PREA).19 Sponsored by Reps. Frank Wolf (R-VA), Bobby Scott (D-VA), and 30 other co-sponsors
in the House,20 and Senators Jeff Sessions (R-AL), Mike Dewine (R-OH), Dick Durbin (D-IL), Edward
Kennedy (D-MA), and Dianne Feinstein (D-CA) in the Senate, PREA called for the development of
binding national standards for the prevention, detection, response, and monitoring of sexual
violence behind bars.21 The bipartisan National Prison Rape Elimination Commission was
established to develop these standards, and the Commission submitted its recommendations to
Attorney General Eric Holder on June 20, 2009.22 These standards include facility audits to certify
compliance with a zero-tolerance policy for sexual abuse; specialized training of facility staff;
heightened protection for identifiably vulnerable inmates; use of monitoring technology; uniform
evidence-gathering protocol; and availability of independent, qualified forensic medical examiners
to victims.23
Under PREA, Attorney General Holder had one year to publish a final rule adopting national
standards, after giving due consideration to the standards recommended by the Commission.24
Once promulgated, these standards will be binding on federal facilities immediately, while state and
county systems will have one year to comply or risk losing five percent of their federal funding.25 As
of the release of this report, the Attorney General has yet to implement these standards.26
16

Id at 5.
ALLEN J. BECK, PAIGE M. HARRISON & PAUL GUERINO, U.S. DEPT. OF JUST. BUREAU OF JUST. STAT., SEXUAL VICTIMIZATION IN
JUVENILE FACILITIES REPORTED BY YOUTH, 2008-2009 (January 2010).
18
BECK, supra note 15; BECK, supra note 17.
19
42 U.S.C. § 15601 et seq.
20
th
For a full list of co-sponsors, see: Bill Summary & Status 108 Congress, H.R. 1707, http://thomas.loc.gov/cgibin/bdquery/z?d108:HR01707: (last visited Jan 24, 2010).
21
42 U.S.C. § 15606(c).
22
NAT’L PRISON RAPE ELIMINATION COMMISSION, STANDARDS FOR THE PREVENTION, DETECTION, RESPONSE, AND MONITORING OF
SEXUAL ABUSE IN ADULT PRISONS AND JAILS (June 20, 2009), available at
http://www.sheriffs.org/userfiles/file/5.1_MasterAdultPrison_andJail_andImmigrationStandardsClean.pdf.
23
Id.
24
42 U.S.C. § 15607(a)(1).
25
42 U.S.C. § 15607(b), (c).
26
See, Disgraceful Delays, WASH. POST, Dec. 12, 2010, available at http://www.washingtonpost.com/wpdyn/content/article/2010/12/12/AR2010121203345.html.
17

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Moreover, the appropriations for PREA have been cut drastically every year since its passage,
making the prospects of assisting states and monitoring their compliance with the standards even
more challenging.27
2.

Failures of the Prison Litigation Reform Act

Congress passed the Prison Litigation Reform Act (PLRA) in 1996.28 PLRA was originally
intended to stem frivolous prisoner lawsuits, but in practice it often denies justice to victims of
rape, assault, religious restrictions, and other rights violations. PLRA’s “physical injury” and
exhaustion requirements have severely limited prisoner’s ability to address violations of their rights
and other serious abuses. If prisoners fail to file the right paperwork when pursuing a claim, or if
their injuries are not deemed sufficiently “physical,” their claims may be dismissed—even if the
claim involves a constitutional violation. Prior to PLRA’s passage, its chief sponsor, Senator Orrin
Hatch (R-UT), assured Congress that he did not “want to prevent inmates from raising legitimate
claims. This legislation will not prevent those claims from being raised.” 29 Unfortunately, it is now
clear that PLRA prevents prisoners—including juveniles—who experience severe violations of their
rights from seeking justice and protection from the courts.
Over a decade of experience has shown that PLRA’s preliminary screening requirement is
sufficient to fulfill the legislation’s purpose. By requiring courts to summarily dismiss prisoner cases
that are frivolous, malicious, or fail to state a legal claim, this provision has greatly reduced the
burden on courts posed by prisoner cases that are not meritorious. However, certain other
provisions of PLRA must be amended or repealed in order to restore meaningful access to the
courts for incarcerated adults and youth.
Congress needs to fix provisions of PLRA that have created unintended consequences. Amongst
these provisions is the “physical injury requirement” which prevents federal courts from reviewing
serious constitutional claims. Under PLRA, prisoners can be sexually assaulted and not have access
to the range of remedies available to most civil rights plaintiffs because some courts say they’ve
suffered no “physical injury.”30 Claims such as disgusting, unsanitary conditions and degrading
treatment also do not meet the “physical injury” requirement under PLRA.31 Further, any
constitutional violations that do not result in physical injuries are barred under PLRA. As a result of
27

STOP PRISON RAPE, PRISON RAPE ELIMINATION ACT UPDATE 7 (2007), available at
http://www.justdetention.org/pdf/SPR_PREA_update_3-29.pdf.
28
H.R. 3019, 104th Cong. (1996) (enacted).
29
141 Cong. Rec. S14626 – 14627 (September 29, 1995), available at http://frwebgate1.access.gpo.gov/cgibin/TEXTgate.cgi?WAISdocID=jBJ8Jo/0/1/0&WAISaction=retrieve.
30
See Hancock v. Payne, 2006 WL 21751 at 1, 3 (S.D. Miss. 2006) (holding that prisoners’ allegations
that a staff member “sexually abused them by sodomy” did not qualify as a physical injury); Moya v. City of
Albuquerque, No. 96-1257 DJS/RLP, Mem. Op. and Order (D.N.M. Nov. 17, 1997) (holding that male officers’
strip-searches of women prisoners did not result in physical injuries, even where one woman allegedly attempted
suicide due to the trauma of the search).
31
See, e.g. Harper v. Showers, 174 F.3d 716 (5th Cir. 1999).

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PLRA’s “physical injury” requirement, courts deny prisoners remedies for violations of their religious
rights, 32 free speech rights33 and due process rights.34
The Exhaustion Requirement of PLRA has also created disastrous consequences for
prisoners’ ability to protect themselves from abuse and harm. PLRA’s exhaustion provisions require
prisoners to exhaust their facilities’ often lengthy administrative grievance process no matter how
meritorious the claims, and no matter how legitimate the reasons for failing to follow grievance
procedures might be.35 Prison and jail grievance systems have created a baffling maze in which a
barely literate, mentally ill, physically incapacitated, or juvenile prisoner’s procedural misstep in a
facility’s informal grievance system forever bars even the most meritorious constitutional claims.
Moreover, grievance deadlines are often a matter of days, with no exceptions for prisoners who are
ill, hospitalized, traumatized, or otherwise incapacitated.36
Finally, PLRA also undermines protections for incarcerated youth. The original justification
for PLRA was to weed out frivolous lawsuits. But even if some adult prisoners filed frivolous
lawsuits, supporters of PLRA did not claim that incarcerated youth filed such litigation.37 This is not
surprising because most prisoner lawsuits are filed pro se,38 and youth rarely file lawsuits over their
conditions of confinement. Many youth in the juvenile justice system are unable to adequately
read and write, and few if any have sufficient understanding of the court system to file pro se
litigation. Youth are even more vulnerable than adult prisoners to sexual abuse and other
victimization, and many either do not know of or do not understand the grievance systems in their
facilities, and many more fear retaliation for filing grievances.39 As a result, the exhaustion
provision effectively bars many incarcerated youths from addressing serious problems with their
conditions of confinement. Additionally, the physical injury requirement works against protection
of youths’ rights to rehabilitation in custody. The provision undermines the rights of incarcerated
youth to protect their religious rights, free speech rights, and due process rights, and jeopardizes
the right to education, counseling, and other rehabilitative programming that forms the core of the
juvenile justice system. These are all rights that should be protected even though they do not
involve physical injury.

32

See SAVE Coalition, Top 10 Harmful Effects on Religious Freedom, available at
http://www.savecoalition.org/pdfs/top10_religion.pdf.
33
See, e.g., Royal v. Kautzky, 375 F.3d 720, 722-23 (8th Cir. 2004).
34
See, e.g., Thompson v. Carter, 284 F.3d 411, 416-17 (2d Cir. 2002).
35
42 U.S.C. § 1997e(a) (2007).
36
See Woodford v. Ngo, 548 U.S. 81, 118 (Stevens, J., dissenting) (noting that grievance filing deadlines “are
generally no more than 15 days, and … in nine States, are between 2 and 5 days”).
37
Review of the Prison Litigation Reform Act: A Decade of Reform or an Increase in Prison and Abuses?: Hearing on
H.R.1889 before the Subcomm. on Crime, Terrorism and Homeland Security of the H. Comm. on the Judiciary, 110th
Cong. 1-2 (2007) (statement of Jessica Feierman, Juvenile Law Center).
38
Jon O. Newman, Pro Se Prisoner Litigation: Looking for Needles in Haystacks, 62 BROOKLYN L. REV. 519 (1996).
39
Statement of Jessica Feierman, supra note 37.

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3. Lack of Transparency in Correctional Facilities
Despite the massive expenditure of taxes and the profound effect that prison has on the
individual, the community, and public safety, there is very little oversight of prisons, jails, and
juvenile detention facilities, or public accountability for what takes place behind bars. While the
federal courts provide some oversight, courts are unable to proactively address many systemic
problems, particularly before they rise to the level of a constitutional violation. Prisons are, by their
nature, closed institutions in which the State, through the prison administration and staff, has
extraordinary power over every aspect of prisoners’ lives. The potential for abuse of that power is
always present. As noted above, the majority of sexual abuse in detention is perpetrated by
corrections staff. Conditions within a prison can deteriorate to an extent which imperils the lives
and human rights of those held there without anyone on the outside aware of what is happening.
Prisons need effective forms of oversight to prevent abuse, encourage public officials to meet their
legal obligation, and ensure constitutional conditions of confinement.
Currently, there are no national standards for the treatment of prisoners and no systemic
national oversight to ensure that the constitutional rights of prisoners are protected. Traditionally,
the federal courts have provided some oversight through litigation. Indeed, through the oversight
provided by the federal courts in the 1970’s and 1980’s, the country’s prisons were transformed
from virtual dungeons to modern correctional institutions.40 Since the enactment of PLRA in 1996,
however, the power of the federal courts to provide oversight has been drastically undercut.
Moreover, the courts are unable to proactively address many systemic and managerial problems,
particularly before they rise to the level of a constitutional violation, and the courts can only act on
those cases brought before them. As a result, it is essential that the government implement
alternative forms of oversight.
Fortunately, Congress has taken action in the past to improve oversight. In 2000, Congress
enacted the Deaths in Custody Reporting Act (DICRA)41, sponsored by Reps. Robert Scott (D-VA),
James Forbes (R-VA), and Sheila Jackson-Lee (D-TX), which required local jails and state prisons to
report to the federal government any deaths in their custody. DICRA expired in December 2006
and has not yet been reauthorized.42 Additionally, as discussed above, PREA, which was passed in
2003, requires the development of binding national standards to address prison rape.

40

See Prison Abuse Remedies Act of 2007:Hearing on H.R. 4109 Before the Subcomm. on Crime, Terrorism, and
Homeland Security of the H. Comm. on the Judiciary, 110th Cong. 1 (2008) (statement of Caroline Frederickson,
American Civil Liberties Union, and Elizabeth Alexander, ACLU Prison Project) (citing Hutto v. Finney, 437 U.S. 678
(1979); Lightfoot v. Walker, 486 F. Supp. 504 (S.D. Ill. 1980); Pugh v. Locke, 406 F. Supp. 318 (M.D. Ala. 1976);
Ramos v. Lamm, 639 F.2d 559 (10th Cir. 1980); Laaman v. Helgemoe, 437 F. Supp. 269 (D.N.H. 1977)), available at
http://www.savecoalition.org/pdfs/NPPTestimonyFINAL.pdf.
41
th
H.R. 3971, 106 Cong. (2000).
42
H.R. 738 was introduced by Rep. Scott in the 110th Congress and passed the house with a vote of 407-1, but the
bill was never considered by the Senate Judiciary Committee. H.R. 738, 110th Cong. (2009).

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Further, the Juvenile Justice and Delinquency Prevention Act of 1974 (JJDPA) establishes
certain core requirements for the appropriate treatment of juveniles in states that receive federal
funding for the juvenile justice systems.43 The authorizations for JJDPA expired in 2007, but
Congress has yet to reauthorize it, though the Senate Judiciary Committee approved legislation in
2010.44. Efforts have been made to include in the reauthorization oversight of conditions of
confinement in juvenile facilities and to ensure that youth charged as adults are kept out of adult
jails pre-trial with the ultimate goals of providing safe and humane conditions of confinement for
youth in both juvenile and adult facilities and keeping youth out of adult jails and prisons
completely.45
4. Recidivism in America’s Criminal Justice Population
An estimated two-thirds of the 650,000 people returning home from prison will be rearrested for a felony or serious misdemeanor within three years.46 Approximately 70 to 80% of
people coming home from prison or jail have histories of drug or alcohol dependence.47 Research
shows that young people who are kept in the juvenile justice system are less likely to re-offend than
young people who are transferred into the adult system. According to the Centers for Disease
Control and Prevention, youth transferred from the juvenile court system to the adult criminal
system are approximately 34% more likely than youth retained in the juvenile court system to be
re-arrested for violent or other crime.48 The Department of Justice’s Office of Juvenile Justice and
Delinquency Prevention has also concluded that transfer laws substantially increase recidivism,
particularly for first time violent offenders, and that laws to make it easier to transfer youth to the
adult criminal court system do not prevent youth from engaging in criminal behavior.49
Maintaining family ties is also incredibly important in reducing recidivism and increasing
public safety. Yet too often, families are destroyed because a parent or child is in prison. Nearly
two million children have at least one parent in prison.50 These children are six times more likely to
be incarcerated than other youth, according to some public health studies.51 The vast majority of
correctional institutions and systems do not foster family ties for the prisoners in their care. In fact

43

42 U.S.C. § 5601.
th
S. 678, 111 Cong. (2010).
45
See Juvenile Justice, SMART ON CRIME (2011).
46
Christy A. Visher and Jeremy Travis, The Urban Institute Justice Policy Center, Transitions from Prison to
Community: Understanding Individual Pathways 29 ANN. REV. SOCIOLOGY 89-113 (2003).
47
CHRISTOPHER MUMOLA, U.S. DEPT. OF JUST., BUREAU OF JUST. STAT., SUBSTANCE ABUSE AND TREATMENT OF STATE AND FEDERAL
PRISONERS (1999), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/satsfp97.pdf.
48
Centers for Disease Control and Prevention, Effects on Violence of Laws and Policies Facilitating the Transfer of
Youth from the Juvenile to the Adult Justice System, MORBIDITY AND MORTALITY WEEKLY REPORT (November 30, 2007).
49
RICHARD E. REDDING, U.S. DEPT. OF JUST., OFFICE OF JUV. JUST. AND DELINQUENCY. PREVENTION, JUVENILE TRANSFER LAWS: AN
EFFECTIVE DETERRENT TO DELINQUENCY? (2010), available at http://www.ncjrs.gov/pdffiles1/ojjdp/220595.pdf.
50
LAUREN E. GLAZE AND LAURA M. MARUSCHAK, U.S. DEPT. OF JUST., BUREAU OF JUST. STAT., PARENTS IN PRISON AND THEIR
CHILDREN (2010), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/pptmc.pdf.
51
See, e. g., S. REP. NO. 106-404, at 56 (2000).
44

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many policies, such as limited visitation hours or restrictions on prisoners hugging their children,
exacerbate the difficulties prisoners and their families face in maintaining family bonds.52
5. Lack of Effective Rehabilitation and Reentry
Good time credit is important in providing incentives for prisoner rehabilitation, as well as
reducing prison costs. The Federal Bureau of Prisons (BOP), however, has adopted a method of
calculating the good time credit to which most prisoners are entitled that results in only a 12.8%
reduction in prisoner sentences instead of the 15% Congress intended for good behavior.53 BOP’s
convoluted calculation method has been upheld by the Supreme Court.54 But this difference in
calculation means that each prisoner loses a full week of good time credit for each year of their
sentence. The Federal Defenders estimate that BOP’s method of calculation has resulted in
approximately 36,000 years of over-incarceration.55 Given the estimated $25,894 per year costs for
non-capital incarceration expenditures within BOP, this over-incarceration amounts to over $951
million in taxpayer money that Congress never intended to authorize for federal prisoners.56 In
addition to these cost over-runs, BOP’s method of calculating good time takes up sorely needed bed
space within BOP facilities, particularly in higher security facilities that house prisoners with longer
sentences, and adds significantly to the dangerous population pressures on a system already at
149% of capacity. A bill was introduced in the 111th Congress to fix this problem (H.R. 1475).
Additionally, BOP has failed to provide the congressionally-mandated, one-year sentence
reduction incentive for thousands of drug addicted offenders who seek to participate in BOP’s
Residential Drug Abuse Program (RDAP). It has done this in two ways: (i) by implementing rules
that disqualify statutorily eligible prisoners who successfully complete in-prison substance abuse
treatment; and (ii) by administering the program in a way that deprives even those it deems eligible
of the full year of credit that Congress intended. For example, in violation of the statutory mandate
that all prisoners receive appropriate drug treatment, the BOP disqualifies statutorily-eligible
prisoners based solely on stale convictions involving violence.57 The BOP prevents any prisoner with
52

Creasie Finny Hairston, Prisoners and Families: Parenting Issues During Incarceration, FROM PRISON TO HOME: THE
EFFECT OF INCARCERATION AND REENTRY ON CHILDREN, FAMILIES, AND COMMUNITIES (2001), available at
http://aspe.hhs.gov/hsp/prison2home02/Hairston.htm.
53
. See Families Against Mandatory Minimums, Frequently Asked Questions About Federal Good Time Credit, 8
(2008) http://www.famm.org/Repository/Files/FINAL_Good_Time_FAQs_10.21.08%5B1%5D.pdf.
54
Barber v. Thomas, 130 S. Ct. 2499 (2010).
55
The 36,000 years figure was reached by the following calculations. 195,435 prisoners x 7 days a year x 9.8
average sentence that is more than a year and less than life, divided by 365 days in a year equals 36,731 years. See
Families Against Mandatory Minimums, supra note 53, at 8; see also Stephen R. Sady & Lynn Deffebach, The
Sentencing Commission, The Bureau Of Prisons, And The Need For Full Implementation Of Existing Ameliorative
Statutes To Address Unwarranted And Unauthorized Over-Incarceration, UNITED STATES SENTENCING COMMISSION
SYMPOSIUM ON ALTERNATIVES TO INCARCERATION 2- 9 (July 2008).
56
Families Against Mandatory Minimums, supra note 53.
57
Federal Bureau of Prisons Oversight Hearing Before the Subcomm. on Crime, Terrorism, and Homeland Security
of the H. Comm. on the Judiciary, 111th Cong. (2009) (statement of Stephen R. Sady, Federal Defender for the
District of Oregon) ), available at http://judiciary.house.gov/hearings/pdf/Sady090721.pdf.

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a detainer from participation in the residential program, which eliminates the 26.6% of prisoners
who are removable aliens within the BOP population.58 The BOP also categorically denies
participation to any eligible prisoner whose offense involved mere possession of a firearm, rather
than an actual violent offense.59
Beyond categorically denying large portions of the federal population the benefit of RDAP’s
sentence reduction incentive, BOP fails to provide sufficient drug abuse education classes, which is
exacerbated by delayed consideration of a prisoner’s application to RDAP until the end of their
sentence. As a result, even eligible prisoners are deprived of the full benefit of the one-year
sentence reduction. BOP’s administration of RDAP has led to an average sentence reduction of only
7.64 months, rather than the full year permitted by Congress, limit the potential savings in federal
corrections costs.60
Furthermore, BOP has failed to implement the directive of the Second Chance Act to give
prisoners 12 months of pre-release custody in a Community Corrections Facility (CCC), such as a
community treatment center, halfway house, restitution center, mental health facility, alcohol or
drug rehabilitation center, or residential reentry centers. BOP’s policy is premised on two highly
questionable arguments: (i) more than six months in a CCC is not beneficial for individual prisoners;
and (ii) it is more expensive to house prisoners in CCCs than in secure facilities. There is no
empirical support for the first proposition, nor does it take in to account the possibility of beginning
the halfway house at twelve months and transitioning to home confinement once residence in the
halfway house is no longer necessary. The second proposition is also hard to credit because
incarceration in BOP costs about $2,076.83 per month (not including capital costs) compared to
$1,905.92 for halfway house placement and, at least potentially, $301.80 for home confinement. 61
BOP has also persisted in an unnecessarily restrictive interpretation of its authority to
designate the place of a prisoners confinement under 18 U.S.C. § 3621(b) despite contrary rulings
by at least four courts of appeal. Specifically, it has declined to return to its former practice of
allowing short-sentenced prisoners to serve their sentences in community confinement upon
58

Id.
28 C.F.R. § 550.55.
60
Beth Weinman, Prison Programs Resulting in Reduced Sentences, THE U.S. SENTENCING COMMISSION SYMPOSIUM ON
ALTERNATIVES TO INCARCERATION 72 (July 2008), available at
http://www.ussc.gov/Research/Research_Projects/Alternatives/20080714_Alternatives/05_FINAL_PrisonProgram
s.pdf.
61
Memorandum from Matthew Roland, Deputy Assistant Director, Administrative Office of the United States
Courts, Regarding Cost of Incarceration to Chief Probation and Pretrial Officers (May 6, 2008). Currently, BOP
utilizes its private halfway house contractors to supervise those who go to home detention through a halfway
house, and they charge BOP the full cost of a halfway house placement for the entire term of home detention.
BOP permits the halfway house operators to decide when a prisoner goes to home detention, and operators have
a financial incentive to send people home sooner rather than later since they are paid the same for the duration of
the community placement, and can fill the empty bed. Where home detainees are supervised by Federal
Probation, the cost to the government is $301.80. As of this writing, the authors know of no reason why BOP
could not ask Federal Probation to supervise all those in home detention at a much lower cost.
59

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recommendation of the sentencing judge, notwithstanding affirmation by several courts of appeal
of its authority to do so.62 A policy memorandum issued by BOP on February 2, 2009, emphasizes
that while prisoners may be eligible for community placements, such front-end placements are
disfavored.63
Finally, BOP has drastically underutilized its second look resentencing authority under 18
U.S.C. § 3582(c)(1)(A)(i) to petition the sentencing court for reduction of a prisoner’s term of
imprisonment where there have been “extraordinary and compelling” changes in the prisoner’s
circumstances since the sentence was imposed. Even after the U.S. Sentencing Commission (USSC)
promulgated a more expansive interpretation of that phrase, BOP issued regulations reiterating a
very narrow “terminal illness/total disability” basis for seeking reduction of a prison term under this
statute that is inconsistent with the USSC definition. BOP has openly stated its unwillingness to
comply with USSC policy guidance authorizing reductions in a wider range of cases, even though
Congress explicitly delegated the authority to define “extraordinary and compelling” to USSC, not
BOP.64 BOP has administered its far narrower test to return to court in fewer than thirty cases each
year.
6. Overuse of Solitary Confinement
Long-term isolated confinement is often called “solitary confinement,” “ad seg,” “SHU,”
“SMU” “the hole,” or “supermax” confinement. It is the practice of placing people alone in cells for
23 hours a day or more with little or no human interaction; reduced natural light; little access to
recreation; strict regulation of access to property, such as radios, television, or commissary items;
greater constraints on visitation rights; and the inability to participate in group or social activities,
including eating with others. The length of this type of placement varies, but it can last for years or
indefinitely. The American Bar Association uses the following definition:
The term ‘segregated housing’ means housing of a prisoner in conditions
characterized by substantial isolation from other prisoners, whether pursuant to
disciplinary, administrative, or classification action. ‘Segregated housing’ includes
restriction of a prisoner to the prisoner’s assigned living quarters.65
The term ‘long-term segregated housing’ means segregated housing that is expected
to extend or does extend for a period of time exceeding 30 days.66
62

See Brief for Families Against Mandatory Minimums,, Munis v. Sabol 517 F.3d 29 (1st Cir. 2008).
Memorandum from Joyce K. Conley, Assistant Director, Correctional Programs Division, U.S. Department of
Justice Federal Bureau of Prisons, Review of Inmates for Initial Designation to Residential Reentry Centers
(February 2, 2009), available at http://www.fd.org/pdf_lib/BOP.Front.end.CCCdesignationPolicy.2.11.09.pdf.
64
28 U.S.C. § 994(t); See Margaret Colgate Love, ABA Commission on Effective Criminal Sanctions, Sentencing
Reduction Mechanisms in a Determinate Sentencing System: Report of the Second Look Roundtable, 21 FED. SENT’G
REP. 3 (2009), available at http://www.pardonlaw.com/materials/12.FSR.21.3_211-226.pdf.
65
AMERICAN BAR ASSOCIATION, STANDARDS FOR CRIM. JUST.: TREATMENT OF PRISONERS 23-1.0(r) (3d ed. 2010), available at
http://www.abanet.org/crimjust/policy/midyear2010/102i.pdf.
66
Id. at 23-1.0(o).
63

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There is a general consensus among researchers that isolated confinement is psychologically
harmful for people.67 Some experts have also documented negative physiological responses to
solitary confinement as well. The European Committee for the Prevention of Torture found that
such conditions amount to “inhuman treatment.”68
Historically, American researchers and people in the legal system recognized these harms
and curbed the use of solitary confinement as a method of punishment. Since the 1980s, however,
“tough on crime” rhetoric has fueled a resurgence in the use of long-term isolated confinement and
the building of “supermax” facilities, all justified as the only means available to punish “the worst of
the worst.” Yet the vast majority of prisoners in isolation are not incorrigibly violent criminals.
Instead, many are severely mentally ill or developmentally disabled prisoners who are difficult to
manage in prison settings. 69 Many people subject to isolated confinement have not actually done
anything violent, although they may have broken prison rules, such as those against possessing
contraband.70 Some prisoners have also been placed in isolated confinement or supermax
institutions because they filed grievances against correctional officers or otherwise attempted to
assert their rights.71
Despite its political popularity, there is no evidence that using isolated confinement or
supermax institutions has reduced the levels of violence in prison or that such confinement acts as a
deterrent.72 In contrast, there is ample evidence that the use of long-term isolation is considerably
more expensive than general population because facilities that provide for solitary confinement are
considerably more costly to build and operate, sometimes costing two or three times as much as
conventional facilities.73 In recognition of the inherent problems of long-term isolation, the
67

See e.g., Stuart Grassian, Psychopathological Effects of Solitary Confinement, 140 AM. J. OF PSYCHIATRY 1450
(1983); R. Korn, The Effects of Confinement in the High Security Unit at Lexington, 15 SOC. JUST. 8 (1988); S.L.
Brodsky and F.R. Scogin, Inmates in Protective Custody: First Data on Emotional Effects, 1 FORENSIC REP. 267 (1988);
Craig Haney, Mental Health Issues in Long-Term Solitary and ''Supermax'' Confinement, 49 CRIME & DELINQ. 124
(2003); H. Miller and G. Young, Prison Segregation: Administrative Detention Remedy of Mental Health Problem? 7
CRIM. BEHAV. & MENTAL HEALTH 85 (1997); H. Toch, Mosaic of Despair: Human Breakdown in Prison, AM. PSYCH. ASS’N
(1992).
68
Leena Kurki and Norval Morris, The Purposes, Practices, and Problems of Supermax Prisons, 28 CRIME & JUST. 385,
415 (2001) (specifically, spending twenty two hours a day in a cell, without associating with other prisoners, with
limited visits and activities for over a year is “inhuman treatment”).
69
Haney, supra note 67, at 127.
70
Kurki and Morris, supra note 68, at, 411-12.
71
Instances of retaliatory use of solitary confinement are far too numerous to list individually. See, e.g., Adnan
Pearson v. Welborn, 471 F.3d 732 (7th Cir. 2006) (finding a prison employee to have inflicted a year’s confinement
in a “supermax” facility on a prisoner in retaliation for his First Amendment-protected complaints about prison
conditions); SAVE: COALITION TO STOP ABUSE AND VIOLENCE EVERYWHERE, REFORM THE PRISON LITIGATION REFORM ACT (PLRA)
(2008), available at http://www.savecoalition.org/pdfs/save_final_report.pdf.
72
Kurki and Morris, supra note 59, at 391.
73
CAROLINE ISAACS AND MATTHEW LOWEN, BURIED ALIVE: SOLITARY CONFINEMENT IN ARIZONA’S PRISONS AND JAILS 4 (2007);
Daniel P. Mears and Jamie Watson, Towards a Fair and Balanced Assessment of Supermax Prisons, 23 JUST. Q. 233,
260 (2006).

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American Bar Association recently approved standards to reform the use of isolated confinement in
this country.74 The solutions presented in the Standards represent a consensus view of
representatives of all segments of the criminal justice system who collaborated exhaustively in
formulating the final ABA Standards.
7. Overreliance on Incarceration
In 1972, the nation’s prison population was just over 300,000. Today, the nation’s prison
population is well over 2.3 million, and there are over 500,000 correctional officers.75 While the
U.S. contains roughly 5% of the world’s population, almost 25% of all the world’s prisoners are
housed in U.S. prisons and jails.76 The vast majority of these individuals are in prison for non-violent
crimes, often related to drugs and drug addiction.
For decades, the ever-increasing number of inmates has proceeded unchecked and largely
unexamined. “Tough on crime” political rhetoric and a purely punitive correctional purpose have
fueled policy choices and financial and legal decisions. But public discourse is now changing, in part
fueled by the current financial crisis. To seize this moment, a national consensus should be reached
on evidence-based policies that will ensure public safety while at the same time ensuring rational,
cost-effective policies that work to return prisoners to the community to be productive, law-abiding
citizens.
RECOMMENDATIONS
1.

Sexual Violence in Prisons
A. The Prevalence of Sexual Assault in Correctional Facilities and Lack of Accountability
for Sexual Abusers

Sexual violence behind bars has reached crisis proportions. PREA called for the
development of binding national standards for the prevention, detection, response, and monitoring
of sexual violence behind bars, and for the Attorney General to publish a final rule adopting binding
national standards within one year.77 However, the Attorney General has yet to implement the
standards, and appropriations for PREA have been drastically cut every year since its passage,
making the prospects of assisting states and monitoring their compliance with the standards even
more challenging.78

74

AMERICAN BAR ASSOCIATION, supra note 65, at 23-3.8 (3d ed. 2010).
See MINTON, supra note 3; WEST, supra note 3.
76
See SCHMITT ET AL supra note 1.
77
42 U.S.C. § 15606(c).
78
STOP PRISON RAPE, PRISON RAPE ELIMINATION ACT UPDATE, supra note 27, at 7.
75

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B. Fully Implement PREA
Legislative
Congress should provide sufficient appropriations for PREA. When PREA was passed,
Congress authorized $60 million per year in funding through 2010.79 Since then, however,
appropriations have dropped substantially—from an initial level of $35 million annually in fiscal
years 2004 and 2005 to approximately $18 million annually in fiscal years 2006 through 2008.
Because of the reduced funding, the state grants authorized by PREA have not been awarded since
Fiscal Year 2006.80 At a minimum, Congress should retain current funding levels for PREA, with
money earmarked for state and county grants.
Additionally, Congress should hold oversight hearings with the Attorney General and
relevant members of his staff to ensure that the Department of Justice is meeting its obligations
under PREA. The Attorney General was obliged under PREA to ratify national standards by June
2010, but has failed to do so. Indeed, no new deadline for ratification of national standards has
been set. As noted above, the Department has also failed to administer the state grants program or
prioritize funding for it within its proposed budget. Congress must hold the Administration
accountable for its obligations under the law.
Executive
The Attorney General should ratify national standards addressing sexual violence in
detention. The National Prison Rape Elimination Commission spent more than five years holding
public hearings, convening expert working groups, and consulting with the full range of
stakeholders – including corrections officials, advocates, policymakers, and prison rape survivors –
to come up with their proposed standards. These recommendations represent a compromise,
balancing the fiscal and security concerns of officials with the rights of inmates to be free from
sexual abuse. The Attorney General should defer to the expertise gathered by the Commission and
the compromise it established by ratifying the basic provisions that it proposed.
The Department of Justice should establish meaningful compliance monitoring of PREA
standards. For these standards to have an impact, the Department must monitor compliance and
hold corrections agencies accountable for meeting these basic obligations. The Department of
Justice should establish general guidelines for local compliance monitoring and then provide federal
oversight to ensure sufficient accountability.

79

See 42 U.S.C. §§ 15603(e), 15604(c), 15605(g)(1).
National Prison Rape Elimination Report and Standards: Hearing before the Subcomm. on Crime, Terrorism, and
Homeland Security of the H. Comm. on the Judiciary, 111th Cong. 5 (2009) (statement of Melissa Rothstein, Just
Detention International).
80

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2.

CHAPTER 10 – PRISONS 168

Failures of the Prison Litigation Reform Act (PLRA)
A. The Prison Litigation Reform Act Impedes Prisoners’ Access to Justice

While PLRA was originally intended to stem frivolous prisoner lawsuits, in practice it often
denies justice to victims of rape, assault, religious restrictions, and other rights violations. PLRA’s
“physical injury” and exhaustion requirements have severely limited prisoner’s ability to address
violations of their constitutional rights and other serious abuses. Certain provisions of PLRA must
be amended or repealed in order to restore meaningful access to the courts for incarcerated adults
and youth.
B. Address the Problems Created by PLRA
Legislative
To address the unintended consequences of PLRA, Congress should reintroduce and pass
legislation similar to the Prison Abuse Remedies Act (PARA),81 originally introduced in the 110th
Congress, and the Prison Abuse Remedies Act of 2009 (PARA),82 introduced in the 111th Congress.83
The House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security, held hearings on
November 8, 2007 and April 22, 2008 regarding the problems with PLRA and the recommended
reforms.84 However, neither bill received a committee vote. Congress should pass legislation
containing similar provisions to PARA’s to address the over-reach of PLRA. The legislation should:

81

•

Repeal the provision in 42 U.S.C. § 1997e(e) prohibiting prisoners from bringing lawsuits for
mental or emotional injury without demonstrating a “physical injury.”

•

Amend the requirement in 42. U.S.C. § 1997e(a) for exhaustion of administrative remedies
to instead require prisoners to present their claims to responsible prison officials before
filing suit. Should prisoners fail to do so, the amendment should require courts to stay the
case for up to 90 days and return those claims to prison officials to provide them the
opportunity to resolve the complaint administratively.

•

Repeal 18 U.S.C. § 3626(g), 28 U.S.C. §§ 1915(h), 1915A(c), and 42 U.S.C. § 1997e(h), which
extend PLRA to juveniles confined in juvenile facilities.

th

H.R. 4109, 110 Cong. (2007).
th
H.R.4335, 111 Cong. (2009).
83
The only substantive difference between the two bills, which were both introduced by Rep. Robert C. Scott (DVA), is that the earlier bill would have eliminated PLRA restrictions on awards of attorneys fees. The later bill
would not.
84
H.R. 4109, the Prison Abuse Remedies Act of 2007 (PARA): Hearing Before the H. Subcomm. on Crime Terrorism
th
and Homeland Sec., 100 Cong. (2008). For testimony from these hearings, see STOP ABUSE AND VIOLENCE EVERYWHERE
COALITION, http://www.savecoalition.org/latestdev.html (last visited Jan. 18, 2011).
82

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•

Restoring judicial discretion to grant the same range of remedies in prisoners’ civil rights
actions that are available in all other civil rights cases by repealing 18 U.S.C. § 3626.

•

Amend 28 U.S.C. §§ 1915(a), (b) to allow indigent prisoners whose cases are found to state a
valid claim at the preliminary screening stage to pay a partial filing fee rather than the full
filing fee (currently $350 in district courts and $450 in appellate courts).

•

Amend the “three-strikes provision” in 28 U.S.C. §1915(g) (which requires indigent prisoners
who have previously had three cases dismissed to pay the full filing fee up front, except in
cases of imminent danger of serious physical harm) by limiting it to prisoners who have had
three lawsuits or appeals dismissed as malicious within the past five years.
Executive

The Administration should support amending PLRA and commit to signing reforms to PLRA
that Congress passes.
3.

Transparency and Oversight in Correctional Institutions
A. Lack of Transparency and Accountability in Correctional Institutions

Despite the massive expenditure of taxes and the profound effect that prison has on the
individual, the community, and public safety, there is very little oversight of prisons, jails, and
juvenile detention facilities, or public accountability for what takes place behind bars. Currently,
there are no national standards for the treatment of prisoners and no systemic national oversight to
ensure that the constitutional rights of prisoners are protected. Further, since the enactment of
PLRA in 1996, the traditional power of the federal courts to provide oversight has been drastically
undercut. As a result, it is essential that the government implement alternative forms of oversight.
B. Build Transparency and Accountability in Corrections
Legislative
Congress should reauthorize DICRA. DICRA expired in 2006 and has not been reauthorized.
Congress should reintroduce and pass this critical legislation.85
Congress should strengthen the JJPDA86 to include oversight of conditions of confinement in
juvenile facilities and to ensure that youth charged as adults are kept out of adult jails pre-trial. This
would improve the likelihood of safe and humane conditions of confinement for youth in both
juvenile and adult facilities, and keep youth out of adult jails and prisons completely. .
85
86

42 U.S.C. § 13701.
42 U.S.C. §§ 5601 et seq.

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Congress should reintroduce the Private Prison Information Act.87 The Act, introduced in
the House in April of 2007 with 25 cosponsors, would require prisons and other detention facilities
holding federal prisoners or detainees under a contract with the federal government to make the
same information available to the public that federal prisons and detention facilities are required to
do by law. Private prisons would be subject to the same Freedom of Information Act (FOIA) 88
provisions as the BOP in order to build transparency and accountability in the work of federal
contractors. Currently, BOP is subject to FOIA as a bureau of the federal government.
Congressional committees in both the House and Senate should hold oversight hearings to
investigate conditions at BOP facilities. The hearing could areas of concern including:

•

Federal death row conditions;

•

BOP’s required reporting under the Second Chance Act regarding the shackling of pregnant
women prisoners under its jurisdiction;

•

Medical care at federal facilities, including staffing ratios;

•

Discretion given to wardens to limit First Amendment rights through special administrative
measures (SAMS);

•
•

Regulation and oversight of Communication Management Units (CMUs);
Treatment of prisoners with mental illness;

•

Treatment of prisoners held in long-term isolation and policies to ensure humane treatment
and the availability of meaningful due process for prisoners who may be subject to such
conditions, as well as the availability of plans for prisoners to earn their way out of
restrictive housing;89 and

•

BOP’s response to the findings of Office of Inspector General (OIG) audits, investigations,
special reviews and reports.

Finally, Congress should fund National Institute of Justice research to look into state and
local independent oversight models to determine which are most successful.

87

th

H.R. 1889, 100 Cong. (2007).
88
5 U.S.C. § 552.
89
See Section VI infra.

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Executive
The role of the OIG, which conducts independent investigations, inspections, special
reviews, and audits of Department of Justice programs and personnel, including the BOP, should be
expanded. The OIG should be fully funded and expanded to allow for greater and more effective
oversight of BOP’s facilities across the nation and the over 200,000 individuals incarcerated therein.
The Attorney General should ensure that BOP is held accountable for both responding to the OIG’s
report findings and immediately taking steps to remedy any problems or areas of concern identified
by the OIG.
The Special Litigation Section of the Department of Justice’s Civil Rights Division should be
fully funded and expanded to enable more robust enforcement of the Civil Rights for
Institutionalized Persons Act (CRIPA),90 a federal law that enables the Attorney General to conduct
investigations and litigation regarding conditions of confinement in state and local institutions,
including jails, prisons, and youth detention centers.
The President should sign the Optional Protocol to the Convention Against Torture
(OPCAT)91 to enhance oversight and accountability in U.S. prisons, jails, and youth detention
centers. As a party to the United Nations Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (CAT), the United States is obligated to “take …measures to
prevent acts of torture” and “keep under systematic review interrogation rules, instructions,
methods and practices as well as arrangements for custody and treatment of persons subjected to
any form of arrest, detention or imprisonment … with a view to preventing cases of torture.” 92
Consistent with these obligations, parties to the CAT developed the OPCAT, which seeks to prevent
torture and other forms of ill-treatment by establishing a system in which independent
international and national bodies send inspectors on regular visits to places of detention.93 The U.S.
is not currently a party to OPCAT, although it is a party to CAT. The President should join the
Protocol as a first step towards creating a national system of oversight and accountability for the
nation’s prisons, jails, and youth detention centers that focuses on preventing abuses.

90

42 U.S.C. § 1997a et seq.
Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or
Punishment, June 22, 2006, UN Doc. A/RES/57/199 (2003).
92
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, arts. 2, 11, G.A.
th
Res. 39/46, 39 U.N. GAOR, 39 Sess., Supp. No. 51, at 197, U.N. Doc. A/39/51 (1984) (entered into force June 26,
1987 and ratified by the U.S. October 14, 1991).
93
Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, G.A. Res. 57/199, U.N. Doc. A/RES/57/199 (December 18, 2002).
91

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4.

CHAPTER 10 – PRISONS 172

The Need for Effective Rehabilitation and Reentry
A. High Rates of Recidivism

An estimated two-thirds of the 650,000 people returning home from prison will be re-arrested for
a felony or serious misdemeanor within three years.94 Basic services can and should be provided to
incarcerated individuals to reduce their chances of reoffending. Alternatives to incarceration should
be offered for those who do not pose a real risk to the public. In addition, merit-based programs to
encourage good behavior and rehabilitation during periods of incarceration, and programs fostering
family ties during incarceration are essential in the effort to reduce juvenile recidivism.
Failure to fully to provide sufficient rehabilitation to prisoners is particularly disappointing
given that U.S. voters favor rehabilitation for prisoners over a punishment-only system by a margin of
eight to one.95 In fact, 80% of voters feel that job training, medical care, affordable housing, and
student loans are important elements of crime prevention.96 These measures are supported by the
public, can save millions in corrections costs, and reduce recidivism.
B. Reduce Recidivism and Increase Effective Rehabilitation
Legislative
Congress should pass legislation similar to the Federal Prison Work Incentive Act of 200897
to reform federal “good time” calculation. This legislation should ensure that Congress original
intent was met by making certain that prisoners receive the full 15% “good time” credit for
maintaining good behavior while incarcerated.. The legislation should also apply to federal policies
those policies now prevalent in the states and in the Model Penal Code, which provide for both
presumptive good time (15%) and some amount of additional time off for participation in certain
rehabilitation programming (15%) in order to encourage rehabilitation and lower recidivism rates.
Congress should draft and introduce a “reentry behind bars” bill that would provide grants
to states to provide programs to better prepare prisoners for reentry following the completion of
their prison sentence. A poll of both Democrats and Republicans revealed that 71% thought more
tax dollars should be invested in job training, education and drug treatment for prisoners as an

94

Christy A. Visher and Jeremy Travis, The Urban Institute Justice Policy Center, Transitions from Prison to
Community: Understanding Individual Pathways 29 ANN. REV. SOCIOLOGY 89-113 (2003).
95
BARRY KRISBERG & SUSAN MARCHIONNA, NAT’L COUNCIL ON CRIME & DELINQ., FOCUS, ATTITUDES OF U.S. VOTERS TOWARD
PRISONER REHABILITATION AND REENTRY POLICIES (Apr. 2006), available at http://www.nccdcrc.org/nccd/pubs/2006april_focus_zogby.pdf.
96
Id.
97
th
H.R. 7089, 100 Cong. (2008).

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CHAPTER 10 – PRISONS 173

effective means of reducing recidivism.98 A majority thought that social services and rehabilitation
were an essential element of corrections.99 This bill should provide grants to states to provide
programs that better prepare prisoners for successful reentry to the community, including:

98

•

Drug treatment programs in prison for all drug offenders, as well as funding for the
Residential Substance Abuse Treatment (RSAT) program provided that they do not impose
additional penalties on participants, such as loss of good time for non-completion of a
program;

•

Coordination between prison programs and community providers;

•

Government-issued ID cards upon release;

•

Enrollment in Medicaid prior to release (so that it is available upon release);

•

Alternatives to incarceration for non-violent offenders;

•

Merit-based reductions in sentences for non-violent offenders;

•

SSA prerelease agreements for those eligible for disability assistance;

•

Requirement that individuals under 18 shall not be housed in adult facilities;

•

Restoration of Pell Grant eligibility to prisoners;

•

Access to clean needles and condoms in order to reduce the incidence of HIV/AIDS,
Hepatitis, and other illnesses;

•

Access to educational programs/job training for every prisoner;

•

Access to religious services;

•

Transportation to prisons for prisoners’ families;

•

Alternatives to incarceration for pregnant women and mothers;

•

Family-friendly visitation policies and family strengthening programs to promote healthy
family ties between prisoners and their families; and

•

Regulating the cost of collect calls from prisons to help maintain family ties.

Third Way, Third Way Crime Poll Highlights (2007)
http://content.thirdway.org/publications/101/Third_Way_Polling_-_Third_Way_Crime_Poll.pdf (last visited Jan.
26, 2011).
99
Id.

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Congress should introduce legislation to evaluate the effectiveness of reentry by tracking of
the ability of former BOP prisoners to find employment and housing, pursue education, and avoid
recidivism. This would be consistent with the recommendations of the Commission on Safety and
Abuse in America’s Prisons.100
Congress should fully fund the Elderly Prisoners program under the Second Chance Act. This
program would allow prisoners 65 years old or older who have served at least ten years of their
sentence the opportunity to serve the remainder of their sentence in home detention. This
program would only be available for non-violent offenders who are not serving a life sentence.
Given the enormous cost of eldercare in the prison system, this program would maintain public
safety, while reducing prison costs.101
Congressional committees in both the House and Senate should conduct oversight hearings
of BOP’s administration of the programs described in the section below to ensure that BOP is
complying with its obligations under the law, and if it is not, identifying the tools and policies
necessary to ensure that BOP can and will meet those obligations.
Executive
To ensure lawful operation of government programs, cost-savings and efficient use of taxpayer funds, effective programming to reduce recidivism, humane treatment of prisoners, and
increased safety in BOP facilities, the Attorney General and the Director of BOP should immediately
review BOP’s administration of the programs described below and take immediate steps to ensure
that BOP is complying with its obligations under the law and fulfilling its designated role in each
program area.
i. Drug Treatment
BOP has failed to provide the congressionally-mandated, one-year sentence reduction
incentive for thousands of drug addicted offenders who seek to participate in BOP’s RDAP. BOP
should immediately change its administration of the program to permit timely participation which
would allow for an immediate savings of millions of dollars.
A 2002 poll found that two-thirds of Americans agree that drug abuse is a medical problem
that should be handled through counseling and treatment rather than prison sentences.102 A
100

See GIBBONS & KATZENBACH, supra note 14.
See NATIONAL INSTITUTE OF CORRECTION, DEPT. OF JUST., CORRECTIONAL HEALTH CARE: ADDRESSING THE NEEDS OF ELDERLY,
CHRONICALLY ILL, AND TERMINALLY ILL INMATES (2004).
102
OPEN SOCIETY INSTITUTE, CHANGING PUBLIC ATTITUDES TOWARD THE CRIMINAL JUSTICE SYSTEM, SUMMARY OF FINDINGS (Feb.
2002), available at
http://www.soros.org/initiatives/usprograms/focus/justice/articles_publications/publications/hartpoll_20020201/
Hart-Poll.pdf.
101

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CHAPTER 10 – PRISONS 175

plurality of Americans think “tough on crime” strategies aren’t working and that an approach that
focuses on the effectiveness of programs, like RDAP, is a more sensible approach to crime
reduction.103 Utilizing these programs will increase public safety, save money by reducing
recidivism, and garner the support of the general public.
ii. Community Corrections Facilities
BOP should implement its mandate, as permitted under the Second Chance Act. BOP has
consistently underutilized its authority under 18 USC § 3621(b) and § 3624(c) to permit prisoners to
serve some or all of their sentences in CCCs and home detention as opposed to prison. On April 9,
2008, the President signed the Second Chance Act, which provides the BOP with an opportunity to
substantially increase utilization of community corrections.104 Unfortunately, BOP has failed to
implement its new mandate, undermining the intent of Congress and opening the way for yet more
litigation.
iii. Compassionate Release and Second Look Resentencing
BOP has drastically underutilized its authority under 18 U.S.C. § 3582(c)(1)(A)(i) to petition
the sentencing court for reduction of a prisoner’s term of imprisonment where there have been
“extraordinary and compelling” changes in the prisoner’s circumstances since the sentence was
imposed. The BOP should more often provide sentencing judges with opportunities for second look
resentencing. These sentence reductions would save the BOP resource by reducing the prison
population, generally, and sparing it the particularly costly need to provide medical care costs for
seriously ill prisoners whose prolonged incarceration does not further the goal of increased public
safety.105
iv. Clemency Recommendations
For at least 16 years BOP has declined to take a position on the merits of clemency
applications, abdicating its historical role to assist the Pardon Attorney in identifying appropriate
cases to recommend to the President for early release.106 In fact, the Pardon Attorney has at this
point stopped asking BOP for a recommendation on the merits of a clemency case.107 Engaging in
the process of evaluating the merits of clemency petitions would allow BOP to help identify those
prisoners in the system most capable of taking full advantage of clemency and successfully
reentering their communities.
103

Id.
Pub. L. No. 110-199.
105
See Federal Sentencing Reform, SMART ON CRIME (2011).
106
For a history of the role of the Bureau of Prisons in clemency petitions, see Margaret Colgate Love, Of Pardons,
Politics, and Collar Buttons, Reflections on the President’s Duty to Be Merciful, 27 FORDHAM URB. L.J. 1483 (2000),
available at http://www.pardonlaw.com/materials/collarbuttons.pdf.
107
See Pardon Power and Executive Clemency, SMART ON CRIME (2011).
104

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CHAPTER 10 – PRISONS 176

Over-reliance on the Use of Harmful Long-Term Isolated Confinement
A. Isolated Confinement is Overused and Harmful

The monetary cost of using isolated confinement, coupled with the human cost of increased
physiological and psychological suffering, far outweighs any purported benefits. In order to build a
fair, effective and humane criminal justice system, we must work to curb the use and misuse of
isolated confinement.
B. Reduce the Use of Long-term Isolation and Design Effective Alternatives
Legislative
Congress should introduce a bill limiting the use of long-term isolated confinement in BOP
facilities. That bill should incorporate by reference Chapter 23 of the ABA Treatment of Prisoners
Standards related to long-term isolated confinement, and require compliance with these standards.
The bill should also require re-socialization for prisoners subject to such isolated confinement
before they are released back into the community. This will protect public safety and assist
individuals subject to isolation in reintegrating successfully into society. Such “de-briefings” should
take place in phases, starting at least six months before the end of their sentence. All prisoners
held in isolated confinement-like housing should be included in this re-socialization process. Debriefing programs should include clinical staff, social workers, and education staff to provide
counseling and life skills to prepare prisoners for release to the community.
Executive
The Government Accountability Office should conduct a study of the effectiveness and
availability of mental health care for prisoners in long-term isolated confinement. The study should
specifically evaluate the numbers of mentally ill prisoners confined in segregated housing as defined
by ABA Treatment of Prisoners Standard 23-1.0(o); the clinical treatment being provided to those
mentally ill prisoners; whether or not there are policies and protocols in place and being used to
ensure that the mentally ill in BOP are not housed in segregation housing; and the length of stay for
mentally ill prisoners in segregated housing.
BOP should adopt policies and practices for its use of long-term isolation consistent with the
standards established by the ABA’s Treatment of Prison Standards, including:

•

108

Adopting procedures to evaluate whether segregation is warranted prior to placing or
retaining a prisoner in isolated confinement;108

ABA STANDARDS FOR CRIM. JUST., TREATMENT OF PRISONERS, supra note 65, at 23-2.9.

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6.

CHAPTER 10 – PRISONS 177

•

Placing limits on disciplinary segregation. In general stays should be brief and should rarely
exceed one year. Longer-term segregation should be imposed only if the prisoner poses a
continuing and serious threat. Segregation for protective reasons should take place in the
least restrictive setting possible;109

•

Decreasing extreme isolation by allowing for in-cell programming, supervised out-of-cell
exercise time, face-to-face interaction with staff, access to television or radio, phone calls,
correspondence, and reading material;110

•

Decreasing sensory deprivation by limiting the use of auditory isolation, deprivation of light
and reasonable darkness, and punitive diets;111

•

Allowing prisoners to gradually gain more privileges and be subjected to fewer restrictions,
even if they continue to require physical separation;112

•

Refraining from placing prisoners with serious mental illness in what is an anti-therapeutic
environment. Instead maintain appropriate secure mental-health housing for such
prisoners;113 and

•

Monitoring prisoners in segregation for mental-health deterioration and dealing with
deterioration appropriately if it occurs;114
Misuse of the Prison System and Over-incarceration

A. Over-Use of Incarceration in America
In 2008 alone, state and the federal governments spent $68 billion on corrections.
Corrections expenses were the fastest growing segment of state budgets. Over the last two
decades, public spending on corrections rose over 300 percent, eclipsing funding for every other
essential government service but Medicaid. There is now a sense that we must find a different way.
To seize this moment, policymakers should adopt evidence-based improvement that will ensure
public safety while at the same time ensuring rational, cost-effective policies that work to return
prisoners to the community to be productive, law-abiding citizens.

109

Id. at 23-2.6, 23-5.5.
Id. at 23-3.7, 23-3.8.
111
Id.
112
Id. at 23-2.9.
113
Id. at 23-2.8, 23-6.11.
114
Id. at 23-6.11.
110

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CHAPTER 10 – PRISONS 178

B. Design an Evidence-Based Approach to Criminal Justice
Legislative
Congress should introduce and pass legislation similar to the National Criminal Justice
Commission Act of 2009, introduced in the Senate by Senator Jim Webb (D-VA).115 The bill received
widespread bipartisan support and had 39 cosponsors in the Senate, including Chairman of the
Senate Judiciary Committee Senator Patrick Leahy (D-VT), former Chairman of the Subcommittee
on Crime and Drugs Senator Arlen Specter (D-PA), former Judiciary Committee Chair Senator Orrin
G Hatch (R-UT), and Republican Judiciary Committee member Senator Lindsey Graham (R-SC). A
companion bill introduced by Rep. Delahunt (D-MA) passed the House on July 27, 2010.116
Congress should also appropriate funding for the bipartisan commission established by the
National Criminal Justice Commission Act to examine appropriate, humane, and cost-effective use
of the prison system.
Executive
The President, the Attorney General, and the Department of Justice should support reexamination of current criminal justice practices and goals, and work to implement the
recommendations of the Criminal Justice Commission regarding the appropriate use of
incarceration and alternative forms of punishment.

115
116

S. 714, 111th Cong. (2009); See also System Change, SMART ON CRIME (2011).
H.R. 5143, 111th Cong. (2010).

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CHAPTER 10 – PRISONS 179

APPENDICES
Experts
Sexual Violence in Prisons
Lovisa Stannow, Just Detention International
(http://www.justdetention.org/en/about_bios.aspx)
Melissa Rothstein, Just Detention International
(http://www.justdetention.org/en/about_bios.aspx)
Pat Nolan, Prison Fellowship (https://www.prisonfellowship.org/why-pf/bios-of-keystaff/296)
Brett Dignam, ABA, Co-Chair, Criminal Justice Committee, Corrections Section
(http://www.law.columbia.edu/focusareas/clinics/faculty#54965)
Brenda Smith, American University (http://www.wcl.american.edu/faculty/smith/)
Jamie Fellner, Human Rights Watch (http://www.hrw.org/en/bios/jamie-fellner)
Margaret Winter, ACLU National Prison Project (http://www.aclu.org/prisonersrights/about-aclu-national-prison-project)
Amy Fettig, ACLU National Prison Project (http://www.aclu.org/prisoners-rights/about-aclunational-prison-project)
Amending the Prison Litigation Reform Act
Elizabeth Alexander, Law Offices of Elizabeth Alexander
(http://www.fedcure.org/bios/alexander.shtml)
John Boston, New York Legal Aid Prisoners Rights Project (http://www.legalaid.org/en/civil/civilpractice/prisonersrightsproject.aspx)
Stephen Bright, Southern Center for Human Rights (http://www.schr.org/about/who)
David Fathi, ACLU National Prison Project (http://www.aclu.org/prisoners-rights/about-aclunational-prison-project)
Amy Fettig, ACLU National Prison Project (http://www.aclu.org/prisoners-rights/about-aclunational-prison-project)

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CHAPTER 10 – PRISONS 180

Hon. John Gibbons, former Chief Judge of the U.S. Court of Appeals for the Third Circuit
(http://www.gibbonslaw.com/biographies/attorney_biography.php?attorney_id=78)
Bill Mefford, United Methodist Church (http://www.umcgbcs.org/site/apps/nlnet/content.aspx?c=frLJK2PKLqF&b=3764427&ct=4819697&notoc=1)
Ernie Preate, former Pennsylvania Attorney General (http://www.preate.com/)
Bruce Nicholson, American Bar Association
(http://new.abanet.org/sections/criminaljustice/Pages/Contact.aspx.)
Pat Nolan, Prison Fellowship (https://www.prisonfellowship.org/why-pf/bios-of-keystaff/296)
Melissa Rothstein, Just Detention International
(http://www.justdetention.org/en/about_bios.aspx)
Giovanna Shay, New England School of Law
(http://www1.law.wnec.edu/faculty/index.cfm?selection=doc.1188)
Jeanne Woodford, former warden of San Quentin Prison in California, former Secretary of
the California Department of Corrections and Rehabilitation
(http://www.law.berkeley.edu/2509.htm)
Transparency and Oversight in Correctional Institutions
Michele Deitch, Lyndon B. Johnson School of Public Policy, University of Texas at Austin
(http://www.utexas.edu/lbj/directory/faculty/michele-deitch)
Matthew Cate, Secretary of California Dept. of Corrections and Rehabilitation, formerly
Inspector General of the Department (http://www.cdcr.ca.gov/About_CDCR/cate.html)
Michael Gennaco, Los Angeles County Office of Independent Review
(http://www.laoir.com/MGennaco.html)
William Yeomans, former supervisor of litigation at the Civil Rights Division of the U.S.
Department of Justice (http://www.wcl.american.edu/faculty/yeomans/)
Alex Busansky, National Commission on Crime and Delinquency (http://www.nccdcrc.org/nccd/about/staff.html)
Christopher Epps, President, American Correctional Association
(http://www.mdoc.state.ms.us/christopher_b.htm)

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CHAPTER 10 – PRISONS 181

David Fathi, ACLU National Prison Project (http://www.aclu.org/prisoners-rights/about-aclunational-prison-project)
Juliene James, Vera Institute of Justice (http://www.vera.org/user/53)
Lovisa Stannow, Just Detention International
(http://www.justdetention.org/en/about_bios.aspx)
Melissa Rothstein, Just Detention International
(http://www.justdetention.org/en/about_bios.aspx)
Barriers to reentry, family programs, BOP community corrections and second look statutes
Steve Sady, Federal Public Defender for the District of Oregon (http://or.fd.org/)
Margaret Love, Law Offices of Margaret Love (http://www.pardonlaw.com/)
Charlie Sullivan, Citizens United for the Rehabilitation of Errants
(http://www.curenational.org/cms/index.php)
Gene Guerrero, Open Society Policy Center
(http://www.opensocietypolicycenter.org/about/staff.php?staff_id=4)
Mark O’Brien, Legal Action Center
(http://www.lac.org/index.php/lac/category/staff#obrien)
Pat Nolan, Prison Fellowship (https://www.prisonfellowship.org/why-pf/bios-of-keystaff/296)
Malika Saada Saar, Rebecca Project for Human Rights
(http://www.rebeccaproject.org/index.php?option=com_content&task=blogcategory&id=1
4&Itemid=73)
Drug policies and reentry
Nkechi Taifa, Open Society Policy Center
(http://www.opensocietypolicycenter.org/about/staff.php?staff_id=11)
Jennifer Stitt, Families Against Mandatory Minimums
(http://www.famm.org/AboutFAMM/StaffandBoard.aspx)

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CHAPTER 10 – PRISONS 182

Mary Price, Families Against Mandatory Minimums
(http://www.famm.org/AboutFAMM/StaffandBoard.aspx)
Jay Rorty, ACLU Drug Law Reform Project (http://www.aclu.org/drug-law-reform/aboutaclu-drug-law-reform-project)
Eric Sterling, Criminal Justice Policy Foundation (http://www.cjpf.org/about/ericbio.html)
Jasmine Tyler, Drug Policy Alliance
(http://www.drugpolicy.org/about/keystaff/jasminetyler/)
Youth in adult facilities and reentry
Liz Ryan, Campaign for Youth Justice (http://www.campaignforyouthjustice.org/contactus.html)
Over-reliance on solitary confinement
Laura Rovner, University of Denver, School of Law
(http://law.du.edu/index.php/profile/laura-rovner)
Jack Beck, Correctional Association of New York
(http://www.correctionalassociation.org/about/staff.htm)
Angela Browne, Vera Institute of Justice (http://www.vera.org/users/abrowne)
James Austin, JFA Institute (http://www.jfa-associates.com/contacts/)
Nina Loewenstein, Disability Advocates, Inc. (http://www.disability-advocates.org/staff.php)
Dr. Terry Kupers, MD, Wright Institute (http://www.wi.edu/faculty_kupers.html)
Dr. Stuart Grassian, MD (http://ma-chestnut-hill.doctors.at/dr/stuart-grassiandrstuartedwingrassianmd)
Craig Haney, University of California, Santa Cruz
(http://psych.ucsc.edu/directory/details.php?id=12)
Christopher Epps, Commissioner, Mississippi Department of Corrections
(http://www.mdoc.state.ms.us/christopher_b.htm)
David Fathi, National Prison Project of the ACLU (http://www.aclu.org/prisonersrights/about-aclu-national-prison-project)

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CHAPTER 10 – PRISONS 183

Amy Fettig, National Prison Project of the ACLU (http://www.aclu.org/prisonersrights/about-aclu-national-prison-project)
Lisa Greenman, Maryland Federal Public Defender Organization (http://www.mdfd.org/whoweare.htm)
Overincarceration
Alex Busansky, National Commission on Crime and Delinquency (http://www.nccdcrc.org/nccd/about/staff.html)
Gene Guerrero, Open Society Policy Center
(http://www.opensocietypolicycenter.org/about/staff.php?staff_id=4)
Marc Mauer, Sentencing Project
(http://www.sentencingproject.org/detail/person.cfm?person_id=3&backto=63&backtype=
Staff)
Michael Jacobson, Vera Institute for Justice (http://www.vera.org/users/mjacobson)
Jeremy Travis, John Jay School of Criminal Justice
(http://www.jjay.cuny.edu/lawpolice/facultyprofile/travis.asp)
Glenn Loury, Brown University
(http://www.econ.brown.edu/fac/glenn_loury/louryhomepage/)
Bruce Western, Harvard University (http://www.wjh.harvard.edu/soc/faculty/western/)
Further Resources
Sexual Violence in Prisons
Raising the Bar Coalition, National Standards for the Prevention, Detection, Response, and
Monitoring of Sexual Abuse in Detention (last visited January 19, 2011)
http://raisingthebarcoalition.org/common/files/RtB-stds.pdf.
NATIONAL PRISON RAPE ELIMINATION COMMISSION, REPORT (2009).
(http://www.ncjrs.gov/pdffiles1/226680.pdf)

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CHAPTER 10 – PRISONS 184

The Prison Litigation Reform Act
MARGO SCHLANGER AND GIOVANNA SHAY, PRESERVING THE RULE OF LAW IN AMERICA’S PRISONS: THE CASE
FOR AMENDING THE PRISON LITIGATION REFORM ACT (American Constitution Society 2007)
(http://www.acslaw.org/files/Schlanger%20Shay%20PLRA%20Paper%203-28-07.pdf).
Margo Schlanger, Civil Rights Injunctions Over Time: A Case Study of Jail and Prison Court
Orders 81 550 (2006). N.Y.U. L. REV.
(http://www.savecoalition.org/pdfs/Civil_RIghts_Injunctions.pdf).
Anne Morris Piehl and Margo Schlanger, Determinants of Civil Rights Filings in Federal
District Court by Jail and Prison Inmates 1 J. EMPIRICAL LEGAL STUDIES 79 – 109 (2004).
(http://www.savecoalition.org/pdfs/Determinants_of_Civil_Rights_Filings.pdf)
Margo Schlanger, Inmate Litigation 116 HARV. L. REV. 1555 – 1701 (2003).
(http://www.savecoalition.org/pdfs/Inmate_Litigation.pdf)
DEBORAH M. GOLDEN, THE PRISON LITIGATION REFORM ACT–A PROPOSAL FOR CLOSING THE LOOPHOLE FOR
RAPISTS (American Constitution Society June 2006)
(http://www.savecoalition.org/pdfs/Rape_and_PLRA_white_paper.pdf)
SAVE COALITION, REFORM THE PRISON LITIGATION REFORM Act (2008).
(http://www.savecoalition.org/pdfs/save_final_report.pdf)
AMERICAN BAR ASSOCIATION, REPORT TO THE HOUSE OF DELEGATES (February 12, 2007).
(http://www.savecoalition.org/americanbar.html).
Treatment of Prisoners, in, AMERICAN BAR ASSOCIATION STANDARDS FOR CRIMINAL JUSTICE (2010)
(http://www.abanet.org/crimjust/standards/treatmentprisoners.html)
HUMAN RIGHTS WATCH, NO EQUAL JUSTICE (2009)
(http://www.hrw.org/en/node/83713/section/2)
Letter from the National Prison Rape Elimination Commissioners to Robert Scott, Chair, and
Randy Forbes, Ranking Member of the House Subcomm. on Crime, Terrorism and Homeland
Security of the H. Comm. on the Judiciary (Jan. 24, 2008).
(http://www.savecoalition.org/pdfs/PREA_letter_urging_reform_PLRA.pdf)
The Prison Abuse Remedies Act of 2007: Hearing Before the H. Comm. on the Judiciary,
109th Cong. (2008) (statement of David Fathi, U.S. Program Director of Human Rights
Watch) (http://hrw.org/english/docs/2008/04/22/usdom18610_txt.htm).

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CHAPTER 10 – PRISONS 185

David Keene, Rule-breakers, inside and out, THE HILL, March 3, 2008
(http://thehill.com/opinion/columnists/david-keene/5268-rule-breakers-inside-and-out)
Transparency and Oversight in Correctional Institutions
COMMISSION ON SAFETY AND ABUSE IN AMERICA’S PRISONS, CONFRONTING CONFINEMENT (June 2006)
http://www.prisoncommission.org/pdfs/Confronting_Confinement.pdf
AMERICAN BAR ASSOCIATION, REPORT TO THE HOUSE OF DELEGATES (August 2008).
http://www.abanet.org/crimjust/policy/am08104b.pdf
Michael B. Mushlin and Michael Dietch, Opening Up a Closed World: What Constitutes
Effective Prison Oversight? 30 Pace L. Rev. 1383 (2010)
http://digitalcommons.pace.edu/plr/vol30/iss5/1.
Barriers to Reentry
NATIONAL COUNCIL ON CRIME AND DELINQUENCY, ATTITUDES OF US VOTERS TOWARD PRISONER
REHABILITATION (April 2006). http://www.nccd-crc.org/nccd/pubs/2006april_focus_zogby.pdf.
EAGLETON INSTITUTE OF POLITICS, PRISONER RE-ENTRY, THE STATE OF PUBLIC OPINION (2001)
http://www.njisj.org/reports/eagleton_report.html.
Over-reliance on solitary confinement
John Buntin, Mississippi: How America's reddest state -- and most notorious prison -became a model of corrections reform, GOVERNING MAGAZINE Aug. 2010.
http://www.governing.com/topics/public-justice-safety/courts-corrections/mississippicorrection-reform.html
Atul Gawande , Hellhole: Is Long Term Solitary Confinement Torture?, NEW YORKER, March 30,
2009. http://www.newyorker.com/reporting/2009/03/30/090330fa_fact_gawande
Overincarceration
Teresa Watanabe, Multilingual Poll Finds a Few Surprises, L.A. Times, February 21, 2004.
http://articles.latimes.com/2004/feb/21/local/me-poll21
Open Society Institute and Peter D. Hart Research Associates, Changing Public Attitudes
toward the Criminal Justice System (February 2002).
http://www.soros.org/initiatives/usprograms/focus/justice/articles_publications/publicatio
ns/hartpoll_20020201/Hart-Poll.pdf

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Primary Contact
David Fathi
915 15th Street, NW, 7th Floor
Washington, DC 20005
(202) 393-4390
dfathi@npp-aclu.org

CHAPTER 10 – PRISONS 186

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CHAPTER 10 – PRISONS 187

CHAPTER 10 CONTRIBUTORS
American Civil Liberties Union National Prison
Project
David Fathi
915 15th Street, NW, 7th Floor
Washington, DC 20005
(202) 393-4390
dfathi@npp-aclu.org
Amy Fettig (Chapter Leader)
915 15th Street, NW, 7th Floor
Washington, DC 20005
(202) 393-4390
afettig@npp-aclu.org
Mike Tartaglia
915 15th Street, NW, 7th Floor
Washington, DC 20005
(202) 393-4390
mtartaglia@npp-aclu.org
American Civil Liberties Union Washington
Legislative Office
Jennifer Bellamy
915 15th Street, NW
Washington, DC 20005
(202) 675-2312
jbellamy@dcaclu.org
Campaign for Fair Sentencing of Youth
Jody Kent
1630 Connecticut Avenue, NW
Suite 500
Washington, DC 20009
(202) 319-3013
jkent@endjlwop.org

D.C. Prisoners’ Project of the Washington
Lawyers’ Committee for Civil Rights and
Urban Affairs
Deborah M. Golden, Esq.
11 Dupont Circle, NW, Suite 400
Washington, DC 20036
(202) 319-1000, ext
Deborah_golden@washlaw.org
Families Against Mandatory Minimums
(FAMM)
Mary Price
1612 K. Street, NW, Suite 700
Washington, DC 20006
(202) 822-6700
mprice@famm.org
Jennifer Seltzer Stitt
1612 K. Street, NW, Suite 700
Washington, DC 20006
(202) 822-6700
jstitt@famm.org
Just Detention International
Melissa Rothstein
1900 L Street, NW, Suite 601
Washington, DC 20036
(202) 506-3333
mrothstein@justdetention.org
Law Office of Margaret Love
Margaret Colgate Love
15 7th Street, NE
Washington, DC 20002
(202) 547-0453
Margylove@aol.com

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Legal Action Center (LAC)
Mark O’Brien
236 Massachusetts Avenue, NE
Suite 505
Washington, DC 20002
(202) 544-5478
mobrien@lac.org
National Legal Aid & Defender Association
(NLADA)
Edwin A. Burnette
1140 Connecticut Avenue, 9th Floor
Washington, DC 20036
(202) 452-0620, ext 221
e.burnette@nlada.org
Open Society Policy Center (OSPC)
Gene Guerrero
1730 Pennsylvania Avenue, NW
7th Floor
Washington, DC 20006
(202) 721-5600
gguerrero@osi-dc.org
Prison Fellowship
Pat Nolan
44180 Riverside Parkway
Lansdowne, VA 20176
(703) 554-8513
pnolan@pfm.org

CHAPTER 10 – PRISONS 188

189

CHAPTER 11
FEDERAL POLICY ON THE DEATH PENALTY

CHAPTER 11 –DEATH PENALTY 190

THE ISSUE
The irreversibility of the death penalty makes it critical that our criminal justice system
administer this most severe sanction in a fair and equitable manner. Our system provides for
adequate representation and the appropriate checks to remedy any errors or constitutional
violations. There is no remedy for the execution of defendants to whom the criminal justice system
did not afford all the processes, protections, and rights guaranteed by the Constitution. Most
distressingly, dysfunctions in the criminal justice system can lead to the execution of defendants
innocent of the crimes with which they were charged.
The death penalty, as currently applied, is in urgent need of reform. Capital defendants are
too often not afforded adequate legal representation or a fair trial. Furthermore, alarming racial
disparities exist in the application of the death penalty. The failure to provide even basic fairness in
the system leads to an incontrovertible truth: the death penalty is a “broken system.” Despite these
grave concerns, since the 1996 passage of the Antiterrorism and Effective Death Penalty Act
(AEDPA),1 federal courts have been severely constrained in their ability to vindicate the constitutional
rights of individuals convicted of crimes in state and federal courts.
HISTORY OF THE PROBLEM
A landmark study of capital cases from 1973 through 1995 revealed that in seven out of every
ten cases that were fully reviewed, courts found serious, reversible error.2 Even after state courts
reversed 47% of the capital convictions due to these errors, federal courts found serious error in 40%
of the remaining death sentences.3 The most common errors prompting reversal of death sentences
were “egregiously incompetent defense lawyers” and suppression of exculpatory evidence by
prosecutors or police.4 At the same time, too many death row inmates suffer from severe mental
illness. Additionally death sentences are disproportionately imposed on people of color, with African
Americans comprising more than 40% of today’s death-row inmates while constituting only 12% of
the national population.5
These findings reveal critical problems with capital punishment in the United States: 1) lack of
sufficient review of capital convictions; 2) racial disparities in the application of the death penalty; 3)
unjust application of the death penalty to the mentally ill; and 4) lack of adequate capital counsel for
indigent defendants.

1

Antiterrorism and Effective Death Penalty Act, Pub. L. No. 104-132, 110 Stat. 1214 (1996).
JAMES S. LIEBMAN, ET AL., A BROKEN SYSTEM: ERROR RATES IN CAPITAL CASES, 1973-1995 (2000) at I, available at
http://www2.law.columbia.edu/instructionalservices/liebman/liebman_final.pdf.
3
Id.
4
Id. at ii.
5
AMNESTY INTERNATIONAL, UNITED STATES OF AMERICA: DEATH BY DISCRIMINATION – THE CONTINUING ROLES OF RACE IN CAPITAL CASES
(2003) at 5, available at http://www.amnesty.org/en/library/info/AMR51/046/2003.
2

CHAPTER 11 –DEATH PENALTY 191

1. Changes to Habeas Corpus Limit Access to Critical Review
Despite grave concerns about the reliability and fairness of capital convictions, federal
legislation, most prominently the AEDPA and the USA Patriot Reauthorization Act (PIRA),6 along with
U.S. Supreme Court decisions interpreting these statutes, have significantly limited federal review of
state court convictions. As a result, defendants who have suffered serious constitutional violations,
such as inadequate defense counsel, racially discriminatory jury selection, and suppression of
exculpatory evidence, are left with no recourse.
Since AEDPA’s enactment in 1996, state and federal prisoners have been forced to navigate a
labyrinth of complex procedural rules and stringent deadlines to assert claims of serious
constitutional violations in post-conviction proceedings. AEDPA burdens state prisoners, in particular,
by requiring greater deference to state court decisions, thus constraining federal review of
constitutional violations. Indeed, federal courts may only grant habeas relief to state prisoners where
the state court’s decision was “contrary to, or involved an unreasonable application of clearly
established Federal law, as determined by the Supreme Court of the United States,” or was based on
“an unreasonable determination of the facts in light of the evidence presented in the state court
proceeding.”7 This is particularly troublesome given that petitioners in state post-conviction
proceedings do not have a right to counsel and therefore, are too often unrepresented in these
proceedings.
The constraints on the ability of federal courts to serve as a final check on state capital
convictions are particularly damning for prisoners who assert claims of actual innocence, when we
know with certainty that defendants have been, and will be, wrongfully convicted of capital crimes.8
Since 1973, 138 death-row inmates from 26 states have been exonerated and released from custody
after serving years (often decades) on death row.9 Even more disturbing are the cases of the men
and women who have been executed despite concerns over their possible innocence. For example, in
2009, five years after Texas executed Cameron Todd Willingham for killing his three daughters by
setting fire to his home, a report to the Texas Forensic Science Commission concluded there was no
scientific basis for claiming the fire was arson.10 A four-person panel of the Commission
acknowledged that state and local arson investigators used "flawed science" in determining the blaze
had been deliberately set.11 Serious doubts about the accuracy of the arson investigation had been
raised prior to Mr. Willingham’s execution and, if heeded, could have prevented the death of a
6

USA Patriot Reauthorization Act, Pub. L. No. 109-177, 120 Stat. 192 (2006).
28 U.S.C. § 2254(d).
8
See Innocence Issues, SMART ON CRIME (2011).
9
Death Penalty Information Center, Innocence: List of Those Freed From Death Row, available at
http://www.deathpenaltyinfo.org/innocence-list-those-freed-death-row.
10
CRAIG L. BEYLER, ANALYSIS OF THE FIRE INVESTIGATION METHODS AND PROCEDURES USED IN THE CRIMINAL ARSON CASES AGAINST
ERNEST RAY WILLIS AND CAMERON TODD WILLINGHAM (2009), available at http://www.docstoc.com/docs/documentpreview.aspx?doc_id=10401390.
11
Allan Turner, Panel cites 'flawed science' in arson case, HOUSTON CHRONICLE, July 24, 2010, available at
http://www.chron.com/disp/story.mpl/metropolitan/7122381.html.
7

CHAPTER 11 –DEATH PENALTY 192

potentially innocent man.12 The conviction and execution of innocent defendants is not only a moral
travesty, but also a disservice to society’s need for justice and public safety. These risks can be
mitigated by eliminating the unreasonable restrictions currently placed on habeas petitions.
2. Racial Disparities in the Federal Death Penalty
The administration of the death penalty in the U.S. has also proven to be far too susceptible
to the effects of race. Since 1988, approximately 73% of all approved federal capital prosecutions
have been against defendants of color.13 Today, African Americans comprise more than 40% of
death-row inmates while constituting only 12% of the national population.14 White federal
defendants are almost twice as likely to have the death penalty reduced to life sentences through
plea bargains.15 An analysis for the Senate and House Judiciary Committees also revealed that, out of
28 studies on racial disparity in the death penalty, 82% found that the race of the victim influenced
whether a defendant was charged and convicted of a capital murder.16 In Georgia, for example, a
defendant who murdered a white victim was 4.3 times more likely to receive the death sentence than
a defendant who murdered an African American victim.17
A Department of Justice study of federal cases from 1988 to 2000 also revealed especially
pervasive racial disparities at the stage when prosecutors were deciding whether to charge a
homicide as a federal crime or leave it in a state’s criminal justice system.18 Unfortunately, the study
did not examine the reasons for these racial disparities, and the Department has yet to conduct a
follow up study on the role of racial bias in the application of the federal death penalty.
Despite the disturbing role race plays in the death penalty, in 1987, the U.S. Supreme Court
held that statistical evidence of race disparities in the imposition of the death penalty did not violate
the Eighth and Fourteenth Amendments to the U.S. Constitution.19 The Court reasoned that these
statistics did not demonstrate intentional race discrimination in a specific defendant's trial. 20 In
response, Representative John Conyers, Jr. (D-MI) drafted the Racial Justice Act as an amendment to
1994 omnibus crime legislation.21 The Racial Justice Act prohibited federal and state executions
12

David Grann, Trial by Fire: Did Texas Execute an Innocent Man, THE NEW YORKER, Sept. 7, 2009, available at
http://www.newyorker.com/reporting/2009/09/07/090907fa_fact_grann.
13
U.S. DEPT. OF JUSTICE, SURVEY OF THE FEDERAL DEATH PENALTY SYSTEM (2000); see also, U.S. DEPT. OF JUSTICE, THE FEDERAL
DEATH PENALTY SYSTEM: SUPPLEMENTARY DATA, ANALYSIS AND REVISED PROTOCOLS FOR CAPITAL CASE REVIEW (2001).
14
AMNESTY INTERNATIONAL, supra note 5, at 5.
15
Id.
16
U.S. GOVT. ACCOUNTING OFFICE, REPORT TO THE SENATE AND HOUSE JUDICIARY COMMITTEES: DEATH PENALTY SENTENCING RESEARCH
INDICATES PATTERN OF RACIAL DISPARITIES 5 (1990).
17
See David Baldus, et al., Reflections on the "Inevitability" of Racial Discrimination in Capital Sentencing and the
"Impossibility" of Its Prevention, Detection, and Correction, 51 WASHINGTON & LEE LAW REVIEW 359, 365 (1994).
18
U.S. DEPT. OF JUSTICE, SURVEY OF THE FEDERAL DEATH PENALTY SYSTEM, supra note 13.
19
McClesky v. Kemp, 481 U.S. 279 (1987).
20
Id.
21
The omnibus bill was eventually passed as the Violent Crime Control and Enforcement Act of 1994, Public L. No.
103-322.

CHAPTER 11 –DEATH PENALTY 193

imposed on the basis of race, permitting the use of statistical evidence to support the inference that
race was a factor in decisions to seek or impose the death penalty. Although the measure passed in
the House, it failed in the Senate by a 58-41 vote.
In 1995, the Department of Justice amended its regulations to require the U.S. Attorney
General to review every federal death-eligible case throughout the nation, and to decide whether the
death penalty will be sought in any or all of such cases, regardless of the recommendation of the local
U.S. Attorneys.22 This over-centralization of the federal death penalty's decision-making process has
proved cumbersome, slow, and extremely costly. It may also exacerbate racial disparities by placing
the decision-making authority to not pursue capital charges in too few hands. Since the 1995 change
in regulations, 31 federal defendants of color have been sentenced to death, compared with 25 white
defendants.23
3. Mental Illness and the Federal Death Penalty
It is estimated that up to 10% of death row inmates suffer from serious mental illness.24 This
is true despite the fact that diminished mental capacity is a mitigating factor that juries can consider
when determining whether to sentence a defendant to death.25 In recent years the Supreme Court
has cited evolving standards of decency to protect vulnerable populations from sentences of death
based on their lack of judgment and culpability.26 While perhaps criminally culpable for their conduct,
like juveniles and those with mental retardation, the severely mentally ill can lack the judgment,
understanding, and self-control that would warrant the imposition of the death penalty.27 This is
particularly true when severely mentally ill defendants were suffering from psychotic delusions or
other debilitating psychological conditions at the time they committed their crimes. It is unjust to
exercise the most severe of sanctions on a population whose diminished capacity makes them less
culpable.
4. Access to Capital Counsel for Indigent Defendants
Further exacerbating the problems in pursuing capital prosecutions, capital defendants are
predominately poor and must rely upon a dysfunctional indigent defense system that is in crisis.
Indigent defense attorneys are overworked, underpaid, and too often lack independence and the
22

USAM 9-10.010 et seq.
Death Penalty Information Center, Federal Death Row Prisoners, available at
http://www.deathpenaltyinfo.org/federal-death-row-prisoners#1994 (last visited Jan. 4, 2011).
24
Mental Health America, Death Penalty and People with Mental Illness, available at www.nmha.org/go/positionstatements/54.
25
See 18 U.S.C. § 3592(a)(1).
26
See Roper v. Simmons, 543 U.S. 551 (2005) (holding that it is unconstitutional to execute persons who committed
their crimes while juveniles); and Atkins v. Virginia, 536 U.S. 304 (2002) (holding that it is unconstitutional to execute
persons with mental retardation).
27
THE NAT’L ALLIANCE ON MENTAL ILLNESS, DOUBLE TRAGEDIES: VICTIMS SPEAK OUT AGAINST THE DEATH PENALTY FOR PEOPLE WITH
SEVERE MENTAL ILLNESS, 1 (2009).
23

CHAPTER 11 –DEATH PENALTY 194

necessary experience and skills to effectively represent their clients—especially in capital cases. With
such inadequate resources, capital defendants are at a greater risk of facing death sentences that are
arbitrary and unfair. Moreover, the absence of a right to counsel in post-conviction proceedings,
coupled with the myriad procedural and substantive hurdles in raising a claim of ineffective assistance
of counsel, leaves capital defendants with little recourse when they are deprived of the necessary
legal resources.
Federal support for capital representation is critical to ensuring that every capital defendant
receives a fair and just trial. A recent report by the Subcommittee on Federal Death Penalty Cases of
the Committee on Defender Services of the Judicial Conference of the United States found that
defendants whose defense costs were in the lowest one-third were more than twice as likely to be
sentenced to death than those with greater defense resources.28 The report also found that
attorneys for defendants in low cost cases were less likely to have “distinguished prior experience” in
capital cases, placing these defendants at a disadvantage.29
In 2004, with large bipartisan support, Congress passed and President George W. Bush signed
the Justice for All Act (JFAA).30 The JFAA authorized $75 million in annual grants to improve standards
for prosecutors and defense counsel appointed to state capital cases over a five year period.
Unfortunately, Congress never appropriated full funding for this provision.31 Additionally, many postconviction defender organizations, known as capital resource centers, which procured and provided
legal representation to death row inmates at the post-conviction stage, were forced to close when
Congress eliminated their federal funding in 1996.32 These organizations demonstrated how proper
training and support for competent death penalty counsel can cost-effectively and dramatically
increase the quality of capital representation in state and federal post-conviction proceedings, as well
as direct representation of capital defendants.
For federal defenders, a lack of independence is also an obstacle to effective representation
of their clients. At the federal level, judges control many of the decisions regarding a federal
defender’s budget and resources for a particular case.33 Rules vary among federal circuits regarding
presumptive limits on expenditures for cases and the ability of attorneys to obtain authorization to
28

JON B. GOULD & LISA GREENMAN, REPORT TO THE COMMITTEE ON DEFENDER SERVICES JUDICIAL CONFERENCE OF THE UNITED STATES:
UPDATE ON THE COST AND QUALITY OF DEFENSE REPRESENTATION IN FEDERAL DEATH PENALTY CASES 44 (2010), available at
http://www.uscourts.gov/uscourts/FederalCourts/AppointmentOfCounsel/FDPC2010.pdf#page=1 (finding that
individuals facing federal capital prosecution and whose defense costs were in the lowest one-third, had a 44%
chance of being sentenced to death at trial, while the remaining two-thirds of defendants had a 19% chance of being
sentenced to death).
29
Id. at 49.
30
Justice for All Act, Pub. L. No. 108-405, 118 Stat. 2260 (2004).
31
In fiscal year 2009, for example, the Department of Justice was able to award $1,828,433 in grants for capital
training under JFAA based on the amount Congress appropriated. U.S. DEPT. OF JUSTICE, FY 2009 CAPITAL CASE LITIGATION
INITIATIVE FUNDING RESULTS, available at http://www.ojp.usdoj.gov/BJA/funding/09CCLIAwards.pdf.
32
Alex J. Hurder, Whatever you think about the death penalty, a system that will take life must first give justice,
Human Rights (Winter 1997) available at http://www.abanet.org/irr/hr/winter97/death.html.
33
See 18 U.S.C. §§ 3005, 3006A, 3599; 28 U.S.C. § 2254.

CHAPTER 11 –DEATH PENALTY 195

hire experts and investigators. This creates inconsistencies in the quality of representation for
defendants in different circuits and can prevent counsel from providing the zealous advocacy to
which defendants are entitled.
Because death is different, there is an even greater urgency for the federal government to
implement the following reform proposals to protect the constitutional rights of each individual at
risk of execution. The guiding principle behind these recommendations is the need to administer the
death penalty in a fair and equitable manner, with assurances of adequate and fully-funded legal
representation and checks within the system to remedy constitutional violations and serious,
reversible errors.
RECOMMENDATIONS
1.

Amend Habeas Corpus-related provisions of AEDPA
A. Limits to Habeas Corpus Threaten Justice

The passage of AEDPA and PIRA, and the manner in which the Supreme Court and lower
federal courts have interpreted these statutes, has created an unduly high burden for petitioners to
obtain federal habeas relief. The Byzantine rules and procedures that have resulted create
uncertainty and confusion for courts, prosecutors, and defense attorneys. Moreover, the one-year
statute of limitations and prohibitions against successive habeas petitions can serve as an absolute
bar to federal habeas review for some people. As a result, federal courts are unable to grant relief
despite meritorious substantive claims—including claims of racial bias in jury selection, ineffective
assistance of counsel, and prosecutorial misconduct—due to substantial deference to state court
proceedings or mere technicalities.
B. Reform Habeas Corpus to Address Damage Caused by AEDPA
Legislative
Congress should amend the federal habeas statute,34 to address the damage AEDPA has
wrought in federal habeas corpus over the past fifteen years. Congress should revise restrictions on
successive habeas petitions, the statute of limitations, exhaustion requirements, and procedural
default standards, as well as eliminate federal court deference to state court interpretations of
constitutional and federal law. These revisions will simplify a habeas regime that is currently failing to
provide certainty and clarity for petitioners, states, or courts.

34

See 28 U.S.C. § 2241 et. seq. These provisions govern procedures for post-conviction collateral review from
convictions obtained in both state and federal court.

~CRIME

CHAPTER 11 –DEATH PENALTY 196

Congress should amend the federal habeas statutes to permit second or successive habeas
corpus petitions. Allowing petitioners, particularly capital defendants, access to federal habeas
review in instances where credible evidence of actual innocence has surfaced is a sensible and fairminded reform designed to remedy miscarriages of justice. Despite the efforts of a defendant and his
or her attorneys to discover all evidence prior to trial, new evidence— such as DNA evidence,
confessions by the actual perpetrator, new eyewitnesses, recantation by prior witnesses, and new
physical evidence—can emerge after all appeals and initial post-conviction reviews have been
exhausted. A bar to successive petitions for claims of actual innocence35 does not serve justice and
risks the execution of innocent people in service of procedural rules.
Additionally, Congress should eliminate the restriction in 28 U.S.C. § 2254(d) that makes
habeas corpus relief available only for those state court convictions that are “contrary to, or involved
an unreasonable application of, clearly established Federal law, as determined by the Supreme Court
of the United States” or “based on an unreasonable determination of the facts.” If Congress does not
pursue full repeal of this provision, it should create a committee with substantive input from
members of the criminal defense bar to draft amending language. Among other possible reforms,
this amending language should add decisions of the U.S. Courts of Appeals as part of “clearly
established Federal law.” It should also make § 2254(d) applicable only to decisions from states that
qualify to opt-in to the expedited habeas procedures under Chapter 154, to ensure that states truly
provide effective post-conviction counsel consistent with the U.S. Constitution. These reforms are
critical in allowing federal courts to consider and properly apply federal law to claims that directly
implicate federal and U.S. Constitutional concerns.
To ensure that individuals have a fair opportunity to have their post-conviction claims
considered in federal court, Congress should repeal the one-year statute of limitations for postconviction review of state and federal criminal convictions. If complete repeal is not pursued,
Congress should pass legislation that amends the statute of limitations in 28 U.S.C. §§ 2244(d),
2255(f) to:

35

•

Extend the one-year statute of limitations or mirror applicable state statutes of
limitations, and begin running only from the date a state court denies a timely-filed
habeas petition.

•

Eliminate the absolute bar to federal habeas review due to the running of the statute of
limitations.

28 U.S.C. § 2244(b)(2) bars any successive petitions for claims where new evidence is presented, unless the
petitioner can show that “but for constitutional error, no reasonable factfinder would have found the applicant guilty
of the underlying offense.”

~CRIME

CHAPTER 11 –DEATH PENALTY 197

•

Waive the statute of limitations for petitions related to convictions in states that do not
automatically appoint post-conviction counsel in capital cases or have a prerequisite that
the petitioner make a pro se filing before post-conviction counsel is appointed.

•

Permit the reopening of habeas cases based on any new rules the U.S. Supreme Court
articulates, irrespective of Dodd v. United States.36

•

Require states to plead or forfeit statute-of-limitations defenses and prohibit the sua
sponte dismissal of habeas petitions based on a forfeited statute-of-limitations defense,
irrespective of Day v. McDonough.37

•

Clarify that a state petition dismissed by an inadequate state procedural rule does not
render that petition improperly filed, irrespective of Pace v. DiGuglielmo.38

•

Make ineffective assistance by state post-conviction counsel a cause to excuse a
procedural default.

•

Permit claims of innocence or racial bias to overcome any statute of limitations or other
procedural bar.

Legislation to reform federal habeas should also permit the tolling of the statute of limitations
in three circumstances: 1) where a state petition is pending, even if the state petition is ultimately
dismissed as time-barred and improperly filed; 2) where failure to file within the statute of limitation
was due to attorney error; and 3) in cases of mixed petitions, which contain both exhausted and
unexhausted claims. In the case of mixed petitions, the statute should require federal district courts
to advise petitioners of the stay-and-abeyance procedure (dismissal of the unexhausted claims, stay
of exhausted claims pending exhaustion of dismissed unexhausted claims, and amendment of original
petition to include newly exhausted claims), and the risk of violating the statute of limitations if they
decline the stay-and-abeyance procedure. This would reverse current law, under the Supreme Court
decision in Pliler v. Ford, that district judges are not required to advise petitioners of the risk of
declining the stay-and-abeyance procedures.39
Congress should also repeal the Chapter 154 Special Habeas Corpus “Opt-In” Procedures that
expedite federal post-conviction proceedings.40 This Opt-In Procedure originated in AEDPA, and was
36

Dodd v. United States, 545 U.S. 353 (2005) (holding statute of limitations runs from date new rule is recognized by
U.S. Supreme Court, not when the rule is made retroactive).
37
Day v. McDonough, 547 U.S. 198 (2006) (holding courts may dismiss habeas petition sua sponte for statute of
limitations violation even if state forfeited the defense).
38
Pace v. DiGuglielmo, 544 U.S. 408 (2005) (holding state petition that is dismissed as time-barred was not properly
filed and, thus, cannot toll statute of limitations for federal habeas petition).
39
Pliler v. Ford, 542 U.S. 225 (2004).
40
28 U.S.C. §§ 2261-66.

CHAPTER 11 –DEATH PENALTY 198

amended in 2005 as part of PIRA. Under AEDPA, federal judges would certify that a state provides
counsel to indigent capital defendants for state post-conviction review. In exchange, the states would
enjoy procedural advantages to speed federal habeas corpus review of capital cases. The 2005
amendment moved the authority to certify the programs to the Attorney General. No state has yet
to adopt a sufficiently adequate program for providing counsel to qualify for certification under the
Opt-In Procedures. Absent full repeal, Congress should consider repealing the provisions from PIRA
that moved authority to determine state qualification for Opt-In Procedures from the federal courts
to the U.S. Attorney General.41
Overall, the current federal habeas regime continues to adversely impact individuals who
have been denied opportunities to raise their constitutional claims. For this reason, any amendments
to AEDPA and PIRA Congress adopts must be retroactively applicable to ensure individuals,
particularly those facing execution, have a fair opportunity for their claims to be heard.
Executive
The President should encourage Congress to pass legislation to reform federal habeas corpus
law as outlined above and commit to signing those reforms into law.
Absent congressional action, the Attorney General should adopt regulations pursuant to
Chapter 154 that ensure states provide both qualified post-conviction counsel and adequate
resources for counsel to fully litigate their client’s state habeas petitions. The goal of Chapter 154 is
to provide habeas petitioners full and fair state post-conviction review before expediting and limiting
federal habeas review.42 Therefore, any regulations should clearly require that states appoint and
compensate competent counsel who have the resources to completely investigate and present all
claims before the Attorney General will certify such regimes. Additionally, any regulations must make
clear that future changes to such a regime will require recertification by the Attorney General.
Judicial
Federal courts should apply the Supreme Court’s recent decision in Holland v. Florida43 to
ensure that individuals whose habeas claims would otherwise be time-barred as the result of
attorney error may still seek review under the equitable tolling doctrine. In Holland, the Supreme
Court recognized that extraordinary circumstances may prevent a petitioner from filing a habeas
petition within the statute of limitations, and in such cases, out of fairness, the petition should not be

41

Id. at § 2265.
As originally passed, the Opt-In Procedure was designed to establish “a mechanism for the appointment,
compensation, and payment of reasonable litigation expenses of competent counsel in State post-conviction
proceedings brought by indigent prisoners,” and required “standards of competency for the appointment of such
counsel.” Pub L. No. 104-132, 110 Stat. 1214, § 107 (1996).
43
Holland v. Florida, 130 S.Ct. 2549 (2010).
42

CHAPTER 11 –DEATH PENALTY 199

barred.44 As federal courts begin to hear cases seeking equitable tolling, they should keep the goal of
fairness in mind.
2. Addressing Inequities in the Federal Death Penalty
A. The Federal Death Penalty Disproportionately Affects Defendants of Color
Since the resumption of the federal death penalty in 1988, nearly 73% of all approved capital
prosecutions have been against defendants of color.45 Additionally, white federal defendants facing
capital prosecution are almost twice as likely as defendants of color to successfully plea bargain for a
life sentence.46 Regulations adopted in 1995 that require the Attorney General to review every
federal death-eligible case to decide whether to seek capital prosecution have served only to
exacerbate problems with the application of the federal death penalty.
B. Create Safeguards Against Racially Biased Capital Prosecutions
Legislative
Congress should seek to address the disproportionate application of the federal death penalty
to defendants of color. To establish the extent to which race affects decisions to seek federal capital
prosecutions and obtain death sentences, Congress should commission an independent study of the
federal death penalty system. The study should examine racial disparities, prejudicial errors,
adequacy of counsel, and other inequities in capital prosecutions, and make recommendations for
legislative reform.
Congress should also require the Department of Justice to collect data on all factors relevant
to the Department’s decision to seek and impose the death penalty in all capital prosecutions. A
statutory requirement that the Department collect and maintain this data would ensure the
consistency and availability of the data from administration to administration. Such data should
include the race, ethnicity, national origin, gender, marital status, parental status, occupation, and
criminal record of both the defendant and victim. It should also include aggravating and mitigating
circumstances identified at trial as well as the type of defense counsel, whether federal public
defender, community defender, appointed counsel, retained counsel, or pro se representation. Upon
the conclusion of the prosecution, the Department must make that data publicly available.
Congress should amend Title 28 of the United States Code to expressly prohibit the imposition
of the death penalty based on race, ethnicity, or national origin. This amendment should allow a
44

Id. at 2553.
U.S. DEPT. OF JUSTICE, SURVEY OF THE FEDERAL DEATH PENALTY SYSTEM, supra note 13; see also, U.S. DEPT. OF JUSTICE, THE
FEDERAL DEATH PENALTY SYSTEM: SUPPLEMENTARY DATA, ANALYSIS AND REVISED PROTOCOLS FOR CAPITAL CASE REVIEW, supra note
13.
46
Id.
45

CHAPTER 11 –DEATH PENALTY 200

defendant to use evidence that race, ethnicity, or national origin of either the defendant or the victim
was a statistically significant factor in the decision to impose the sentence to establish an inference of
impermissible bias. This amendment should also bar the government from rebutting such an
inference through mere assertions that it did not intend to discriminate or that the imposed sentence
satisfied the statutory criteria for the death penalty, unless it can prove that death sentences were
sought in all cases fitting such criteria.
Congress should eliminate the excessive number of peremptory challenges given to federal
prosecutors in capital cases. Currently, under Federal Rule of Criminal Procedure 24(b), in non-capital
cases, the government is provided six peremptory challenges and the defense is provided ten. In
capital cases, however, each party is allowed 20 peremptory challenges. This substantial increase in
the government’s peremptory challenges creates a perverse incentive to seek death sentences when
they are not warranted. Additionally, more peremptory challenges increase the risk that jurors, while
ostensibly being excluded for legitimate reasons, could in fact be excluded based on race, whether
consciously or unconsciously.
Executive
The President should encourage Congress to pass legislation to address inequities in the
federal death penalty, as outlined above, and commit to signing these reforms into law.
Even absent congressional action, the Department of Justice can revise its policies and
regulations to ensure greater consistency and fairness in the application of the federal death penalty.
To achieve these goals, the Attorney General should work in an open and transparent manner with
the Department’s Capital Case Unit, which reviews and recommends to the Attorney General whether
to seek the death penalty, the Death Penalty Working Group, which is currently evaluating internal
Department protocols related to pursuing capital prosecutions, and the Access to Justice Initiative,
which is charged with improving the availability and quality of indigent defense, including capital
defense.
As a first step in the revision of its policies and regulations, the Department should stay all
federal executions and place a moratorium on federal capital charges pending an independent study
of the death penalty system to examine racial disparities, prejudicial errors, adequacy of legal
representation, and other inequities in capital prosecutions. The Department should develop metrics
and methodologies to prospectively and retrospectively examine the process by which the
Department initiates and prosecutes federal capital charges. This includes collecting and regularly
reviewing all data concerning factors relevant to the imposition of the death penalty.
To the extent that the Department continues to pursue capital prosecutions, it should adopt
policies and regulations that expressly prohibit imposition of the death penalty based on race,
ethnicity, or national origin, as evidenced by statistical analysis. Similar to the legislative proposal
above, under this standard, data collected regarding the prosecution of capital cases that reveals

CHAPTER 11 –DEATH PENALTY 201

race, ethnicity, or national origin as a statistically significant factor in the decision to impose the
sentence would create an inference of impermissible bias. In order to proceed with the capital
prosecution, the Department would require a showing that the crime satisfied the statutory criteria
for the death penalty and that the Department sought death sentences in all cases fitting such
criteria.
The Department should also decentralize the decision to pursue capital prosecutions by
removing the requirements in the U.S. Attorneys' Manual that the Attorney General review all cases
eligible for the death penalty.47 Rather, the U.S. Attorneys should be permitted to pursue non-capital
charges and enter into plea agreements in death-eligible cases. Only in cases where a U.S. Attorney
wished to pursue a capital prosecution would the Attorney General review and authorize or deny the
request to seek the death penalty. This system would increase the discretion of local U.S. Attorneys,
who are better equipped to weigh the factors at play in potential capital cases. Such a change would
also reduce unnecessary cost to the courts, prosecution and defense, given that delays in making a
decision to pursue the death penalty caused by mandatory review by the Attorney General increases
pretrial costs for additional attorneys, mitigation specialists, and other experts. These additional
expenditures are unnecessary if the Attorney General decides not to pursue a capital case. Removing
the requirement that all capital cases be reviewed by the U.S. Attorney General would restore capitalcase procedure to the more streamlined system that prevailed prior to 1995, when only affirmative
requests to seek the death penalty required approval by the U.S. Attorney General.
3. Mental Illness and the Federal Death Penalty
A. The Mentally Ill are Unjustly Executed
It is estimated that up to 10% of death row inmates suffer from serious mental illness.48
While perhaps criminally culpable for their conduct, like juveniles and those with mental retardation,
the severely mentally ill can lack the judgment, understanding, and self-control that would warrant
the imposition of the death penalty.
B. Protect the Mentally Ill from Unjust Execution
Legislative
Congress should amend 18 U.S.C. § 3596 to exempt people with severe mental illness and/or
developmental disabilities from capital sentences. In the case of defendants with severe mental
illness and/or developmental disabilities, like juveniles49 and those with mental retardation,50 the
47

USAM 9-10.010 et seq.
MENTAL HEALTH AMERICA, DEATH PENALTY AND PEOPLE WITH MENTAL ILLNESS available at www.nmha.org/go/positionstatements/54.
49
See Roper v. Simmons, 543 U.S. 551 (2005) (holding that it is unconstitutional to execute persons who committed
their crimes while juveniles).
48

CHAPTER 11 –DEATH PENALTY 202

death penalty represents a disproportionate punishment for individuals who are less culpable for
their crimes, as compared to those without mental illness.
Executive
The Department of Justice should also adopt a policy that exempts people with severe mental
illness and/or developmental disabilities from capital prosecutions. As explained above, the death
penalty represents a disproportionate punishment for individuals who are less culpable for their
crimes than those without mental illness.
4. Access to Counsel in Capital Prosecutions
A. Inadequate Counsel Puts Innocent Lives at Risk
Capital defendants are predominantly poor and rely on an indigent defense system that is
overworked, under-resourced, inexperienced, or sometimes non-existent.51 The absence of adequate
capital counsel increases the risk that innocent people will be sentenced to death. A recent report
found that federal capital defendants whose representations cost the least were more than twice as
likely than other capital defendants to receive the death penalty.52 The report also found that
defendants in low cost cases were less likely to be represented by lawyers with “distinguished prior
experience” in capital cases.53 Access to qualified counsel with sufficient resources vastly increases a
capital defendant’s chances for a fair trial.
B. Provide Adequate Counsel in Capital Prosecutions
Legislative
Congress should increase federal defender independence from the federal judiciary. Giving
the judiciary control over defense functions creates a conflict of interest. Federal defenders will be
able to operate more effectively and efficiently if the judiciary no longer appoints counsel or approves
budgets for experts and other resources at any stage of a federal death penalty case, including postconviction review.54

50

See Atkins v. Virginia, 536 U.S. 304 (2002) (holding that it is unconstitutional to execute persons with mental
retardation).
51
American Bar Association, Death Penalty Representation Project, available at
http://new.abanet.org/DeathPenalty/RepresentationProject/Pages/FAQ.aspx (last visited Jan 5, 2011); National
Center for State Courts, Indigent Defense FAQ, available at http://www.ncsc.org/topics/access-andfairness/indigent-defense/faq.aspx.
52
GOULD & GREENMAN, supra note 28, at 43-44.
53
Id. at 49.
54
See 18 U.S.C. §§ 3005, 3006A, 3599, and 28 U.S.C. § 2254.

CHAPTER 11 –DEATH PENALTY 203

Congress should amend current law to vest authority over the appointment and budgets of
federal defenders in local federal defender organizations, or the Administrative Office of U.S. Courts,
for those districts without federal defender organizations.55 Congress may also transfer the defense
function from the federal courts to a new Office of the Defender General.56
In the alternative, if authority remains in the judiciary, Congress should require federal courts
to accept recommendations for counsel made by a federal public defender, a federal defender
community organization, the Capital Habeas Unit, or the Administrative Office, absent good cause.
Congress should also allow any lawyer appointed to represent state death-row prisoners in federal
court, including without limitation Capital Habeas Unit attorneys, to appear in state court.
Congress should provide adequate funding for federal defenders, including funds for
attorneys’ fees, investigative expenses, and experts witness. This will give full effect to federal law
that provides counsel for capital defendants at all stages of the legal process in federal court through
post-conviction proceedings.57
Under the Capital Case Litigation Initiative, states are currently required to divide the federal
grant money they receive for capital training equally between prosecutors and defenders.58 States
are also restricted from using the money for anything other than training. 59 To increase the quality of
representation at the state level, Congress should allow for exceptions to the required equal
allocation. Additionally, Congress should permit states to use grants under this program to hire
counsel for capital defendants, whether through existing public defender organizations or appointed
counsel. States would then be permitted to use the grants to address the lack of parity in training and
personnel resources that currently exists between prosecution and indigent defense.
Finally, to ensure consistent quality in capital counsel in federal and state cases, Congress
should create a grant, administered by the Department of Justice’s Bureau of Justice Assistance, that
would help fund a National Capital Bar. This Bar would identify qualified and experienced attorneys
to represent capital defendants in state and federal court. To qualify for inclusion in the bar,
attorneys would need to demonstrate that they meet standards similar to those outlined in the
American Bar Association’s Guidelines for the Appointment and Performance of Defense Counsel in
Death Penalty Cases, including a commitment to providing zealous advocacy and high quality legal
representation in the defense of capital cases, and the necessary skills and knowledge of the various
complex components of capital litigation.60

55

Id.
See generally Indigent Defense, SMART ON CRIME (2011).
57
See 18 U.S.C. § 3599.
58
See 42 U.S.C. § 14163 et seq.
59
Id.
60
AMERICAN BAR ASSOCIATION, GUIDELINES FOR THE APPOINTMENT AND PERFORMANCE OF DEFENSE COUNSEL IN DEATH PENALTY CASES
(2003).
56

CHAPTER 11 –DEATH PENALTY 204

Executive
The President should encourage Congress to pass legislation to reform capital representation,
as outlined above, and commit to signing these reforms into law.
The President, with the assistance of the Attorney General, could also seek to strengthen the
Access to Justice Initiative within the Department of Justice, giving the office greater authority to
implement reforms that strengthen state and federal capital representation.61
Additionally, if authority over federal defender budgets remains with the judiciary, the
Attorney General should make public the costs it expects to incur in each capital prosecution, to
provide judges a better sense of the resources available to prosecutors as those judges make
decisions about defender budgets.
Judicial
Absent congressional action, federal judges should give substantial weight to the
recommendations of federal defender organizations with regard to the appointment of counsel and
setting of budgets in capital prosecutions.

61

See generally Indigent Defense, SMART ON CRIME (2011) (discussing the Access to Justice Initiative).

CHAPTER 11 –DEATH PENALTY 205

APPENDICES
Experts
Habeas Corpus
Stephen B. Bright, President and Senior Counsel, Southern Center for Human Rights,
http://www.schr.org/about/who
Ruth Friedman, Director, Federal Public Defender for the District of Maryland, Southern
Division, Federal Capital Habeas Project
Michael Laurence, Executive Director, Habeas Corpus Resource Center,
http://www.ccfaj.org/m-MichaelLaurence.html
Larry W. Yackle, Professor of Law, Boston University School of Law,
http://www.bu.edu/law/faculty/profiles/bios/full-time/yackle_l.html
Federal Death Penalty
Stephen B. Bright, President and Senior Counsel, Southern Center for Human Rights,
http://www.schr.org/about/who
David Bruck, Director, Virginia Capital Case Clearinghouse, Professor of Law, Washington &
Lee Law School, http://law.wlu.edu/faculty/profiledetail.asp?id=143
Samuel Gross, Professor of Law, University of Michigan Law School,
http://web.law.umich.edu/_facultybiopage/facultybiopagenew.asp?ID=179
Ronald J. Taback, Special Counsel, Skadden, Arps, Slate, Meagher & Flom LLP,
http://www.skadden.com/index.cfm?contentID=45&bioID=189
Capital Counsel
Ruth Friedman, Director, Federal Public Defender for the District of Maryland, Southern
Division, Federal Capital Habeas Project

CHAPTER 11 –DEATH PENALTY 206

Further Resources
Habeas Corpus Reform
Stephen B. Bright, Elected Judges and the Death Penalty in Texas: Why Full Habeas Corpus
Review by Independent Federal Judges Is Indispensable to Protecting Constitutional Rights, 78
TEX. L. REV. 1806 (2000).
Stephen B. Bright, Is Fairness Irrelevant? The Evisceration of Federal Habeas Corpus Review
and Limits on the Ability of State Courts to Protect Fundamental Rights, 54 WASH. & LEE L. REV. 1
(1997).
Death Penalty Information Center, Innocence: List of Those Freed From Death Row,
http://www.deathpenaltyinfo.org/innocence-list-those-freed-death-row.
Death Penalty Information Center, Innocence and the Death Penalty,
http://www.deathpenaltyinfo.org/innocence-and-death-penalty.
Brandon L. Garrett, Judging Innocence, 108 COLUM. L. REV. 55 (2008).
JAMES S. LIEBMAN ET AL., A BROKEN SYSTEM: ERROR RATES IN CAPITAL CASES, 1973-1995 (June 12, 2000),
available at http://www2.law.columbia.edu/instructionalservices/liebman/liebman_final.pdf.
James S. Liebman, An “Effective Death Penalty”? AEDPA and Error Detection in Capital Cases,
67 BROOK. L. REV. 411 (2001).
Steven Reinhardt, The Anatomy of an Execution: Fairness vs. “Process,” 74 N.Y.U. L. REV. 313
(1999).
Bryan A. Stevenson, Confronting Mass Imprisonment and Restoring Fairness to Collateral
Review of Criminal Cases, 41 HARV. C.R.-C.L. L. REV. 339 (2006).
Bryan A. Stevenson, The Politics of Fear and Death: Successive Problems in Capital Federal
Habeas Corpus Cases, 77 N.Y.U. L. REV. 699 (2002).
THE CONSTITUTION PROJECT’S SENTENCING INITIATIVE, RECOMMENDATIONS FOR FEDERAL CRIMINAL
SENTENCING IN A POST-BOOKER WORLD (The Constitution Project 2006), available at:
http://www.constitutionproject.org/pdf/33.pdf.
THE CONSTITUTION PROJECT, PRINCIPLES FOR THE DESIGN AND REFORM OF SENTENCING SYSTEMS: A
BACKGROUND REPORT (The Constitution Project 2006), available at:
http://www.constitutionproject.org/manage/file/34.pdf.

CHAPTER 11 –DEATH PENALTY 207

THE CONSTITUTION PROJECT, MANDATORY JUSTICE: THE DEATH PENALTY REVISITED (The Constitution
Project 2005), http://www.constitutionproject.org/pdf/30.pdf.
LARRY W. YACKLE, FEDERAL COURTS: HABEAS CORPUS (Thomas Reuters/Foundation Press, Turning
Point Series, 2010) (2003).
Federal Death Penalty
American Bar Association, Guidelines for the Appointment and Performance of Defense
Counsel in Death Penalty Cases" in 2003, 31 HOFSTRA L. REV. 913, 913 – 1090 (2003), available
at: http://www.abanet.org/deathpenalty/resources/docs/2003Guidelines.pdf.
Stephen B. Bright, Counsel for the Poor: The Death Penalty not for the Worst Crime but for the
Worst Lawyer, 103 YALE L. J. 1835 (1994).
Death Penalty Information Center, Death Penalty Representation,
http://www.deathpenaltyinfo.org/death-penalty-representation (last visited Dec. 16, 2010).
Equal Justice Initiative, Death Penalty-Inadequate Counsel, available at:
http://eji.org/eji/deathpenalty/inadequatecounsel (last visited Dec. 16, 2010).
Miriam S. Gohara et al., The Disparate Impact of an Under-Funded, Patchwork Indigent
Defense System on Mississippi's African Americans: The Civil Rights Case for Establishing a
Statewide, Fully Funded Public Defender System, 49 HOWARD L. J 1 (2005).
Roscoe C. Howard, Jr., The Defunding of the Post Conviction Defense Organizations as a Denial
of the Right to Counsel, 98 W. VA. L. REV. 863 (1996).
Spangenberg Project, Center for Justice, Law and Society, George Mason University, Reports,
http://tsp.gmu.edu/reports.html (last visited Dec. 16, 2010).
Ronald J. Taback, Why an Independent Appointing Authority Is Necessary to Choose Counsel
for Indigent People in Capital Punishment Cases, 31 HOFSTRA L. REV. 1105 (2003).
THE CONSTITUTION PROJECT’S SENTENCING INITIATIVE, RECOMMENDATIONS FOR FEDERAL CRIMINAL
SENTENCING IN A POST-BOOKER WORLD (The Constitution Project 2006), available at:
http://www.constitutionproject.org/pdf/33.pdf.
THE CONSTITUTION PROJECT, PRINCIPLES FOR THE DESIGN AND REFORM OF SENTENCING SYSTEMS: A
BACKGROUND REPORT (The Constitution Project 2006), available at:
http://www.constitutionproject.org/manage/file/34.pdf.

CHAPTER 11 –DEATH PENALTY 208

THE CONSTITUTION PROJECT, MANDATORY JUSTICE: THE DEATH PENALTY REVISITED (The Constitution
Project 2005), available at: http://www.constitutionproject.org/pdf/30.pdf.
Capital Counsel
American Bar Association, Guidelines for the Appointment and Performance of Defense
Counsel in Death Penalty Cases" in 2003, 31 HOFSTRA L. REV. 913, 913 – 1090 (2003), available
at: http://www.abanet.org/deathpenalty/resources/docs/2003Guidelines.pdf.
Stephen B. Bright, Counsel for the Poor: The Death Penalty not for the Worst Crime but for the
Worst Lawyer, 103 Yale L. J. 1835 (1994).
Death Penalty Information Center, Death Penalty Representation,
http://www.deathpenaltyinfo.org/death-penalty-representation (last visited Dec. 16, 2010).
Equal Justice Initiative, Death Penalty-Inadequate Counsel,
http://eji.org/eji/deathpenalty/inadequatecounsel (last visited Dec. 16, 2010).
Miriam S. Gohara et al., The Disparate Impact of an Under-Funded, Patchwork Indigent
Defense System on Mississippi's African Americans: The Civil Rights Case for Establishing a
Statewide, Fully Funded Public Defender System, 49 HOWARD L. J 1 (2005).
JON B. GOULD & LISA GREENMAN, REPORT TO THE COMMITTEE ON DEFENDER SERVICES JUDICIAL CONFERENCE OF
THE UNITED STATES: UPDATE ON THE COST AND QUALITY OF DEFENSE REPRESENTATION IN FEDERAL DEATH
PENALTY CASES (The Judicial Conference of the United States Sept. 2010), available at
http://www.uscourts.gov/uscourts/FederalCourts/AppointmentOfCounsel/FDPC2010.pdf#pa
ge=1.
Roscoe C. Howard, Jr., The Defunding of the Post Conviction Defense Organizations as a Denial
of the Right to Counsel, 98 W. VA. L. REV. 863 (1996).
Ronald J. Taback, Why an Independent Appointing Authority Is Necessary to Choose Counsel
for Indigent People in Capital Punishment Cases, 31 HOFSTRA L. REV. 1105 (2003).
THE CONSTITUTION PROJECT’S SENTENCING INITIATIVE, RECOMMENDATIONS FOR FEDERAL CRIMINAL
SENTENCING IN A POST-BOOKER WORLD (The Constitution Project 2006), available at:
http://www.constitutionproject.org/pdf/33.pdf.
THE CONSTITUTION PROJECT, PRINCIPLES FOR THE DESIGN AND REFORM OF SENTENCING SYSTEMS: A
BACKGROUND REPORT (The Constitution Project 2006), available at:
http://www.constitutionproject.org/manage/file/34.pdf.

CHAPTER 11 –DEATH PENALTY 209

THE CONSTITUTION PROJECT, MANDATORY JUSTICE: THE DEATH PENALTY REVISITED (The Constitution
Project 2005), available at: http://www.constitutionproject.org/pdf/30.pdf.
THE NATIONAL RIGHT TO COUNSEL COMMITTEE OF THE CONSTITUTION PROJECT, JUSTICE DENIED: AMERICA’S
CONTINUING NEGLECT OF OUR CONSTITUTIONAL RIGHT TO COUNSEL (The Constitution Project 2009),
available at: http://www.constitutionproject.org/pdf/139.pdf.
Primary Contact
Christopher Durocher
Government Affairs Counsel
The Constitution Project
1200 18th Street, NW
Suite 1000
Washington, DC
(202) 580-6939
cdurocher@constitutionproject.org

CHAPTER 11 –DEATH PENALTY 210

CHAPTER 11 CONTRIBUTORS
American Bar Association (ABA)
Robin Maher
740 15th Street, NW
Washington, DC 20005
(202) 662-1734
robin.maher@americanbar.org
Bruce Nicholson
740 15th Street, NW
Washington, DC 20005
(202) 662-1769
bruce.nicholson@americanbar.org
Sarah Turberville
740 15th Street, NW
Washington, DC 20005
(202) 662-1595
sarah.turberville@americanbar.org
Amnesty International
Christopher K. Morgan-Riess
600 Pennsylvania Avenue, SE
Washington, DC 20003
(513) 405-5253
Ckm37@law.georgetown.edu
Constitution Project (CP)
Adrienne Lee Benson
1200 18th Street, NW, Suite 1000
Washington, DC 20036
(202) 580-6920
abenson@constitutionproject.org
Christopher Durocher (Chapter Leader)
1200 18th Street, NW, Suite 1000
Washington, DC 20036
(202) 580-6920
cdurocher@constitutionproject.org

National Association for the Advancement of
Colored People Legal Defense & Educational
Fund, Inc.
Jin Hee Lee
99 Hudson Street, Suite 1600
New York, NY 10013
(212) 965-2200
jlee@naacpldf.org
Christina Swarns
99 Hudson Street, Suite 1600
New York, NY 10013
(212) 965-2200
cswarns@naacpldf.org
New Jerseyans for Alternatives to the Death
Penalty (NJADP)
Celeste Fitzgerald
986 South Broad Street
Trenton, NJ 08611
(973) 635-6396
paxcf@aol.com
The Raben Group
Katharine Huffman
1640 Rhode Island Avenue, NW
Suite 600
Washington, DC 20036
(202) 466-2479
khuffman@rabengroup.com

211

CHAPTER 12
FIXING MEDELLIN: ENSURING CONSULAR ACCESS
THROUGH COMPLIANCE WITH INTERNATIONAL LAW

CHAPTER 12 – FIXING MEDELLÍN 212

THE ISSUE
In 2008, the United States Supreme Court decided Medellín v. Texas,1 a case in which José
Ernesto Medellín, a Mexican national on death row in Texas, challenged his conviction. Mr.
Medellín claimed that after being taken into law enforcement custody he was not afforded his right
of consular notification and access, pursuant to the Vienna Convention on Consular Relations
(VCCR).2 The Court found that the International Court of Justice's (ICJ) 2004 decision in Avena and
Other Mexican Nationals (Avena)—which interpreted the VCCR as requiring the U.S. to provide
further "review and reconsideration" of the convictions of Mr. Medellín and 51 other Mexican
nationals on death row in the U.S.—was not binding domestic law.3 As a result, the Court held that,
absent implementing legislation passed by Congress and signed by the President, neither the VCCR
nor the ICJ’s Avena decision were enforceable by federal courts against Texas.4 This decision
effectively barred Mr. Medellín and others who had previously been denied their consular
notification and access rights from seeking judicial review of these violations of the VCCR, and
caused the U.S. to breach its commitment to the VCCR.
The President and Congress should ensure that the United States honors its commitment to
the VCCR by taking the following steps: first, the President should rejoin the Optional Protocol
concerning the Compulsory Settlement of Disputes of the Vienna Convention on Consular Relations;
second, Congress should pass legislation providing foreign nationals with judicial remedies for
violations of their rights under the VCCR; and finally, the President should require that the
Department of State and the Department of Justice provide further education and support to state
and local law enforcement about the right to consular access and compliance with this obligation
going forward.
Addressing these issues is critical not only to protect foreign nationals in U.S. law
enforcement custody, but also to ensure that U.S. citizens and service members abroad receive the
full protections of the VCCR.

1

Medellín v. Texas (Medellín III), 554 U.S. 759 (2008); Medellín v. Texas (Medellín II), 552 U.S. 491 (2008)..
Vienna Convention on Consular Relations, Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261, available at
http://untreaty.un.org/ilc/texts/instruments/english/conventions/9_2_1963.pdf.
3
Medellín II, 552 U.S. at 504-05.
4
Id. at 522-23.
2

CHAPTER 12 – FIXING MEDELLÍN 213

HISTORY OF THE PROBLEM
1. History of the VCCR
The United Nations proposed the VCCR in 1963.5 Now ratified by more than 170 countries,
the VCCR regulates the establishment and functions of consulates worldwide.6 Article 36 of the
VCCR grants a foreign citizen the right to notify and communicate with his or her country’s
consulate when arrested, detained, or imprisoned in a foreign country that is also a party to the
treaty.7 Article 36 also confers on consulates the right to communicate with, visit, and offer
assistance to their detained nationals, including the right to arrange for their legal representation.8
It further requires that local laws and regulations “must enable full effect to be given” to the rights
accorded to detained foreigners and their consular representatives.9 These rights are entirely
reciprocal in nature.10
To ensure U.S. citizens detained abroad are provided the right to consular access, the U.S.
ratified the VCCR without reservation in 1969.11 The understanding prior to the U.S. Supreme Court
decision in Medellín was that the treaty’s provisions would be entirely self-executing, meaning
Congress would not need to pass legislation to implement it, and it would prevail over any
conflicting state laws.12 Consequently, both federal and state law enforcement agencies are
required to comply with Article 36 when detaining foreign nationals, including advising them of
their right to consular notification and access. Despite this requirement, U.S. domestic compliance
5

Juan Manuel Gómez Robledo, Deputy Foreign Minister for Multilateral Affairs and Human Rights,
Ministry of Foreign Affairs, Mexico, The Vienna Convention on Consular Relations (2008), available at
http://untreaty.un.org/cod/avl/pdf/ha/vccr/vccr_e.pdf.
6
See United Nations Treaty Collection Database, Status of Vienna Convention on Consular Relations, available at
http://treaties.un.org/Pages/ViewDetails.aspx?src=UNTSONLINE&tabid=2&mtdsg_no=III6&chapter=3&lang=en#Participants
7
Vienna Convention on Consular Relations, art. 36, supra note 2.
8
Id.
9
Id.
10
Id.
11
See United Nations Treaty Collection Database, Status of the Vienna Convention on Consular Relations, supra
note 6.
12
See Robert Greffenius, Selling Medellin: The Entourage of Litigation Surrounding the Vienna Convention on
Consular Relations and the Weight of International Court of Justice Opinions in the Domestic, 23 AM. U. INT'L L. REV.
943, 948 (2008) (citing, Breard v. Pruett, 134 F.3d 615, 621 (4th Cir. 1998) (Butzner, J. concurring) (stating that the
treaty is self-executing because it confers "rights to individuals rather than merely setting out the obligations of
signatories"); Paraguay v. Allen, 949 F. Supp. 1269, 1274 (E.D. Va. 1996) (noting that both parties to the litigation
agree that the VCCR is self-executing in the sense that it does not require any implementing legislation to become
federal law); Mark J. Kadish, Article 36 of the Vienna Convention on Consular Relations: A Search for the Right to
Consul, 18 MICH. J. INT'L L. 565, 588 n.147 (1997) (citing governmental officials' statements referring to the VCCR as
"entirely self-executive"); Howard S. Schiffman, Breard and Beyond: The Status of Consular Notification and Access
Under the Vienna Convention, 8 CARDOZO J. INT'L & COMP. L. 27, 40-42 (2000) (citing multiple cases concluding that
Article 36 conferred judicially enforceable rights and commenting that this conclusion appears logical since the
construction of Article 36 sets out not merely the obligations of the signatories, but also mandatory, unequivocal
recognition of the importance of consular access to those detained by foreign governments))..

CHAPTER 12 – FIXING MEDELLÍN 214

with Article 36 obligations has long been significantly deficient—even in cases where foreign
nationals face capital prosecution—as evidenced by the more than 50 Mexican nationals who were
a party to the Avena case.
Also in 1969, the U.S. unconditionally ratified the Optional Protocol to the VCCR concerning
the Compulsory Settlement of Disputes.13 Under the Optional Protocol, the U.S. consented to have
the ICJ, the principal judicial body of the United Nations, settle any disagreements over the
interpretation or application of Article 36.14 Article 59 of the ICJ statute makes the ICJ’s decisions
binding on the parties to a dispute.15 Additionally, under Article 94 (1) of the United Nation’s
Charter, each member nation agrees to comply with any ICJ decision to which it is a party.16
The U.S. was the first nation to bring a case under the Optional Protocol, in response to the
seizure of U.S. diplomatic and consular personnel in Iran in 1979.17 The ICJ ruled in favor of the U.S.,
which asserted the binding nature of that judgment, insisting that Iran comply with the decision.18
2. Avena Litigation
In January 2003, Mexico filed with the ICJ an application instituting proceedings against the
U.S. on behalf of a group of 52 Mexican nationals, including Mr. Medellín, who had been sentenced
to death without being advised of their consular rights.19 Mexico asked the court to consider
whether these Mexican nationals were entitled to a legal remedy for the violation of Article 36.20
The U.S. participated fully in the case.21

13

See United Nations Treaty Collection Database, Status of Optional Protocol to the Vienna Convention on
Consular Relations concerning the Compulsory Settlement of Disputes, available at
http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=III-8&chapter=3&lang=en.
http://treaties.un.org/Pages/ViewDetails.aspx?src=UNTSONLINE&tabid=2&mtdsg_no=III-6&chapter=3&lang=en Participants.
14
Optional Protocol to the Vienna Convention on Consular Relations concerning the Compulsory Settlement of
Disputes, Apr. 24, 1963, 21 U.S.T. 71, 596 U.N.T.S. 487.
15
Statute of the Court of International Justice, art. 59.
16
U.N. Charter, art. 94.
17
United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1980 I.C.J. 451 (May 24).
18
Id.
19
Case Concerning Avena and Other Mexican Nationals, (Mex. v. U.S.)(Avena), 2004 I.C.J. 12 (Mar. 31).
20
In LaGrand Case (F.R.G. v. U.S.), 2001 I.C.J. 466 (June 27), the ICJ ruled that the VCCR confers judicially
enforceable rights on foreign nationals detained for prolonged periods or sentenced to severe penalties without
notice of their right to communicate with their consulates. The court also ruled that states that fail to give timely
notice cannot later invoke procedural default to bar individuals from judicial relief. However, the court did not
clearly address other issues, such as requiring individuals to show prejudice to the outcome of the trial, or denial of
certain remedies for Convention violations, which may effectively foreclose relief.
21
Avena, 2004 I.C.J. 12 (Mar. 31).

CHAPTER 12 – FIXING MEDELLÍN 215

During the proceedings, Mexico did not call into question the heinous nature of the crimes
or the legitimacy of the death penalty. Rather, Mexico asserted that each of its nationals was
entitled to a remedy for the denial of the protections he was entitled under the VCCR.22
On March 31, 2004, the ICJ held, by a vote of fourteen to one, that the U.S. had breached
Article 36(1) in the cases of 51 of the 52 Mexican nationals.23 The ICJ declined to vacate the
convictions and death sentences of the Mexican nationals, but held that U.S. courts must provide
"review and reconsideration" of the convictions and sentences to determine in each case if the
Article 36 violation was harmful to the defendant.24 The ICJ held that the remedy of "review and
reconsideration" applied to all 51 cases, including those where the VCCR claim would otherwise be
procedurally barred because of the defendants’ failure to raise the issue at trial.25
3. Executive, Judicial and Legislative Response to Avena
In 2005, President George W. Bush withdrew the U.S. from the VCCR Optional Protocol,
although he recognized the ICJ decision in Avena as binding.26 On February 28, 2005, the President
issued a Memorandum to the U.S. Attorney General stating that the U.S. would "discharge its
international obligations" under the ICJ's decision "by having State courts give effect to the
decision," which required "review and reconsideration" of the decisions to determine if the
violation prejudiced the defendant.27
Texas refused to recognize the ICJ's decision or the President’s Memorandum as binding law
and continued its plans to execute Mr. Medellín.28 The issue went to the Supreme Court in
Medellín v. Texas, where Mr. Medellín asserted that he had a judicially enforceable right to review
of his case, pursuant to Avena.29 President Bush argued that, while he had authority to enforce the
Avena decision, there was no private right of action under the VCCR.30 The Supreme Court ruled
that Avena is not directly enforceable in the domestic courts because none of the relevant treaty
sources – the VCCR Optional Protocol, the U.N. Charter, or the ICJ Statute – create binding federal
law in the absence of implementing legislation by Congress.31 The Supreme Court also held that the

22

Id.
Id.
24
Id.
25
Id.
26
See Letter from Condoleeza Rice, U.S. Secretary of States, to Kofi Annan, U.N. Secretary General (Mar. 7, 2005);
see also Memorandum from George W. Bush, President of the United States, to the Attorney General of the
United States (Feb. 28, 2005); Brief for the United States as Amicus Curiae Supporting Respondent at app. 2,
Medellin v. Dretke (Medellín I), 544 U.S. 660 (2005) (No. 04-5928), 2005 WL 504490.
27
Memorandum from George W. Bush, President of the United States, to the Attorney General of the United
States (Feb. 28, 2005).
28
Medellín II, 552 U.S. at 491.
29
Brief for Petitioner at 30, Medellín II, 552 U.S. 491 (2008) (No. 06-984), 2007 WL 1886212.
30
Brief for Respondent at 38-39, Medellín II, 552 U.S. 491 (2008) (No 06-984), 2007 WL 2428387.
31
Medellín II, 552 U.S. at 506.
23

CHAPTER 12 – FIXING MEDELLÍN 216

President did not have the authority to implement Avena unilaterally.32 The Court unanimously
agreed, however, that compliance with Avena is an international legal obligation of the U.S. and
that Congress has the authority to implement that obligation.33
Adhering to the VCCR and its Optional Protocol would not affect the ability of states or the
federal government to prosecute and subsequently jail or execute foreign nationals. Consular
notification and access does not enable foreign nationals who commit crimes to avoid legal
consequences. Rather, as the U.S. Department of State acknowledges, “one of the basic functions
of a consular officer is to provide a ‘cultural bridge’ between the host country” and foreign
nationals.34 The consul helps “to ensure *a foreign national detained by law enforcement] is aware
of his rights, to advise him of the availability of legal counsel, to give him a list of local attorneys, to
help him get in touch with his family and friends, to alert him to the legal and penal procedures of
the host country, and to observe if he has been or is in danger of being mistreated.”35 The solutions
outlined below would ensure that not only foreign nationals in U.S. custody but also U.S. citizens
and service members traveling abroad would be afforded the full protections of consular access.
RECOMMENDATIONS
1. Rejoining the VCCR’s Optional Protocol
A. Withdrawal from the Optional Protocol Harms U.S. Citizens
In 2005, President Bush withdrew from the VCCR’s Optional Protocol concerning the
Compulsory Settlement of Disputes.36 The aim was to prevent future ICJ decisions against the U.S.
similar to Avena. Unfortunately, because rights and obligations under the Optional Protocol are
entirely reciprocal, the decision to withdraw also stripped U.S. citizens abroad of a binding
enforcement mechanism for their right to access their consulate when detained or arrested outside
of the U.S.

32

Id. at 532.
Id. at 521-22.
34
UNITED STATES DEPARTMENT OF STATE, FOREIGN AFFAIRS MANUAL (1984) Ch. 400, Introduction. In the most recent
update of the Foreign Affairs Manual the State Department acknowledges that “Abuse is an unfortunate reality
that can occur even in the most enlightened police and penal systems for any number of reasons, including... [a]
reaction to cultural or language differences and misunderstandings.” UNITED STATES DEPARTMENT OF STATE, FOREIGN
AFFAIRS MANUAL (2004) Ch. 420, Notification and Access.
35
U.S. Citizens Imprisoned in Mexico: Hearing before H. Subcomm. on International, Political and Military Affairs
(Part I), 94th Cong. 16 (1975) (statement of Leonard F. Walentynowicz, United States Assistant Secretary of State
for Security and Consular Affairs).
36
See Letter from Condoleeza Rice, U.S. Secretary of States, to Kofi Annan, U.N. Secretary General (Mar. 7, 2005)..
33

CHAPTER 12 – FIXING MEDELLÍN 217

B. The U.S. Should Rejoin the Optional Protocol
Legislative
The House and Senate Judiciary and Foreign Relations Committees should examine the
impact of our withdrawal from the Optional Protocol on U.S. citizens living, working, and traveling
abroad. As part of their fact-finding responsibilities, these committees and their relevant
subcommittees should hold hearings to determine the effects of withdrawal from the Optional
Protocol.
The committees should be particularly concerned with the impact on U.S. military personnel
abroad. The risks for detained American personnel if consular access is withheld are both real and
widespread. In 1998, host country governments processed 5,092 cases against U.S. military
personnel.37 Maintaining access to consular support is indispensable for the protection of American
service members facing incarceration by foreign authorities. Congressional hearings to determine
the extent to which loss of the Optional Protocol’s enforcement mechanism affects military
personnel and other U.S. citizens are crucial to drawing attention to the issue and demonstrating
the widespread support for rejoining the Optional Protocol.
Executive
The President should rejoin the Optional Protocol, reversing the 2005 withdrawal by the
Bush Administration in response to the Avena decision. The success and usefulness of multilateral
and bilateral treaties depend upon a shared trust that each nation will honor its obligations and
resolve disputes in a fair manner and in accordance with the treaty’s terms. In 1979, the U.S. was
the first country to invoke the Protocol before the ICJ, suing Iran for taking 52 U.S. diplomats and
consular personnel hostage in Tehran.38 The ICJ ruled in favor of the U.S., which subsequently
asserted the binding nature of that judgment and insisted that Iran comply with the decision.39 U.S.
withdrawal from the Protocol as the result of an adverse decision by the ICJ weakens the VCCR’s
effectiveness by subverting the ICJ’s role as arbiter of VCCR-related disputes between nations.
Moreover, withdrawing from the Optional Protocol after the Avena decision sends the
wrong signal to other nations. It suggests that the U.S. will only honor the rule of law embodied by
the Optional Protocol so long as ICJ decisions favor the U.S. The President can undo this damage by
rejoining the Optional Protocol.

37

UNITED STATES. DEPARTMENT OF STATE, BACKGROUNDER: STATUS OF FORCES AGREEMENT (Jan. 4, 2000), available at
http://www.bu.edu/globalbeat/usdefense/USIA010400.html.
38
U.S. v. Iran, 1980 I.C.J. 451 (May 24).
39
Id.

CHAPTER 12 – FIXING MEDELLÍN 218

2. Addressing the Legacy of Avena and Medellín
A. The U.S. is Not Honoring Its Treaty Obligations
In the nearly seven years since the Avena decision, the U.S. has failed to comply with the ICJ
ruling. All three branches of the federal government, along with state governments, have failed to
take the measures necessary to honor the decision or the U.S.’s obligations under the VCCR and the
Optional Protocol. As a result, the U.S. no longer recognizes the mechanism for the enforcement of
foreign nationals’ right to receive access to their consulate when detained, and can no longer
expect its citizens to receive reciprocal protections abroad.
B. The U.S. Should Implement Avena
Legislative
Congress should pass legislation to provide judicial remedies for foreign nationals who have
been denied their right to consular access pursuant to the VCCR. Such legislation would directly
address the Supreme Court’s holding in Medellín that the VCCR is not self-executing by creating
binding federal law that provides remedies for foreign nationals denied consular access.
Federal legislation addressing the Medellín decision must give federal courts jurisdiction to
review the merits of claimed violations of the VCCR and to provide appropriate relief, including
overturning convictions, ordering new trials or sentencing proceedings, and providing other
declaratory or equitable relief necessary to secure the foreign national’s rights. Such legislation
must also permit federal court review in cases where the petitioner filed a habeas corpus petition
under chapter 153 of title 28 before enactment of the proposed legislation, though they would
otherwise be procedurally barred from raising the claim. This will ensure that foreign nationals
previously denied review of their claims under the Medellín decision will have an opportunity to
assert their rights under the VCCR.
Executive
The President should encourage Congress to pass legislation implementing the Avena
judgment and commit to signing such legislation once it passes. Demonstrating leadership on this
issue will signal to the international community that the Administration is committed to meeting
the U.S.’s treaty obligations. As Secretary of State Madeleine Albright wrote in 1998, “*W+e must be
prepared to accord other countries the same scrupulous observance of consular notification
requirements that we expect them to accord the U.S. and its citizens aboard.”40

40

Letter from Madeleine Albright, Secretary of State, to Victor Rodriguez, Chairman of the Texas Board of Pardons
and Paroles (Nov. 27, 1998).

CHAPTER 12 – FIXING MEDELLÍN 219

The President should also direct executive agencies to provide adequate training to federal
law enforcement agents regarding their obligations under the VCCR to make foreign nationals
aware of their right to consular notification and access. Finally, the Administration should provide
guidance and support for similar training for state and local law enforcement agents, whether
through technical training or grants.
Judicial
Once federal law permits foreign nationals to pursue remedies for denial of their right to
consular access pursuant to the VCCR and the Avena decision, federal courts should rigorously
enforce these provisions to ensure that they are given full effect. In so doing, federal courts will
encourage federal and state law enforcement to honor the VCCR’s consular notification
requirements, thereby protecting the rights of foreign nationals and preventing the need for federal
courts to overturn convictions or sentences.

CHAPTER 12 – FIXING MEDELLÍN 220

APPENDICES
Experts
Sandra Babcock, Clinical Professor of Law, Clinical Director, Center for International Human
Rights, Northwestern School of Law,
http://www.law.northwestern.edu/faculty/profiles/sandrababcock
Richard Burr, Partner, Burr & Welch P.C., http://www.burrandwelch.com/5001.html
Jeffery Davidow, President, Institute of the Americas, http://www.iamericas.org/aboutus/staff/1141-presidents-biography
Oona Hathaway, Gerard C. and Bernice Latrobe Smith Professor of International Law, Yale
Law School, http://www.law.yale.edu/faculty/oonahathaway.htm
Ambassador L. Bruce Laingen, President, American Academy of Diplomacy
http://www.academyofdiplomacy.org/members/bios/laingen.html
Richard Atkins, Attorney at Law, Philadelphia, Pennsylvania
Further Resources
Cases Concerning Avena and other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. 12 (Mar. 31),
available at http://www.icj-cij.org/docket/files/128/8188.pdf.
Medellín v. Dretke (Medellín I), 544 U.S. 660 (2005).
Medellín v. Texas (Medellín II), 552 U.S. 491 (2008), available at
http://www.supremecourt.gov/opinions/07pdf/06-984.pdf
Medellín v. Texas (Medellín III), 554 U.S. 759 (2008), available at
http://www.supremecourt.gov/opinions/07pdf/06-984a.pdf
THE CONSTITUTION PROJECT, RECOMMENDATIONS FOR FEDERAL CRIMINAL SENTENCING IN A POST-BOOKER
WORLD (2006), available at http://www.constitutionproject.org/pdf/33.pdf.
THE CONSTITUTION PROJECT, PRINCIPLES FOR THE DESIGN AND REFORM OF SENTENCING SYSTEMS: A
BACKGROUND REPORT (2006), available at
http://www.constitutionproject.org/manage/file/34.pdf.

CHAPTER 12 – FIXING MEDELLÍN 221

THE CONSTITUTION PROJECT, MANDATORY JUSTICE: THE DEATH PENALTY REVISITED (2005), available at
http://www.constitutionproject.org/pdf/30.pdf
Medellín II Amicus Briefs:
Brief of Former United States Diplomats as Amici Curiae in Support of Petitioner, Medellin v.
Texas, 552 U.S. 491 (2008) (No. 06-984), available at
http://www.debevoise.com/publications/pdf/Medellinamicus.pdf.
Brief of Amici Curiae the European Union and Members of the International Community in
Support of Petitioner, Medellin v. Texas, 552 U.S. 491 (2008) (No. 06-984), available at
http://www.debevoise.com/publications/pdf/Medellin2007EUamicusmerits.pdf.
Brief of International Court of Justice Experts as Amici Curiae in Support of Petitioner,
Medellin v. Texas, 552 U.S. 491 (2008) (No. 06-984), available at
http://www.debevoise.com/publications/pdf/Medellin_ICJ_Experts_Amicus_June2007.pdf.
Brief Amicus Curiae of the Government of the United Mexican States in Support of
Petitioner José Ernesto Medellín, Medellin v. Texas, 552 U.S. 491 (2008) (No. 06-984),
available at
http://www.debevoise.com/publications/pdf/ForeignSovereignsAmicusMerits.pdf.
Brief of Foreign Sovereigns as Amici Curiae in Support of Petitioner José Ernesto Medellín,
Medellin v. Texas, 552 U.S. 491 (2008) (No. 06-984), available at
http://www.debevoise.com/publications/pdf/ForeignSovereignsAmicusMerits.pdf.
Brief of the American Bar Association as Amicus Curiae in Support of Petitioner, Medellin v.
Texas, 552 U.S. 491 (2008) (No. 06-984), available at
http://www.debevoise.com/publications/pdf/ABAAmicusMerits.pdf.
Brief for the United States as Amicus Curiae Supporting Petitioner, Medellin v. Texas, 552
U.S. 491 (2008) (No. 06-984), available at
http://www.debevoise.com/publications/pdf/medellin06984amicus.pdf.

CHAPTER 12 – FIXING MEDELLÍN 222

Primary Contact
Katharine Huffman
The Raben Group
1640 Rhode Island Avenue, NW
Suite 600
Washington, DC 20036
(202) 466-2479
khuffman@rabengroup.com

CHAPTER 12 – FIXING MEDELLÍN 223

CHAPTER 12 CONTRIBUTORS
Amnesty International
Laura Moye
600 Pennsylvania Avenue, SE
Washington, DC 20003
(202) 675-8582
lmoye@aiusa.org
Constitution Project (CP)
Christopher Durocher (Chapter Leader)
1200 18th Street, NW, Suite 1000
Washington, DC 20036
(202) 580-6920
cdurocher@constitutionproject.org
Virginia Sloan
1200 18th Street, NW, Suite 1000
Washington, DC 20036
(202) 580-6920
vsloan@constitutionproject.org
The Raben Group
Katharine Huffman
1640 Rhode Island Avenue, NW, Suite 600
Washington, DC 20036
(202) 466-2479
khuffman@rabengroup.com

224

CHAPTER 13
PARDON POWER AND EXECUTIVE CLEMENCY:
REINVIGORATE THE PARDON POWER AND MAKE
OPERATIONAL AND STRATEGIC USE OF
EXECUTIVE CLEMENCY

CHAPTER 13 – PARDONS & EXECUTIVE CLEMENCY 225

THE ISSUE
With the rapid growth of the federal prison population and the expansion of legal barriers
to reentry, the presidential pardon power by rights should play a central operational role in the
federal criminal justice system. However, over the past 20 years, using the pardon power has been
perceived as posing too great a political risk—at least until the end of a President’s term.
Governors have been similarly reluctant to pardon or commute prison sentences. As a
consequence, during the past several administrations, the pardon power has been allowed to
atrophy as a remedy available to ordinary people, and the Department of Justice (DOJ) has
neglected its historical role as steward of the pardon power. The President should recognize the
values pardon serves, define a clear operational role for pardon in the criminal justice system, and
establish a system for administering the pardon power that will maximize its potential for correcting
injustice and advancing the administration's policy objectives.
HISTORY OF THE PROBLEM
The pardon power is exercised by the President alone, without statutory limit. The pardon
power in Article II of the Constitution gives the President unlimited authority to issue full or
conditional pardons, commutations of sentence, remissions of fines, amnesties, and reprieves.1
Clemency plays a vital role in the federal criminal justice system, because many prisoners are
serving extremely lengthy sentences, including mandatory minimums, with no possibility of parole;
post-conviction remedies have been significantly limited in recent years; and the collateral legal and
social consequences of conviction are numerous, onerous, and frequently permanent. Even when
Congress has recognized the need for remedial legislation to mitigate unduly harsh sentences, as it
did in the recently enacted Fair Sentencing Act of 20102, prisoners serving mandatory sentences
under the previous regime do not benefit from the new law. Ultimately, federal law includes no
general relief mechanism that would substitute for clemency, either to reduce a prison sentence or
relieve collateral consequences after a court-imposed sentence has been served.
Despite the evident need for clemency, the current system for administration of the pardon
power is inefficient, unreliable, and results in very few grants. The pardon power has been
administered since the mid-19th century by the Attorney General, assisted by the Pardon Attorney.
Since the late 1970s, the Pardon Attorney has reported to the Deputy Attorney General (DAG), who
signs all clemency recommendations to the President.3 The Pardon Attorney, in recent years a
career DOJ lawyer, is assisted by five attorneys and additional support staff. The Office of the
Pardon Attorney (OPA) reviews applications for clemency, directs the investigation of each case as

1

U.S. CONST. art. II, § 2, cl. 1.
Pub. L. No. 111-220, 124 Stat. 2372.
3
See Margaret Colgate Love, Of Pardons, Politics and Collar Buttons: The President’s Duty to Be Merciful, Fordham
Urb. L.J., 27 FORDHAM URB. L.J. 1483, 1489-90 (2000) (hereinafter Collar Buttons).
2

CHAPTER 13 – PARDONS & EXECUTIVE CLEMENCY 226

appropriate, and solicits the opinions of the judges and prosecutors involved in the case. 4 OPA
drafts a recommendation to grant or deny each request, which is approved by the DAG before
being sent to the Office of White House Counsel. A recommendation is sent to the White House in
every clemency case filed with DOJ, unless the case is withdrawn or otherwise is not completely
processed, and each case is acted upon by the President.
In the past, a report containing sufficient information about each clemency case has been
provided to the White House, but in recent years these reports have become less and less
informative in a majority of cases. Currently, most clemency cases are treated by OPA in a
summary fashion, with only a small percentage of cases being referred to the FBI for a background
investigation or to the prosecutor for a recommendation. Many case reports are only a few
sentences long, and in some cases there is no report at all. According to persons familiar with the
operation of DOJ’s clemency program, a prosecutor’s recommendation in a case is almost invariably
negative, if it is sought at all; DOJ’s recommendation rarely deviates from that of the prosecutor;
and the President generally accepts the DOJ recommendation. At the end of the last two
administrations, the slow and inhospitable pardon process in DOJ resulted in end-runs to the White
House by those who either had political connections or were in a position to hire people who did.
As a result, pardoning was brought into disrepute and frequently failed to provide deserved relief
through the established clemency procedures.5
Further complicating matters, the number of clemency applications has increased
dramatically in recent years, and there is now a backlog of over 4,000 requests.6 President George
W. Bush issued fewer commutations and pardons in absolute terms than any other President in
recent history, with the exception of his father, and denied many times more.7 This is in sharp
contrast from practice prior to 1980, when grants were made regularly and frequently.8 To date,
President Obama has issued nine pardons.9 These pardons were made to individuals convicted of
minor offenses many years ago.10 Further, he has denied more than 1500 petitions for clemency.11

4

United States Attorney's Manual Standards for Consideration of Clemency Petitions, Section 1-2.110, Office of the
Pardon Attorney, available at http://www.justice.gov/pardon/petitions.htm.
5
See, e.g., GEORGE W. BUSH, DECISION POINTS 104 (Crown 2010); Margaret Colgate Love, The Twilight of the Pardon
Power, 100 J. CRIM. L. & CRIMINOLOGY (forthcoming 2010), available at
http://www.pardonlaw.com/materials/The%20Twilight%20of%20the%20Pardon%20Power3.27%282%29.pdf
(hereinafter Twilight).
6
George Lardner, Jr., No Country for Second Chances, N.Y. TIMES (Nov. 23, 2010).
7
Margaret C. Love, Final Report Card on Pardoning by George W. Bush (January 27, 2009 (rev. March 13, 2009)),
available at http://www.pardonlaw.com/materials/FinalReportCard.3.13.09.pdf.
8
Twilight, supra note 4.
9
Charlie Savage, In a First for Obama, Nine Pardons Are Granted, N.Y. TIMES (Dec. 3, 2010).
10
Id.
11
Presidential Clemency Actions by Administration (1945 to Present), Office of Pardon Attorney, Department of
Justice, http://www.justice.gov/pardon/actions_administration.htm#obama (last visited Jan. 20, 2011). This
includes petitions closed without presidential action pursuant to 28 CFR § 1.8.

CHAPTER 13 – PARDONS & EXECUTIVE CLEMENCY 227

RECOMMENDATIONS
1. Executive Clemency’s Role in the Justice System
A. Executive Clemency Currently Plays No Meaningful Part in the Justice System Despite a
Growing Need for the President to Exercise his Pardon Power.
There has been no considered discussion in this Administration of what role executive
clemency should play in the federal justice system in light of the abolition of parole and the increase
in collateral consequences, and initial efforts to reform the clemency review process have come to
naught. Nor has there been evident congressional interest in the administration’s clemency policies
or practices. Reinvigorating the clemency program will allow the President to do justice in
individual cases, signal his law enforcement priorities within the executive branch, and highlight the
need for reform of the legal system.
Congress cannot regulate or limit the Presidential pardon power, as it is a power based in
Article II of the Constitution. Congress can inquire into the use of the pardon power but such
inquiries are infrequent. Congress may react when a controversial grant of clemency is made 12, or
express support for particular clemency applicants and make public statements calling on the
President to grant clemency to certain individuals.13 Ultimately however, the President must take
the lead in revitalizing the executive power.
B. Revitalize Executive Clemency.
Executive
President Obama should 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 policy agenda both within and outside of the executive branch. 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 what 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, as well as those who are responsible for reviewing and making recommendations on
clemency applications. It should publicize particular clemency grants to help make Congress and
the general public more comfortable with the use of clemency by showing the "human face" of

12

For example, Congressional hearings were held to investigate President Bill Clinton's commutation of Puerto
Rican terrorists in 1999 and his pardon of Marc Rich and others in 2001. Congressional hearings were also
scheduled but later cancelled in 2007 to inquire into the racial breakdown of clemency grants, and into President
George W. Bush's grant of clemency to I. Lewis "Scooter" Libby.
13
For example, Congressional members have called for the pardons of former Border Patrol agents Ignacio Ramos
and Jorge Compean, long-dead boxer Jack Johnson, and convicted spy Jonathan Pollard.

~CRIME

CHAPTER 13 – PARDONS & EXECUTIVE CLEMENCY 228

those serving harsh prison sentences or burdened by the lingering collateral disabilities of a criminal
conviction.
Examples might include granting clemency to:

•

Provide relief from some severe collateral penalty or disability (e.g., deportation,
disqualification from employment or licensure, ineligibility for a particular benefit or
opportunity);

•

Recognize exemplary post-sentence rehabilitation in cases where a person has turned her
life around and become an exemplary contributor to her community;

•

Recognize particularly harsh sentences (e.g., nonviolent drug offenders serving life
sentences or mandatory minimums that the sentencing judge believed were
disproportionate to the offense);

•

Remedy unwarranted sentencing disparity (e.g., in the cases of girlfriends/wives, "drug
mules," and first-time drug offenders serving longer sentences than those of their more
culpable boyfriends/husbands, suppliers, or co-conspirators);

•

Give retroactive application to changes in the law (e.g., to crack cocaine drug offenders who
did not benefit from the provisions of the Fair Sentencing Act, which increased the amount
of the drug needed to trigger mandatory minimums);

•

Signal disapproval of a particular investigative or prosecutorial policy or practice (e.g.,
sentencing entrapment, trial penalty, or appeal waivers); or

•

Release seriously ill or elderly prisoners who can receive adequate care in a noncustodial
setting.

The Administration should also consider using clemency grants strategically to advance
criminal justice reforms by matching individual grants of clemency with proposals to change the law
that made clemency necessary in that instance. For example, grants to long-time legal residents
threatened with deportation for dated minor convictions, to prisoners serving mandatory
minimums for drug or gun offenses, and to people who have grown old or sick while in prison might
be paired with calls to Congress to change sentencing laws or laws imposing collateral
consequences. Whether through press releases, the State of the Union address, or personal
meetings with members of Congress, the administration could use targeted individual clemency
grants to advocate for legislative reform—e.g., to expand the safety valve or allow individuals who
have served at least 15 years in prison to petition a court for a “second look” at their sentence.
Other potential types of legislative reform may be in the area of laws imposing collateral
consequences, such as mandatory deportation, firearms disqualification, or licensing debarment.

CHAPTER 13 – PARDONS & EXECUTIVE CLEMENCY 229

The President should also make the process for administering the pardon power more
independent, efficient, and accountable. The President should consider whether it would be
beneficial to remove the pardon process from DOJ to an independent board of appointees—
perhaps consisting of a panel of retired federal judges that could operate with a degree of
independence from federal prosecutors and give the president additional protection from political
pressure. DOJ would continue to have an important role in clemency matters through providing the
President with facts about a clemency case, and recommendations reflecting law enforcement’s
perspective.
If the pardon advisory function remains in DOJ, the Office of the Pardon Attorney (OPA)
must be given a clear mandate to carry out the president’s direction and sufficient resources to do
so. The President should direct the Attorney General (AG) to personally review and sign all
clemency recommendations, as he did between 1896 and 1978. As a member of the President's
cabinet, the AG can bring to bear both law enforcement and political perspectives. The current
practice of having the Deputy Attorney General (DAG) or a subordinate official within his office sign
clemency recommendations has allowed the pardon program to come under the control of
prosecutors, and has constrained the pardon's operational and policy functions. Having the AG take
personal responsibility for the pardon program elevates the pardon program within DOJ and allows
OPA to improve its ability to provide meaningful review to pardon applications.
In recognition of the strategic importance of clemency grants, the President should assign a
senior official in the White House Counsel's office to review and advise the President on pardon
matters, and to review clemency recommendations on a regular basis. This would allow for regular
opportunities for the President to review and act on clemency requests with his counsel.
Regardless of whether the responsibility for clemency recommendations stays with DOJ or is
moved to a more independent board, the entity responsible for preparing clemency
recommendations should develop a strategic plan for the use of the pardon power to accomplish
the President's criminal justice policy agenda. This entity should also issue specific standards to
guide those who wish to apply for clemency and those who are responsible for reviewing and
making recommendations on clemency applications. Furthermore, the President's pardon policy
and the standards for favorable consideration of pardon applications should be made public. Steps
should be taken to introduce a degree of transparency and accountability into the pardon process,
consistent with the privacy of clemency applicants and the prerogatives of the President. Pardon
authorities should be afforded sufficient resources to ensure that applications are promptly and
thoroughly reviewed, with a goal of ensuring that most cases are decided within two years of their
receipt.
Finally, the AG should make maximum use of statutory alternatives to clemency in the form
of commutation, such as the sentence reduction14 and the deportation authority.15 The
14

18 U.S.C. § 3582(c)(1)(A)(i).

CHAPTER 13 – PARDONS & EXECUTIVE CLEMENCY 230

administration should develop alternatives to pardon to avoid or mitigate the collateral
consequences of conviction, including advocating for expansion the Federal First Offender Act16,
and creation of a program for awarding certificates of good conduct. Collateral consequences in
federal law and regulations should be catalogued, and the administration should devise ways of
enabling persons with convictions to avoid or mitigate these collateral consequences, either
through federal agency waiver programs or by giving effect to state relief mechanisms.
Judicial
Judges should assist in the clemency process by including in the court record their opinion
as to the appropriateness of the sentence imposed. The judicial branch generally becomes involved
in the pardon process only when a sentencing judge is asked to make a recommendation in a
particular pardon case, or to write a letter of support for a commutation applicant. However, in
several cases, a judge has taken the initiative to recommend clemency either at sentencing or when
a substantial portion of the sentence has been served, which may assist the President in making
decisions.17

15

8 U.S.C. § 1231(a)(4).
18 U.S.C. § 3607.
17
See Joanna M. Huang,, Correcting Mandatory Injustice: Judicial Recommendation of Executive Clemency, 60
DUKE. L. J. 131 (2010).
16

CHAPTER 13 – PARDONS & EXECUTIVE CLEMENCY 231

APPENDICES
Experts
Margaret Colgate Love, former U.S. Pardon Attorney, currently represents numerous
clemency applicants (http://www.pardonlaw.com/)
Sam Morison, Counsel to the Office of Military Commissions; Former staff attorney in the
Office of the Pardon Attorney
John Stanish, Former U.S. Pardon Attorney under President Jimmy Carter
Professor Dan Kobil, Capital University Law School
(http://www.law.capital.edu/Faculty/Bios/dkobil.asp)
Molly Gill, Staff Attorney and Special Projects Director, Families Against Mandatory
Minimums (http://www.famm.org/AboutFAMM/StaffandBoard.aspx)
Professor P.S. Ruckman, Editor of PardonPower.com blog, Professor of Political Science,
Rock Valley College (http://psruckman.com/)
George Lardner, Journalist; Author of forthcoming study of presidential pardon
(http://niemanwatchdog.org/index.cfm?fuseaction=about.viewcontributors&bioid=237)
Sam Sheldon, Assistant U.S. Attorney, Southern District of Texas; successfully represented
several clemency recipients in 2001
Further Information
Margaret Colgate Love, Time to Pardon People as Well as Turkeys, Mr. President, WASH. POST
(Nov. 12, 2010), available at http://www.washingtonpost.com/wpdyn/content/article/2010/11/11/AR2010111106093.html.
Samuel T. Morison, A No-Pardon Justice Department, L.A. TIMES (Nov. 6, 2010), available at
http://www.latimes.com/news/opinion/opinionla/la-oew-morison-pardon20101106,0,5303971.story.
Margaret Colgate Love & John Stanish, Reinvigorate the Power, NAT’L L. J. (Feb. 23, 2009),
available at http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202428380073.
George Lardner Jr., No Country for Second Chances, N.Y. TIMES (Nov. 23, 2010), available at
http://www.nytimes.com/2010/11/24/opinion/24lardner.html?_r=1.

CHAPTER 13 – PARDONS & EXECUTIVE CLEMENCY 232

Margaret Colgate Love, The Twilight of the Pardon Power, 100 J. CRIM. L. & CRIMINOLOGY
(forthcoming 2010), available at http://papers.ssrn.com/
sol3/papers.cfm?abstract_id=1569874.
Primary Contact
Margaret Love
Law Office of Margaret Love
15 7th Street, NE, Washington, DC 20002
202-547-0453
margaretlove@pardonlaw.com

CHAPTER 13 – PARDONS & EXECUTIVE CLEMENCY 233

CHAPTER 13 CONTRIBUTORS
American Civil Liberties Union Drug Law Reform Project
Jay Rorty
915 15th Street, NW
Washington, DC 20005
(202) 544-1681
jrorty@aclu.org
Criminal Justice Policy Foundation (CJPF)
Eric Sterling
8730 Georgia Avenue, Suite 400
Silver Spring, MD 20910
(301) 589-6020
esterling@cjpf.org
Families Against Mandatory Minimums (FAMM)
Molly M. Gill
1612 K. Street, NW, Suite 700
Washington, DC 20006
(202) 822-6700
mgill@famm.org
Law Office of Margaret Love
Margaret Colgate Love
15 7th Street, NE
Washington, DC 20002
(202) 547-0453
Margylove@aol.com

234

CHAPTER 14
REENTRY—ENSURE SUCCESSFUL
REINTEGRATION AFTER INCARCERATION

CHAPTER 14 – REENTRY 235

THE ISSUE
Reentry, the period following incarceration or conviction during which a person (adult or
juvenile) reintegrates into the community, is a time of paramount importance to both public safety
and the rehabilitative process. Many obstacles stand between the individual with a criminal record
and successful reentry. Policies that create barriers to employment, education, civic participation,
public benefits, housing, medical care, and substance abuse treatment, to name a few, make it
increasingly difficult for the person in reentry to remain crime free and to become a positively
contributing member of his or her community.
HISTORY OF THE PROBLEM
Studies conducted by the Bureau of Justice Statistics and other leading researchers conclude
that more than two-thirds of the individuals released from prison are rearrested within three
years.1 This year an estimated 700,000 people will leave prison2 and another 12 million will leave
local jails.3 They return to communities lacking appropriate support services for substance
addiction and mental illness, and with limited job prospects and affordable housing options. Most
have children who will depend on them for support, but these families are often impoverished. The
prospects for successful reintegration are further compromised by the many collateral
consequences of criminal convictions—often recently enacted policies—that make reentry after
incarceration enormously difficult.
The costs of failed reentry are not only social, but also fiscal. The federal and state
governments spend tens of billions of dollars on corrections, the majority on incarceration.
Reducing the number of non-violent offenders in prison and jail by half would save taxpayers $16.9
billion annually.4 The need for fiscally responsible criminal justice reform is a nonpartisan issue with
support across the political spectrum. Conservatives recently joined together to establish Right on
Crime, a research project of the Texas Public Policy Foundation, to put forward a conservatively
motivated reform agenda. According to their Statement of Principles:

1

National Institute of Justice, Recidivism,
http://www.ojp.usdoj.gov/nij/topics/corrections/recidivism/welcome.htm (last visited Jan. 18, 2011) (citing Allen J.
Beck & Bernard E. Shipley, Recidivism of Prisoners Released in 1983, Bureau of Justice Statistics Special Report
(1989), abstract available at http://bjs.ojp.usdoj.gov/index.cfm?ty=pbdetail&iid=1135; Patrick A. Langan & David J.
Levin, Recidivism of Prisoners Released in 1994, Bureau of Justice Statistics Special Report (2002), abstract
available at http://bjs.ojp.usdoj.gov/index.cfm?ty=pbdetail&iid=1134); Richard Freeman, Can We Close the
Revolving Door?: Recidivism vs. Employment of Ex-Offenders in the U.S. (2003), available at
http://www.urban.org/uploadedpdf/410857_freeman.pdf.
2
Legal Action Center, After Prison: Roadblocks to Reentry, http://www.lac.org/roadblocks-toreentry/main.php?view=overview. (last visited Jan. 18, 2011).
3
AMY L. SOLOMON, ET AL., LIFE AFTER LOCKUP: IMPROVING REENTRY FROM JAIL TO THE COMMUNITY, URBAN INST. XV (May 2008),
available at http://www.urban.org/UploadedPDF/411660_life_after_lockup.pdf.
4
JOHN SCHMITT, KRIS WARNER & SARIKA GUPTA, CENTER FOR ECONOMIC AND POLICY RESEARCH, THE HIGH BUDGETARY COST OF
INCARCERATION, (June 2010), available at http://www.cepr.net/documents/publications/incarceration-2010-06.pdf.

CHAPTER 14 – REENTRY 236

Conservatives correctly insist that government services be evaluated on whether
they produce the best possible results at the lowest possible cost, but too often this
lens of accountability has not focused as much on public safety policies as other
areas of government. As such, corrections spending has expanded to become the
second fastest growing area of state budgets—trailing only Medicaid.5
Fiscal responsibility, social justice, public safety, or good governance—no matter the motivation,
the need to examine and adjust our policies to make our communities safer has never been more
urgent or obvious.
Accordingly, this section identifies nine obstacles to reentry and makes federal policy
recommendations to promote reintegration and reduce recidivism.6 Each issue outlined is vitally
important to successful reentry. Without a comprehensive strategy that incorporates employment,
education, housing, civic engagement, treatment and health services, as well as welfare assistance,
the chances of success diminish and the likelihood of recidivism grows. The federal government
plays a critical role here, as it is often federal laws and policies that can either create reentry
barriers or eliminate them.
1. The Second Chance Act
Congress demonstrated the federal commitment to improving reentry when it passed the
Second Chance Act of 2007, authorizing $165 million in federal aid to state, local, and tribal
governments to support programming to assist people exiting incarceration, including competitive
grants to government agencies and nonprofit organizations to provide employment assistance,
substance abuse treatment, housing, family services, mentoring, victims support and other services
that help reduce recidivism and improve public safety.7
The Act was signed into law by President George W. Bush in April 2008 to combat the “high
recidivism rate [that] places a huge financial burden on taxpayers . . . deprives our labor force of
productive workers, and . . . families of their daughters and sons, and husbands and wives, and moms
and dads.”8 It is now due for reauthorization. It is imperative that it continues to “live up to its name . . .
[to] help ensure that where the prisoner's spirit is willing, the community's resources are available.”9
5

Right on Crime, The Conservative Case for Reform, Statement of Principles, http://www.rightoncrime.com/theconservative-case-for-reform/statement-of-principles/ (last visited Jan 18, 2011) (signatories include Newt
Gingrich, Grover Norquist, Edwin Meese, III, William J. Bennett, Asa Hutchinson, and other leading conservatives).,
6
See generally Juvenile Justice, SMART ON CRIME (2011) (discussing additional reentry barriers for youth).
7
Second Chance Act of 2007, Pub. L. No. 110-199, 122 Stat. 657 (2008); see also Second Chance Act, National
Reentry Resource Center, http://www.nationalreentryresourcecenter.org/about/second-chance-act (last visited
Jan. 18, 2011).
8
Press Release, George W. Bush, President of the United States, Statement at Signing of the Second Chance Act of
2007 (Apr. 9, 2008), available at http://georgewbush-whitehouse.archives.gov/news/releases/2008/04/200804092.html.
9
Id.

CHAPTER 14 – REENTRY 237

2. Voting Rights
Although the right to vote forms the core of American democracy, one significant group of
American citizens is still denied the right to the franchise; 5.3 million Americans are not allowed to
vote because of felony convictions.10 Four million of these people live, work, and raise families in
our communities, and many others will eventually return after completing their sentences.11
However, because of past convictions, these people are still denied the right to vote In addition,
among those individuals with criminal records who are in fact eligible to vote, there is considerable
confusion about their eligibility or ineligibility to vote since most “restoration processes are so
cumbersome that few [individuals with criminal records+ are able to take advantage of them.”12
This confusion results in the de facto disenfranchisement of eligible voters with criminal
convictions.13
Denying individuals the right to vote even after they have repaid their debts to society
perpetuates the insidious discrimination against this population that makes reentry so difficult.
Furthermore, voting promotes reentry because it encourages individuals to become engaged in
their communities and to engage in socially responsible conduct.14 In fact, a study by sociologists
Christopher Uggen and Jeff Manza found that, among persons with a prior arrest, “27% of nonvoters were re-arrested over a three-year period, compared with only 12% of voters.”15
3. Welfare and Food Stamp Benefits for Individuals with Drug Felony Convictions
The Personal Responsibility and Work Opportunity Reconciliation Act prohibits anyone
convicted of a drug-related felony from receiving either federally-funded cash assistance through
the Temporary Assistance for Needy Families (TANF) program, or food stamps, unless states opt out
of or modify the ban.16 Under the ban, which only applies to drug felonies, individuals are barred
for life from obtaining cash assistance and food stamps even after completing their sentences or
10

THE SENTENCING PROJECT, FELONY DISENFRANCHISEMENT LAWS IN THE UNITED STATES (Mar. 2010), available at
http://www.sentencingproject.org/doc/publications/fd_bs_fdlawsinusMarch2010.pdf.
11
ERIKA WOOD, BRENNAN CENTER FOR JUSTICE, RESTORING THE RIGHT TO VOTE, (May 11, 2009), available at
http://brennan.3cdn.net/5c8532e8134b233182_z5m6ibv1n.pdf.
12
FELONY DISENFRANCHISEMENT LAWS IN THE UNITED STATES, supra note 10, at 1.
13
ERIKA WOOD & RACHEL BLOOM, AMERICAN CIVIL LIBERTIES UNION AND BRENNAN CENTER FOR JUSTICE, DE FACTO
DISENFRANCHISEMENT (Oct. 2008), available at http://brennan.3cdn.net/578d11c906d81d548f_1tm6iiqab.pdf.
14
Democracy Restoration Act of 2009: Hearing on H.R. 3335 Before the Subcomm. on the Constitution, Civil Rights,
and Civil Liberties of the H. Comm. on the Judiciary, 111th Cong. (Mar. 16, 2010) (statement of Carl Wicklund,
Executive Director, American Probation and Parole Association), available at
http://brennan.3cdn.net/047d04ef2d0893df95_t8m6y9g01.pdf; Democracy Restoration Act of 2009: Hearing on
H.R. 3335 Before the Subcomm. on the Constitution, Civil Rights, and Civil Liberties of the H. Comm. on the
Judiciary, 111th Cong. (Mar. 16, 2010) (statement of Marc Mauer, Executive Director, The Sentencing Project),
available at http://www.sentencingproject.org/doc/publications/fd_DRATestimonyMarch2010.pdf.
15
Statement of Marc Mauer, supra note 14, at 3.
16
Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, § 115, 110 Stat.
2105, 2180-81 (1996).

CHAPTER 14 – REENTRY 238

overcoming their addictions. Currently, 13 states have opted out of the ban entirely, and 11 states
completely enforce the ban. 17 All other states have limited or modified the ban in some way.18
The ban denies necessary cash assistance to individuals seeking to improve their lives
without regard to their rehabilitation. It also exacerbates the financial pressures that lead many
individuals to commit financially motivated crimes and stress that can trigger relapse into active
addiction.19 Furthermore, the ban negatively impacts the innocent children of individuals who have
committed drug crimes. Since many individuals with criminal records are parents with employment
and income challenges, the ban has devastating consequences for these children, increasing the
likelihood that they, too, will become ensnared in cycles of poverty, drug use, and crime.20 The
purpose of welfare reform, of which the ban was a small part, was to create incentives for
individuals to move from public support to self-sufficient employment. Unfortunately, this
provision has the perverse consequence of making it more difficult for individuals to move from
lives of dependence on crime and state supervision to lives of employment and contribution. There
is no indication that the drug felony ban acts as a deterrent to crime or drug use, and every
indication that it acts as a barrier to rehabilitation and successful reentry.
4. Financial Aid Ban for Students with Drug Convictions
In 1998, the Higher Education Act was amended to prohibit anyone with a drug conviction
from receiving federal financial aid for post-secondary education.21 By 2005, the drug offense ban
was modified to prohibit federal financial aid for only those individuals convicted of a drug offense
while receiving financial aid.22 The Free Application for Federal Student Aid (FAFSA), however,
continues to ask about an applicant’s drug offense history without first explaining that drug
convictions obtained while the applicant was not receiving federal student financial aid are
irrelevant to student aid eligibility. Anecdotal and analogical evidence suggests the question
discourages many qualified applicants from further pursuing federal student aid due to their
mistaken belief that a conviction in their past excludes them.
The drug offense ban on federal student aid prevents individuals from obtaining the
education they need to access better employment opportunities, even though many of those
affected by the ban were actively addicted to drugs when they engaged in the conduct for which
they were convicted, and have since entered into or completed treatment for their addictions.
17

See LEGAL ACTION CENTER, AFTER PRISON: ROADBLOCKS TO REENTRY 2009 UPDATE (2009), available at
http://www.lac.org/roadblocks-to-reentry/upload/lacreport/Roadblocks-to-Reentry--2009.pdf.
18
Id.
19
See Letter from Nora D. Volkow, M.D., Director, National Institute on Drug Abuse (NIDA), to Friends, Colleagues
and Parents (Jan. 2002) (“Researchers have long recognized the strong correlation between stress and substance
abuse, particularly in prompting relapse.”), available at http://archives.drugabuse.gov/stressalert/StressAlert.html.
20
See LEGAL ACTION CENTER, GETTING TO WORK: HOW TANF CAN SUPPORT EX-OFFENDER PARENTS IN THE TRANSITION TO SELFSUFFICIENCY (2001).
21
1998 Amendments to the Higher Education Act of 1965, Pub. L. No. 105-244, § 483(f) (1998).
22
Higher Education Reconciliation Act of 2005, Pub. L. No. 109-171, § 8021(c) (Feb. 8, 2006).

CHAPTER 14 – REENTRY 239

Education is not only the key to a better life; it is also an important component of a crime-free
lifestyle for many people.
In addition to its practical function as a credential in the job market, participation in higher
education has been shown to lower recidivism by 15% and 13% for people who earn an associate’s
or bachelor’s degree, respectively.23 Providing individuals with criminal records an opportunity to
obtain higher education creates cost savings for state correctional systems. In fact, the Correctional
Education Association calculated that states experience a “*return of+ at least $2 for every $1 spent
in terms of saving in cell space on those who do not return to the system.”24 By preventing
individuals from obtaining the education and training necessary to become more desirable
candidates for employment and to advance in their careers, the drug felony ban, rather than acting
as a deterrent to crime, serves as a barrier to success and to the empowerment of communities
where individuals are unlikely to be able to access educational opportunities without financing from
the federal government.
5. Barriers to Housing and Employment
Federal public housing law contains provisions that require or permit local authorities to
deny Section 8 and other federally assisted housing to certain individuals. Two classes of applicants
are permanently barred from federal public housing eligibility. Any household with a member who
either: (i) is subject to a lifetime registration requirement under a state sex offender registration
program25 or (ii) has been convicted of methamphetamine production on public housing premises,26
is permanently ineligible for public, Section 8, and other federally assisted housing.
Other provisions in federal law create exclusions from eligibility for public housing for
certain individuals, but provide some discretion for these individuals to have their eligibility
restored or a limitation on the duration of the exclusion. For example, any tenant who has been
evicted from public, federally assisted, or Section 8 housing because of drug-related criminal activity
is ineligible for public or federally assisted housing for three years. The housing provider has the
discretion to shorten the three year period if the person successfully completes a rehabilitation
program approved by the local housing provider, or the circumstances leading to the eviction no
longer exist (e.g., the family member responsible for the eviction has died or is imprisoned).27 The
three year time period begins to run from the date of the eviction.28

23

See Center on Crime Communities & Culture, Occasional Paper Series No. 2, Research Brief: Education as Crime
Prevention (Sept. 1997), available at http://www.prisonpolicy.org/scans/research_brief__2.pdf.
24
STEPHEN STEURER, LINDA SMITH & ALICE TRACY, THE THREE STATE RECIDIVISM STUDY SUMMARY, CORRECTIONAL EDUCATION
ASSOCIATION (2001), available at http://dpscs.md.gov/publicinfo/publications/pdfs/three-state-recidivism-studysummary.pdf.
25
42 U.S.C. §13663(a) (2006).
26
42 U.S.C. §1437n(f) (2006).
27
42 U.S.C. §13661(a) (2006).
28
Id.

CHAPTER 14 – REENTRY 240

In addition, individuals with criminal records “often find that a conviction record is the main
stumbling block in obtaining housing, whether in the private sector or in public and Section 8
supported housing.29 Many housing authorities and private landlords use overly restrictive policies,
(e.g. excluding all people with convictions or all people with felony convictions) which results in the
exclusion of people with conviction records who pose no threat to the public, tenants or property.
“Oftentimes the policies are based on a misunderstanding of federal law, or on the landlord placing
a premium on ease of administration, believing that it’s easier to ‘just say no’ to all people with
conviction records than to perform individualized analyses of their applications.”30
Similarly, while obtaining employment is one of the most important factors for successful
reentry, many barriers remain for former prisoners. Unfortunately, individuals with criminal
records who are unable to obtain employment are three times more likely to return to prison than
those individuals who are able to find work.31
6. Addiction and Recidivism
Addiction is a public health issue with public safety implications. Addiction is an incredibly
widespread disease. In fact, estimates of the number of Americans who suffer from diagnosable
drug or alcohol disorders are as high as 23.2 million people. Of these, only about 10% have
received treatment.32 Furthermore, youth attitudes about substance use are beginning to soften,
which generally precedes an increase in drug use.33
Statistics demonstrate the link between addiction and crime, one which accounts for much
of the crime in this nation. One in four individuals incarcerated in American prisons and jails is
serving time for a drug offense, and the United States incarcerates more people for drugs than any
other country. “*O+ffender drug use is involved in more than half of all violent crimes and in 60 to
80 percent of child abuse and neglect cases. It is estimated that 70 percent of the people in state
prisons and local jails have abused drugs regularly, compared with approximately nine percent of
the general population.”34 Furthermore, in 1991, an astonishing 49% of all individuals incarcerated

29

Legal Action Center, Advocacy Toolkit: Improving Housing Opportunities for Individuals with Conviction Records,
http://www.lac.org/toolkits/housing/housing.htm (last visited Jan. 19, 2011).
30
Id.
31
M. Eisenberg, Project RIO: Twelve Month Follow-u:, March 1989 Intakes, TEX. DEPT. OF CRIM. JUSTICE (1990); Jeremy
Travis, Amy L. Solomon & Michelle Waul, From Prison to Home: The Dimensions and Consequences of Prisoner
Reentry, URBAN INST. JUSTICE. POLICY CENTER (June 1, 2001).
32
Nat’l Inst. On Drug Abuse, U.S. Dept. of Health and Human Servs., Treatment Approaches for Drug Addition 1
(Sept. 2009), available at
http://www.nida.nih.gov/PDF/InfoFacts/IF_Treatment_Approaches_2009_to_NIDA_92209.pdf.
33
NAT’L INST. ON DRUG ABUSE, U.S. DEPT. OF HEALTH AND HUMAN SERVS., MONITORING THE FUTURE: NATIONAL RESULTS ON
ADOLESCENT DRUG USE (2009), available at http://monitoringthefuture.org/pubs/monographs/overview2009.pdf.
34
Nora D. Volkow, Treat the Addict, Cut the Crime Rate, THE WASHINGTON POST, Aug. 19, 2006, available at
http://www.washingtonpost.com/wp-dyn/content/article/2006/08/18/AR2006081800799.html.

CHAPTER 14 – REENTRY 241

in federal or state prisons were under the influence of drugs or alcohol at the time of their crime.35
Often, the only time individuals have the opportunity to access addictions services is through their
involvement in the criminal justice system. In fact, in 2007, the criminal justice system was the
largest source of referrals to the addiction treatment system.36
Untreated alcohol and drug addiction costs society approximately $366 billion per year, and the
cost of addiction treatment is 15 times less than the cost of incarcerating a person for a drug-related
crime. The Washington State Institute for Public Policy estimates that for every dollar spent on
community-based drug treatment, society receives a return of $18.52 in benefits, including reductions
in corrections and prosecution costs.37 Fiscally, it makes sense to focus resources on addiction
prevention and treatment before untreated addictions create higher costs in the law enforcement and
corrections systems. Ensuring that individuals have access to addiction treatment services and reducing
or eliminating barriers that prevent individuals from obtaining addiction treatment are ways to improve
public health and safety while saving taxpayers money on corrections spending.
Additionally, many individuals face barriers to accessing addition services after they are
released from prison, as a result of state laws revoking or limiting the driver’s licenses of some or all
drug offenders. In 1992, Congress amended the Federal Highway Apportionment Act to withhold
10% of certain federal highway funds from states that failed to enact and enforce laws that revoke or
suspend the driver’s license of an individual convicted of any drug offense for at least six months after
the time of conviction.38 States may opt out of the law by limiting the revocation or suspension to
those individuals whose convictions were for drug crimes related to driving (i.e. driving under the
influence of a controlled substance) or to other limited categories, but they can also impose
revocations or suspensions that endure for longer than the six months required by the federal law.
In response, 28 states have enacted laws that automatically suspend or revoke licenses for
all or some drug offenders. The remaining states have either adopted laws that suspend or revoke
a license only for driving-related convictions, or have opted out of the federal law altogether. Many
states provide no opportunity for drivers to obtain restricted licenses so they can get to work,
school, or treatment. These misguided and overbroad policies harm communities by making it
more difficult for residents to obtain and retain a job, to attend school, or to access needed
healthcare, including addiction treatment and recovery support services. This is especially true in
suburban and rural areas where public transportation is less developed or non-existent.

35

The National Center on Addiction and Substance Abuse at Columbia University, Behind Bars: Substance Abuse
and America’s Prison Population, 34 (Jan. 1998).
36
Substance Abuse and Mental Health Servs. Admin., U.S.Dept. of Health and Human Servs., Substance Abuse
Treatment Admissions Referred by the Criminal Justice System, THE TEDS REPORT (Aug. 13, 2009), available at
http://oas.samhsa.gov/2k9/211/211CJadmits2k9.htm.
37
Elizabeth Drake, et al., Evidence-based Public Policy Options to Reduce Future Prison Construction, Criminal
Justice Costs, and Crime Rates, WASHINGTON STATE INST. FOR PUB. POLICY (2006).
38
23 U.S.C. §159 (2006).

CHAPTER 14 – REENTRY 242

Furthermore, federal Department of Transportation (DOT) regulations restrict certain
individuals receiving drug addiction treatment from obtaining commercial driver’s licenses (CDL), even
though commercial driving is one of the industries in which individuals with criminal records are often
able to find work. Currently, DOT regulations prohibit individuals who are receiving methadone and
who are stabilized in treatment from obtaining their CDLs. There is an exception to the prohibition
against drug use for individuals taking prescribed drugs who have been informed by a medical
professional that their prescription drug use will not negatively impact their ability to drive a
commercial motor vehicle. 39 However, prescribed methadone use is specifically excluded from the
exception.40
7. Mental Health and Income Support for Released Prisoners
Access to federal disability and health benefits is a critical component of successful reentry into
the community for individuals released from jail or prison. This is particularly important for individuals
with mental illnesses who cycle through corrections facilities repeatedly− often the event leading to
arrest is linked to both lack of income and unmet need for services, such as mental health and addiction
treatment, and supports, such as housing41 and employment. In a recent study, 16.9 percent of
individuals entering jail were found to have a severe mental illness such as schizophrenia or manic
depression.42 It is reported that the Los Angeles County Jail, the Cook County (Chicago) Jail and Riker’s
Island (New York City) each hold more people with mental illness on any given day than any psychiatric
facility in the United States.43 Nearly a quarter of both state prisoners and jail inmates with a mental
health problem, compared to a fifth of those without, had served three or more prior incarcerations.44
When an individual enters jail or prison, Supplemental Security Income (SSI) benefits are
suspended (after one calendar month),45 and Medicaid benefits are often terminated (although federal
law does not require states to terminate Medicaid eligibility.) After 12 consecutive months of
suspension, SSI benefits terminate, as well.46 It can take several months to reinstate benefits after
termination, and this lag can be critical for individuals with a serious mental illness in need of treatment
services (via Medicaid health coverage) and income support (through SSI) in order to thrive in the
community.
39

See 49 C.F.R. 391.41(b)(12) (2009).
Id.
41
BAZELON CENTER FOR MENTAL HEALTH LAW, FINDING THE KEY TO SUCCESSFUL TRANSITION FROM JAIL OR PRISON TO THE
COMMUNITY (Nov. 2009), available at
http://www.bazelon.org/LinkClick.aspx?fileticket=Bd6LW9BVRhQ%3d&tabid=104
42
See Henry Steadman et al., Prevalence of Serious Mental Illness Among Jail Inmates, 60 PSYCHIATRIC SERVICES 76165 (2009) (accessed on July 21, 2009), available at http://psychservices.psychiatryonline.org/cgi/reprint/60/6/761.
43
See E. Fuller Torrey, Reinventing Mental Health Care, 9-4 CITY JOURNAL, (Autumn 1999), available at
http://www.city-journal.org/html/9_4_a5.html (last visited Jan. 19, 2011).
44
DORIS J. JAMES & LAUREN E. GLAZE, BUREAU OF JUST. STAT., SPECIAL REPORT: MENTAL HEALTH PROBLEMS OF PRISON AND JAIL
INMATES (2006), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/mhppji.pdf (last visited Jan. 19, 2011).
45
SOCIAL SECURITY ADMINISTRATION, SOCIAL SECURITY: WHAT PRISONERS NEED TO KNOW (May 2010), available at
http://www.ssa.gov/pubs/10133.pdf.
46
Id.
40

CHAPTER 14 – REENTRY 243

RECOMMENDATIONS
1. The Second Chance Act
A. Federal Role is Essential in Reentry Programming

Second Chance Act funding makes it possible for states to test old and the develop and test
new program models, introduce different approaches to addressing reentry, and disseminate
information and research to guide states as they address the complex challenge of prisoner reentry.
Without the Second Chance Act, each individual state would be left to devise solutions to its version
of a national problem that is of much greater scope and very different from what it was in the past.
Without a federal role, states would waste resources reinventing solutions to complex problems,
duplicating both mistakes and successes in reentry programming. The Act’s reauthorization and full
funding is critical to continue and strengthen the ground-breaking work it supports to reduce
recidivism and enhance public safety.
B. Reauthorize and Fully Fund the Second Chance Act
Legislative
Congress should reauthorize and fully fund the Second Chance Act47 to expand access to
reentry support services nationwide.
Executive
The Attorney General should oversee and coordinate Second Chance reentry programs with
reentry programs in other federal agencies through the Department of Justice’s (DOJ) new Interagency Reentry Working Group that the Attorney General convened on January 5, 2011.48

47

Second Chance Act of 2007, supra note 7.
Press Release, Dep’t of Just., Att’y Gen. Eric Holder Convenes Inaugural Cabinet-Level Reentry Council:
Interagency Meeting Focuses on Reducing Recidivism, Saving Taxpayer Dollars, Making Communities Safer (Jan. 5,
2011) (“The council will address short-term and long-term goals through enhanced communication, coordination
and collaboration across federal agencies. The mission of the council is threefold: to make communities safer by
reducing recidivism and victimization; to assist those returning from prison and jail in becoming productive, tax
paying citizens; and to save taxpayer dollars by lowering the direct and collateral costs of incarceration.”), available
at http://www.justice.gov/opa/pr/2011/January/11-ag-010.html.
48

CHAPTER 14 – REENTRY 244

2. Voting Rights
A. Former Prisoners are Denied the Right to Vote
Denying individuals the right to vote even after they have repaid their debts to society
perpetuates the insidious discrimination against this population that makes reentry so difficult.
Furthermore, voting encourages individuals to become engaged in their communities and to engage
in socially responsible conduct, improving chances for successful reentry and reducing recidivism. 49
Denying the franchise to people who should instead recommit themselves to the social contract is
counterproductive to public safety and community well-being.
B. Extend Federal Voting Rights to People Released from Prison
Legislative
Congress should pass legislation similar to the Democracy Restoration Act50 to restore the
rights of individuals released from prison to vote in federal elections. The legislation has a broad
and diverse base of public support including leaders in the law enforcement and criminal justice
field, clergy and faith-based organizations, voting rights and civil rights groups and criminal justice
advocates.51
Executive
The DOJ should appoint a commission to document the de facto disenfranchisement of
eligible voters with felony convictions in each of the 50 states. This will provide policymakers with
reliable information upon which to base decisions regarding voting rights restoration policies they
enact or enforce.
3. Welfare and Food Stamp Benefits for Individuals with Drug Felony Convictions
A. Individuals with Drug Felony Convictions are Permanently Barred from Benefits
Individuals convicted with drug felonies are permanently barred from obtaining cash
assistance and food stamps, even after completing their sentences or overcoming their addictions.
The ban denies necessary cash assistance to individuals seeking to improve their lives, as well as
their dependent children. It also exacerbates the financial pressures that lead many individuals to
49

Statement of Carl Wicklund, supra note 14; Statement of Marc Mauer, supra note 14.
Democracy Restoration Act, H.R. 3335 and S. 1516, 111th Cong. (2009).
51
For a complete list of individuals and groups that support the Democracy Restoration Act, see, Brennan Center
for Justice, Democracy Restoration Act,
http://www.brennancenter.org/content/resource/democracy_restoration_act_of_2008/ (last visited Jan. 18,
2011).
50

CHAPTER 14 – REENTRY 245

commit financially motivated crimes and cause stress that can trigger relapse into active
addiction.52
B. Restore Benefits to Individuals with Drug Felony Convictions
Legislative
Congress should eliminate the lifetime ban on TANF and food stamp eligibility for people
with drug felony convictions by repealing Section 115(a) of the Personal Responsibility and Work
Opportunity Act of 1996.53 Two bills were introduced during the 111th Congress to address this
issue: the Food Assistance to Improve Reintegration Act,54 introduced by Representative Barbara
Lee; and a bill to restore eligibility for benefits under Temporary Assistance for Needy Families to
people with drug felony convictions,55 introduced by Representative Andre Carson.
4. Unintended Impact of Financial Aid Ban for Students with Drug Convictions
A. Students with Drug Conviction are Barred from Receiving Federal Student Financial Aid
By preventing individuals in need from obtaining the education and training necessary to
become more desirable candidates for employment and to advance in their careers, the drug felony
ban, rather than acting as a deterrent to crime, serves as a barrier to success and to the
empowerment of communities where individuals are unlikely to be able to access educational
opportunities without financing from the federal government.
B. Repeal the Unintended Drug Ban on Federal Student Aid
Legislative
Congress should pass legislation to fully repeal the drug offense ban on federal student aid
from the Higher Education Act.56 The drug offense ban on federal student aid prevents individuals
from obtaining the education they need to access better employment opportunities, even though
many of those affected by the ban were actively addicted to drugs when they engaged in the
conduct for which they were convicted, and have since entered into or completed treatment for
their addictions. Congress should repeal that ban in recognition of the critical role education plays
in reducing recidivism.
52

See Letter from Nora D. Volkow to Friends, Colleagues and Parents, supra note 19.
Personal Responsibility and Work Opportunity Reconciliation Act, supra note 16.
54
Food Assistance to Improve Reintegration Act, H.R. 329, 111th Cong. (2009).
55
To amend the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 to repeal the denial to
drug felons of eligibility for benefits under the program of temporary assistance for needy families, H.R. 3053,
111th Cong. (2009).
56
Higher Education Act, 20 U.S.C. § 1091(r) (2009).
53

CHAPTER 14 – REENTRY 246

Executive
The Department of Education should eliminate the question about drug convictions from
the FAFSA and implement another mechanism to confirm the eligibility of applicants for financial
aid. The FAFSA continues to ask applicants to disclose their drug offense histories without
specifying that drug convictions obtained while the applicant was not receiving federal student
financial aid are irrelevant to student aid eligibility. This question discourages many qualified
applicants from further pursuing federal student aid due to their mistaken belief that a conviction in
their past excludes them.
5. Barriers to Housing
A. Former Prisoners Face Unfair Barriers to Housing
Federal public housing law contains provisions that require or permit local authorities to
limit, exclude, or permanently deny Section 8 and other federally assisted housing to certain
individuals, including those with criminal records. Further, those with criminal records often find
that their record is the main stumbling block to obtaining private sector housing, as many housing
authorities and private landlords use overly restrictive policies to exclude people with conviction
records who pose no threat to the public, tenants or property.
B. Remove Unfair Barriers to Housing
Legislative
Congress should amend 42 U.S.C. §1437d(k) by passing legislation similar to the No One
Strike Eviction Act,57 which would require public housing authorities to provide administrative
grievance procedures for one-strike evictions of recipients of publicly assisted housing for criminal
activity. It would also provided protections from eviction for family members of individuals engaged
in criminal activity. Congress also should amend Subpart D of part IV of subchapter A of chapter 1
of the Internal Revenue Code of 1986 by passing legislation similar to the Public Safety Ex-Offender
Self Sufficiency Act,58 which would create a tax credit for investment in low-income housing for
individuals with criminal records who participate in supportive programming.
Executive
The Department of Housing and Urban Development (HUD) should encourage public
housing authorities and private landlords who take HUD subsidies to adopt policies that, rather
than barring applicants who have criminal records, make an individualized assessment of each
57
58

No One Strike Eviction Act, H.R. 69, 111th Cong. (2009).
Public Safety Ex-Offender Self-Sufficiency Act, H.R. 6205, 109th Cong. (2006).

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applicant’s suitability for public housing. HUD should also develop guidance for public housing
authorities and their staffs about the requirements of federal law with respect to the use of HUD
funds to support housing for individuals with criminal records.
6. Expand employment opportunities for people with criminal records
A. Individuals with Criminal Records Face Barriers to Employment
A number of federal policies create or authorize the creation of barriers that prevent
individuals with criminal records from obtaining employment for which they are qualified and in
which they pose no increased risk to public safety. Other policies prevent these same individuals
from obtaining the knowledge or skills they need to advance in the labor market. Reducing barriers
in employment will improve public safety, reduce correctional spending and other costs associated
with mass incarceration, including the maintenance of children of incarcerated and formerly
incarcerated individuals, and promote the well-being and productive citizenship of individuals with
criminal records.
B. Remove or Reduce Barriers to Employment
Legislative
There are a number of steps Congress can take to expand and improve employment
opportunities for individuals with criminal records. First, Congress should amend the Higher
Education Act59 to restore Pell Grant eligibility for in-prison education programs so that individuals
can obtain the education that will make them competitive in the employment market after they are
released.
Second, Congress should create a federal standard requiring employers to consider the
relationship between an applicant’s criminal history and the position being sought, the length of
time since an offense was committed, the severity of an offense, and any evidence of rehabilitation.
Congress should also modify federal profession-specific restrictions on employment to not only
include requirements for individualized determinations, but also to include graduated periods of
consideration of the criminal records based on the severity of the crime. In no case should
consideration of a criminal record be permitted beyond eight years after an individual’s reaching
the age of majority, conviction, or release from prison, whichever occurs latest.60
59

In 1994, Congress eliminated Pell Grant eligibility for individuals who are incarcerated because of concerns that
allowing individuals to receive the need based grants while in prison was taking money away from law abiding
citizens. These concerns existed despite the fact that prison-based higher education accounted for only 0.1% of the
Pell Grant budget. Between 1995 and 2005, the number of college degree programs inside state prisons
plummeted from about 350 to about 12.
60
See Alfred Blumstein & Kiminori Nakamura, “Redemption” in an Era of Widespread Criminal Background Checks,
263 NAT’L INST. JUST. J. 10-17 (June 2009) (discussing research that suggests a convicted individual’s risk of

CHAPTER 14 – REENTRY 248

Third, Congress should reduce the unintended and unfair consequences of the widespread
availability of Federal Bureau of Investigation (FBI) background checks conducted for employment
and retention purposes by passing legislation similar to the proposed Fairness and Accuracy in
Employment Background Checks Act,61 which would have required the FBI to update and verify
information in the reports it submits to employers conducting background checks. In performing
roughly 6 million background checks per year for employment purposes, the FBI relies on state
records, half of which the Attorney General believes are incomplete or inaccurate.62 These “rap
sheets” often report incorrect information, information about arrests without any information
about the dispositions of the cases, and information about non-serious or extremely old convictions
that undoubtedly make qualified candidates less able to successfully compete in an already tight job
market. Providing inaccurate or incorrect information to employers is not only an injustice to the
job applicant, but also a major disservice to the employer in need of qualified workers.
Fourth, Congress should reauthorize the Workforce Investment Act (WIA),63 which provides
funding and directives for the delivery of employment services including assessment, training, and
placement services. The Act should be reauthorized with provisions for hard-to-serve populations,
including those individuals with criminal histories, through the WIA one-stop systems, which
provide information about and access to a wide array of job training, education, and employment
services at a single neighborhood location. Further, Congress should increase funding for WIA
programming aimed at serving hard-to-serve individuals, including those with criminal records.
Finally, Congress should strengthen the Work Opportunity Tax Credit64 for individuals with
criminal records by (i) increasing the tax credit for hiring individuals with criminal records to match
the tax credit available for hiring long-term family assistance recipients, and (ii) extending the tax
credit to cover the same amount of wages paid during the second year of employment to
encourage employers to retain hard-to-serve individuals. Increasing the amount and duration of
the tax credit will encourage employers who might otherwise be wary to hire and retain qualified
employees with criminal records who pose no increased risk to their employers, co-workers, or
customers. Further, in appropriate circumstances, employers who take advantage of federalsourced funds or tax incentives designed to induce private businesses to move to or remain in a
state or locality should be encouraged, if not required, to hire individuals with criminal records on
the same competitive basis that it would hire people without criminal convictions.
Executive
The Department of Labor should increase the amount the federal bonding program
indemnifies employers who hire individuals with criminal records or who otherwise qualify for
recidivism after 8 years post-conviction is equal to or lesser than the risk a similarly aged member of the general
public will commit a crime), available at http://www.ncjrs.gov/pdffiles1/nij/226872.pdf.
61
Fairness and Accuracy in Employment Background Checks Act, H.R. 5300, 111th Cong. (2010).
62
See NATIONAL EMPLOYMENT LAW PROJECT, FBI BILL FACT SHEET (June 1, 2010), available at http://www.nelp.org/page//SCLP/2010/FBIBillFactSheet.pdf?nocdn=1.
63
Workforce Investment Act of 1998, Pub. L. No. 105-220, 112 Stat. 936 (1998).
64
26 U.S.C. § 51 (2006).

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bonding. The current level ranges from $5,000 to $25,000 per bond. The Department could raise all
bonds to a uniform $25,000.65
7. Expand Access to Drug and Alcohol Treatment and Recovery
A. Insufficient Attention to the Link between Addiction and Recidivism
While addiction is a preventable, treatable disease, untreated addiction is a major cause of
crime and recidivism. Often the only time individuals have the opportunity to access addictions
services is through their involvement in the criminal justice system. Further, some former prisoners
face barriers to obtaining addiction treatment following their release from prison because of state
laws restricting the driver’s licenses of drug offenders. Ensuring that these individuals have access
to addiction treatment services, and reducing or eliminating barriers that prevent individuals from
obtaining addiction treatment will improve public health and safety while saving taxpayers money
on corrections spending.
B. Remove Barriers and Disincentives to Addiction Treatment
Legislative
Congress should increase funding for the Substance Abuse Prevention and Treatment Block
Grant, the formula grant administered by the Substance Abuse and Mental Health Services
Administration (SAMHSA). This grant delivers vital federal funding to states, territories, and tribes to
support substance abuse and mental health prevention and treatment programs. It is the only
federal grant that provides funding to all states for these important services, and its continued
robust funding is critical to our citizens’ behavioral healthcare, particularly over the next few years
while healthcare reform is implemented.
66

Congress should also amend the Federal Highway Apportionment Act to encourage states to
limit driver’s license suspensions and revocations to individuals convicted of driving-related drug
offenses, rather than to individuals convicted of any drug-related offense. and to allow states with
such restricted licenses to receive full federal funding of their highways. This will allow individuals
in recovery to attend work, healthcare appointments, and needed addiction treatment or support.
Executive
The President should include a request for increased funding of the Substance Abuse
Prevention and Treatment Block in the Administration’s fiscal year 2012 budget proposal.

65

See Department of Labor, Federal Bonding Program: A US Department of Labor Initiative,
http://www.bonds4jobs.com/ (last visited Jan. 19, 2011).
66
42 U.S.C. § 300x-21 et seq.

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SAMHSA should engage in outreach and technical assistance efforts to educate drug court
professionals and judges, as well as parole and probation professionals, about the effectiveness of
medication-assisted treatment. SAMHSA should also publish guidance for drug court professionals
and judges about the benefits of medication-assisted treatment.
DOT should amend its regulations that prevent individuals who are taking methadone and
stabilized in treatment from obtaining a commercial driver’s license, to allow such individuals to
qualify for the existing prescription drug exception in the same way as individuals receiving any
other type of medication-assisted healthcare.67 Such an amendment will both allow former
prisoners to find employment, but also remove current disincentives from obtaining and continuing
much needed addiction treatment.
Judicial
Drug court judges should receive additional training about the benefits of medication
assisted treatment of drug addictions, such as methadone maintenance treatment for opiate
addiction. According to the National Association of State Alcohol and Drug Abuse Directors, many
drug court judges “completely reject the evidence regarding *Methadone Maintenance Treatment]
efficacy and efficiency, viewing opiate addiction as a purely social problem best resolved by
imposed abstinence while the offender is in the correctional setting.”68
8. Expand Access to Mental Health and Income Support Services
A. Mental Health and Income Support Services are Unavailable upon Release from Prison
Access to federal disability and health benefits is a critical component of successful reentry
into the community for individuals released from jail or prison. This is particularly important for
individuals with mental illnesses who cycle through corrections facilities repeatedly. Often the
event leading to arrest is linked to both lack of income and unmet need for services, such as mental
health and addiction treatment, and supports, such as housing and employment. 69 However, many
recently released prisoners or inmates find themselves without Supplemental Security Income,
Medicaid, and other mental health and income support services they need to survive outside of
prison and avoid recidivism.
67

See 49 C.F.R. 391.41(b)(12) (2009).
NAT’L ASS’N OF STATE ALCOHOL AND DRUG ABUSE DIRECTORS, INC., METHADONE MAINTENANCE TREATMENT AND THE CRIMINAL
JUSTICE SYSTEM, 11-12 (April 2006), available at http://www.nasadad.org/resource.php?base_id=650. In an open
letter to her colleagues, Judge Karen Freeman-Wilson, then Executive Director of the National Drug Court Institute,
commented that “the review of our positions regarding the use of pharmacotherapies will require us to examine
our own opinions and biases. Early in my career as a drug court judge, I announced that methadone had no place
in my court. When my position was challenged, I did [my] homework and learned that the use of drugs to address
opiate addiction was often necessary in assisting our clients….” Id. at 12 (quoting Karen Freeman-Wilson, NADCP
News: From the Chief Executive’s Desk, Nat’l Ass’n of Drug Court Prof’ls, 6 (2004)).
69
BAZELON CENTER FOR MENTAL HEALTH LAW, supra note 41.
68

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B. Increase Immediate Access to Much Needed Support Programs
Legislative
Congress should pass legislation similar to the Recidivism Reduction Act70 (RRA) to provide
timely restoration of federal disability and health benefits to individuals with a mental illness upon
reentry into the community. RRA would reinstate provisional benefits for eligible individuals with a
mental illness whose SSI benefits have been suspended for no more than 12 months or terminated
for no more than 36 months. Reinstatement would occur on the day of their release from
incarceration. The legislation would also provide for immediate reinstatement of Medicaid upon
release for individuals enrolled prior to incarceration, and provide up to three case management
services to incarcerated individuals to assist in planning for and obtaining post-release services.
Executive
The Centers for Medicare & Medicaid Services (CMS) should provide technical assistance to
states to ensure that inmates Medicaid enrollment is not terminated, but rather suspened for the
term of their incarceration. CMS should issue a State Medicaid Director Letter to explain and
articulate federal law in this area and assist states in implementing suspension, rather than
termination of Medicaid benefits.
The President should include a request for increased funding of the mental health and
criminal justice collaboration grant71 in the fiscal year 2012 budget proposal. The mental health and
criminal justice collaboration grant, administered by DOJ, provides grants to assist with diversion,
treatment, and transition services for youth and adults with mental illness who come into contact
with law enforcement.
The President should also include a request for increased funding of the Jail Diversion
Program72 in the fiscal year 2012 budget proposal. The Jail Diversion Program grant, administered
by the Center for Mental Health Services within SAMHSA, assists with diverting individuals with
serious mental illness and co-occurring substance use disorders from jail to community-based
treatment and support services.

70

Recidivism Reduction Act, H.R. 2829, 111th Cong. (2009).
Mentally Ill Offender Treatment and Crime Reduction Act, Pub. L. No. 108-414, 118 Stat. 2327 (2004).
72
See Children’s Health Act of 2000, Pub. L. No. 106-310, § 3210, 114 Stat. 1101, 1201-03 (2000).
71

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9. Expand and Improve Relief from Collateral Consequences
A. Collateral Consequences of Remain with Individuals Long after their Release
Policies that create barriers to employment, education, civic participation, public benefits,
housing, medical care, and substance abuse treatment, to name a few, make it increasingly difficult
for a person in reentry to remain crime-free and to become a positively contributing member of his
or her community. Many of these policies are permanent, impacting individuals long after they
have repaid their debts to society and demonstrated their ability to live as law-abiding citizens.
B. Reduce or Remove Collateral Consequences of Incarceration
Legislative
Congress should create a program that permits individuals charged with certain federal
crimes to avoid a conviction record by successfully completing a period of probation. This could be
accomplished either by: (i) expanding the Federal First Offender Act73 in a manner similar to the
Federal First Offender Improvement Act,74 which would make available pre-judgment probation and
eventual expungement for individuals who have not previously been convicted of a felony, or (ii)
reinstating the set-aside authority in the Youth Corrections Act75, and extending it to all first felony
offenders eligible for probation.76 In addition, for people with a federal conviction, Congress should
enact an expungement or sealing remedy that would be available after a waiting period (e.g., five
years for misdemeanors, 10 years for felonies).
Congress should catalogue all collateral sanctions and disqualifications in federal statutes
and regulations, and consider whether any of them should be repealed or made subject to waiver.
Congress should enact a relief mechanism to enable state and federal offenders to avoid or mitigate
federal collateral consequences, similar to the ones that now apply to federal firearms disabilities,
federal jury service, and deportation.
Executive
The President should expand the use of and improve the process for receiving executive
clemency in the form of Presidential pardons.77
73

18 U.S.C. § 3607
th
H.R. 6059, 111 Cong. (2010).
75
18 U.S.C. § 5005 et seq. (repealed in 1984).
76
“Between 1950 and 1984, federal law provided an additional avenue of relief for offenders between the ages of
18 and 26, who could petition to have their convictions ‘set aside’ after successful completion of probation under
the Federal Youth Corrections Act (YCA). While the effect of this set-aside was never settled in the courts, the
Sentencing Reform Act repealed the YCA, and nothing replaced it.” Margaret C. Love, Alternatives to Conviction:
Deferred Adjudication as a Way of Avoiding Collateral Consequences 22-1 FED. SENT’G REP. 6, 8 (Oct. 2009).
77
See Pardon Power and Executive Clemency, SMART ON CRIME (2011).
74

CHAPTER 14 – REENTRY 253

APPENDICES
Experts
The Second Chance Act
Jessica Nickel, Consultant, Council of State Governments, Justice Center
(http://www.csg.org/programs/policyprograms/justicecenter.aspx)
Gene Guerrero, Senior Policy Analyst, Open Policy Center
(http://www.opensocietypolicycenter.org/)
Pat Nolan, Vice-President, Prison Fellowship Ministries
(http://www.prisonfellowship.org/prison-fellowship-home)
Art Wallenstein, Director, Montgomery County, Maryland, Department of Corrections and
Rehabilitation
(http://www.montgomerycountymd.gov/doctmpl.asp?url=/content/docr/index.asp)
Federal voting rights
Erika Wood, Deputy Director of the Democracy Program, Brennan Center for Justice at NYU
School of Law (http://www.brennancenter.org/people/wood_erika)
Marc Mauer, Executive Director, The Sentencing Project
(http://www.sentencingproject.org/detail/person.cfm?person_id=3&backto=63&backtype=
Staff)
Christopher Uggen, Distinguished McKnight Professor and Chair, University of Minnesota,
Department of Sociology (https://apps.cla.umn.edu/directory/profiles/uggen001)
Jeff Manza, Chair, New York University, Department of Sociology
(http://as.nyu.edu/object/jeffmanza.html)
Pat Nolan, Vice-President, Prison Fellowship Ministries
(https://www.prisonfellowship.org/why-pf/bios-of-key-staff/296)
Welfare and Food Stamp Benefits
Roberta Meyers-Peeples, Director, National H.I.R.E. Network
(http://www.hirenetwork.org/peeplesbio.html)

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Kara Gotsch, Director of Advocacy, The Sentencing Project
(http://www.sentencingproject.org/detail/person.cfm?person_id=11&backto=63&backtype
=Staff)
Financial aid ban for students with drug convictions
Bill Piper, Director of National Affairs, Drug Policy Alliance
(http://www.drugpolicy.org/about/keystaff/billpiper/)
Jennifer Collier, criminal justice and health policy consultant
Mark O’Brien, Policy Associate, Legal Action Center
(http://www.lac.org/index.php/lac/category/staff#obrien)
Unfair barriers to housing
Steve Berg, Vice-President for Programs and Policy, National Alliance to End Homelessness
(http://www.endhomelessness.org/section/aboutus/staff)
Employment opportunities for people with criminal records
Roberta Meyers-Peeples, Director, National H.I.R.E. Network
(http://www.hirenetwork.org/peeplesbio.html)
Maurice Emsellem, Policy Co-director, National Employment Law Project
(http://www.nelp.org/site/about_us/policy_co_director2)
Malcolm C. Young, Director of Program for Reentry Strategies, Bluhm Legal Clinic,
Northwestern University Law School (http://www.law.northwestern.edu/legalclinic/)
Mark O’Brien, Policy Associate, Legal Action Center
(http://www.lac.org/index.php/lac/category/staff#obrien)
Drug and alcohol treatment
Paul Samuels, Director and President, Legal Action Center
(http://www.lac.org/index.php/lac/category/staff#samuels)
Jennifer Collier, criminal justice and health policy consultant

CHAPTER 14 – REENTRY 255

Rob Morrison, Executive Director, National Association of State Alcohol and Drug Abuse
Directors (NASADAD) (http://webcache.googleusercontent.com/search?q=cache:n7b8MxdkcJ:www.nasadad.org/index.php%3Fdoc_id%3D10+National+Association+of+State+Alcohol+
and+Drug+Abuse+Directors+rob+morrison&cd=1&hl=en&ct=clnk&gl=us)
Sue Thau, Public policy Consultant, Community Anti-Drug Coalitions of America
(http://www.cadca.org/about/staff/sue-thau)
Mental health and income support services
Laurel Stine, Director of Federal Relations, Bazelon Center for Mental Health Law
(http://www.bazelon.org/Who-We-Are/Staff/Laurel-Stine.aspx)
Collateral consequences
Margaret Love, Law Offices of Margaret Love (http://www.pardonlaw.com/)
Further Resources
LEGAL ACTION CENTER, AFTER PRISON: ROADBLOCKS TO RE-ENTRY (2004), available at:
http://www.hirenetwork.org/pdfs/Safe@Home.pdf.
The Second Chance Act
National Reentry Resource Center, Appropriations Update (Re-Entry Policy Council, 2010),
available at: http://www.reentrypolicy.org/government_affairs/second_chance_act.
Federal voting rights
ERIKA WOOD, READ RESTORING THE RIGHT TO VOTE (The Brennan Center for Justice May 11, 2009),
available at:
http://www.brennancenter.org/content/resource/restoring_the_right_to_vote/
THE SENTENCING PROJECT, FELONY DISENFRANCHISEMENT LAWS IN THE UNITED STATES (The Sentencing
Project, March 2010), available at:
http://www.sentencingproject.org/PublicationDetails.aspx?PublicationID=335

CHAPTER 14 – REENTRY 256

Welfare and Food Stamp Benefits
Letter from 95 civil rights organizations to Hon. Bill Thomas, Chair of the H. Comm. on Ways
and Means, 107th Cong. (April 16, 2002), available at:
http://www.drugpolicy.org/docUploads/LS_Full_Letter.pdf
Financial aid ban for students with drug convictions
Students for Sensible Drug Policy, Campaigns: The Higher Education Act (last visited Jan. 13,
2011), available at: http://ssdp.org/campaigns/the-higher-educationact?searched=financial+aid&advsearch=oneword&highlight=ajaxSearch_highlight+ajaxSearc
h_highlight1+ajaxSearch_highlight2.
Remove barriers to housing
HUMAN RIGHTS WATCH, NO SECOND CHANCE: PEOPLE WITH CRIMINAL RECORDS DENIED ACCESS TO PUBLIC
HOUSING (Human Rights Watch 2004), available at:
http://www.hrw.org/reports/2004/usa1104/1.htm.
Employment opportunities for people with criminal records
DAN BLOOM, TRANSITIONAL JOBS REENTRY DEMONSTRATION (Joyce Foundation July 2009), available
at: http://www.mdrc.org/publications/522/policybrief.pdf.
Alfred Blumstein and Kiminori Nakamura, 'Redemption' in an Era of Widespread Criminal
Background Checks NIJ JOURNAL NO. 263 available at:
http://www.ojp.usdoj.gov/nij/journals/263/redemption.htm.
LEGAL ACTION CENTER, SERVING THE EMPLOYMENT NEEDS OF JUSTICE-INVOLVED JUVENILES AND ADULTS
(Substance Abuse Mental Health Services Administration 2008), available at:
http://www.hirenetwork.org/pdfs/SAMHSA_Guide_3-08.pdf.
GOODWILL INDUSTRIES INTERNATIONAL, ROAD TO REINTEGRATION, ENSURING SUCCESSFUL COMMUNITY REENTRY FOR PEOPLE WHO ARE FORMER OFFENDERS (2009), available at:
http://www.goodwill.org/c/document_library/get_file?folderId=102110&name=DLFE28403.pdf.
OFFICE OF ADULT SERVICES, DIVISION OF WELFARE-TO-WORK, U.S. DEPT. OF LABOR, FROM HARD TIME TO
FULL TIME: STRATEGIES TO HELP MOVE EX-OFFENDERS FROM WELFARE TO WORK, (June 2001), available
at: http://www.hirenetwork.org/pdfs/From_Hard_Time_to_Full_Time.pdf.

CHAPTER 14 – REENTRY 257

AMY L. SOLOMON ET AL., LIFE AFTER LOCKUP: IMPROVING RE-ENTRY TO THE COMMUNITY (National
Institute of Justice, U.S. Dept. of Justice May 2008)
http://www.jjay.cuny.edu/Final_Life_After_Lockup.pdf.
The Urban Institute, Employment and Re-Entry, available at:
http://www.urban.org/projects/reentry-portfolio/employment.cfm
Drug and alcohol treatment
Legal Action Center, Stopping the Revolving Prison Door: How Addiction Treatment Can
Prevent Drug Use and Crime, Promote Successful Reentry into Society and Save Lives (last
visted Jan. 13, 2010), available at: http://www.lac.org/nida.
SCHNEIDER INSTITUTE FOR HEALTH POLICY, SUBSTANCE ABUSE: THE NATION’S NUMBER ONE HEALTH
PROBLEM, (Robert Wood Johnson February 2001)
http://www.rwjf.org/files/publications/other/SubstanceAbuseChartbook.pdf
Mental health and income support services
BAZELON CENTER FOR MENTAL HEALTH LAW, FINDING THE KEY TO SUCCESSFUL TRANSITION FROM JAIL OR
PRISON TO THE COMMUNITY (November 2009), available at: www.bazelon.org
JENNIFER MATHIS AND LAUREL STINE, BREAKING THE CYCLE OF INCARCERATION: STRATEGIES TO FACILITATE
TIMELY RESTORATION OF BENEFITS UPON RELEASE OF INMATES WITH MENTAL ILLNESSES (Jul-Aug 2007),
available at: http://www.povertylaw.org/clearinghouse-review/issues/2007/2007-julyaugust/mathis
BAZELON CENTER FOR MENTAL HEALTH LAW, LIFELINES: LINKING TO FEDERAL BENEFITS FOR PEOPLE EXITING
CORRECTIONS (October 2009) available at: www.bazelon.org
Collateral consequences
Margaret C. Love, Alternatives to Conviction: Deferred Adjudication as a Way of Avoiding
Collateral Consequences 22-1 FED. SENT’G REP. 6, 8 (Oct. 2009).
Primary Contacts
Federal voting rights

CHAPTER 14 – REENTRY 258

Erika Wood
Deputy Director of the Democracy Program
Brennan Center for Justice at NYU School of Law
1730 M Street, NW, Suite 413, Washington, DC 20036
(202) 249-7190
woode@exchange.law.nyu.edu
Second Chance Act; Welfare and Food Stamp Benefits; Financial aid ban; Housing; Employment;
Drug and alcohol treatment
Mark O’Brien
Policy Associate
Legal Action Center
236 Massachusetts Avenue, NE, Suite 505, Washington, DC 200002
(202) 544-5478
mobrien@lac.org
Mental health and income support services
Laurel Stine, JD
Director, Federal Relations
Bazelon Center for Mental Health Law
1101 15th Street, NW, Suite 1212, Washington, DC 20005
(202) 467-5730, ext. 134
laurels@bazelon.org
Collateral consequences
Margaret Love
Law Office of Margaret Love
15 7th Street, NE, Washington, DC 20002
202-547-0453
margaretlove@pardonlaw.com

CHAPTER 14 – REENTRY 259

CHAPTER 14 CONTRIBUTORS

Brennan Center for Justice
Erika Wood
161 Avenue of the Americas
12th Floor
New York, NY 10013
(212) 992-8638
erika.wood@nyu.edu
Council of State Governments (CSG)
Leah Kane
4630 Montgomery Avenue
Suite 650
Bethesda, MD 20814
(240) 482-8585
lkane@csg.org
Drug Policy Alliance (DPA)
Jasmine Tyler
925 15th Street, NW, 2nd Floor
Washington, DC 20005
(202) 216-0035
jtyler@drugpolicy.org
Independent Consultant, Innocence Project
Jenny Collier
405 Constitution Avenue NE
Washington, DC 20002
(202) 295-7188
jennycollierjd@yahoo.com

Legal Action Center (LAC)
Mark O’Brien (Chapter Leader)
236 Massachusetts Avenue, NE
Suite 505
Washington, DC 20002
(202) 544-5478
mobrien@lac.org
Open Society Policy Center (OSPC)
Gene Guerrero
1730 Pennsylvania Avenue, NW
7th Floor
Washington, DC 20006
(202) 721-5600
gguerrero@osi-dc.org
The Sentencing Project
Kara Gotsch
1705 Desales Street, NW, 8th Floor
Washington, DC 20036
(202) 628-0871
kgotsch@sentencingproject.org

260

CHAPTER 15
VICTIM ISSUES AND RESTORATIVE JUSTICE

CHAPTER 15 – VICTIMS ISSUES & RESTORATIVE JUSTICE 261

THE ISSUE
Restorative justice is a set of concepts, values, and practices that emphasizes repairing the
harm caused by criminal behavior, and requires examining and addressing the rights and
responsibilities of victims, offenders, and the community.1 It applies to individual cases, and more
broadly, in the planning and implementation of policies and programs, as well as the allocation of
funds.2 These rights and responsibilities are best addressed through cooperative processes that
include all stakeholders in the criminal justice system.3
Victim recovery and repairing the harm caused by crime are both cornerstones of
restorative justice.4 The approach has been proven to enhance victim healing and promote
healthier communities, while simultaneously holding offenders accountable, encouraging them to
repair the harm they caused, and improving chances of their positive reintegration into the
community.5 The federal government should continue to create policies and provide sufficient and
fair funding mechanisms for effective practices of restorative justice, victim assistance, and victim
compensation.
HISTORY OF THE PROBLEM
Restorative justice provides a better alternative to purely punitive responses to crime,
which the high recidivism rate suggests are deficient.6 Additionally, victims and affected members
of the community continually voice concerns that the criminal justice system fail to show them
respect, validate their experiences of trauma and loss, or address their needs for safety, reparation,
and accountability.7 Some victims and community members also feel excluded when they do not
1

Fundamental Concepts of Restorative Justice, National Institute of Justice, adopted from Dr. Howard Zehr and
Harry Mika, http://www.ojp.usdoj.gov/nij/topics/courts/restorative-justice/fundamental-concepts.htm (last
visited Jan. 25, 2011).
2
Id.
3
“A restorative justice process maximizes the input and participation of *victims, offenders, and the affected
community] -- but especially primary victims as well as offenders -- in the search for restoration, healing,
responsibility and prevention.” Id.
4
Leena Kurki, Incorporating Restorative and Community Justice Into American Sentencing and Corrections,
st
Sentencing & Corrections: Issues for the 21 Century, Sep. 1999, at 1 (noting that “because crime harms the victim
and the community, the primary goals [of restorative justice] should be to repair the harm and heal the victim and
the community”).
5
See, e.g., LAWRENCE W. SHERMAN & HEATHER STRANG, RESTORATIVE JUSTICE: THE EVIDENCE (2007), available at
http://www.smith-institute.org.uk/file/RestorativeJusticeTheEvidenceFullreport.pdf.
6
In a [2002] 15 State study, over two-thirds of released prisoners were rearrested within three years. See Bureau
of Justice Statistics, Reentry Trends in the United States: Recidivism,
http://bjs.ojp.usdoj.gov/content/reentry/recidivism.cfm (last visited Jan. 25, 2011).
7
In response to their alienation from the criminal justice system, victims have sought greater input and
participation into the criminal proceedings, as well as recognition of the harm they have suffered personally.See,
e.g., ELLEN ALEXANDER & JANICE HARRIS LORD, IMPACT STATEMENTS -- A VICTIM'S RIGHT TO SPEAK... A NATION'S RESPONSIBILITY TO

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CHAPTER 15 – VICTIMS ISSUES & RESTORATIVE JUSTICE 262

have a say in determining the proper response to a crime that affects them, despite the existence of
constitutional and/or statutory victim rights requirements [which afford them that right] in every
state.8
The failure to incorporate victims’ perspectives in the criminal justice system has negative
practical effects. Victims may become unwilling to report crimes or participate in the criminal
justice system, making convictions more difficult.9 When victims do participate, they may feel
frustrated by the lengthy processes of the traditional system, evidentiary rules that do not permit
them to ask questions, and the lack of compliance with restitution orders.
1. Overview of Restorative Justice
In 1997, Drs. Howard Zehr and Harry Mika developed the following “markers” that form the
foundation of the restorative justice paradigm:

•

Focus on the harm of wrongdoing more than the rules that have been broken;

•

Show equal concern and commitment to victims and offenders, involving both in the
process of justice;

•

Work towards restoration of victims, empowering them and responding to their needs as
they see them;

•

Support offenders while encouraging them to understand, accept, and carry out their
obligations;

•

Recognize that while obligations may be difficult for offenders, they should not be intended
as harms and they should be achievable;

•

Provide opportunities for direct and indirect dialogue between victims and offenders as
appropriate;

•

Involve and empower the affected community through the justice process and increase its
capacity to recognize and respond to community bases of crime;

•

Encourage collaboration and reintegration rather than coercion and isolation;

LISTEN, NATIONAL CENTER FOR VICTIMS OF CRIME (1994), available at
http://www.ncjrs.gov/ovc_archives/reports/impact/welcome.html
8
Id.
9
A major deterrent to reporting the crime is the victims' concerns about their treatment by the criminal justice
system stemming from a belief that the system was 1) powerless to help them, and 2) might further victimize
them. See Id.

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CHAPTER 15 – VICTIMS ISSUES & RESTORATIVE JUSTICE 263

•

Give attention to the unintended consequences of our actions and programs;

•

Show respect to all parties including victims, offenders, and justice colleagues.10

Research has demonstrated that restorative justice approaches can reduce recidivism, cut
costs, and improve victims’ satisfaction with the system more effectively than punitive measures.11
Drs. Lawrence Sherman and Heather Strang, internationally known criminologists from the Jerry Lee
Center of Criminology at the University of Pennsylvania, reviewed research conducted in the United
States, the United Kingdom, and Australia regarding restorative justice approaches. After reviewing
36 direct comparisons of restorative justice to conventional criminal justice practices, they found
that restorative justice approaches were proven to have:

•

Substantially reduced repeat offending for certain offenders;

•

Reduced recidivism more than prison (for adults) or detention (for youth);

•

Reduced crime victims’ post-traumatic stress symptoms and related costs;

•

Provided both victims and offenders with more satisfaction than the traditional approach;

•

Reduced crime victims’ desire for violent revenge against their offenders;

•

Doubled (or more) the offenses that could be addressed through the restorative justice
model, thus diverting them from the traditional criminal justice system; and

•

Reduced costs when used as diversion from the traditional justice system.12

Indeed, where victims and affected community members have a say in the appropriate
punishment and manner in which the offender repairs the harm, the offender is both more likely to
comply, and less likely to commit another crime.13 Moreover, diverting cases out of the traditional
judicial system and into restorative processes may ease the caseload on over-burdened courts.14
Yet, despite its proven effectiveness, many providers of restorative practices are losing funding.
Although the DOJ paid some attention to restorative justice in the past -- providing funding for
10

Umbreit, et al. at 259 (citing Howard Zehr & Harry Mika, Fundamental Concepts of Restorative Justice,
1CONTEMP. JUST. REV. 47, 54-55 (1998)).
11
“RJ has been tried and tested, and it works. It is good for victims, offenders and communities. The evidence base
for RJ is stronger than for that of almost any other criminal justice intervention.” LUCIAN J. HUDSON, RESTORATIVE
JUSTICE: THE CASE FOR WIDER ADOPTION (Dec. 2010)
12
SHERMAN & STRANG, supra note 5, at 4.
13
SHERMAN & STRANG, supra note 5, at 58-59, 68-71.
14
Mark S. Umbreit, et al., Restorative Justice in the Twenty-First Century: A Social Movement Full of Opportunities
and Pitfalls, 89 MARQUETTE L. REV. 251, 259-63, 282-83 (2005).

CHAPTER 15 – VICTIMS ISSUES & RESTORATIVE JUSTICE 264

research on promising practices, seed money for start-up programs, and for some training and
technical assistance -- little support has been provided over the past decade. Little to nothing has
been done by the Bureau of Prisons to consider incorporation of restorative approaches. It is time
for the U.S. to explore systemic change based on restorative principles and values and to promote
evidence-based practices from the restorative justice model.
Restorative justice seeks to expand the characterization of a “case” within the criminal
justice system from one that focuses solely on the appropriate punishment for an offender to one
that also focuses on the victim and the community. In accordance with this approach, the case
process under the restorative model would involve: (i) determining the harm (assessment); (ii)
determining how to repair the harm (case plan); and (iii) determining who is responsible for
repairing the harm (assigning roles and responsibilities).15
Examples of restorative justice practices include victim-offender dialogue and “community
circles of support,” 16 These practices, which would be voluntary for victims, would help to serve
victims’ needs, regardless of judicial outcome or correctional decisions. To be effective, these
practices should be available as early as possible to victims and offenders, and continue to be
available throughout the judicial process, from the first point of police contact through court
proceedings and reentry. Through these restorative encounters, whether face-to-face meetings
guided by trained facilitators, or meetings conducted via intermediaries, victims would have an
opportunity to get answers about the crime and the person who committed it, as well as to get
their material and emotional needs met.
The restorative justice case model also provides offenders with an opportunity to take
responsibility for the harms they caused. Offenders learn the impact of their actions on others.
They take an active role in correcting the wrongs they caused by, for example apologizing to the
victim or community, performing community service, and/or providing material restitution.
Offenders can participate in these activities even when victims choose not to participate.
The Department of Justice (DOJ) has paid attention to restorative justice in the past –
providing funding for research on promising practices and seed money for start-up programs,
training, and technical assistance, but has provided negligible support over the past decade. The
Bureau of Prisons (BOP) has done little to nothing to consider incorporating restorative approaches.
It is time for the U.S. to explore systemic change based on restorative principles.

15

(“The conventional criminal justice system focuses upon three questions: (1) What laws have been broken?; (2)
Who did it?; and (3) What do they deserve? From a restorative justice perspective, an entirely different set of
questions are asked: (1) Who has been hurt?; (2) What are their needs?; and (3) Whose obligations are these?”) Id.
at 258.
16
See Id. at 269 (discussing the types of restorative justice dialogue).

CHAPTER 15 – VICTIMS ISSUES & RESTORATIVE JUSTICE 265

Congress has also acted in the area of restorative justice. In the Victim and Witness
Protection Act of 1982 (VWPA),17 Congress authorized courts to routinely impose restitution as part
of sentencing for any crime arising under Title 18.18 In determining the amount of restitution to
impose, VWPA requires courts to consider the loss sustained by the victim, the defendant's financial
resources, and the financial needs and earning ability of the defendant and his or her dependents.19
Congress later enacted the Mandatory Victims Restitution Act of 1996 (MVRA),20 making
restitution mandatory for crimes of violence and most property crimes, regardless of the
defendant’s ability to pay.21 As the vast majority of federal defendants are indigent, and therefore
much of federal restitution is uncollectible, growth in unpaid criminal restitution debts resulted
from MVRA’s enactment.22
During the 110th Congress, Senator Byron Dorgan (D-ND) and Rep. Steve Chabot (R-OH)
introduced legislation that sought to extend mandatory restitution to all federal crimes, which
would have made the situation even worse.23 The Senate bill passed, although the Senate
Judiciary Committee did not consider or hold hearings on the bill. The House bill did not pass, but
the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security held a hearing on
the legislation in April 2008.24
Congress has taken steps to assist victims of crime through state and local programs. In
1984, as part of the Victims of Crime Act (VOCA), Congress created the Victims of Crime Fund. 25 The
VOCA fund provides money for state and federal victim assistance and compensation programs and
is made up mostly of money collected from penalties, fees, and fines that have been paid by federal
criminals.26 The VOCA fund contains no taxpayer dollars. Both VOCA state victim assistance grants
(which support direct victim services including rape crisis centers, domestic violence shelters, and
counseling) and the VOCA compensation grants (which provide financial reimbursement to victims

17

Victim and Witness Protection Act of 1982, Pub. Law No 97-291, 96 Stat. 1248.
CHARLES DOYLE, RESTITUTION IN FEDERAL CRIMINAL CASES (Congressional Research Service Aug. 2007), available at:
http://assets.opencrs.com/rpts/RL34138_20070817.pdf.
19
18 U.S.C. § 3663.
20
Mandatory Victims Restitution Act, Pub. Law 104-132, 110 Stat. 1214.
21
DOYLE, supra note 18, at 11.
22
th
Legislative Proposals Before the 110 Congress to Amend Federal Restitution Laws: Hearing Before the
Subcomm. on Crime, Terrorism, and Homeland Security of the H. Comm. on the Judiciary (Apr. 3, 2010) (statement
of Jonathan Turley, Shapiro Professor of Public Interest Law, George Washington University), available at:
http://judiciary.house.gov/hearings/pdf/Turley080403.pdf.
23
Restitution for Victims of Crime Act of 2007, S.973, 110th Cong. (2007); Criminal Restitution Improvement Act of
2007, H.R. 845, 110th Cong. (2007).
24
Turley, supra note 22.
25
U.S. Dept. of Justice Office for Victims of Crime, About OVC, available at:
http://www.ojp.usdoj.gov/ovc/about/index.html (last visited Jan. 27, 2011).
26
The USA PATRIOT Act expanded the possible sources of Fund deposits by authorizing the deposit of private gifts,
bequests, or donations into the Fund beginning in Fiscal Year 2002. Pub. L. No. 107-56, 115 Stat. 272 (2001).
18

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CHAPTER 15 – VICTIMS ISSUES & RESTORATIVE JUSTICE 266

of violent crime for certain out-of-pocket medical and mental health expenses) are provided to all
50 states and the District of Columbia.27
Because the VOCA fund is comprised of money collected from penalties, fees, and fines,
amount of the fund fluctuates from year to year. In 2000, Congress capped the amount of money
that could be removed from the fund each year in order to ensure that money would be available
for victims in the future.28 While a cap is appropriate for the local programs receiving the assistance
funds to maintain stability and have ability to plan from year to year, the cap must be reasonable
and not a reduction from previous years. Yet, in 2006, VOCA assistance grants began to be cut,
resulting in the reduction of services to victims.29 In 2009, Congress raised the VOCA cap and, with
the addition of Recovery Act funds, raised state assistance grants back to the 2006 level.30
The President's proposed FY 2011 Budget included a $95 million increase for the VOCA cap
over the FY 2010 level ($705 million), raising the VOCA cap to $800 million, and the Senate
Consolidated Appropriations Act, 2011 contained an increase to $820 million. 31 However, as of the
January 2011, Congress has not enacted new spending bills for FY 2011; the Senate failed to
consider the Consolidated Appropriations Act, 2011, and instead Congress passed a Continuing
Resolution to keep the government funded through March 2011.32
The following questions can help to shape and analyze policies and practices to ensure that
they fit within the restorative justice paradigm:

27

•

Do they help identify and acknowledge the harm experienced by victims and communities?

•

Do they help victims and communities in their healing in ways which empower the direct
participants and provide needed support?

•

Do they push offenders to develop the competencies necessary to understand and repair
the harm they committed and to successfully reintegrate into their communities?

•

Do they assist offenders in acknowledging and recovering from their own victimizations,
which may have contributed to their committing harm to others?

U.S. Dept. of Justice Office for Victims of Crime, What Is the Office for Victims of Crime? available at:
http://www.ojp.usdoj.gov/ovc/publications/factshts/what_is_OVC2010/intro.html#go1 (last visited Jan. 27, 2011).
28
Id.
29
National Alliance to End Sexual Violence, Victims of Crime Act 2009 Fact Sheet (2009), available at:
http://www.naesv.org/Resources/VOCA_2009_Fact_Sheet.pdf.
30
Id.
31
National Network to End Domestic Violence, VOCA: Legislative Action, available at:
http://www.nnedv.org/policy/issues/voca.html (last visited Jan 27, 2010).
32
Press release, Senate Comm. on Appropriations, Summary of Continuing Resolution through March 4, 2011
(December 19, 2010), available at: http://appropriations.senate.gov/news.cfm?method=news.view&id=4841b7f6bbac-486b-959f-43b1979a60ff.

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CHAPTER 15 – VICTIMS ISSUES & RESTORATIVE JUSTICE 267

•

Do they recognize and address differences (e.g., cultural and gender) in the development of
practices and programs by being sensitive to these to maximize the response?

•

Do they assist both governmental entities and, more importantly, communities in
promoting positive behavior, individual responsibility and collective responsibility?

•

Do they promote and support community connections and strengths?

RECOMMENDATIONS
1. National Task Force on Restorative Justice
A. Insufficient Focus on Restorative Justice Processes, Despite their Proven Efficacy
Despite the proven efficacy of restorative justice processes, to date, education and funding
have been inadequate to promote its development.
B. Establish and fund a National Commission on Restorative Justice
Legislative
Congress should establish and fund a National Commission on Restorative Justice, akin to
the National Prison Rape Elimination Commission.33 This Commission should perform a national
study to examine the restorative justice paradigm. This study should explore the effectiveness of
restorative justice in serving the needs of victims and communities, supporting offender
accountability and competency, and ensuring the protection of constitutional rights. Using the
results of the study, the Commission could recommend how best to incorporate restorative justice
options into the responses of law enforcement, courts, probation officers, correctional institutions,
and parole boards.
Executive
Absent congressional action, the President should establish a Task Force on Restorative
Justice within the DOJ Office of Justice Programs. DOJ has been supportive of the development of
restorative justice programming in the past and is in a good position to take the lead on the issue.
The DOJ Task Force should develop a research agenda and explore the creation of a national
strategy and action plan directed at supporting and expanding restorative approaches and systemic
change on the local, state, and federal levels. A portion of DOJ funding should be dedicated to
33

National Institute of Corrections, National Prison Rape Elimination Commission, available at:
http://nicic.gov/PREACommission (last visited Jan. 27, 2010). See also SMART ON CRIME: Prisons.

CHAPTER 15 – VICTIMS ISSUES & RESTORATIVE JUSTICE 268

targeted research efforts to test the effectiveness of restorative justice for victims of different types
of crimes and from different kinds of communities.
2. Restitution and Support for Victims of Crime and Use of VOCA Funds for Restorative Justice
Activities
A. Insufficient Funding to Provide Necessary Services
Providing restitution and support for victims of crime requires funding. Existing federal
funding sources must be modified in order to operate more efficiently and effectively, and other
funding streams must be developed. Further, current regulations regarding the use of VOCA funds
for restorative justice efforts are unclear and confusing, and the regulations governing VOCA are
not consistent in regards to restorative justice activities.
B. Expand Funding Streams for Victims of Crime
Legislative
Congress should improve the likelihood of victims actually receiving restitution by creating a
“Restitution Fund” and expanding judicial discretion in restitution orders. Congress should hold
hearings and fully consider the issue before passing such legislation. Congress’s proposed
mandatory requirement for restitution under the Dorgan and Chabot bills34 would have denied
virtually all discretion for judges in fashioning equitable and case-specific sentences involving
restitution. The imposition of orders which have little to no chance of fulfillment due to a
defendant’s lack of assets and limited earning power simply provides another source of
frustration—both for victims and the professionals responsible for enforcement.
To address the problem of unpaid victim restitution, Congress should instead pass
legislation creating a separate “Restitution Fund” which would receive any restitution payments
that cannot be delivered to or received by the actual victims. This should be separate from the
Crime Victims Fund, in order to allow for withdrawal of paid-in funds if victims are located at a later
time.
Congress should also remove the requirement of “mandatory restitution” for crimes and
restore judicial discretion to order restitution. While it is reasonable for judges to acknowledge the
actual damages victims suffered in open court and in the case file, judges should be granted the
discretion to order a reasonable amount and a workable (and modifiable) payment schedule based
upon a determination of the defendant’s income and other financial resources, reasonable living
expenses, and responsibility for support of legal dependents. Payment of restitution should be
prioritized ahead of court-ordered fines, services, and other court-system-imposed costs. In the
34

S.973 and H.R. 845(110th Cong.), supra note 23.

CHAPTER 15 – VICTIMS ISSUES & RESTORATIVE JUSTICE 269

case of multiple unidentified victims, or where the cost of locating the victims far exceeds the dollar
amount due per person, the court should be allowed to fashion an order using the restitution
dollars in creative ways that benefit crime victims, repair the harm that was caused, or prevent
future harm. Civil consumer class action awards provide models.
Further, Congress should change current federal law regarding mandatory restitution, which
currently prohibits victims and defendants from “settling” mandatory restitution orders, i.e.,
reaching a settlement regarding the amount or manner of payment even when done voluntarily
and without coercion on either side.35 Settlements could increase the likelihood of victims actually
receiving at least a portion of the restitution owed to them. The settlement process could be
overseen by, or require the approval of, a federal magistrate.
Congress should also pass legislation stipulating that failure to fulfill court orders for
restitution during periods of probation or parole due to the defendant’s proven limited ability or
inability to pay is not a probation or parole violation. Extending or violating probation or parole
based on an inability to pay may forestall or limit defendants’ ability to pay in the future, thus
lessening victims’ chances of receiving restitution.
In budgeting federal funding for the remainder of FY 2011, the 112th Congress should
ensure VOCA caps are high enough to provide services to victims budget for a VOCA cap that
increases spending levels from FY 2010 to ensure that victims will receive the services that they
need. According to the National Association of VOCA Assistance Administrators, a 2011 cap of $867
million would be adequate to “ensure a modest growth in state victim assistance grants.”36
Congress should also ensure that forfeiture funds are used for victim restitution. Currently,
items retrieved in forfeiture actions and the proceeds of their sale are kept by law enforcement.
Congress should require that all proceeds from the sale of property forfeited under federal law be
deposited in the VOCA Fund, or, preferably, in a separate Restitution Fund (as described above).
Alternatively, Congress could set a cap on the amount of forfeiture proceeds that law enforcement
could keep and require that the remainder be deposited into such a fund. That would not only
enable many more victims to actually receive at least some portion of court-ordered restitution, it
also would take away the pecuniary incentive that law enforcement now has to seek forfeitures.37
Congress should also clarify that restitution takes priority over forfeitures, so that the
government would not be able to trump victims’ claims by interposing a forfeiture claim that
“relates back” to the time when the offense was committed. Many legal scholars believe that
Congress has already done so in 18 U.S.C. 3572(b), but DOJ has consistently disputed that view,

35

DOYLE, supra note 18, at 35.
National Association of VOCA Assistance Administrators, VOCA Funding: Current Status/Action News—FY 2011,
http://www.navaa.org/budget/index.html (last visited Jan. 19, 2011).
37
See Asset Forefeitures. SMART ON CRIME (2011).
36

CHAPTER 15 – VICTIMS ISSUES & RESTORATIVE JUSTICE 270

claiming that the words “other monetary penalty” does not include criminal forfeitures, even when
the forfeiture is in the form of a money judgment against the defendant.
Executive
The Department of Justice should amend VOCA guidelines in several ways. The state
agencies responsible for managing allocation of VOCA victim assistance grant funds operate under
the 1996 Guidelines on Victim Assistance (Guidelines) from the Office for Victims of Crime (OVC) of
DOJ. OVC should amend and clarify the following guidelines to ensure that the goals of VOCA are
being met.
OVC should amend Guideline Section IV.C.1.h., on Restorative Justice, which contains the
following prohibition: “VOCA assistance funds cannot be used for victim-offender meetings which
serve to replace criminal justice proceedings.”38 This has been interpreted to prohibit funds to go
to restorative conferences, i.e., facilitated victim-offender meetings, in certain cases. This guideline
should be amended so that restorative conferences are allowed in lieu of criminal proceedings.
OVC should amend Guideline Section IV.E.3.b, which provides that “VOCA funds cannot
support services to incarcerated individuals, even when the service pertains to the victimization of
that individual.”39 To encourage states to serve incarcerated persons who are also victims, the
sentence in the Guidelines prohibiting services to incarcerated persons should be eliminated,
allowing these victims to benefit from VOCA funding.40
OVC should clarify the allowable use of VOCA funds for restorative justice services. OVC
response to public comment on these guides describes corrections-based restorative practices, such
as victim-offender dialogue and victim impact panels as permissible,41 but Guidelines Section
IV(C)(1)(h) states that VOCA funds “cannot support services to incarcerated individuals…”. It is not
possible to provide services to victims in the context of meeting with their own perpetrator
(dialogue) or with a group of different prisoners (panel) without “serving” offenders—the fact that
the activity benefits prisoners as well as victims is a natural byproduct.42

38

Victims of Crime Act Victim Assistance Grant Program Guidelines § IV(C)(1)(h), 62 Fed. Reg. 7256, available at:
http://www.gpo.gov/fdsys/pkg/FR-1997-02-18/pdf/97-3836.pdf.
39
Id. Guidelines § IV(E)(3)(b).
40
See Prison Reform, SMART ON CRIME (2011) for recommendations for Congress to provide sufficient appropriations
for PREA. To the extent appropriations under PREA are insufficient to meet the demand for serving currently
incarcerated victims, Congress should increase the VOCA cap to make available new funds for services to
incarcerated persons who are victims of violent crime under the VOCA funding scheme.
41
Guidelines, supra note 38, § A(h), available at: http://www.ojp.usdoj.gov/ovc/voca/vaguide.htm.
42
If necessary, Congress should also add any necessary language to authorizations to permit VOCA funds to be
used for assisting victims in restorative justice practices used in place of conventional court proceedings and in
corrections-based victim services in which offenders may also benefit.

CHAPTER 15 – VICTIMS ISSUES & RESTORATIVE JUSTICE 271

DOJ should also establish within its existing OVC an advisory committee to analyze and
respond to Congressional proposals for VOCA caps, as well as advise OVC and Congress on
appropriate cap levels.

CHAPTER 15 – VICTIMS ISSUES & RESTORATIVE JUSTICE 272

APPENDICES
Experts
Restorative Justice
Professor Gordon Bazemore, Professor and Chair, School of Criminology and Criminal
Justice, and Director of the Community Justice Institute, Florida Atlantic University(
http://www.fau.edu/dcj/faculty/gbazemore.html)
June B. Kress, Executive Director, Council for Court Excellence
(http://www.courtexcellence.org/AboutUsNew/Final%20KressJune.htm)
Anne Seymour, Co-founder and Senior Advisor, Justice Solutions
(http://www.justicesolutions.org/as_bio.htm)
Professor Lawrence Sherman, Founding Director, University of Pennsylvania Jerry Lee
Center on Criminology (http://www.sas.upenn.edu/jerrylee/people/lsherman.htm)
Professor Mark Umbreit, Founding Director, Center for Restorative Justice & Peacemaking;
Professor, School of Social Work, University of Minnesota
(http://www.cehd.umn.edu/ssw/rjp/Center_Info/Staff_and_Associates.asp)
Professor Howard Zehr Professor, The Center for Justice & Peacebuilding, Eastern
Mennonite University (http://www.emu.edu/personnel/people/show/zehrh)
Phyllis Lawrence, Consultant in Restorative Justice and Victim Issues
Pat Nolan, Vice-President, Prison Fellowship (https://www.prisonfellowship.org/aboutus/bio-of-pat-nolan-staff)
Crime Victim Restitution & Services
Steve Derene, Executive Director, National Association of Victim Assistance
Administrators (http://www.navaa.org/)
Dan Eddy, Executive Director, National Association of Victim Compensation Boards
(http://www.nacvcb.org/index.asp?sid=2)
Anne Seymour, Co-founder and Senior Advisor, Justice Solutions
(http://www.justicesolutions.org/as_bio.htm)

CHAPTER 15 – VICTIMS ISSUES & RESTORATIVE JUSTICE 273

Mai Fernandez, Executive Director, National Center for Victims of Crime
(http://www.ncvc.org/ncvc/main.aspx?dbID=DB_Contact764)
Further Resources
The Center for Justice & Peacebuilding, Eastern Mennonite University,
http://www.emu.edu/cjp/restorative-justice (last visited Jan. 19, 2011).
Center for Restorative Justice & Peacemaking, School of Social Work, University of
Minnesota, http://www.cehd.umn.edu/ssw/rjp (last visited Jan. 19, 2011).
International Institute for Restorative Practices, Real Justice, Research,
http://www.realjustice.org/Research.html (last visited Jan. 19, 2011).
U.S. Department of Justice, Office of Justice Programs, Office forVictims of Crime, Library &
Multimedia, http://www.ojp.usdoj.gov/ovc/library/index.html (last visited Jan. 19, 2011).
Australian Institute of Criminology, Reintegrative Shaming Experiments,
http://www.aic.gov.au/criminal_justice_system/rjustice/rise.aspx (last visited Jan. 25,
2011).
Paul McCold, Evaluation of a Restorative Milieu: Replication and Extension for 2001 – 2003
Discharges, presented at the American Society of Criminology annual meeting (November
2004), available at: http://www.realjustice.org/uploads/article_pdfs/erm2.pdf.
Abby J. Porter, The Jerry Lee Program Research on Restorative Justice: Promising Results,
RESTORATIVE PRACTICES E-FORUM (April 13, 2006), available at:
http://www.realjustice.org/uploads/article_pdfs/jerryleeresearch.pdf..
Prison Fellowship International (http://www.prisonfellowship.org/)
Justice Fellowship (http://www.justicefellowship.org/)
Just Detention International (http://justdetention.org/)

CHAPTER 15 – VICTIMS ISSUES & RESTORATIVE JUSTICE 274

Primary Contact
Phyllis Lawrence
Consultant in Restorative Justice and Victim Issues
703-868-9320
phyllislaw@comcast.net

CHAPTER 15 – VICTIMS ISSUES & RESTORATIVE JUSTICE 275

CHAPTER 15 CONTRIBUTORS

Consultant in Victim Services, Restorative Justice and Sentencing
Phyllis Lawrence
1608 Kenwood Avenue
Alexandria, VA 22302
(703) 868-9320
phyllislaw@comcast.net
Just Detention International
Shannon May
1900 L Street, NW, Suite 601
Washington, DC 20036
(202) 506-3333
smay@justdetention.org
Prison Fellowship
Pat Nolan
44180 Riverside Parkway
Lansdowne, VA 20176
(703) 554-8513
pnolan@pfm.org

276

CHAPTER 16
SYSTEM CHANGE: ADDRESSING THE AFFORDABILITY,
ACCOUNTABILITY, AND ACCURACY OF THE CRIMINAL
JUSTICE SYSTEM TO REDUCE COST AND INCREASE
PUBLIC SAFETY

CHAPTER 16 – SYSTEM CHANGE 277

THE ISSUE
Americans are calling for criminal justice reform to address the affordability, accountability,
and accuracy of the criminal justice system. Annually, millions of persons are adversely impacted by
the criminal justice system, including the wrongfully accused and convicted; racial and ethnic
minorities who are arrested and incarcerated at disproportionately high rates, individuals who
struggle with mental illness or drug addiction who need appropriate medical treatment, and
impoverished youth who do not have access to necessary supports or services. Additionally, the
criminal justice system is expensive—the Bureau of Justice Statistics estimates that, in 2006,
federal, state and local governments spent approximately $68 billion on corrections.1 In some
states, criminal justice spending outpaces spending on higher education—and investing in
incarceration over education is no formula for achieving America’s economic success or security.
A 2010 bipartisan poll funded by the Pew Center on the States and conducted by polling
firms that worked for both President Obama and Senator John McCain found that a majority of
voters support criminal justice reform.2 The poll, which surveyed conservative, liberal,
independent, and law-enforcement affiliated households, found that voters believe that it is
possible to maintain a strong public safety system while reducing the size and cost of the prison
system. Additionally, voters believe that prisons, as government programs, should be put to a costbenefit test that allows taxpayers to ensure they are getting “the most bang for their buck.” In
short, voters value reform as a way to improve system outcomes and increase public safety.
In December 2010, the National Governors Association and the National Association of
State Budget Officers released their biannual fiscal survey of the states.3 This report predicts that
despite some incremental increase in state revenues, 2011 will be another extremely tough
economic year in which states will experience major budgetary gaps. During this severe economic
downturn, it is imperative to review the significant costs of the criminal justice system to ensure
that these expenditures achieve the important and desired outcomes of protecting the public safety
to the greatest extent possible, while maxmizing criminal justice system accountability and
effeciency.

1

Bureau of Justice Statistics, U.S. Department of Justice, Employment and Expenditure,
http://bjs.ojp.usdoj.gov/index.cfm?ty=tp&tid=5 (last visited January 12, 2011).
2
THE PEW CENTER ON THE STATES, NATIONAL RESEARCH OF PUBLIC ATTITUDES ON CRIME AND PUNISHMENT 1 (2010), available at
http://www.pewcenteronthestates.org/uploadedFiles/wwwpewcenteronthestatesorg/Initiatives/PSPP/PSPP_Nati
onal%20Research_web.pdf?n=6608.
3
NATIONAL GOVERNORS ASSOCIATION & THE NATIONAL ASSOCIATION OF STATE BUDGET OFFICERS, THE FISCAL SURVEY OF THE STATES
(2010), available at http://www.nga.org/Files/pdf/FSS1012.PDF.

~CRIME

CHAPTER 16 – SYSTEM CHANGE 278

HISTORY OF THE PROBLEM
The United States currently incarcerates over 2.3 million individuals—the highest
incarceration rate in the world and a 500 percent increase over the past thirty years.4 Overincarceration has had a disproportionate impact on communities of color, with over 55 percent of
those incarcerated being African-American or Hispanic.5 According to the Pew Center on the States
and the NAACP, one in 31 adults in America is incarcerated or on probation or parole; twenty-five
years ago, this rate was only one in 77.6
Over the past two decades, state spending on corrections has increased by 127 percent7;
the current cost of state corrections is approximately $44 billion annually. 8 The dramatic expansion
of the criminal justice system over the past twenty years has stretched the system beyond its limits
and has placed an unmanageable cost burden on local, state, and federal taxpayers. Such high
costs are unsustainable during these times of economic uncertainty.
Experts representing law enforcement, state and local governments, academia, crime
victims, and criminal justice reform advocates have studied the issues and have identified key ways
to improve the criminal justice system. The policy solutions presented in this chapter reflect some
of their ideas, and include reforms that would help achieve strategic system change through:

•

Comprehensive review of the criminal justice system by a commission of policy makers,
stakeholders, practitioners, and experts;

•

Strategic reinvetstment of resources to improve system outcomes; and

•

New policies to address pervasive racial and ethnic disparities.

Developing a strategy for system change based on research and knowledge about what
works would improve criminal justice system outcomes, including reducing costs and increasing
public safety. Given the state of the economy, as well as voter receptiveness to reform efforts, the
time to achieve strategic system change is now.

4

The Sentencing Project, Incarceration, http://www.sentencingproject.org/template/page.cfm?id=107 (last visited
Jan. 12, 2010).
5
NAACP, NAACP Supports Legislation to Help States Reduce Prison Populations, http://www.naacp.org/actionalerts/entry/naacp-supports-legislation-to-help-states-reduce-prison-populations/ (last visited Jan. 12, 2010).
6
THE PEW CENTER ON THE STATES, ONE IN 31: THE LONG REACH OF AMERICAN CORRECTIONS 5 (2009), available at
http://www.pewcenteronthestates.org/uploadedFiles/PSPP_1in31_report_FINAL_WEB_3-26-09.pdf [hereinafter
ONE IN 31]
7
THE PEW CENTER ON THE STATES, ONE IN 100: BEHIND BARS IN AMERICA 4 (2008), available at
http://www.pewcenteronthestates.org/uploadedFiles/8015PCTS_Prison08_FINAL_2-1-1_FORWEB.pdf [hereinafter
ONE IN 100].
8
Id.

CHAPTER 16 – SYSTEM CHANGE 279

RECOMMENDATIONS
1. National Criminal Justice Commission
A. The Pressing Need for Criminal Justice System Review

The last comprehensive, national review of the criminal justice system occurred over forty
years ago during the Johnson Administration. The President's Commission on Law Enforcement and
Administration of Justice was established in 1965 and promulgated a landmark report in 1967
entitled, “The Challenge of Crime in a Free Society.”9 The recommendations presented in that
report have helped shape the criminal justice system for the past 40 years.
However, in the four decades since this last comprehensive review, crime and the tools to
address it have evolved, and a current, comprehensive review of the system is needed. At every
stage of the criminal justice system—from the time preceding arrest to obstacles upon reentry after
incarceration—serious problems exist that undermine principles of fairness and equity, as well as
the public’s expectations for cost-effectiveness and security. The result is an overburdened,
expensive, and ineffective criminal justice system. Review of the system would increase its
affordability, accountability, and accuracy, resulting in improved public safety and confidence.
B. Establish a National Criminal Justice Commission to Issue Recommendations to Reduce
Costs, Improve Outcomes, and Increase Public Safety

Legislative
Congress should authorize and fund a National Criminal Justice Commission to conduct a
comprehensive review of the criminal justice system through a bipartisan panel of experts. The
Commission would make thoughtful, evidence-based recommendations for reform. Congress
should model this commission on The National Criminal Justice Commission Act of 2009.10
In the Senate, The National Criminal Justice Commission Act of 2009, sponsored by Senator
Jim Webb (D-VA) and introduced on March 26, 2009, passed out of the Senate Judiciary Committee
on January 21, 2010.11 The bill received bipartisan support and had 39 cosponsors in the Senate,
including Chairman of the Senate Judiciary Committee Senator Patrick Leahy (D-VT), Chairman and
Ranking Member of the Subcommittee on Crime and Drugs, Senators Arlen Specter (D-PA) and
Lindsey Graham (R-SC), and Judiciary Committee member Senator Orrin Hatch (R-UT).

9

THE PRESIDENT’S COMMISSION ON LAW ENFORCEMENT AND ADMINISTRATION OF JUSTICE, THE CHALLENGE OF CRIME IN A FREE
SOCIETY (1967), available at http://www.ncjrs.gov/pdffiles1/nij/42.pdf.
th
th
10
S. 714, 111 Cong. (2009); H.R. 5143, 111 Cong. (2010).
11
th
S. 714, 111 Cong. (2009).

CHAPTER 16 – SYSTEM CHANGE 280

The House companion bill, The National Criminal Justice Commission Act of 2010, was
introduced on April 27, 2010, by Representatives William Delahunt (D-MA), Darrel Issa (R-CA),
Marcia Fudge (D-OH), Tom Rooney (R-FL) and Robert C. “Bobby” Scott (D-VA), who at the time was
the chairman of the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security.
The current House Judiciary Committee Chairman, Lamar Smith (R-TX), signed on as a co-sponsor
shortly thereafter.12 Just three months later, on July 27, 2010, the House passed this bill on
suspension of the rules.
Both pieces of legislation won wide-ranging support from Republican and Democratic
lawmakers, as well as over 160 organizations—including law enforcement organizations and state
and local organizations, criminal justice reform advocates, academics and religious leaders. This
broad, bipartisan support demonstrates a widely shared belief that having a transparent and
bipartisan commission conduct a comprehensive review of criminal justice policies and make
recommendations would lead to positive innovations in public safety.
Executive
Absent congressional action, the President should establish an independent National
Criminal Justice Commission by executive order or other administrative process. This commission
would use the “National Criminal Justice Commission Act” from the 111th Congress as a guide to
create an independent, bipartisan commission to carry out a comprehensive review of the criminal
justice system.
As outlined above, there is historical precedent for a presidential commission on crime, the
most famous and impactful being President Lyndon Johnson’s 1965 Commission on Law
Enforcement and Administration of Justice.
2. Criminal Justice Reinvestment Act
A. Exploding Prison Populations and Shrinking Budgets Create Crisis
States spent more than $52.3 billion on corrections in 2009, representing a nearly four-fold
increase in spending over the past 20 years.13 Federal, state, and local prisons and jails incarcerate
2.3 million Americans. 14 To support this population explosion, in 2009, the federal government
provided more than $215 million in grants for state corrections and community corrections.15 The
12

th

H.R. 5143, 111 Cong. (2010).
See NAT’L ASS’N OF STATE BUDGET OFFICERS, FISCAL YEAR 2009 STATE EXPENDITURE REPORT 53 (2010); NAT’L ASS’N OF STATE
BUDGET OFFICERS, FISCAL YEAR 1989 STATE EXPENDITURE REPORT 71 (1990) (calculating state spending on correction in
1989 at $14.5 billion dollars).
14
ONE IN 100, supra note 7, at 5.
15
National Criminal Justice Association, Byrne JAG Funding by States Across the Criminal Justice System (2010),
available at
13

CHAPTER 16 – SYSTEM CHANGE 281

increase in prison populations, coupled with tightening state budgets, has prompted many state
and local officials to consider cost cutting measures, such as the use of intermediate sanctions, such
as electronic monitoring, and modifications of probation and parole policies.16 To ensure such
measures are undertaken in a manner that maintains public safety, holds offenders accountable,
and controls correctional costs, states and localities must have the tools necessary to implement
evidence-based reforms.
B. Congress Should Pass the Justice Reinvestment Act
Legislative
Congress should pass legislation to provide states with resources to develop and to
implement innovative, 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-based reentry programs and programs proven to reduce
recidivism.
Over the past three years, states have grappled with a fiscal crisis that has devastated their
budgets and increased their reliance on federal grant programs to subsidize their corrections costs.
Legislation like the Criminal Justice Reinvestment Act,17 which has bipartisan support in both the
House and Senate, would aid states in performing an intensive analysis of criminal justice data,
policies, and the cost-effectiveness of current spending on corrections. Coupled with the savings
created through reduced corrections costs, the legislation would also provide resources to
implement these data-driven solutions.
Notably, the Act would respect the central role states play in the nation’s criminal justice
systems, by allowing them to develop and evaluate policies and programs that work best for their
unique circumstances. State and local policymakers are well-situated to identify the structural
problems with their corrections systems, but do not have the research capacity to perform the
sophisticated modeling necessary to forecast the costs and benefits of proposed policy changes.
States such as Texas, Kansas, Vermont, and South Carolina all have had success using a justice
reinvestment model.18 Combining state expertise with the resources only available to the federal
government will result in lower correction costs and greater public safety.
http://www.ncja.org/NCJA/Navigation/PoliciesPractices/Byrne_JAG_Data/Byrne_JAG_Spending_by_Purpose_Area
_and_Project_Type.aspx (click “Spending by Purpose Area and Project Type”).
16
See ONE IN 31, supra note 6; National Conference of State Legislatures, Cutting Corrections Costs: Earned Time
Policies for States Prisoners (July 2009).
17
S. 2772, 111th Cong. (2009); H.R. 4080, 111th Cong. (2009).
18
See JUSTICE CENTER, THE COUNCIL OF STATE GOVERNMENTS, JUSTICE REINVESTMENT IN TEXAS: ASSESSING THE IMPACT OF THE 2007
JUSTICE REINVESTMENT INITIATIVE (2009), available at
http://www.pewcenteronthestates.org/uploadedFiles/TX_Impact_Assessment_April_2009(4).pdf; Justice
Reinvestment: Hearing Before the Subcomm. on Commerce, Justice, Science, and Related Agencies of the H. Comm.
on Appropriations, 111th Cong. 481 (2009) (statement of Roger Werholtz, Secretary, Kansas Department of

CHAPTER 16 – SYSTEM CHANGE 282

Executive
The President should encourage Congress to pass legislation like the Criminal Justice
Reinvestment Act and should commit to signing the Act once it passes. The Department of Justice
(DOJ) and its Office of Justice Programs and Bureau of Justice Assistance should implement the
grant program in a manner that allows for the maximum number of states to take advantage of
training and technical assistance, while also requiring states to demonstrate a commitment to
working across party lines and branches of government to develop and implement evidence-based
policies.
3. Racial and Ethnic Disparity in the Criminal Justice System
A. Extensive Racial and Ethnic Disparity Exists in the Criminal Judicial System
For more than two decades, the proportion of racial and ethnic minorities entangled within
the criminal justice system has grown considerably.19 Members of minority populations now
comprise more than two-thirds of persons convicted of offenses in federal courts,20 and nearly
three-quarters of federal prisoners are either black or Hispanic.21 At the state level, similar
disparities exist.22 These extreme racial disparities result from a complex set of factors, including
the influence of bias and disparate treatment, prosecutorial decision-making, and sentencing and
drug policies. The consequences of these disparities have had a detrimental impact on
communities of color and contribute to distrust of the justice system within those impacted
communities and beyond.

Corrections); JUSTICE CENTER, THE COUNCIL OF STATE GOVERNMENTS, JUSTICE REINVESTMENT STATE BRIEF: VERMONT (2008),
available at http://justicereinvestment.org/files/Vermont_State_Brief.pdf; THE PEW CENTER ON THE STATES, SOUTH
CAROLINA’S PUBLIC SAFETY REFORM (Washington, DC-The Pew Charitable Trusts (2010), available at
http://www.pewcenteronthestates.org/uploadedFiles/PSPP_South_Carolina_brief.pdf?n=5221.
19
See, e.g., MICHELLE ALEXANDER, THE NEW JIM CROW: MASS INCARCERATION IN THE AGE OF COLORBLINDNESS (2010).
20
BUREAU OF JUSTICE STATISTICS, COMPENDIUM OF FEDERAL JUSTICE STATISTICS, 2003, Table 4.5 at 65 (Oct. 2004),
http://bjs.ojp.usdoj.gov/content/pub/pdf/cfjs03.pdf (last visited January 14, 2011).
21
Id., Table 7.10 at 108.
22
BUREAU OF JUSTICE STATISTICS, PRISONERS IN 2008 (Dec. 2009), Table 13 at 36,
http://bjs.ojp.usdoj.gov/content/pub/pdf/p08.pdf (last visited January 14, 2011).

CHAPTER 16 – SYSTEM CHANGE 283

B. Promote Fairness by Evaluating and Limiting Racial and Ethnic Disparities
Legislative
i. Enact the Justice Integrity Act
The Justice Integrity Act23, introduced by Senator Ben Cardin and Representative Steve
Cohen during the 111th Congress, would establish pilot programs in 10 federal districts to evaluate
issues of racial and ethnic fairness in the practices of U.S. Attorney offices. The Act is intended to
develop data that will disclose whether and to what extent: (i) racial and ethnic disparities are
attributed to criminal justice policies and practices; (ii) any policies and practices that do produce
disparities are fully justified as an appropriate response to criminal behavior; and (iii) disparities
contribute in whole or in part to discrimination or unconscious bias.
In previous Congresses this legislation was referred to the Senate and House Judiciary
Committees. During the 111th Congress, the House Judiciary Committee’s Subcommittee on Crime
held a hearing on racial disparity in the criminal justice system and reviewed this legislation at the
hearing.24
ii. Require Racial Impact Statements Prior to the Passage of Sentencing Legislation
In order to avoid unwarranted disparities within the federal criminal justice system,
policymakers should examine the potential racial impact of proposed sentencing legislation prior to
its enactment. One means of accomplishing this would be to mandate “Racial Impact Statements”
for any proposed legislation. Similar to fiscal or environmental impact statements, such a policy
would enable Congress to anticipate any unwarranted racial or ethnic disparities, and to consider
alternative policies that could accomplish the goals of proposed sentencing legislation without
causing avoidable racial disparity.
No racial impact statement bill has been introduced in Congress, but the concept was
discussed in the 111th Congress during a hearing of the House Judiciary Committee’s Subcommittee
on Crime.25 Several states, including Iowa, Connecticut and Minnesota, use racial impact
statements before enacting new sentencing laws.26

23

th

th

S. 495, 111 Cong. (2009); H.R. 1412, 111 Cong. (2009).
Racial Disparities in the Criminal Justice System: Hearing Before the Subcomm. on Crime, Terrorism, and
Homeland Security of the H. Comm. on the Judiciary, 111th Cong. (2009), available at
http://judiciary.house.gov/hearings/hear_091029.html [hereinafter Racial Disparities Hearing].
25
Id. (statement of Rep. Steve Cohen), available at http://judiciary.house.gov/hearings/pdf/Cohen091029.pdf.
26
Id. (statement of Marc Mauer, Executive Director, The Sentencing Project), available at
http://judiciary.house.gov/hearings/pdf/Mauer091029.pdf.
24

CHAPTER 16 – SYSTEM CHANGE 284

iii. Enact the Byrne/JAG Program Accountability Act
Issues of racial disparity at every level of the criminal justice system are of national concern
and necessitate analysis to ensure fairness. The Edward Byrne Memorial Justice Assistance Grant
Program (“Byrne/JAG”) Program, with roots reaching back into the 1980s, is the cornerstone federal
grant program to provide criminal justice funding to states. During the 111th Congress,
Representative Steve Cohen (D-TN) introduced the Byrne/JAG Program Accountability Act27, which
seeks to assess and limit racial and ethnic disparity in state, local, and tribal systems that receive
Byrne/JAG funding. Pursuant to the legislation, government beneficiaries of Byrne/JAG funding
must: (i) establish coordinating bodies to oversee and monitor efforts to reduce racial and ethnic
disparities; (ii) identify and analyze key decision points in the criminal justice system to determine
where racial and ethnic disparities are created among those who come into contact with the justice
system; (iii) implement data collection on racial disparities and analyze such disparities; (iv) develop
a work plan that measures objectives for system changes, based on the needs identified; and (v)
publicly report on these efforts.
Executive
Under its own authority, DOJ could develop a similar pilot project as outlined in the Justice
Integrity Act to collect and assess data and evaluate the impact its prosecutorial practices have on
racial and ethnic disparity in the federal justice system. DOJ is currently funding demonstration
projects similar to those contemplated by the proposed Act in four states to collect data and
evaluate racial and ethnic disparity in selected county or local criminal justice systems.28

27

th

H.R. 5304, 111 Cong. (2010).
American Bar Association, Criminal Justice Section, Racial Justice Improvement Project,
http://new.abanet.org/sections/criminaljustice/Pages/racialjustice.aspx (last visited Jan. 12, 2011).
28

CHAPTER 16 – SYSTEM CHANGE 285

APPENDICES
Experts
National Criminal Justice Commission Act
Doug Ierley, Counsel, Office of Senator Jim Webb
(http://webb.senate.gov/aboutvirginia/about_va_reg_offices.cfm)
Pat Nolan, Vice President, Prison Fellowship (https://www.prisonfellowship.org/whypf/bios-of-key-staff/296)
Judge Patricia Wald, retired judge from the U.S. Court of Appeals, the District of Columbia
Circuit
Criminal Justice Reinvestment Act
Adam Gelb, Director, Public Safety Performance Project, Pew Center on the States
(http://www.pewtrusts.org/experts_profile.aspx?id=56713)
Nancy G. La Vigne, Ph.D., Center Director, Justice Policy Center, The Urban Institute
(http://www.urban.org/bio/NancyGLaVigne.html)
Michael Thompson, Director, Council of State Governments Justice Center
(http://www.justicecenter.csg.org/about_us/staff_directory)
Promote Fairness and Address Racial and Ethnic Disparity in the Criminal Justice System
Steve Saltzburg, ABA Criminal Justice Section and George Washington University law
professor (http://www.law.gwu.edu/Faculty/profile.aspx?id=1761)
Marc Mauer, Executive Director, The Sentencing Project
(http://www.sentencingproject.org/detail/person.cfm?person_id=3&backto=63&backtype=
Staff)
Angela Jordan Davis, ABA Criminal Justice Section and American University Washington
College of Law professor (http://www.wcl.american.edu/faculty/adavis/)
Wayne McKenzie, Vera Institute of Justice (http://www.vera.org/users/wmckenzie)

CHAPTER 16 – SYSTEM CHANGE 286

Further Resources
National Criminal Justice Commission Act
Senator Jim Webb’s collection of information related to the National Criminal Justice
Commission Act, available at
http://webb.senate.gov/issuesandlegislation/criminaljusticeandlawenforcement/Criminal_J
ustice_Banner.cfm.
Criminal Justice Reinvestment Act
The Pew Center Charitable Trust, Public Safety, Public Spending: Forecasting America’s
Prison Population 2007-2011 (2007), available at
http://www.pewcenteronthestates.org/uploadedFiles/Public%20Safety%20Public%20Spend
ing.pdf;
The "Criminal Justice Reinvestment Act of 2009" and the "Honest Opportunity Probation
with Enforcement (HOPE) Initiative Act of 2009": Hearing on H.R. 4080 and H.R. 4055 Before
the Subcomm. on Crime, Terrorism, and Homeland Security of the H. Comm. on the Judiciary,
111th Cong. 31 (2010) (statement of Rep. Adam Schiff, Member, House Comm. on the
Judiciary and statement of Adam Gelb, Director, Public Safety Performance Project, Pew
Center on the States), available at
http://judiciary.house.gov/hearings/pdf/Schiff100511.pdf;
Justice Reinvestment: Hearing Before the Subcomm. on Commerce, Justice, Science, and
Related Agencies of the H. Comm. on Appropriations, 111th Cong. 481 (2009) (statement of
Roger Werholtz, Secretary, Kansas Department of Corrections), available at
http://appropriations.house.gov/index.php?option=com_jcalpro&Itemid=117&extmode=vie
w&extid=1277;
JUSTICE CENTER OF THE COUNCIL OF STATE GOVERNMENTS, JUSTICE REINVESTMENT IN TEXAS: ASSESSING THE
IMPACT OF THE 2007 JUSTICE REINVESTMENT INITIATIVE (2009), available at
http://www.pewcenteronthestates.org/uploadedFiles/TX_Impact_Assessment_April_2009(
4).pdf;
JUSTICE CENTER OF THE COUNCIL OF STATE GOVERNMENTS, JUSTICE REINVESTMENT STATE BRIEF: VERMONT
(2008), available at
http://www.pewcenteronthestates.org/initiatives_detail.aspx?initiativeID=56258;
THE PEW CENTER ON THE STATES, SOUTH CAROLINA’S PUBLIC SAFETY Reform (June 2010), available at
http://www.pewcenteronthestates.org/uploadedFiles/PSPP_South_Carolina_brief.pdf?n=5
221

CHAPTER 16 – SYSTEM CHANGE 287

AMERICAN BAR ASSOCIATION JUSTICE KENNEDY COMMISSION, PROMOTE FAIRNESS AND ADDRESS RACIAL AND
ETHNIC DISPARITY IN THE CRIMINAL JUSTICE SYSTEM: REPORTS WITH RECOMMENDATIONS TO THE ABA HOUSE
OF DELEGATES 47(August 2004), available at
http://www.abanet.org/crimjust/kennedy/JusticeKennedyCommissionReportsFinal.pdf
Marc Mauer, Racial Impact Statements as a Means of Reducing Unwarranted Sentencing
Disparities, 5 OHIO ST. J. CRIM. L. 19 (2007), available at
http://www.sentencingproject.org/Admin/Documents/publications/rd_racialimpactstateme
nts.pdf;
THE SENTENCING PROJECT, REDUCING RACIAL DISPARITY IN THE CRIMINAL JUSTICE SYSTEM: A MANUAL FOR
PRACTITIONERS AND POLICYMAKERS (2008), available at
http://www.sentencingproject.org/doc/publications/rd_reducingracialdisparity.pdf
Racial Disparities in the Criminal Justice System, Hearing on Collateral Consequences of
Criminal Convictions: Barriers to Reentry for the Formerly Incarcerated Before the
Subcomm. On Crime, Terrorism, and Homeland Security of the H. Com. On the Judiciary, 11th
Cong. 15 (2010) (statement of Marc Mauer, Executive Director, The Sentencing Project),
available at
http://www.sentencingproject.org/doc/publications/rd_mmhousetestimonyonRD.pdf.
Racial Disparities in Federal Prosecutions, a joint project of the Brennan Center for Justice
and the National Institute on Law and Equity. Originally published in the Federal Sentencing
Reporter, Vol. 19, No. 3: 193-201, 2007. Re-published with updated material (2010),
available at http://www.brennancenter.org/page//Justice/ProsecutorialDiscretion_report.pdf?nocdn=1.

CHAPTER 16 – SYSTEM CHANGE 288

Primary Contacts
National Criminal Justice Commission Act
Jenny Collier
Federal Policy Adviser
Innocence Project
405 Constitution Avenue NE, Washington, DC 20002
(202) 295-7188
jennycollierjd@yahoo.com
Kara Gotsch
Director, Director of Advocacy
The Sentencing Project
514 10th Street NW, Suite 1000, Washington, DC 20004
(202) 628-0871
kgotsch@sentencingproject.org
Jennifer Seltzer Stitt
Director, Federal Legislative Affairs
Families Against Mandatory Minimums
1612 K Street NW, Washington DC 20006
(202) 822-6700
jstitt@famm.org
Criminal Justice Reinvestment Act
Richard Jerome
Project Manager, Public Safety Performance Project
Pew Center on the States
1025 F Street NW, 9th Floor, Washington, DC 20004
(202) 552-2000
rjerome@pewtrusts.org
Jamal (Jay) Nelson
Government Affairs
Council of State Governments Justice Center
4630 Montgomery Avenue, Suite 650, Bethesda, MD 20814
240-482-8580
jnelson@csg.org

CHAPTER 16 – SYSTEM CHANGE 289

Promote Fairness and Address Racial and Ethnic Disparity in the Criminal Justice System
Marc Mauer
Executive Director
The Sentencing Project
1705 DeSales Street, NW, 8th Floor, Washington, DC 20036
(202) 628-0871
mauer@sentencingproject.org
Nicole Austin-Hillery
Director and Counsel, Washington Office
The Brennan Center for Justice
1730 M Street, NW, Suite 413, Washington, D.C. 20036
(202) 249-7191
Nicole.austin-hillery@nyu.edu

CHAPTER 16 – SYSTEM CHANGE 290

CHAPTER 16 CONTRIBUTORS

American Bar Association (ABA)

Drug Policy Alliance (DPA)

Bruce Nicholson
740 15th Street, NW
Washington, DC 20005
(202) 662-1769
bruce.nicholson@americanbar.org

Jasmine Tyler
925 15th Street, NW, 2nd Floor
Washington, DC 20005
(202) 216-0035
jtyler@drugpolicy.org

American Civil Liberties Union Washington
Legislative Office

Families Against Mandatory Minimums
(FAMM)

Jennifer Bellamy
915 15th Street, NW
Washington, DC 20005
(202) 675-2312
jbellamy@dcaclu.org
Brennan Center for Justice
Nicole Austin-Hillery
1730 M Street, NW, Suite 413
Washington, DC 20036
(202) 785-4747
nicole.austin-hillery@nyu.edu
Council of State Governments (CSG)
Leah Kane
4630 Montgomery Avenue
Suite 650
Bethesda, MD 20814
(240) 482-8585
lkane@csg.org
Jay Nelson
4630 Montgomery Avenue
Suite 650
Bethesda, MD 20814
(240) 482-8585
jnelson@csg.org

Jennifer Seltzer Stitt
1612 K. Street, NW, Suite 700
Washington, DC 20006
(202) 822-6700
jstitt@famm.org
Independent Consultant, Innocence Project
Jenny Collier (Chapter Leader)
405 Constitution Avenue NE
Washington, DC 20002
(202) 295-7188
jennycollierjd@yahoo.com
National Association for the Advancement
of Colored People Legal Defense &
Educational Fund, Inc.
Jeffrey Robinson
1444 I Street, NW
Washington, DC 20005
(202) 682-1300
jrobinson@naacpldf.org

CHAPTER 16 – SYSTEM CHANGE 291

The Sentencing Project
Kara Gotsch
1705 Desales Street, NW
8th Floor
Washington, DC 20036
(202) 628-0871
kgotsch@sentencingproject.org

S

gCRIME

Recommendations for the
Administration and Congress

The Smart on Crime Coalition
www.besmartoncrime.org