Summary Of Recommendations
Adopt rules and reporting requirements to stem overcriminalization and overfederalization. Congress should amend their rules to require every bill that would add or modify criminal offenses or penalties to be subject to automatic referral to the judiciary committee. Congress should also enact mandatory reporting legislation for all new or modified criminal offenses and penalties requiring the federal government to produce a standard, public report assessing the purported justification, costs, and benefits of all new or modified criminalization.
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.
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.
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.
Curb the abuses of federal and state forfeiture powers. Congress should pass comprehensive legislation to curb abuses of federal and state forfeiture powers and fulfill the original intent of the bipartisan Civil Asset Forfeiture Reform Act and related state reforms. The Administration should issue an executive order or encourage agency rulemaking to limit or forbid the use of equitable sharing to circumvent state law.
Safeguard the rights of defendants and third parties with basic procedural reforms. Congress should pass comprehensive legislation to ensure fair procedures for the accused and third parties in criminal forfeiture proceedings, and to curtail the government’s use of criminal forfeiture as an end run around civil asset forfeiture reforms. This would include safeguarding the accused’s rights to a fair procedure for determining what is subject to criminal forfeiture, limiting the use of so-called personal “money judgments” in lieu of orders forfeiting specific property, and safeguarding the rights of third parties who have an interest in the property subject to forfeiture.
Support 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.
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.
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.
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.
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 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.
Enhance the role of federal grand jurors and address the institution’s long-neglected shortcomings. Congress should pass comprehensive legislation to strengthen the grand jury’s screening function, empower grand jurors, and protect the rights of witnesses, subjects, and targets of grand jury investigations. The Department of Justice’s United States Attorney’s Manual includes certain admonitions regarding the conduct of grand jury investigations; the Department and its personal should adhere to the manual’s proscriptions.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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 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.
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.
End the practice of sentencing youth to life without parole. 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.
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.
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.
Completely eliminate the crack cocaine sentencing disparity and make reform retroactive. Congress should pursue complete elimination of the crack cocaine sentencing disparity, which was reduced from 100:1 to 18:1 as the result of the Fair Sentencing Act of 2010. In addition, the Fair Sentencing Act must be strengthened by retroactive application of its provisions through executive, legislative or judicial branch action, so that those incarcerated pursuant to the previous sentencing scheme receive relief.
Improve and expand federal safety valves for mandatory minimum sentencing. Congress should amend the current safety valve laws to allow judges to undertake a step-by-step inquiry into such things as the circumstances of the offense and the history and characteristics of the offender in order to provide appropriate sentences.
Create sunset provisions for new mandatory minimums. Congress should subject all new mandatory minimums to a five-year sunset provision or create a sunset commission that will offer recommendations to Congress ahead of reauthorization of mandatory minimum legislation.
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.
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.
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.
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.
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.
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.
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 improve the quality and accuracy of the Commission's work and the transparency and neutrality of the Commission's proceedings.
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.
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.
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.
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.
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.
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.
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.
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.
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 experts and other resources at any stage of a federal death penalty case, including post-conviction review.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Create a National Criminal Justice Commission. Congress should authorize and fund a National Criminal Justice Commission to conduct a comprehensive review of the criminal justice system by a bipartisan panel of experts that would make thoughtful, evidence-based recommendations for reform. Absent congressional action, the President should establish an independent National Criminal Justice Commission by executive order or other administrative process.
Pass and implement the Justice Reinvestment Act. Congress should pass legislation to provide states with resources to develop and to implement data-driven, cost-saving corrections policies. This will help states increase public safety while cutting prison costs and reinvesting the savings into alternatives to incarceration, such as community corrections and programs proven to reduce recidivism.
Evaluate and limit racial and ethnic disparities. Congress should pass legislation similar to the Justice Integrity Act to establish pilot programs to evaluate issues of racial and ethnic fairness in the practices of U.S. Attorney offices. Congress should mandate “Racial Impact Statements” for any proposed sentencing legislation to enable Congress to evaluate potential racial or ethnic disparities, and to consider alternative policies that could accomplish the goals of proposed sentencing legislation without causing racial disparity. Congress should also pass legislation similar to the Byrne/JAG Program Accountability Act to assess and limit racial and ethnic disparity in state, local and tribal systems that receive federal funding through the Byrne JAG Grant Program.