The ABA is committed to eliminating bias in the justice system by reforming laws and practices that have an unjustifiably disproportionate impact on protected classes of individuals, e.g., race, ethnicity, gender, sexual orientation, and socio-economic class. ABA policy and research focus on points in the criminal justice system susceptible to bias – arrest, initial appearance, preliminary hearing, indictment, arraignment, trial, sentencing, appeal, and the application of collateral consequences of criminal convictions. The 117th Congress focused on discrimination and bias in several points in the system, including in the areas of police reform, sentencing for powder versus crack cocaine offenses, the special needs of women in corrections, and the over-reliance on incarceration and other harsh sanctions for a person’s inability to pay cash bail, fees, and fines. Many of the bills addressing these topics enjoyed broad bipartisan support in Congress and among organizations across the ideological spectrum. We anticipate they will return early this Congress. We further anticipate hearings and legislation concerning access to and funding for indigent defense as this Congress coincides with the 60th Anniversary of the Supreme Court decision in Gideon v. Wainwright, which established the right to counsel in serious criminal cases.
The ABA supports federal sentencing reform aimed at eliminating mandatory minimum sentences and expanding alternatives to incarceration where appropriate. While legislation has been introduced in recent Congresses to provide “safety valves” to allow judges to depart from mandatory minimum sentences for non-violent, lower-level offenders, mandatory minimums for almost all other offenses remain intact. The ABA also supports “second look” legislation that would allow persons to have their lengthy sentences reviewed once they had served at least 10 years of the sentence, which is important given the absence of parole at the federal level. This year also marks the 50th anniversary of national policy favoring incarceration as the primary strategy for addressing crime that has resulted in the United States incarcerating more people and at a higher rate than any other nation. The 118th Congress is expected to examine these issues, and last year the ABA adopted an agenda for ending mass incarceration policies.
The ABA also seeks reform to correctional conditions and practices. Class action litigation challenging prison conditions during the COVID-19 pandemic produced substantial evidence of chronically poor conditions and corruption within certain federal correctional facilities. This led to bipartisan outrage, oversight hearings, and legislation. The ABA has a range of policies that guide lawmakers in the treatment of prisoners, as well as a roadmap for oversight of prisons. While no legislation passed during the 117th Congress, concern over prison conditions remains bipartisan, and the Bureau of Prisons has a new director who is open to reforms and has pledged to make improvements. This Congress, the ABA will also continue to advocate for the Effective Assistance of Counsel in the Digital Era Act, a bill to ensure that the attorney-client privilege protects electronic messages between lawyers and their federally incarcerated clients.
Promote Successful Re-Entry and Support Victims’ Rights
The ABA supports legislation to curb recidivism by ensuring that incarcerated persons have access to the programs and education they need to make successful transitions back into society. In addition, the ABA supports measures to reduce the collateral consequences of criminal convictions that undermine the success of programs providing employment, housing, nutrition, and related resources necessary for successful re-entry. While some collateral consequences may rationally be related to the underlying offense, most only serve as a second punishment by those who wish to appear to be “tough on crime.” This punitive strategy backfires when these collateral consequences permanently prevent access to programs or civic engagement that are shown to reduce recidivism. The ABA also supports victims’ rights and restorative justice measures that address the harms created by crime.