ABA COMMISSION CITES OVER-RELIANCE ON INCARCERATION,
CALLS FOR NEW "SMART ON CRIME" APPROACH

Recommendations presented to Supreme Court Justice Anthony M. Kennedy

WASHINGTON, D.C., June 23, 2004 - According to a report issued today by a special American Bar Association commission, America's criminal justice systems rely too heavily on incarceration and need to consider more effective alternatives.

"For more than 20 years, we have gotten tougher on crime," said ABA President Dennis W. Archer. "Now we need to get smarter. We can no longer sit by as more and more people-particularly in minority communities-are sent away for longer and longer periods of time while we make it more and more difficult for them to return to society after they serve their time. The system is broken. We need to fix it."

The recommendations, which do not reflect ABA policy, will be considered by the ABA House of Delegates for adoption as policy at its Annual Meeting in Atlanta, August 9 and 10.

Archer today joined Stephen Saltzburg, chair of the ABA Justice Kennedy Commission, in presenting the commission's recommendations to U.S. Supreme Court Justice Anthony M. Kennedy.

The recommendations, the result of a nearly year-long review of issues confronting state and federal criminal justice systems, address four primary sets of issues: sentencing and incarceration issues, racial and ethnic disparities in criminal justice systems, prison conditions and prisoner reentry issues, and pardons and clemency processes.

The commission noted that the United States imprisons more people than any other country in the world. With more than 2.1 million people behind bars, and some 650,000 set to be released this year, the commission urged jurisdictions to invest in programs that help inmates return to communities, provide alternatives to incarceration for offenders who would benefit from substance abuse and mental illness programs, and help eradicate the disproportionate impact "tough on crime" laws have on minorities. The commission also called on Congress to repeal mandatory minimum sentences.

"These recommendations are intended to make our criminal justice systems more effective and to utilize our limited resources more efficiently," said Saltzburg. "For too long we have focused almost exclusively on locking up criminals. We also need to look at the other side of the coin: what happens when they get out. We have to remember that roughly 95 percent of the people we lock up eventually get out. Our communities will be safer and our corrections budgets less strained if we better prepared inmates to successfully reenter society without returning to a life of crime."

The commission noted that about one-third of the more than 650,000 inmates who will be released this year can be expected to return to prison. Many of its recommendations are intended to help jurisdictions find ways to reduce the recidivism rate. One method, the commission noted, is for Congress and state legislatures to eliminate unnecessary legal barriers that make it difficult for some to become productive members of society. People with drug convictions-even minor possession charges, for example-are permanently ineligible for federal student loans, housing assistance or public assistance.

The commission also called on Congress to repeal mandatory minimum sentences, particularly with respect to drug crimes. "Mandatory minimum sentences tend to be tough on the wrong people," said Saltzburg. The commission's report notes that the average federal drug trafficking sentence was 72.7 months in 2001. By comparison, the average federal manslaughter sentence was 34.3 months, the average assault sentence was 37.7 months, and the average sexual abuse sentence was 65.2 months.

For minorities the situation is even more striking. The commission noted that an African American male born in 2004 has a 1 in 3 chance of being incarcerated sometime during his lifetime, compared to a 1 in 6 chance for a Latino male and a 1 in 17 chance for a white male. Nationwide about 10 percent of African American men in their mid-to-late 20s are behind bars. In some cities more than half of young African-American men are under the supervision of the criminal justice system.

The commission recommended numerous steps that jurisdictions across the country can take to address those problems. Among the highlights are proposals to:

• repeal mandatory minimum sentences;
• study and fund alternatives to incarceration for offenders who may benefit from treatment for substance abuse and mental illness
• develop and implement policies and procedures to combat racial and ethnic profiling;
• implement prison policies and programs that, from the beginning of incarceration, assist prisoners in preparing to reenter society by providing, for example, substance abuse treatment, educational and job training opportunities, and mental health counseling and services;
• identify and remove unnecessary legal barriers that prevent released inmates from successfully reentering society;
• establish community partnerships that include corrections and police officers, prosecutors, and community representatives committed to promoting successful reentry into the community and that measure their performance by the overall success of reentry;
• expand the use of executive clemency to reduce sentences, as well as other processes by which persons who have served their sentences can request a pardon, restoration of legal rights and relief from collateral disabilities.
• establish criminal justice racial and ethnic task forces to study and make recommendations concerning racial and ethnic disparity in the various stages of the criminal justice process; and
• establish reentry clinics in law schools in which students assist individuals who have been imprisoned and are seeking to reestablish themselves in the community, regain legal rights, or remove collateral disabilities

Archer formed the ABA Justice Kennedy Commission in October 2003 to address the "inadequacies - and the injustices - in our prison and correctional systems" identified by Justice Kennedy in his speech to the 2003 ABA Annual Meeting in San Francisco. In the months since, the commission has held public hearings in Washington, D.C., San Antonio, and Sacramento, Calif. During those hearings the commission heard testimony from more than 75 judges, prosecutors, defense lawyers, corrections officials, state and federal sentencing commissioners, former inmates, victims advocacy groups, and law enforcement officials.

For more information on the ABA Justice Kennedy Commission or a complete set of the commission's draft recommendations, visit the online media kit.

With more than 400,000 members, the American Bar Association is the largest voluntary professional membership organization in the world. As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law in a democratic society.