Cross-posted on the Huffington Post
Criminal justice reform continued to build momentum this year within the inner sanctum of the Beltway and across the nation in a handful of states. It emerged as a significant issue in the Presidential campaign, and looks likely to stay front and center into 2016. Some of the year’s most significant steps forward (and back) are highlighted here.
March: Seven months after an unarmed teen was shot and killed by a Ferguson, Mo., police officer, the Justice Department releases two reports. One clears the police officer of civil rights violations. The second is a scathing indictment of Ferguson’s entire criminal justice system, noting that the police department is seen as a tool for revenue generation, “with insufficient thought given to whether enforcement strategies promote public safety or unnecessarily undermine community trust and cooperation.”
Also in March, a settlement is reached in a suit brought over the use of tear gas in Ferguson protests. Among other terms, police agree not to use tear gas against lawful protesters and will be required to provide “clear and unambiguous warnings” before tear gas is deployed.
April: At about 8:40 a.m. on April 12th in Baltimore, Md., Freddie Gray, 25, is arrested and transported to a police station in a van. At the moment of his arrest, Gray requests an inhaler, but does not receive one. Gray is handcuffed and placed in the van. When the van arrives at a police station at about 9:25 a.m., he is not breathing and an ambulance is called. While Gray lies in a coma, the first protest is held. It is peaceful. Hundreds put their hands up and turn their backs to police. On April 19th, Gray is pronounced dead at 7:00 a.m. Peaceful protests resume. Three days later, the Justice Department announces a civil rights investigation into Gray’s death. On April 27th, Gray’s funeral is held. That night, the city erupts into violence. Cars are set on fire, stores are looted, and police are attacked. Maryland Gov. Larry Hogan declares a state of emergency and the National Guard are called in. In July, Baltimore Police chief Anthony W. Batts is fired.
May: Created partly in response to Ferguson, President’s Obama’s Task Force on 21st Century Policing delivers its final report. The panel’s goal is not to investigate past wrongs, but to recommend best practices. The report emphasizes that communities must have confidence in the police. “Law enforcement culture should embrace a guardian—rather than a warrior—mindset to build trust and legitimacy both within agencies and with the public,” the report notes. More specifically, the report discourages the use of arrest quotas and recommends community surveys to assess attitudes toward police.
July: Missouri enacts what is called the “most sweeping” reform of its municipal courts in its history. The new law limits fines and bans failure-to-appear charges for missing a court date. It also limits the percentage of general operating revenue cities can raise from court fees and fines.
October: 150 of the nation’s current and former law enforcement officials join Law Enforcement Leaders to Reduce Crime and Incarceration, a partnership among the nation’s top police and prosecutors to urge the country to reduce mass incarceration, while providing assurance this can be done without risking increases in crime. The New York Times wrote that the group “represents an abrupt public shift in philosophy for dozens of law enforcement officials who have sustained careers based upon tough-on-crime strategies.”
December: There are numerous reports that Ferguson and the Justice Department have reached a deal to head off a civil rights suit alleging years of unconstitutional policing. But the city, which ran a $2.5 million deficit last year, wants public discussion of the agreement, whose costs will include police re-training of police and an estimated $350,000 for a federal monitor in the first year alone.
April: A significant number of candidates running for President contributed essays to a book on criminal justice reform, entitled Solutions: American Leaders Speak Out on Criminal Justice. New York Times White House correspondent Peter Baker wrote, “The last time a Clinton and a Bush ran for president, the country was awash in crime and the two parties were competing to show who could be tougher on murderers, rapists and drug dealers. But more than two decades later, declared and presumed candidates for president are competing over how to reverse what they see as the policy excesses of the 1990s and the mass incarceration that has followed.”
With the streets still smoldering in Baltimore, Hillary Clinton gives a speech declaring, “It’s time to end the era of mass incarceration.”
July: Former President Bill Clinton concedes that the 1994 Crime Bill, which imposed harsh sentences for many crimes and provided incentive funding to states to build more prison beds, “made the problem worse.”
August: Black Lives Matter protesters prevent Sen. Bernie Sanders from speaking in Seattle. It’s the second time he has been a Black Lives Matter target. Sanders and former Maryland Gov. Martin O’Malley were heckled and interrupted during an appearance in Arizona days before. Four days after Seattle, Black Lives Matter protesters disturb a town hall in Las Vegas featuring former Florida Gov. Jeb Bush.
March: President Obama holds a discussion with David Simon, the creator of “The Wire,” about the war on drugs. “If we can start down this path to a more productive way of thinking about drugs and its intersection with law enforcement, 20 years from now we can say to ourselves, well, maybe we got a little smarter,” President Obama says.
July: President Obama takes three high-profile actions in one week, demonstrating that he wants criminal justice reform to be one of his legacies. On Monday, July 13, the president commutes the sentences of 46 non-violent drug offenders, the greatest number of commutations issued in a single day since Franklin Roosevelt. The next day, President Obama gives a “passionate” address on criminal justice before the NAACP, flatly stating, “Mass incarceration makes our country worse off, and we need to do something about it.” Then, on Thursday, July 16, President Obama becomes the first president to visit a federal prison when he tours a facility in Oklahoma. After chatting with six non-violent drug offenders for about 45 minutes, President Obama remarks, “There but for the grace of God.” And on the last day of the month, President Obama announces a pilot program allowing some prisoners to use Pell Grants for college courses, which Congress had banned in 1994.
October: The President called a group of 150 police chiefs and prosecutors to the White House to discuss crime and reducing imprisonment. During the panel discussion on criminal justice reform, President Obama defends the Black Lives Matter movement. The movement, which sprung up after the deaths of unarmed black men in Florida, Missouri, and elsewhere, has been criticized as being anti-white and by police unions as anti-police. “[W]e as a society, particularly given our history, have to take this seriously,” President Obama says. “And one of the ways of avoiding the politics of this and losing the moment is everybody just stepping back for a second and understanding that the African-American community is not just making this up.”
November: President Obama uses his executive authority powerfully this year and signs an executive order to “ban the box,” prohibiting federal agencies from asking potential employees about their criminal records on job applications. The federal government, President Obama says, “should not use criminal history to screen out applicants before we even look at their qualifications.”
December: President Obama commutes the sentences of 95 federal prisoners and pardons two. The number of commutations granted exceeds those of the last four presidents combined.
October: In the most significant reform measure in recent history, the Senate Judiciary Committee votes 15–5 to send the bipartisan Sentencing Reform and Corrections Act to the floor. Although the measure does not eliminate mandatory minimum sentences entirely – and in fact lengthens mandatory sentences for firearms and domestic violence offenses – it reduces mandatory minimums for nonviolent drug crimes. It also allows current inmates who qualify to cut their sentences by 25 percent, and sets limitations on juvenile solitary confinement. The Act is now pending on the Senate floor and is expected to be taken up in 2016
November: House Judiciary Committee unanimously approves the Sentencing Reform Act, the House version of the Senate sentencing reform bill. The bill is expected to be taken up by the full House in 2016.
Also in November, and two days after it was first introduced, the House Judiciary Committee unanimously passes the anodyne-sounding Criminal Code Improvement Act of 2015. The bill would require prosecutors to prove that defendants “knew, or had reason to believe, the conduct was unlawful.” Backed by Koch Industries and other business groups, the measure would make it harder for prosecutors to pursue corporations for regulatory violations, such as those involving the environment or food and drug safety. On the same day the House committee takes its action, a similar bill is introduced in the Senate. It is now pending before the Judiciary Committee.
Celebrities Speak Up
February: John Legend and Common receive an Academy Award for Best Original Song, “Glory,” from the movie “Selma.” In accepting the award, Legend says, “We know that right now the struggle for freedom and justice is real. We live in the most incarcerated country in the world. There are more black men under correctional control today than were under slavery in 1850.”
October: Ed Norton, Russell Simmons, Shonda Rhimes and other celebrities sign a petition calling for criminal justice reform. In a separate development, Facebook CEO Mark Zuckerberg visits San Quentin. “We can’t jail our way to a just society, and our current system isn’t working,” he writes on Facebook.
November: Grammy award-winning Singer Alicia Keys speaks to members of Congress on Capitol Hill addressing the nation’s problems with mass incarceration after she met with families in Baltimore, Md., a city ravaged by the effects of the war on drugs. “Nowhere in the rest of the western world are juveniles being tried as adults, or even worse, sentenced to life sentences without parole,” Keys said. “Is this who we are now? Is this who we want to be? These are just regular boys and girls, trying to find their way.”
Civil Asset Forfeiture
April: Civil asset forfeiture, a tool that allows law enforcement to seize property they allege has been involved in criminal activity, receives a stunning blow. New Mexico Gov. Susana Martinez (R) signs House Bill 560, the nation’s most comprehensive civil asset forfeiture reform legislation, which effectively abolishes the practice in the state. New Mexico’s new law is heralded as a model of reforming the practice, requiring a criminal conviction before property can be forfeited. It also represents a mammoth victory for those who argue that civil asset forfeiture incentives police to seize cash and property from individuals with no proof of criminal activity as the proceeds are sent to the state’s general fund, in lieu of directly funding local law enforcement budgets.
May: Montana quickly follows suit where Gov. Steve Bullock signed a law, HB 463, reforming the state’s civil asset forfeiture law that now requires the government to obtain a criminal conviction of the property owner before seizing the property through civil asset forfeiture.
Death Penalty Reform
The Death Penalty Information Center reports that there were just 28 executions in six states in 2015—the lowest number since 1991. Eighty-six percent of executions this year were concentrated in these three states: Texas (13), Missouri (6), and Georgia (5). But in a disturbing trend, the Center notes that “[t]wo-thirds of the 28 people executed in 2015 exhibited symptoms of severe mental illness, intellectual disability, the debilitating effects of extreme trauma and abuse, or some combination of the three.”
State Efforts to Reduce Prison Populations
May: Alabama Gov. Robert Bentley (R) signs criminal reform legislation which is projected to cut the state’s prison population by 4,200 over five years. In reality, it’s not much of a trim – the state’s prisons are already running at about 185 percent of capacity. Penalties for some nonviolent property and drug crimes are reduced, and more nonviolent offenders are to be diverted from prison. The state is expected to save a total of $380 million.
Nebraska Gov. Pete Ricketts (R) signs criminal justice legislation, which is projected to cut the state’s prison population by 1,000 over five years. Despite having one of the lowest incarceration rates in the nation, Nebraska’s prisons were operating at 159 percent of capacity at the end of 2014, and are projected to hit 170 percent by 2020. The state is expected to save a total of $300 million in corrections costs.
September: Sen. Ron Latz, (D), announces the creation of a task force he created to focus on solutions to curb Minnesota’s prison overpopulation problem. The task force is currently tackling how to safely reduce its prison population because the state doesn’t have enough space in its existing prisons to house the current population. The state is leaning on county jails to manage an estimated 500-prisoner overflow.
October: Massachusetts announces the formation of a 25-member task force to work with the Council of State Governments on criminal justice reform. Recommendations are expected in mid-2016; with legislation expected in 2017.
New York State’s chief judge announces a series of bail reform measures and urges bail be set low enough so many defendants can await trial at home. While some measures, such as a review of bail after ten days, apply only to New York City, others are statewide, such as lowering or eliminating bail if the prosecution’s case weakens before trial.
December: The Maryland Justice Reinvestment Coordinating Council, a creation of the state legislature to examine how to reduce Maryland’s prison population, releases its final recommendations. One of 25 proposals in the report is one that would create a major change in how drug offenders are sentenced, recommending sentencing guidelines that focus on treatment in lieu of incarceration for those charged with possession.
2015 proved an extraordinarily active year for criminal justice reform in both legislative changes and the public discourse. 2016 will certainly be a year to watch amid fear that some Presidential hopefuls will start to back away from their strong support of criminal justice reform. Already, Presidential hopeful and Sen. Ted Cruz (R-TX) voted against significant criminal justice reform in the Senate Judiciary Committee, while this spring he supported efforts to reform the justice system. Robert Kennedy once said, “Each time a man stands up for an ideal or acts to improve the lot of others or strikes out against injustice, he sends forth a tiny ripple of hope.” As we take stock of what was accomplished to improve the criminal justice system in 2015 and look ahead to 2016, a narrative of tiny ripples of hope emerges. And with President Obama working to ensure justice reform is part of his legacy, criminal justice reform will likely remain front and center.