Report of the Section of Criminal Justice
Be It Resolved by the House of Delegates of the American Bar Association That:
I. Except as provided in paragraph II of this Recommendation, the following “Statement of Proposal” portions of the Final Report by the Criminal Justice Section Task Force on Crime are approved:
A. Gun Control
1. Effective gun control measures endorsed by existing ABA policy should be given a higher priority on the Association’s legislative agenda.
2. The Task Force endorses the effective and proven measures that can be implemented to successfully control the “possession” of handguns.
3. Appropriate penalties must be enacted and imposed as a tool to deter firearms-related crime, and as a means of bringing about compliance with existing gun control laws and those that may be passed in the future.
B. Delays in the Appellate Process
1. Jurisdictions should enact a “Speedy Appeals Act” or provide for such a measure by rule of court. The purpose of this measure would be to set firm deadlines by which direct appeals must be processed. It should be drafted and implemented so as to require courts, prosecutors, and the defense to process direct appeals in a time-efficient manner.
2. Courts should utilize all available technology to speed preparation of trial transcripts, should test alternative methods of recording court proceedings and should institute procedures to assure prompt preparation of transcripts. Improved procedures should be developed to determine whether it is possible to process any appeal without the use of the entire trial transcript.
3. A concerted effort should be made by the bench and the bar to discourage or promptly dispose of frivolous appeals.
4. Bail on appeal should not be granted as a matter of right. The burden should be placed on the defendant, through his or her lawyer, to demonstrate by clear and convincing evidence that (1) the defendant is not likely to flee or to pose a danger to the person or property of others and (2) the appeal raises a substantial question of law or fact.
C. Resources for the Criminal Justice System
1. An effective campaign to combat crime requires that the Federal government make a commitment to provide financial and technical assistance to state and local governments, private non-profit organizations and neighborhood or community-based organizations to enable them to initiate and sustain programs of justice system improvement.
2. Greater financial resources should be allocated by the states and the federal government in order to provide adequate funding for indigent defense services. Furthermore, the American Bar Association should continue to support and press for the creation of a national Center for Defense Services.
Part A – Correctional Facilities
1. The Task Force opposes, as a first priority, the construction of additional prison capacity for solving the violent crime problem of the United States. In support of this general proposition, the Task Force sets forth the following recommended courses of action for meeting correctional needs:
(1) Overcrowding – The Task Force supports financial assistance provided by the federal government to state and local governments, such as proposed by Recommendation No. 54 of the Attorney General’s Task Force on Violent Crime, insofar as it calls for federal funds to be made available to state and local authorities to address the current crisis of overcrowded prisons and jails. These funds should be put to the following uses, in the following order of priority:
(i) development of rational policies concerning the most appropriate use of scarce prison and jail capacity, including means to ensure that judicial sentencing decisions implement those policies. It is recommended that these policies reflect the principle that “The sentence imposed in each case should call for the minimum sanction which is consistent with the protection of the public and the gravity of the crime.” (Standard 18-2.2 of the ABA Standards for Criminal Justice);
(ii) Development of alternatives to incarceration;
(iii) Improvement of current correctional facilities and programs to bring them up to constitutional and professional standards; and
(iv) Only if a state or locality concludes, after exhausting the first three alternatives, that further correctional facilities are essential to the protection of the public, construction of additional prison and jail capacity.
(2) The Task Force endorses increases in the availability of federal funding for vocational and educational programs within state and local correctional institutions, through methods such as those proposed in Recommendation 57 of the Attorney General’s Task Force on Violent Crime.
b) Use of Facilities
(1) The Task Force endorses the transfer of abandoned federal military bases for use by states and localities as correctional facilities on an interim and emergency basis and transfer of federal property for use by states and localities as sites for correctional facilities as suggested by Recommendations 3 and 56 of the Attorney General’s Task Force on Violent Crime. However, no obsolete or substandard federal correctional facilities should be transferred to the states. Furthermore, as a prerequisite to any transfer, the federal government should obtain an assurance that the state will make available adequate resources to operate a transferred facility in accordance with constitutional and professional correctional standards.
(2) The Task Force endorses Recommendation 34, 35, and 36 of the Attorney General’s Task Force on Violent Crime concerning improved availability of local jail facilities to hold federal prisoners pending trial, provided the recommended procedural changes do not dilute current federal minimum standards concerning conditions for federal prisoners.
c) Federal Technical Assistance
The Task Force endorses the provision of increased resources to the National Institute of Corrections to enahance its ability to assist state and local governments to improve their correctional programs, including:
(1) NIC’s proposed role under Recommendation 55 of the Attorney General’s Task Force on Violent Crime in administering any new federal funding program,
(2) Increased NIC resources to investigate current issues in the corrections field, as suggested in Recommendation 55 of the Attorney General’s Task Force on Violent Crime, provided however, that the subjects and priorities for research and program development be set by its Advisory Board following its usual practice of public hearings, and
(3) Adequate resources for correctional training through the National Corrections Academy, as called for in Recommendation 46 of the Attorney General’s Task Force on Violent Crime.
Part B – Prison Industry
2. The development of meaningful programs of prison industry should be encouraged and promoted. These programs should be developed in cooperation with private sector industry management and labor organizations. The programs should include provisions for inmate training, more than a menial or token wage, and rules for allocation of the inmates’ wages to savings, support of dependents, self-support, and victim restitution. Industry profits should also be channeled to improve the industry program. To this end, the Task Force recommends the reconsideration of the provisions on prisoner employment and institutional programs of the ABA Legal Status of Prisoners Standards that were withdrawn prior to the Standard’s adoption.
Part C –
3. To enhance and facilitate the adoption of the recommendations in Part A and Part B, State and Local bar organizations are urged to create a liaison or committee on these issues to work with correctional authorities and offer legal assistance from members of the bar to speed the implementation of these recommendations.
E. Juvenile Justice
As a matter of priority, the justice system must resolve to treat the juvenile offender early and recognize that treatment of juveniles merits an investment at least equal to that accorded the treatment of the adult criminal population. It is recommended that a commitment to this priority be demonstrated through the following courses of action:
1. A combined commitment of State, Local, and Federal resources to juvenile crime.
2. The exercise of a continued active interest by juvenile authorities in a juvenile, even after that juvenile has left the authority’s custody. Furthermore, juvenile justice authorities should assert the responsibilities they have been delegated to exercise in those cases where their jurisdiction over a juvenile is continued, even though the juvenile becomes older than the age at which jurisdiction could have been originally exercised.
3. The following aspects of the Attorney General’s Task Force on Violent Crime should receive special attention for implementation:
Recommendation 8, which reads as follows:
“The Attorney General should direct the National Institute of Justice and other branches of the Department of Justice to conduct research and development on federal and state career criminal programs, including programs for juvenile offenders with histories of criminal violence.”
Recommendation 12, which reads as follows:
“The Attorney General should exercise leadership in informing the American public about the extent of violent crime. In that connection, the Attorney General should seek to build a national consensus that drug abuse, crime, and violence have no rightful place in the schools, and, when these conditions are found to exist, vigorous criminal law enforcement should ensue.”
Recommendation 60, which reads as follows:
“The Attorney General, where appropriate, should expand the use of federal investigative and prosecutorial resources now directed against traditional organized crime activities to the serious criminal activities of youthful street gangs now operating in metropolitan areas of the country.”
F. Role of the Legal Profession
The American Bar Association should encourage and assist state and local bar associations to develop and sponsor projects that will be beneficial to the community in preventing and reducing crime. It would also be useful to develop projects providing exposure and insight into the correctional system. These projects, when possible, should also include the involvement of community and service organizations, and other groups of citizens.
Be It Further Resolved, That:
II. The House of Delegates recognizes the concerns expressed by the Crime Task Force in its Report with regard to the nation’s bail laws, and refers this portion of the Report to the Standing Committee on Association Standards for Criminal Justice for their consideration of it as it relates to the existing ABA Pretrial Release Standards. The portion of the report dealing with the nation’s bail laws appears under the heading, “Judicial Proceedings to Bar Pretrial Release for Cause” and makes the following recommendation:
Judicial officers should be authorized to detain persons without bail pending trial where, after a full hearing, if it appears that (1) the defendant meets criteria which reflect his danger to the community; and (2) there is substantial probability that the defendant committed the crime of violence with which he is charged.