Enhancing the Fairness and Effectiveness of the Criminal Justice System

The President laid out the case for meaningful juvenile and criminal justice reform that makes our system, fairer, smarter and more cost-effective while keeping the American people safe and secure.  Across the political spectrum, there is a growing consensus to make reforms to the juvenile and criminal justice systems to ensure that criminal laws are enforced more fairly and efficiently.  Unwarranted disparities and unduly harsh sentences undermine trust in the rule of law and offend the basic principles of fairness and justice.  In an era of limited resources and diverse threats, there is a public safety imperative to devote the resources of the criminal justice system to the practices that are most successful at deterring crime and protecting the public. 

This Administration has taken a series of actions to enhance fairness and efficiency at all phases of the criminal justice system and to better address the vicious cycle of poverty, criminality and incarceration that traps too many Americans and weakens too many communities.  Now, it is time for Congress to act.  Meaningful sentencing reform, steps to reduce repeat offenders and reform of the juvenile justice system are crucial to improving public safety, reducing runaway incarceration costs and making our criminal justice system more fair.

A Smarter and Fairer Approach to Charging and Sentencing: A Smarter and Fairer Approach to Charging and Sentencing: The Department of Justice has instituted a series of reforms to make the federal criminal justice system more fair, more efficient and to place a greater focus on the most serious cases and dangerous offenders.  These reforms have helped contribute to the first yearly reduction in the federal inmate population since 1980 and are occurring at a time when nationwide crime rates are lower than in decades.

• In April 2014, the President established a clemency initiative to encourage individuals sentenced under outdated laws and policies to petition for commutation. The President has now granted 89 commutations to individuals serving time in federal prison. Had they been sentenced under current laws and policies, many of these individuals would have already served their time and paid their debt to society. Because many were convicted under an outdated sentencing regime, they served years — in some cases more than a decade — longer than would individuals convicted today of the same crime. At his direction, significant reforms have followed, such as the promulgation of new criteria for potential commutation candidates. In addition, the Department of Justice has raised awareness about how to petition for commutation to ensure that every federal inmate who believes they are deserving of this invaluable second chance has the opportunity to ask for it. The President has now granted more commutations than the previous four presidents combined and has granted more than any president since Lyndon Johnson.

Previous Reforms:

• In 2010, the President signed the Fair Sentencing Act, bipartisan legislation that eased the disparity in the amounts of powder cocaine and crack cocaine required to trigger certain penalties in the federal system, including rigid mandatory minimum sentences.

• In 2010, then-Attorney General Eric Holder reversed the Department of Justice’s previous charging policy – known as the “Ashcroft memo” – that required prosecutors to always charge crimes with the severest possible sentence, and instead instructed that cases should be charged based on the individual circumstances of the offense. 
• In August 2013, the Department of Justice launched the “Smart on Crime” initiative, revising its charging policies to avoid triggering excessive mandatory minimums for low-level, nonviolent drug offenders. Since the launch of the initiative, data has shown that prosecutors are being more selective and focusing on more serious cases with a positive impact on prosecutions.

• The Department of Justice encourages judicial districts to adopt “diversion” and drug court programs that prioritize treatment instead of incarceration in order to ease our overburdened prison system and reduce recidivism.

Enhancing the Credibility and Accountability of the Justice System: The Department of Justice has instituted a series of measures to preserve the credibility and accountability of the criminal justice system so that it continues to maintain the trust of the communities it protects.

• In 2010, the Department of Justice issued unprecedented rules to provide criminal defendants with broad, comprehensive pre-trial evidence - more than the law requires.                    
• As part of the Access to Justice Initiative launched in 2010, the Department has been engaging with a wide variety of new partners – including state, local, tribal, and federal officials, nonprofit organizations, researchers, and experts from across the private sector – to expand research and funding support for the delivery of indigent defense services and to protect the Sixth Amendment guarantee to effective assistance of counsel.
• In May 2014, the Department announced that its federal agents would be required to videotape interrogations of detained individuals in order to ensure suspects’ civil rights are respected during all interviews.
• In September 2014, a new Department-wide policy was put in place that directed federal prosecutors to no longer require, as a part of plea agreements, that defendants waive their right to appeal based on ineffective assistance of counsel.
• In December 2014, the Department issued updated profiling guidance that, among other things, expanded the prohibition to religion, national origin, sexual orientation and gender identity and was applicable to state and local law enforcement agencies working on federal task forces.

Focus on Effective Prisoner Reentry and the Cycle of Incarceration:  Each year, more than 600,000 individuals are released from state and federal prisons. The long-term impact of a criminal record will keep many people from obtaining employment, accessing housing, higher education, loans, and credit – even if they’ve paid their debt to society, turned their lives around, are qualified, and are unlikely to reoffend. To address this issue, then-Attorney General Holder launched the Federal Interagency Reentry Council in 2011. The Reentry Council works to align and advance reentry efforts across the federal government with an overarching aim to not only reduce recidivism and high correctional costs, but also to improve public health, child welfare, employment, education, housing and other key reintegration outcomes. 

Last month, Congress introduced the bi-partisan Second Chance Reauthorization Act which includes language that would codify the Reentry Council and institutionalize this work over the long term. Since 2009, more than 600 Second Chance Act grant awards have been made to state, local, and tribal governments and nonprofit organizations across 49 states to help incarcerated adults and youth rejoin their communities and become productive, law abiding citizens. 

Key Reentry Council Milestones:

Reducing Policy Barriers to Employment and Education 

• In 2012, the Equal Employment Opportunity Commission (EEOC) issued historic anti-discrimination guidance recommending that employers avoid blanket bans on job applicants with a criminal history because of the potential disparate impact on people of color.  The guidance states a criminal record should only bar someone from employment when the conviction is closely related to the job, after considering (1) the nature of the job, (2) the nature and seriousness of the offense, and (3) the length of time since it occurred. 

• The U.S. Department of Labor (DOL) built on the EEOC policy with (a) guidance geared to the public workforce system, and (b) a directive for federal contractors about their obligations regarding the use of criminal records as an employment screen.  DOL also launched the Linking to Employment Activities Pre-release (LEAP) program, a pilot initiative that provides specialized services to prepare incarcerated individuals for employment and increase their opportunities for successful reentry upon release. 
• The U.S. Department of Housing and Urban Development (HUD) sent a letter to public housing authorities in 2011 encouraging them to allow people with criminal records to rejoin their families in public housing programs, when appropriate. 
• The Office of Personnel Management (OPM) developed a best practices guide regarding contractor applicants who support Federal agencies. 
• The Small Business Administration (SBA) proposed to amend their eligibility rules for MicroLoans, so that people on probation and parole are not automatically excluded. 
• The Federal Trade Commission (FTC) has taken cases and published documents for job seekers about their rights under the Fair Credit Reporting Act when it comes to background checks.
• In 2015, the U.S. Department of Education issued a letter to campus financial aid professionals to clarify that otherwise eligible youth who are confined in juvenile justice facilities are eligible to receive Federal Pell Grants.

Addressing Collateral Consequences of a Conviction

• NIJ (prior to the Council’s formation) funded a project with the American Bar Association which identified 46,000 statutes and regulations that impose collateral consequences on those with a conviction, creating barriers to employment, housing, benefits, and voting.  In 2011, then-AG Holder wrote to every state Attorney General, asking them to assess their state’s statutes and policies to determine if any should be eliminated. 
• In 2013, DOJ directed leadership across the Department to take collateral consequences into account when proposing any new regulation or guidance. 

Increasing Reentry Service Access to Incarcerated Veterans

• The Department of Veterans Affairs (VA) revised its administrative polices that limited VA prison outreach to the six months prior to release.  Reentry assessment and planning can now begin day one, thus enhancing the odds of successful reentry. The VA also expanded eligibility for its health care services to those who are in halfway house settings and built a web-based system that allows prison, jail, and court staff to quickly and accurately identify Veterans among their populations.  

Support for State and Local Law Enforcement: The Administration is committed to ensuring that state and local law enforcement receive the funding, training and support they need from the federal government to serve their community and to promote officer safety and wellness.

• From 2009 through 2014, the Department of Justice’s Community Oriented Policing Services (COPS) Office has funded the addition of nearly 10,000 community policing officers across the country.
• In fiscal year 2014, the Department of Justice provided $276 million of critical Justice Assistance Grant (JAG) funding to state, local and tribal governments.  The JAG Program is the primary provider of federal criminal justice funding to state and local jurisdictions and supports a range of program areas including law enforcement, prosecution and court programs, prevention and education programs, corrections and community corrections, drug treatment and enforcement, crime victim and witness initiatives, and planning, evaluation and technology improvement programs.
• The Department of Justice announced earlier this year a $263 million initiative to expand funding and training to law enforcement agencies to advance community policing initiatives.  The proposal includes a $75 million investment over three years that could help purchase 50,000 body-worn cameras.  In May 2015, the Office of Justice Programs announced a $20 million solicitation to help law enforcement agencies purchase body-worn cameras, and its Bureau of Justice Assistance released an online toolkit to help communities implement body-worn camera programs.
• In December 2014, the President created a Task Force on 21^st Century Policing to strengthen trust between law enforcement officers and the communities they serve and protect while enhancing public safety. The Administration is working with federal agencies, law enforcement organizations, civil rights organizations and state and local government to promote the adoption of the Task Force’s recent recommendations by the approximately 18,000 state and local law enforcement agencies around the country.
• In March 2015, the Administration launched the Police Data Initiative to encourage law enforcement agencies around the country to publicly release data that they had not previously released concerning stops and searches, uses of force, officer involved shootings, citations, complaints and other police actions.  Already, two dozen agencies have agreed to release new data and participate in a peer-learning network to share successful innovations. For example, Seattle, WA hosted a workshop for law enforcement agencies to dive deeply into technology and data issues around body worn cameras. Dallas, TX opened twelve years of detailed officer-involved-shooting data with crucial context about why the Chief of Police is releasing the data, how such incidents are investigated, and what the police department is doing to reduce deadly force incidents. And, New Orleans, LA is pre-releasing police data sets to a group of young coders from under-represented communities who are providing feedback on the data and prototyping tools that will improve citizen access to this data. The Police Data Initiative is also helping Departments across the country better leverage data and technology, such as early warning systems and enhanced body camera analytics, to identify problems, increase internal accountability, and decrease inappropriate uses of force.

Working with State and Local Law Enforcement to Build Community Trust:  The Administration has worked with state and local law enforcement agencies to build trust while enhancing public safety.

• The Violence Reduction Network (VRN) is a meaningful approach to violence reduction that brings together city police departments with Justice Department law enforcement and grant-making components to reduce violence in some of the country’s most violent cities. DOJ works in partnership with police chiefs, researchers and other local partners on effective approaches to accomplishing their violence reduction strategies. VRN is currently partnering with Camden, NJ; Chicago, IL; Detroit, MI; Oakland/Richmond, CA and Wilmington, DE and will expand to other cities this year.
• DOJ’s Office of Community Oriented Policing Services’ Collaborative Reform Initiative for Technical Assistance improves trust between police agencies and the communities they serve by providing a means to organizational transformation around specific issues.  Agencies selected to participate must demonstrate a commitment to address the recommendations and undertake significant reform efforts.  Collaborative Reform efforts have already been completed in Las Vegas, NV, which served as the pilot site for the program, and work continues in locations such as Philadelphia, PA; Spokane, WA; St. Louis County, MO; Fayetteville, NC; Salinas, CA and Calexico, CA.
• The National Initiative for Building Trust and Justice was launched in September 2014 as a multi-faceted approach to help strengthen the relationship between law enforcement and the communities they serve by promoting procedural justice, reducing implicit bias and supporting racial reconciliation.  The National Initiative is working intensively in Birmingham (AL), Fort Worth (TX), Gary (IN), Minneapolis (MN), Pittsburgh (PA) and Stockton (CA), and is providing technical assistance to localities that are not official demonstration sites. 
• In January 2015, the President created the Law Enforcement Equipment Working Group to identify actions that can improve Federal support for the acquisition of controlled equipment by law enforcement agencies (LEAs).  In May 2015, the President received and accepted the recommendations from the Working Group which among other things: created a prohibited equipment list LEAs will no longer be able to acquire from the federal government; provided a consistent Government-wide controlled equipment list; standardized Federal procedures governing provision of controlled equipment and ensured that LEAs have proper policies and training in place regarding the appropriate use of controlled equipment.  The recommendations will be implemented by the beginning of Fiscal Year 2016.

Commitment to Juvenile Justice Reform: The Administration continues to pursue efforts to improve the juvenile justice system and prioritize juvenile reentry, including supporting efforts to reduce recidivism and enhance post-juvenile systems education, job-training, parenting skills, counseling and health care. 

• In 2009, President Obama directed the Justice Department to launch the National Forum on Youth Violence Prevention which brings together a network of communities and federal agencies to reduce youth violence and gang activity, share information, build local capacity and improve public safety.
• In January 2014, the Departments of Education and Justice released guidance to schools aimed at increasing school discipline policies that support improved behavior in students while minimizing the school to prison pipeline.
• In June 2014, the Department of Justice’s Office of Juvenile Justice and Delinquency Prevention announced a suite of Smart on Juvenile Justice grants focused on implementing juvenile justice reforms to maximize cost savings and strategically reinvest the savings while supporting statewide system change.
• In December 2014, the Departments of Education and Justice released guidance aimed at providing high-quality educational programming in juvenile justice secure care settings. 

My Brother’s Keeper Initiative: Reducing violence and providing a second chance is a core goal of the President’s My Brother’s Keeper initiative, and it has been a significant focus of the policy and community-based work taking place. Efforts to act in this area have included a wide array of policy guidance, grant programs, national forums and task forces to raise awareness and seek solutions to violence and incarceration. Also, as part of the My Brother’s Keeper Community Challenge a place-based initiative where more than 200 communities have committed to implementing cradle-to-college and career strategies to tackle opportunity gaps, more than forty communities have committed to developing strategies to ensure all youth remain safe from violent crime. Some examples include:

• In Washington, DC, the local partners leading the My Brother’s Keeper Community Challenge process on behalf of the City, has created a partnership with the D.C. police department to provide trainings for officers before they leave the academy, focused on how to engage with young people in the community.
• Indianapolis, IN has committed to provide training for all criminal justice partners: police, prosecutors, public defenders, judges, probation, parole and community corrections on racial bias and disparities in order to improve cultural competence of the system. They have also joined the Annie E. Casey Foundation’s Juvenile Detention Alternatives Initiative (JDAI), a bipartisan movement for juvenile justice reinvestment—the reallocation of government resources away from mass incarceration and toward investment in youth, families, and communities.
• In Philadelphia, PA the First Judicial District, the Philadelphia School District, the Police Department and the Department of Human Services seek to deliver a 50 percent reduction in the number of children arrested, and to eliminate the racial disparity in these arrests and other school-based disciplinary actions. Their plan, the School Diversion Program, allows students who have committed first time low-level delinquent acts on school premises to enter intensive prevention services rather than face arrest.
• In Boston, MA Mayor Martin J. Walsh with the support of The Boston Foundation announced the launch of a strategic and comprehensive city-wide public safety plan. They pledged $3.1 million in funding for this effort over three years, which allowed for the integration of the StreetSafe program into a citywide expansion of on-the-ground outreach to youth at risk of violent crime, in coordination with the Boston Police Department (BPD) and the Mayor’s Public Safety Initiative.