Legal Commentary

I was thinking yesterday morning as I was listening to NPR, how difficult it will be for Congress and the President to agree to a solution to our medicare/medicaid and social security problems.  With all of the vested interests involved (particularly the type who vote: ie, older people who rely on their medicare and social security), it will be extremely "tough" (Obama's word) to come to some sort of compromise on badly needed budget cuts--particularly as we approach an election year.  These types of compromises will also be difficult for states.

Some organizations working on reforms are targetting the budget-conscious policy maker.  A recent Wall Street Journal blogpost featured a group called, "Smart on Crime."  Smart on Crime is a nonpartisan coalition of 40 organizations and individuals composed of the "leading voices in criminal justice policy" and representing diverse perspectives including: the ACLU, the Heritage Foundation, Amnesty International, and the American Bar Association.

Smart on Crime recently released a very helpful and concise 318- page booklet with policy proposals in 16 areas for Congress.  These areas range from overcriminalization and grand juries to conviction of the innocent and indigent defense.  The goal of this book(let) is to recommend cost-effective, fair and evidence-based strategies to improve the U.S. criminal justice system.  Just to give you one example of an area ripe for reform--overcriminalization. Problem: addressing the 4,450 criminal offenses scattered through the federal criminal code that our reactionary Congres amends each year that fail to make us safer.  The solution: the report recommends that Congress "enact mandatory reporting legislation" for all new criminal laws requiring the government to produce a report that discusses the justification, costs, and benefits of this new criminal law.  Seems like a decent idea.  An even better idea in the report tackles one of the biggest criminal justice issues we face: mass incarceration.  It encourages Congress to cut recidivism and increase rehabilitation through drug treatment, alternatives to incarceration, access to education, and job training.  All great ideas.

My biggest critique of the Smart on Crime report and even the new Right on Crime campaign:  Zero mention of bail reform.  Increasing programs that allow people to be released on bail rather than detained (pretrial supervision, ankle bracelets, GPS trackers) would a huge step towards reducing our incarceration problem.  The majority of people in our nation's jails are pretrial detainees, not convicts.  This initial detention often leads to more detention: people who are detained pretrial more often get custodial sentences, those who are detained often get longer prison terms, and those detained have less leverage in plea bargaining--again resulting in longer detention periods.  So if we are going to seriously tackle mass incarceration, it only makes sense to release more people pretrial. And unlike the discussion over medicaid and medicare, it does not have to be costly or disproportionately impact any voting block.  We don't have to pay more for defendants to be released pretrial as it is obviously more expensive to detain them. But what's the argument against releasing more defendants pretrial?  Well, some would argue that there *is* a cost to releasing more defendants: more crime--which is obviously costly to society.  Plus, others would say that people accused of crimes are probably dangerous and most of us would rather have them safely locked up, thank you.  Admittedly, some of this is true.  But what if I was to tell you that we can actually release a lot more defendants and maintain our levels of pretrial crime?  Well, I can.  According to a recent empirical study that I conducted with Frank McIntyre, we can release up to 25% more defendants and still reduce violent crime levels and overall pretrial crime.  Obviously there should be some careful consideration at a local level to ensure this is done properly.  But--in my opinion--one not-so-tough solution to budget crises is releasing more defendants pretrial.