A blog by Miami Criminal Defense Lawyer Brian Tannebaum. Commenting on criminal law issues of local and national interest.

Wednesday, August 05, 2009

The AG Speaks About Reforming Criminal Justice, And Now, American Idol

This past Monday at the ABA annual meeting, Attorney General Eric Holder spoke of things that anyone practicing in the criminal justice system, prosecutors, defense lawyers, and judges, know to be true.

The entire speech is here. You should read it. All of it.

He made much sense. He spoke the truth. Politicians everywhere are fearing the possibilities. Today's politician gets elected on one issue - public safety. Public safety means putting people in jail, period.

No one in the general public really cares, nor will much change. No one around my courthouse is even talking about what he said. How about yours?

He said that "too often our public debates about law enforcement policy become mired in rhetoric or recrimination, when they instead should focus on reform and on identifying innovative solutions to our common problems."

Reform? Isn't that what building more prisons is all about?

"We must move beyond the narrow parameters that have constrained our nation’s debate about criminal justice policy over the last several decades. There is no doubt that we must be "tough on crime." But we must also commit ourselves to being 'smart on crime." "It is time to move past politics and ideology, and to move forward to a criminal justice system that is predicated on the fact that we need it to be fair and effective. In sum, we need to adopt what works."

Question: how does moving beyone narrow parameters of the guilty should all rot in jail and instead adopting what works, like rehabilitation, get politicians elected?

"Getting smart on crime requires talking openly about which policies have worked and which have not. And we have to do so without worrying about being labeled as too soft or too hard on crime. Getting smart on crime means moving beyond useless labels and catch-phrases, and instead relying on science and data to shape policy."

Ut-oh. We're not going to have to talk about "career or sex offenders, are we?" We're not going to have to put money in to public safety that is effective in preventing crime? We're not going to have to help those who are released back into society from prison (most)?

"Many lawmakers in the 1980s responded (to the increase in violent crime) by declaring, in rhetoric and through legislation, that we needed to get "tough on crime." States passed truth-in-sentencing and three-strikes-and-you’re-out laws. Some state parole boards became more cautious, while other states eliminated discretionary parole altogether. And the federal government adopted severe mandatory minimum sentencing laws, eliminated parole, and developed the federal sentencing guidelines."

Oh no, we're not going to look at those things? What am I going to say in my campaign mailer, that I've done anything about education or healthcare?

"The federal government and the states spent billions of dollars for new prison construction to house the rapidly increasing number of persons convicted or sentenced under these policies. The results were dramatic. The number of inmates in American prisons increased seven-fold from 1970 to the present. Today, one out of every 100 adults in America is incarcerated – the highest incarceration rate in the world.

Don't say that Eric. That just causes people to look closer at our prison spending, and, well, we just can't have that debate. Prisons=jobs=politicians look damn good.

"....just as everyone should agree that incarceration is – and will continue to be – part of the answer, everyone should also agree that it is not the whole answer. And so, we at the Department of Justice will continue to put the people who threaten our communities where they belong – behind bars. But we will also recognize that imprisonment alone is not a complete strategy for enforcing our nation’s criminal laws, and we will act on that fact."

Can't wait. Pardon me if I just carry on with my practice without holding out much hope for a visable reduction in those incarcerated after a conviction, for anything.

"Many jurisdictions simply cannot afford the monetary costs of focusing exclusively on incarceration, to say nothing of the social costs associated with high rates of imprisonment."

Oh Eric, there's always money for jail. Always.

So what can we do to lower the crime rate further, to make American communities safer, and to get smarter on crime? We need to add new tools and new strategies to our existing efforts to fight crime. One of these strategies is to look several steps past the point where we put people in prison, and to consider what happens to those people after they leave prison and reenter society.

"We know that offenders who have participated in the federal Bureau of Prisons’ residential drug abuse treatment program are 16% less likely to be re-arrested, have their supervision revoked, and be returned to prison, than similar inmates who did not receive such treatment before their reentry into society. They are also less likely to use drugs once released. We also know that inmates who work in prison industries – which operate at no cost to the taxpayer – are 24% less likely to commit crimes again, than inmates who do not work in the program. The Bureau of Prisons’ programs designed to address educational deficiencies – ranging from Adult Basic Education to high school level classes – are also effective in reducing recidivism. Inmates who participate in these programs are 16% less likely to commit crime again compared to those who do not. And inmates who are released through halfway houses are more likely to be gainfully employed, and therefore less likely to commit crimes again, than inmates who are released from prison directly into the community."

Oh no, programs? Can we still use the "those bums get cable TV" talking points?

Here's the punch line: (Hold the laughter)

"In other words, being smart on crime means understanding that our work to prevent crime does not end when prison time begins. It means working to develop policies – rooted in data – to address what happens after incarceration in order to prevent the next crime before it occurs." Under my watch, the Department of Justice will likewise embrace modern, evidence-based methods to drive our policy-making process as well as our enforcement efforts to protect our fellow citizens.

"One specific area where I know we can do a much better job is the way in which we deal with non-violent drug offenders. We know that people convicted for drug possession or for the sale of small quantities of drugs compose a significant portion of the prison population."

Yeah, but I thought that was a lie. My politicians tell me that all drug offenders in prison are actually very violent people, or will be if we let them out. Especially if we let them out a few months early.

"Although this Administration is still in its first months, we have already started to implement a data-driven, non-ideological approach to crime. For example, I have asked the Deputy Attorney General to conduct a comprehensive, evidence-based review of federal sentencing and corrections policy. Specifically, the group is examining the federal sentencing guidelines, the Department’s charging and sentencing advocacy practices, mandatory minimums, crack/powder cocaine sentencing disparities, and racial and ethnic disparities in sentencing. The group is also studying alternatives to incarceration, and strategies that help reduce recidivism when former offenders reenter society. We intend to use the group’s findings as a springboard for recommending new legislation that will reform the structure of federal sentencing.

Oh Eric, you are dreaming.

"We no longer must choose between more prisoners or more crime: we can reduce our dependence on incarceration and we can reduce crime rates. At the same time we can increase the integrity of our criminal justice system."

I can't wait.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com


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  1. Anonymous12:12 PM

    So let's ban all the guns says Holder that way no one can kill anyone else!

    Oh wait, I forgot about knives, clubs, fists and pork rinds.

    Guess we'll have to ban all of those too.

  2. As a criminal defense lawyer in Riverside California I agree with this.