CHAPTER 2:  FEDERAL LAW ENFORCEMENT REFORM--IMPROVE INVESTIGATIVE TECHNIQUES, INCLUDING EYEWITNESS IDENTIFICATION, INCENTIVES TO TESTIMONY, AND INTERROGATION

Short-Term:

1.  Issue an executive order requiring the promulgation of federal standards for federal law enforcement agencies-grounded in best practices and scientifically-supported research-with respect to eyewitness identification procedures, the recording of custodial interrogations, the use of incentivized testimony, and the affirmation of judicial discretion in ordering comparisons of crime scene DNA and fingerprint evidence to relevant databases.  The issuance of such an order would also provide much-needed guidance to state law enforcement agencies.

Specifically the executive order should encompass the following:

A.  Enable federal judicial orders of comparisons of crime scene DNA and fingerprint evidence to relevant databases.  In roughly one-third of the nation's post-conviction DNA exonerations, comparison of the crime scene DNA to the CODIS system pointed specifically and extremely strongly to what seemed to be the real perpetrator of those crimes.  (We say "seemed to be" because in many instances ultimate prosecution of that person was not pursued by the government.)  In many instances, the person identified as the real perpetrator committed additional crimes while the innocent person was the focus of police investigation and prosecution, and ultimately wrongfully convicted.

B.  The adoption and implementation of innocence-related reforms to identify and prevent wrongful conviction of federal crimes in the following areas:

I.  Adopt and implement eyewitness identification procedures shown by reliable, scientifically-supported evidence to minimize the likelihood of misidentification, including:

a.  The issuance of instructions to the witness (i.e. a series of statements provided by the administrator of the identification procedure to the witness that deter the witness from feeling compelled to make a selection);

b.  The requirement that the identification procedure be administered by a blind investigator, or an individual who does not know who the suspect is;

c.  The requirement that a lineup be properly composed (i.e. suspect photographs should be selected that do not bring unreasonable attention to him; non-suspect photographs and/or live lineup members (fillers) should be selected based on their resemblance to the description provided by the witness-as opposed to their resemblance to the police suspect.);

d.  The requirement that immediately after the eyewitness makes an identification, the witness provides a statement, in his own words, that articulates the level of confidence he has in the identification made; and

e.  The requirement that an identification procedure be properly documented (i.e. electronically recorded; photographs of lineup members preserved).

II.  Electronically record all custodial interrogations, during the time in which a reasonable person in the subject's position would consider himself to be in custody and a law enforcement officer's questioning is likely to elicit incriminating responses. This is simply the only way to create an objective record of what transpired during the course of the interrogation process.

III. Regulate the use of incentivized informants by:

a.  Requiring pre-plea and pre-trial hearings that assess reliability and corroborate the content of informant testimony in all cases where informant testimony is intended for use at trial or in connection with a plea agreement;

b.  Requiring that accomplice testimony must be corroborated by non-accomplice testimony and/or evidence-both in the grand jury and at trial-before it can be deemed legally sufficient to establish either probable cause or guilt beyond a reasonable doubt;

c.  Approving jury instructions that seek both to educate jurors about the long-established fallibility of informant testimony and the specific factors that may have influenced the testimony in the particular case at hand;

d.  Requiring that the FBI produce FD-209 forms (regarding contacts with informants) pursuant to discovery; and

e.  Establishing a uniform system of state and federal informant registries, through which law enforcement officers would maintain information about informants, as well as a national informant registry.

C.  Preservation and Safekeeping of Records

a.  Require preservation of notes and similar records.

b.  Require that the FBI create separate FD-302 forms (reporting or summarizing interviews) for each contact.

c.  Enhance agency record-keeping and retrieval systems.

D.  Professionalism

Implement personnel policies that allow supervisors to promote the best and prune the worst.

CHAPTER 3:  FORENSIC SCIENCE REFORM--FEDERAL OVERSIGHT AND STANDARDS

Short-Term:

1.  Immediate issue of an executive order after the release of the NAS report.

The President may issue an executive order to create a federal entity or capacity to (1) conduct research on the validity and reliability of extant forensic techniques, (2) assess the reliability and validity of forensic techniques and establish standards for their use in the courts, and (3) create a system to enforce standards and secure the integrity of the final forensic product through quality assurance, accreditation, training, and the tracking of its use in the courts.

CHAPTER 5:  FEDERAL SENTENCING REFORM

Short-Term:

1.  Enhance sentence reductions for extraordinary and compelling circumstances.

2.  Expand the Residential Drug Abuse Program (RDAP).

3.  Revive executive clemency. (See Chapter 11 on Pardon Power.)

CHAPTER 7:  INNOCENCE ISSUES

Short-Term:

1.   JFAA

A.  The Executive should not create separate, parallel programs that allow potential grant applicants to circumvent the innocence protections articulated in the Justice For All Act, as President Bush had through the President's DNA Initiative.

B.  Loosen current procedural/administrative burdens on potential Bloodsworth applicants (e.g. certification from Chief Legal Officer; applying through State Administering Agencies (SAA's), etc.) to ensure even distribution of post-conviction DNA testing monies across deserving applicant states in need.

Amend U.S. Dep't of Justice, Office of Justice Programs, Nat'l Inst. of Justice, Solicitation: Post-conviction DNA Testing Assistance Program to loosen requirements on potential applicants.

C.  Enforce forensic oversight requirements of the Coverdell grant program by ensuring existence of the appropriate forensic oversight entity and process upon application for such funds, and appropriate responses to allegations filed under that grant program.

Enforce 42 U.S.C. 3797(k)(4).

D. Create a national working group to identify best practices relating to proper evidence preservation, with the goal of providing guidance to the states (see also legislative changes below).

2.   Innocence Commission: Issue an executive order establishing a presidential innocence commission.  Appointments are critical.

CHAPTER 8:  PRISON REFORM

Short-Term:

Examine Use of the Prison System

1. Create a new, bipartisan commission to examine criminal justice practices and goals, and charge the commission to make recommendations regarding the appropriate use of incarceration and the use of alternative forms of punishment.

Long-Term:

Improve Transparency

1. Implement PREA's comprehensive national standards. Authors recommend this action based on current draft of PREA standards.

2. Develop a body to oversee implementation of, and compliance with, PREA standards.

Reduce Recidivism and Strengthen Families

1.  Require the Federal Bureau of Prisons to adopt policies to ensure prisoners have access to services/programs that will reduce barriers to reentry.  These services/programs should include all of those listed in the proposed "reentry behind bars" bill listed below:

a.  drug treatment programs in prison for all drug offenders as well as funding for the Residential Substance Abuse Treatment (RSAT) program to provide access to a complete continuum of addiction treatment, aftercare, and recovery support services;

b.  government-issued ID cards upon release;

c.  enrollment for Medicaid prior to release (so that it is available upon release);

d.  alternatives to incarceration for non-violent offenders;

e.  merit-based reductions in sentences for non-violent offenders;

f.  SSA prerelease agreement;

g.  a requirement that individuals under 18 shall not be housed in adult facilities;

h.  restore Pell Grant eligibility to prisoners;

i.  access to clean needles and condoms in order to reduce the incidence of HIV/AIDS, Hepatitis, and other illnesses;

j.  access to educational programs/job training for every prisoner;

k.  access to religious services;

l.  transportation to prisons for prisoners' families;

m.  opportunities for parents in prison to visit with their children; and

n.  regulate costs of collect calls from prisons.

CHAPTER 9:  PARDON POWER/EXECUTIVE CLEMENCY--BREATHE NEW LIFE INTO THE PARDON POWER

Short-Term:

1.  In consultation with the Attorney General, the President should decide how he wishes to use his pardon power, ensure that all executive officials (including U.S. Attorneys) are on the same page, and initiate at an early date a practice of pardoning on a regular basis.

Long-Term:

1.  Use the pardon power to accomplish strategic policy objectives, by identifying and calling attention to shortcomings in the justice system, and to educate the public about the goals of the justice system.

CHAPTER 10:  RE-ENTRY--ENSURE SUCCESSFUL REINTEGRATION AFTER INCARCERATION

Short-Term:

1. Appropriate full funding for Second Chance Act.

Direct the Department of Justice to repurpose existing FY09 offender reentry funding ($10 million) for Second Chance Act programming (P.L. 110-199).

2.   Extend federal voting rights to people released from prison.

Appoint a commission to document the de facto disenfranchisement of eligible voters with felony convictions in each of the 50 states.

3. Expand employment opportunities for people with criminal records.

Change regulations and guidance from the Departments of Education and Labor to ensure that state and federal in-prison educational and training programs are tied to high growth labor markets and industries.

4.   Expand access to drug and alcohol treatment.

Include a request for increased funding in the President's annual budget request for the Substance Abuse Prevention and Treatment Block Grant.

CHAPTER 11:  PUBLIC DEFENSE REFORMS--MAKE OUR COMMUNITIES SAFER BY SUPPORTING QUALITY PUBLIC DEFENSE SYSTEMS

Short-Term:

1.  Bureau of Justice Assistance of the U. S. Department of Justice should use some of its discretionary funding for providing federal technical assistance and training for state, local and territorial public defense systems, and the attorneys who participate in them, comparable to the federal government's support for the prosecution function.

CHAPTER 12:  DEATH PENALTY/HABEAS CORPUS REFORM

Short-Term:

1.  Stay all federal executions and place a moratorium on federal capital charges pending an independent study of the death penalty system that examines racial disparities, prejudicial errors, adequacy of legal representation, and other inequities in capital prosecutions.

2.  Exempt people with mental illness and/or developmental disabilities from capital prosecutions.

3.  Begin development of an Office of the Defender General, comparable to the U.S.  Department of Justice, to operate independently from the judiciary and select and monitor counsel representing state and federal capital defendants in federal proceedings.

4.  Decentralize the decision to seek capital sentences so that the U.S. Attorney General does not overrule a local U.S. Attorney's decision not to seek the death penalty.  

5.  Begin collection and regular review of all data concerning factors relevant to the imposition of the death penalty.

6.  Support a National Capital Bar of qualified and experienced attorneys to represent capital defendants.

Long-Term:

1. Permanently establish an Office of the Defender General, comparable to the U.S. Department of Justice, to operate independently from the judiciary and select and monitor counsel representing state and federal capital defendants in federal proceedings.

2. Reform the process for presidential pardons to create greater transparency, reduce the backlog, and ensure equal access regardless of wealth or political influence.

3. Support an independent study of the federal death penalty system that examines racial disparities, prejudicial errors, adequacy of counsel, and other inequities in capital prosecutions to make recommendations for legislative reform.

4. Monitor compliance with provisions prohibiting imposition of the death penalty based on race, ethnicity, or national origin, based on, inter alia, statistical evidence.

CHAPTER 13:  JUVENILE JUSTICE REFORMS

The President should:

Short-Term:

1. Create a Federal Taskforce including the Department of Justice (DOJ),the Department of Education, the Department of Labor, the Department of Housing and Urban Development, the Department of Defense, the Department of Health and Human Services, and the Substance Abuse Mental Health Services Administration to prioritize juvenile justice prevention, intervention, and aftercare programs for youth at the cabinet and sub-cabinet levels.

2. Establish a coordinated interagency approach to ensure the provision of community-based mental health and addiction services and treatment including screening, assessment, and data collection regarding mental health and substance abuse conditions for youth who come into contact with the juvenile justice system.[i]

3. Express public opposition to legislation that will widen the net of youth in the juvenile and adult criminal justice systems, over-criminalize and increase federal penalties for minor and nonviolent adolescent misbehavior, exacerbate racial and ethnic disparities in the juvenile and criminal justice systems, and increase incarceration rates in the United States.

4. Promote the enforcement of national standards for safe and humane conditions of confinement in juvenile facilities.

Long Term:

1. Ensure that the Office of Juvenile Justice and Delinquency Prevention (OJJDP) and the states have the necessary resources to comply with the Juvenile Justice Delinquency and Prevention Act's (JJDPA, "the Act") core requirements.

2. Restore the role of OJJDP to serve as a comprehensive agency to (1) support state compliance with the JJDPA mandates and advancing juvenile justice reforms, and (2) provide a full range of services, including conducting research and gathering data, identifying and disseminating best practices and relevant information, leading demonstration projects, providing training and technical assistance, and promoting the expansion of effective practices in the field.

3. Order DOJ to work with Congress on legislative language to strengthen and reauthorize the JJDPA.[ii]

4. Order federal agencies to issue and/or amend administrative regulations to protect vulnerable children and families.

5. Order DOJ to work with Congress to abolish the sentence of life without parole for children convicted of federal crimes.

The Office of Juvenile Justice and Delinquency Prevention should:

Short-Term:

1. Prioritize JJDPA implementation, promotion of state compliance with the Act, and provision of technical assistance to states.

2. Work in conjunction with the Federal Coordinating Council on Juvenile Justice to improve reporting on the prevalence of mental health and substance abuse disorders in the juvenile justice system.

3. Promote collaboration between juvenile justice and other child-serving systems, including education and mental health, to reduce racial and ethnic disparities in the juvenile justice system.

4. Support states and provide technical assistance to improve conditions of confinement and the collection of data regarding restraint and isolation.

5. Collect state and federal data regarding: (1) children who are held in adult jails and prisons, (2) children who are transferred into the adult criminal justice system, (3) the legal mechanism by which youth are transferred, and (4) the effects and collateral consequences of transfer.

Long-Term:

1. Update JJDPA regulations to reflect current priorities and protections.

2. Submit a timely, annual report to Congress and make all documents publicly available on the OJJDP's website.

3. Work with Congress, states, and localities to coordinate gang prevention and intervention programs, and ensure effective use of federal funds for evidence-based and promising programs to prevent and intervene in gang involvement.

4. Issue regulations governing mental health assessments and data collection for youth who come into contact with the juvenile justice system.

5. Assist states in coordinating with mental health systems to ensure that youth in the custody of the juvenile justice system receive timely mental health care when needed.

6. Provide research and data on effective practices regarding juveniles with disabilities, and provide technical assistance to states to address the needs and rights of juveniles with disabilities.

7. Promote research and data on the growing prevalence of girls in and at-risk of involvement with the juvenile justice system, and support state programming to address gender-specific needs.

The Department of Education should:

1. Establish and strengthen programs to encourage and support school behavior management and mental health programs, and to reduce criminalization of school misconduct.

CHAPTER 14:  FIXING MEDELLIN: COMPLIANCE WITH INTERNATIONAL LAW AND PROTECTING CONSULAR ACCESS

Short-Term:

1.   As soon as the Secretary of State is appointed, the President should rejoin the Optional Protocol to the VCCR, reversing the 2005 withdrawal from the Protocol by the Bush administration that occurred as a result of the Avena decision.

2.   The President must work with Congress to pass legislation strengthening the United States' treaty commitments.

Long-Term:

1.   Once the VCCR has been rejoined, the Executive should instruct and train federal law enforcement agents to emphasize the importance of making foreign nationals aware of their rights under VCCR, and specifically their right to consular access.

CHAPTER 15:  VICTIM ISSUES AND RESTORATIVE JUSTICE

Short-Term:

1.   Create Task Force on Restorative Justice to oversee adoption of the restorative justice paradigm as the guiding philosophy underlying policies, practices and funding in the Department of Justice, most particularly in the Office of Justice Programs and the Bureau of Prisons.

Long-Term:

1. Require OVC to revise its Guidelines for Victim Assistance by removing the sentence: "VOCA funds cannot support services to incarcerated individuals, even when the service pertains to the victimization of that individual." (Section IV.E.3.b.)

2. Require OVC to clarify that VOCA funds may be used for victim services to incarcerated individuals who have been or become victims of violent crime.

3. Require OVC to revise its Guidelines for Victim Assistance by removing the sentence: "VOCA assistance funds cannot be used for victim-offender meetings which serve to replace criminal justice proceedings." (Section IV.C.1.h.)

4. Set up advisory committee to OVC for responding to Congressional proposals for VOCA caps and to advise OVC and Congress on appropriate cap levels.

[i] For information and an example of interagency collaboration in the provision of mental health services in one state (California), see http://www.calendow.org/chc/centerscene/pdfs/CHC_CenterSceneFA07_final.pdf and NCCD, A Survey of Mental Health Care Delivery to Youth in the California Juvenile Justice System: Summary of Findings http://www.nccd-crc.org/nccd/pubs/calif_jj_survey_2003.pdf. For further analysis, see Thomas Grisso's Adolescent Offenders with Mental Disorders, The Future of Children, Vol. 18, No. 2, Fall 2008, http://www.futureofchildren.org/usr_doc/Justice_08_02.pdf.

[ii] For more information, please see http://www.act4jj.org/media/factsheets/factsheet_56.pdf.