In the 2019 series of student blog posts for Legal Problem Solving, students are digging into the American Bar Association's 2016 Report on the Future of Legal Services to explore how far we've come in 2019 and what remains to do in the innovation of legal services delivery.
In its 2016 Report on the Future of Legal Services, the ABA made many recommendations for the future of the legal field, including a recommendation to reform the criminal justice system. While not an initial focus of the Commission, the ABA recommended criminal justice reform due to the major impact the system has “on individuals, the rule of law, and the public’s perception of the administration of justice.” Thus, even though this is not related specifically to the legal field, it is of critical importance.
Some of the specific recommendations by the ABA include adjusting administrative fines and fees, creating programs for incarcerated individuals addressed as making re-entry an easy and productive process, decriminalizing minor offenses, and properly funding public defender offices. The report also supports the recommendations made in a resolution by the 2004 Justice Kennedy Commission. All of these recommendations were proposed to address some of the major issues in the system, such as race, economic disparities and the overwhelming problem of mass incarceration. And it is truly overwhelming: while only 5% of the population, the United States houses 25% of the global prison population. “It has also become clear that overcriminalization and mass incarceration have not necessarily made us safer." Reform is desperately needed.
Of course, the ABA Commission members are not the only ones focusing on criminal justice reform. Recently, criminal justice reform has been a hot button issue and widely featured in the media. It is also an issue of major importance to the 2020 presidential candidates, with many candidates sharing their criminal justice reform plans and/or apologizing for there past actions seen as going against reform efforts.
Fortunately, since the ABA’s Report was published, there have been some successful reform efforts aimed at fixing the criminal justice system. At the federal level, the major reform was the enactment of the First Step Act in December of 2018, “the first important federal prison and criminal-justice reform in many years.” The Act addresses mandatory minimum sentences of federal prisoners, as well as creates a system for incarcerated individuals to earn time credits. As a relatively new law, we will continue to see how it is implemented and progresses in the coming months and years. The bill was a bipartisan effort, making clear that “support for criminal-justice reform now cuts across party lines.” This greatly increases overall faith in the bill and the chance of future criminal justice reforms. However, while this is a major development, it is important to remember that the Act only applies to federal prisoners.
There have also been many reform efforts at the state level, some of which were used as the basis for the new federal act. As explained by Patrick Gleason, a contributor at Forbes, “criminal justice reform is one area in particular where state level reforms have successfully percolated up to the national level.” The Sentencing Project noted the major reform efforts done by states in 2018.
First, states have been active in sentencing reform. Florida, for example, passed a law allowing sentencing reform to be applied retroactively. Second, states have been expanding voting rights to formerly incarcerated individuals. Third, there has been a focus on racial disparities. Fourth, some states have increased the age when juveniles are automatically tried as adults. Fifth, some are working on “abolishing involuntary slavery and servitude.” And finally, states are focusing on collateral consequences of incarceration. Hopefully, these types of reforms will continue to influence federal policy, and we will see them at the federal level.
Another reform effort of note is the wave of progressive prosecutors sweeping the nation. These new District Attorney’s, such as Philadelphia’s Larry Krasner, are part of a movement designed to change the criminal justice system from the inside out. This is also a great example of lawyers themselves taking part in reform efforts to the system, and doing so through their chosen career.
So, what comes next? As mentioned above, criminal justice reform has been a big focus for the 2020 presidential election. While past actions against said reforms have hurt candidates, most are making a major effort to remedy this and show their focus on the issue. Some candidates have even proposed reforms that specifically align with the recommendations of the ABA, such as Kamala Harris introducing the EQUAL Defense Act, aimed at increasing funding for public defense offices.
This continued attention and focus on the problems within the criminal justice system, and the major role reform efforts are playing in the 2020 presidential election, will hopefully lead to continued reforms both at the state and federal levels.
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