On Sen. Webb's Bill Studying Criminal Justice Reform

Senator Jim Webb introduced the National Criminal Justice Act of 2009 on Friday (text of bill here pdf.) It would create a bipartisan commission to study the criminal justice and prison systems for 18 months, after which it would make recommendations.

Lots of people are excited about it, from FAMM to Glenn Greenwald.

I think we know the answers already and I wish we would start making the reforms now, not starting an 18 month period of study followed by recommendations. I'm concerned this will just put tempt Congress to put reform bills on the back burner, using Webb's Commission as an excuse for delay. "Let's wait until the report comes out before making any changes."


I'm also disappointed that the make-up of the non-congressional members of the Commission fails to include anyone from the criminal defense community -- it's law enforcement, criminal justice, victims' advocates....same old song.

Here's the list:

(1) QUALIFICATIONS.—The individuals appointed from private life as members of the Commission shall be individuals who are nationally recognized for expertise, knowledge, or experience in such relevant areas as—

(A) law enforcement;
(B) criminal justice;
[C]; national security;
(D) prison administration;
(E) prisoner reentry;
(F) public health, including drug addiction
and mental health;
(G) victims’ rights; and
(H) social services

What are we? Chopped liver? How can you have a commission that studies the criminal justice system and the treatment and over-incarceration of offenders and not include their representatives, their champions, the people who spend so much time with them, individually and as a whole, both in jails and prisons and out?

("Criminal justice" for those not familiar with the term, historically has referred to law enforcement-oriented programs and policies. It does not include criminal defense. The primary focus of criminal justice in the United States is on policing skills and police science with some emphasis in recent years on adding social sciences like sociology and psychology to study social deviance.)

And how about judges? Shouldn't a few of them be included on the commission?

So, yes, Sen. Webb's bill is nice, but (1) 18 months is too long when we already know what needs to be done (2) It's only going to provide recommendations, none of which are binding and (3) it fails to include representatives who speak for the accused and convicted and who face the injustices day in and day out in courtrooms across the country.

Too often, a period of study is used as a cop-out to avoid action. I'm sure Sen. Webb has only the best intentions, but with a prison population exceeding 2 million and 1 in every 31 Americans now in custody or under supervision (probation or parole) it's time to act. The research and data are out there. I agree with Sen. Webb that:

America's criminal justice system has deteriorated to the point that it is a national disgrace. Its irregularities and inequities cut against the notion that we are a society founded on fundamental fairness. Our failure to address this problem has caused the nation's prisons to burst their seams with massive overcrowding, even as our neighborhoods have become more dangerous. We are wasting billions of dollars and diminishing millions of lives. We need to fix the system.

Why not just do it?

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    Because (5.00 / 1) (#1)
    by jbindc on Sun Mar 29, 2009 at 04:30:52 PM EST
    I don't think it's as easy as introducing a bill tomorrow that says all drug crimes are now forgiven, and all all convicts who are in jail for those drug crimes should be let out of federal prison tomorrow (and of course, this wouldn't apply to state offenders).

    I applaud Sen. Webb for taking the lead on this, and I agree this issue is like an octopus with many tentacles, so I appreciate the fact that time and care will be taken with this (unlike, say, the stimulus bill or budget bill).

    I don't know why there aren't criminal defense professionals on the panel, except that maybe since we are talking about people who are already in prison, the role of criminal defense attorneys at this stage is minimal.

    For many of us (5.00 / 2) (#3)
    by Jeralyn on Sun Mar 29, 2009 at 04:43:47 PM EST
    post-conviction relief (and appeals while the client is in jail) is a significant part of our practice. We're involved not just with the offender but with their families and the prison system. In most instances, we are the ones they trust because we are the only ones fighting for them. Also, we see the excesses of "prosecutorial discretion" and the disparity in treatment among offenders more than most.

    Even if Webb's bi-partisan commission were to recommend letting everyone out of jail (which it won't of course) we'll still be at or close to square one when bills are introduced in Congress to implement the recommendations because many Republicans will oppose even modest reforms. The party lines will still be there.

    President Obama promised to do away with crack-powder disparity. That doesn't need to wait 18 months. His campaign promises included working to eliminate mandatory minimums for first-time, non-violent offenders who merely possessed drugs. That's a far smaller class of offenders than we should be providing relief to, but at least let's get started with that and not wait 18 months.


    You ask several trenchant questions, viz.: (5.00 / 1) (#2)
    by scribe on Sun Mar 29, 2009 at 04:42:58 PM EST
    What are we? Chopped liver? How can you have a commission that studies the criminal justice system and the treatment and over-incarceration of offenders and not include their representatives, their champions, the people who spend so much time with them, individually and as a whole, both in jails and prisons and out?

    The short answer is something like this:  In the future envisioned by TPTB, the job of the criminal defense community will be to help facilitate whatever decisions will be made for their "clients" by TPTB and ensure the process runs smoothly.  

    In so many words, this commission will make the way for completing the conversion from the adversarial model of criminal justice to the administrative.  In that new model, such quaint ideas as "innocence" and "rights" will no longer have value as currency.  The decision to arrest will be the decision to convict, as the criminal law will be so thoroughly structured as to make everyone liable for some crime or other, and the only issue that will remain is "when" they will be convicted, rather than "whether" or even "if a crime was committed."

    Gotta get with the times, folks.

    It is already getting crowded on the (5.00 / 1) (#5)
    by MO Blue on Sun Mar 29, 2009 at 04:58:37 PM EST
    back burner. Seems like that will be where all the "PEOPLE" issues will reside by the end of the year.

    The juvenile justice system repopulates the adult (5.00 / 1) (#6)
    by JSN on Sun Mar 29, 2009 at 05:08:06 PM EST
    system. If you look at the distribution of age at admission to prison by offense type you can see that the juvenile violent, property and drug offenders are repopulating the adult system. The racial disparity decreases with age. Young Blacks (both genders) think they are living in a police state and it appears that the zero tolerance policies of the schools are not racially and ethnically neutral.

    I hope that the commission membership will be expanded to include some people from the juvenile justice system. It appears to me that far too often court administrators  consider juvenile court to be a judicial backwater.

    I should make clear that juveniles (5.00 / 1) (#7)
    by JSN on Sun Mar 29, 2009 at 05:16:21 PM EST
    enter the adult prisons as transfers from juvenile facilities and new court commitments. Older adults enter as new court commitments and returns/revocations.

    I think TL would say (5.00 / 1) (#8)
    by scribe on Sun Mar 29, 2009 at 05:31:35 PM EST
    (putting words in her mouth) that she'd like to, but in the bill there is no space for anyone - repeat anyone - from the criminal defense bar, nor for anyone representing the interests of the convicts, inmates or their families.  The bill does not acknowledge they have interests which need protecting.

    A while back, a friend related to me a conversation between that friend and another, the latter being a senior cop in a prominent department.  The cop had noted that he welcomed the existence of things like poverty, family strife, domestic violence, and poor education, as those made good starting  material for creating future people who could not conform their behavior to the requirements of society or the law, i.e., defendants.  The cop further noted that a steady stream of future defendants ensured the continuance of his job, paycheck, benefits and retirement.  In fact the cop went so far as to remark that there was no real point for police to undertake programs to cut down on things like poverty, family strife, domestic violence, and poor education because it did not make economic sense to the cops to be "Cutting their own throat", so to speak.

    The fact of beer lubricating that conversation should be noted.  In vino veritas.

    You have to get your head around the concept that law enforcement - explicitly (like the friend-of-a-friend cop) or implicitly - does not view the people they arrest, process, convict and incarcerate as people.  Rather, they view them as some sorta-intelligent animal whose behavior makes possible the cops' future mortgage and boat payments.

    With such an attitude current in the law enforcement community, you should not be surprised that defendants and their families are not represented.  Raw material never is.

    posted on this before, but i defer (none / 0) (#20)
    by of1000Kings on Mon Mar 30, 2009 at 02:26:34 PM EST
    to the Great Kahlil Gibran (someone who actually deserves the word great, unlike most on Wall St):

    the story is about a priest who comes upon a severely wounded Devil while the priest was walking along the street...

    the priest's first instinct is to finish the devil off, to kill him and rid the world of his existence forever...

    what a great end that would have been, and what a noble effort from the priest that would have been...

    alas, the Devil asked the priest what he would do to ensure his own life (the priest's) if he (the Devil) no longer existed...how would the priest pay for his food and shelter and quality of life considering that his whole job depended on the existence of the devil...

    so after considering this, the priest decides to help the Devil back to his (the priest's) house and to nurse the Devil back to full strength...

    thus ensuring tragedy and hate in the world, but also ensuring that the priest maintained his own job...

    this story written around the turn of the 20th century speaks quite truthfully to many in our society, and especially to those in Law Enforcement (ie: it would be better for society to address the issues that create criminals, but it's better for those in LE if we let those issues go, thus ensuring a new generation of law-breakers)...

    it's amazing how much great intelligence and logic is out there that we as Humans just decide to ignore because it doesn't benefit us in the immediate future (like tomorrow)...
    it's the same idea whenever a discussion comes up about the cap-and-trade coal issue...


    Want to reduce the prison polulation? (5.00 / 1) (#9)
    by Zorba on Sun Mar 29, 2009 at 06:49:57 PM EST
    Release (and stop jailing) non-violent drug offenders, and offer rehabilitation services.  Evaluate prisoners for mental illnesses and move those who might benefit over to mental institutions where they can get some psychiatric help.  Get rid of mandatory minimums.  Get rid of "three strikes" laws.  Oh, and, while you're at it, get rid of privatized prisons.  (I realize that most of this would be at the state level, not federal, but the discussions need to go on there, as well.)

    Not to be too much of a Pollyanna, (5.00 / 1) (#10)
    by Peter G on Sun Mar 29, 2009 at 07:55:28 PM EST
    I hope, but the open-ended language, "in such relevant areas as," implies there are other equally important realms of "experience, knowledge or experience" as those listed, and that the list is not exclusive.  Perhaps the ones listed are for "political" palatability.  Ex-offenders, prisoners' families, exonerees, defense attorneys, former judges, mental health experts, juvenile justice experts, sentencing and corrections scholars, drug policy analysts (in public health, public policy, political science and/or economics), civil libertarians, all come to mind.  The one advantage of a national commission is that it could be influential on the states, where Congress cannot legislate reforms directly.  Of course, Congress can -- and does -- nearly directly control state practices by putting strings on federal funding assistance, such as when it tied prison construction money to states' compliance with a norm of requiring "violent" offenders to serve 85% of the maximum sentence imposed, thus reducing parole opportunities for many state prisoners who were otherwise ready for release.

    Perhaps a not-entirely-accurate dichotomy? (5.00 / 1) (#11)
    by LarryInNYC on Sun Mar 29, 2009 at 08:06:40 PM EST
    I'm concerned this will just put tempt Congress to put reform bills on the back burner, using Webb's Commission as an excuse for delay. "Let's wait until the report comes out before making any changes."

    Webb's bill seems to have come more or less out of nowhere in terms of Congressional interest on this matter.  It's not as if (or, rather, I don't think) there were a slew of bills waiting for votes that will now be derailed by Webb's committee.

    Not supporting Webb's bill in favor of speedier action on a non-existent agenda seems self-defeating to me.

    no one suggested (none / 0) (#12)
    by Jeralyn on Sun Mar 29, 2009 at 09:03:10 PM EST
    not supporting it. I'm commenting about those who I think may be over-praising it.

    You mentioned that. . . (none / 0) (#13)
    by LarryInNYC on Sun Mar 29, 2009 at 09:05:29 PM EST
    you were concerned that this would cause the back-burnering of some reform bills.  Is there any meaningful reform in the pipeline that might suffer from these review?

    Maxine Walters introduced a bill to repeal (none / 0) (#14)
    by JSN on Sun Mar 29, 2009 at 09:40:23 PM EST
    mandatory minimum drug sentences that had a few co-sponsors.
    It probably will die in committee but something is better than years of nothing..

    It'll at least get a hearing. (none / 0) (#15)
    by Ben Masel on Sun Mar 29, 2009 at 11:20:15 PM EST
    Bobby Scott, one of the co-sponsors, chairs the Judiciary's Crime Committee. Steve Cohen's another cosponsor, is also on the Committee, as is Walters.

    Yes there are bills (none / 0) (#16)
    by Jeralyn on Sun Mar 29, 2009 at 11:22:28 PM EST
    to eliminate mandatory minimums in drug cases, equalize crack-powder sentencing,  and increase good time for federal prisoners to shorten sentences (H.R. 1475) .

    And these bills or very similar ones (none / 0) (#18)
    by Bemused on Mon Mar 30, 2009 at 07:32:24 AM EST
      have been around a long time.

     The question is if and when a substantial portion of the legislative leadership will chose to put any weight behind them. Anyone in congress can introduce a bill and issue a press release, but getting bills enacted, as a practical matter, need leadership support.

      I do think we are approaching a point where it's possible some of these reforms will start receiving serious consideration.

      A couple of things in addition to those you mention, I'd like to see seriously considered are limitations on exercise of federal jurisdiction over controlled substance offenses and a policy to reserve federal cases to only those directly involving large quantities of dangerous drugs moving  interstate or internationally and a reinstitution of parole in the federal system allowing for erarly release under supervision of past and future offenders.


    Hero (5.00 / 1) (#19)
    by Jlvngstn on Mon Mar 30, 2009 at 09:03:37 AM EST
    As a society we use "hero" all too loosely.  Those who help them who need the most help are heroes.  Mr. Webb in my estimation is acting heroically.  Not only on behalf of the imprisoned but on behalf of the American people who are paying a heavy tax to house and feed non violent criminals for a lifetime.  Thanks Mr. Webb.

    My thoughts exactly. (none / 0) (#21)
    by sarcastic unnamed one on Mon Mar 30, 2009 at 02:53:02 PM EST

    political cover (none / 0) (#22)
    by diogenes on Mon Mar 30, 2009 at 08:54:54 PM EST
    How convenient...18 months will put this past the 2010 elections so the people won't be able to vote for congressmen and senators that reflect their positions as concerns these proposed reforms.