CHAPTER 1:  OVERCRIMINALIZATION OF CONDUCT, FEDERALIZATION OF CRIMINAL LAW, AND THE EXERCISE OF ENFORCEMENT DISCRETION 

Short-Term: 

1.  Enactment of procedural rules in House and Senate Chambers that require all new proposed criminal legislation to be referred to Judiciary Committees.

2.  Passage of the Attorney-Client Privilege Protection Act of 2008, which already passed the House on rules suspension and enjoys wide bi-partisan support in the Senate.

Long-Term: 

1.  Passage of legislation modeled on H.R. 1998, 107^th Congress, "Federalization of Crimes Uniform Standards Act of 2001." 

2.  Passage of legislation modeled on Model Penal Code's definitions of "knowingly" and "willfully."

3.  Limiting corporate criminal liability to situations in which management knew of or condoned employee's behavior, or where the misconduct was widespread or high-level.  Legislative solution in House and Senate Judiciary Committees. 

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

Long-Term: 

1. Pass legislation to enable federal judicial orders of comparisons of crime scene DNA and fingerprint evidence to relevant databases.  

2. Pass legislation requiring federal law enforcement agencies to adopt and implement eyewitness identification procedures shown by reliable, scientifically-supported evidence to minimize the likelihood of misidentification (see details of improved procedures in description in above section 2-I).  Such legislation would allow the court to render inadmissible any identification yielded from a procedure that failed to comply with those recommended procedures outlined in the legislation. 

3. Pass legislation requiring federal law enforcement agencies to 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.  Such legislation would allow the court to render inadmissible any untapped confession. 

4. Pass legislation that would regulate the use of incentivized informants by implementing the procedures outlined in section 2-III above.  Such legislation would require the court to render inadmissible any incentivized testimony that did not comply with the mandate outlined in the legislation. 

CHAPTER 3:  FORENSIC SCIENCE REFORM-FEDERAL OVERSIGHT AND STANDARDS

Short-Term:

1. Immediate drafting and filing of legislation after the release of the NAS report. 

• Create a federal entity or capacity to (1) conduct research on the validity and reliability of extant forensic techniques, (2) asses 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.

Amend 42 U.S.C. - New Chapter

This section was proposed because a number of pieces of criminal justice legislation have been codified under Title 42.

CHAPTER 4:  FEDERAL GRAND JURY REFORM

Long-Term: 

Congress should pass comprehensive legislation to strengthen the grand jury's screening function, empower grand jurors, and protect the rights of witnesses, subjects and targets of grand jury investigations: 

1.  Allow a witness before the grand jury who has not received immunity to be accompanied by counsel in his or her appearance before the grand jury.

Amend Rule 6 of the Federal Rules of Criminal Procedure

2.  Require that prosecutors present evidence in their possession that tends to exonerate the target or subject (other than prior inconsistent statements or Giglio material).

Amend Rule 6 of the Federal Rules of Criminal Procedure

3.  Prohibit prosecutors from presenting to the federal grand jury evidence they know to be constitutionally inadmissible at trial because of a court ruling on the matter.

Amend Rule 6 of the Federal Rules of Criminal Procedure

4.  Provide a target or subject of a grand jury investigation the right to testify before the grand jury.

Amend Rule 6 of the Federal Rules of Criminal Procedure

5.  Provide witnesses the right to receive a transcript of their federal grand jury testimony.

Amend Rule 6 of the Federal Rules of Criminal Procedure and 18 U.S.C. §3500

6.  Prohibit the practice of naming persons in an indictment as unindicted co-conspirators to a criminal conspiracy.

Amend Rule 6 of the Federal Rules of Criminal Procedure

7.  Require that prosecutors give Miranda warnings to all non-immunized subjects or targets called before a federal grand jury.

Amend Rule 6 of the Federal Rules of Criminal Procedure

8.  Require that all subpoenas for witnesses called before a federal grand jury be issued at least 72 hours before the date of appearance, not to include weekends and holidays, unless good cause is shown for an exemption.

Amend Rule 6 of the Federal Rules of Criminal Procedure

9.  The federal grand jurors shall be given meaningful jury instructions, on the record, regarding their duties and powers as grand jurors, and the charges they are to consider. All instructions, recommendations and commentary to grand jurors by the prosecution shall be recorded and shall be made available to the accused after an indictment, during pre-trial discovery, and the court shall have discretion to dismiss an indictment, with or without prejudice, in the event of prosecutorial impropriety reflected in the transcript.

Amend Rule 6 of the Federal Rules of Criminal Procedure

10.  Prohibit the practice of calling before the federal grand jury subjects or targets who have stated personally or through counsel that they intend to invoke the constitutional privilege against self-incrimination.

Amend Rule 6 of the Federal Rules of Criminal Procedure 

CHAPTER 5:  FEDERAL SENTENCING REFORM        

Long-Term:

1.  Eliminate the crack cocaine sentencing disparity.

2.  Improve and expand the federal "safety valve."

3.  Create a sunset provision on existing and new mandatory minimums.

4.  Clarify that the 924(c) recidivism provisions apply only to true repeat offenders.

5.  Expand alternatives to incarceration in federal sentencing guidelines.

6.  Enact a deferred adjudication statute.

7.  Support alternatives to incarceration through expansion of federal drug and other problem solving courts.

8.  Clarify good time credit.

9.  Expand the amount of good time conduct credit prisoners may receive and ways they can receive it. 

10.  Expand elderly prisoners release program.

11.  Support racial impact statements as a means of reducing unwarranted sentencing disparities.

12.  Support analysis of racial and ethnic disparity in the federal justice system

13.  Add federal public defender as an ex officio member of the United States Sentencing Commission. 

CHAPTER 6:  ASSET FORFEITURE REFORM

Long-Term: 

Civil Asset Forfeiture Reform

Congress should pass comprehensive legislation to curb abuses of federal and state forfeiture powers and fulfill the original intent of the bipartisan Civil Asset Forfeiture Reform Act and related state reforms. 

1. Amend the federal equitable sharing law, under which state police circumvent state forfeiture laws by turning over the forfeiture to federal law enforcement authorities in exchange for a percentage of the proceeds.

Amend 21 USC § 881(e)  

2. Clarify CAFRA's fee shifting provision, which has been undermined by Second Circuit case law, to fully enforce the government's obligation to pay attorney fees to prevailing claimants.

Amend 28 U.S.C. § 2465(b)(1) 

3.   Close loopholes, created by judicial decisions, in the statutory right to sue the    government (i.e., waiver of sovereign immunity) for negligent or intentional damages to or loss of seized property in its custody.

Amend 28 U.S.C. § 2680(c) 

4.   Explicitly waive sovereign immunity where the government forfeits property without proper notice to the owner or destroys, sells or loses property without having forfeited it.

Amend Rule 41(g) of the Federal Rules of Civil Procedure 

Congress could prohibit or restrict the use of Justice Department funds to forfeit property under the equitable sharing law. 

Criminal Asset Forfeiture Reform

Congress should pass comprehensive legislation to ensure fair procedures for the accused and third parties in criminal forfeiture proceedings, and curtail the government's use of criminal forfeiture as an end run around civil asset forfeiture reforms. 

1. Safeguard the accused's right to a fair procedure for determining the amount of any criminal forfeiture.

a. Require fair notice through bill of particulars.

b. Provide right to challenge ex parte restraining orders.

c. Restrict the use of hearsay.

Amend Rules 7 and 32.2 of the Federal Rules of Criminal Procedure

2. Limit the use of money judgments in lieu of forfeiture of specific property

a. Provide the right to a jury trial.

b. Limit the use of joint and several liability.

c. Clarify that the relation back principle does not apply to substitute (clean) assets.

d. Limit the amount of money judgments to the defendant's known current assets, unless the government proves that the defendant has concealed assets.

Amend Rule 32.2 of the Federal Rules of Criminal Procedure and 21 U.S.C. § 853.

3. Safeguard the rights of third parties with interests in the property the government seeks to forfeit

a. Provide the right to a jury trial.

b. Allow third party with standing to contest the forfeiture on the merits.

c. Require a finding that the defendant has some forfeitable interest in the property before a preliminary order of forfeiture is entered.

d. The following should be treated like secured interests and given priority over the government's forfeiture claims:

a.   Court-ordered child support obligations; and

b.   Claims for compensation by the defendant's employees.

Amend Rule 32.2 of the Federal Rules of Criminal Procedure and 21 U.S.C. § 853 

CHAPTER 7:  INNOCENCE ISSUES

Short-Term:

1.   Support continued authorization and appropriation of Bloodsworth funding, as well as three other programs governed by Section 413 innocence protection requirements, through FY2014.

• Reauthorize 42 U.S.C.A. § 14136e (Kirk Bloodsworth DNA Assistance Grant Program).
• Reauthorize three remaining grant programs governed by Sec. 413 innocence protection requirements:
  • DNA Training and Education for Law Enforcement, Correctional Personnel and Court Officers (42 U.S.C.A. § 14136);
  • DNA Identification of Missing Persons (42 U.S.C.A. § 14136d); and DNA Research & Development (42 U.S.C.A. § 14136b). 

2.   Ensure maintenance of present statutory forensic oversight requirements for Paul Coverdell grant program. (H.R. 5107, Section 311(b))(2004). 

3.   Create a national working group to identify best practices relating to proper evidence preservation, with the goal of providing guidance to the states.

Amend 42 U.S.C.A. § 14136e (Kirk Bloodsworth DNA Assistance Grant Program). 

Long-Term: 

1.   Innocence Commission: Introduce and pass legislation that would establish an independent, federal innocence commission.  Appropriate appointments are critical. 

2.   Compensation: Pass S. 2421, H.R. 7021 (110^th Congress), The Wrongful Convictions Tax Relief Act. 

Twenty-five states across the country have passed laws that compensate men and women who have been proven innocent after spending years behind bars for crimes they did not commit. S. 2421 (introduced and referred to the Committee on Finance in December) and H.R. 7021 (referred to House Committee on Ways and Means in September, 2008) would clarify federal tax law so that compensation awards received through those means are not subject to federal taxes.  The legislation would also exempt exonerated individuals who do not have any prior felony convictions from paying income taxes on up to $50,000 earned per year following release (or $75,000 if the wrongfully convicted person files a joint tax return.)  This aspect of the legislation would benefit all wrongfully incarcerated individuals, regardless of whether they reside in a state that provides compensation through a statutory scheme.  Finally, the legislation would also provide the wrongfully convicted with an income tax credit on payroll taxes paid over the same earnings.  The benefits of the proposed legislation would remain in effect for the number of years an individual spent wrongfully incarcerated, or fifteen years, whichever is less.

Amend Part III of subchapter B of chapter 1 of the Internal Revenue Code of 1986. 

CHAPTER 8:   PRISON REFORM 

Short-Term: 

Improve Transparency 

1.  Reauthorize Deaths in Custody Reporting Act (DICRA)

Reauthorize 42 USC 13701 note

2.  Hold an oversight hearing on conditions at Bureau of Prison facilities that could include some of the following areas of concern:

a.  Federal death row conditions;

b. Medical care at federal facilities, including staffing ratios;

c.  Discretion given to wardens to limit First Amendment rights through special administrative measures (SAMS); and

d.  Treatment of prisoners with mental illness and addition problems.

3.  Fully fund PREA and appropriate needed resources for body to oversee implementation of/compliance with standards.

4.  Fund National Institute of Justice research to look into state/local oversight models to determine which are most successful.  

Reduce Recidivism and Strengthen Families 

1.  Draft and introduce legislation to track the success of former BOP prisoners reentering society (in terms of employment, housing, education, recidivism, etc.). This is a recommendation of the Commission on Safety and Abuse in America's Prisons. 

Examine Use of the Prison System 

1.  Hold a series of hearings regarding the appropriate use of incarceration and the use of alternative forms of punishment. 

Long-Term: 

Fix PLRA-stand-alone legislation (or these provisions tacked on to another vehicle) that includes the following:

1.  Repeal PLRA provision that prohibits prisoners from bringing lawsuits for mental or emotional injury without demonstrating a "physical injury."

Repeal 42 U.S.C. § 1997e(e)           

2.  Amend the requirement for exhaustion of administrative remedies to require prisoners to present their claims to responsible prison officials before filing suit, and, if they fail to do so, require the court to stay the case for up to 90 days and return those claims to prison officials to provide them the opportunity to resolve the complaint administratively.

Amend 42. U.S.C. § 1997e(a) 

3.  Repeal the provisions extending the PLRA to juveniles confined in juvenile facilities. 

Amend 18 U.S.C. § 3626(g), 28 U.S.C. §§ 1915(h), 1915A(c), 42 U.S.C. § 1997e(h)

4.  Restore judicial discretion to grant the same range of remedies in prisoners' civil rights actions that they possess in other civil rights cases.

Repeal 18 U.S.C. § 3626 

5.  Allow prisoners who prevail on civil rights claims to recover reasonable attorney's fees like others whose civil rights have been violated.

Repeal 42 U.S.C. § 1997 e(d) 

6.  Allow indigent prisoners whose cases are found to state a valid claim at the preliminary screening stage to pay a partial filing fee rather than the full filing fee, now $350 in district courts and $450 in appellate courts.

Amend 28 U.S.C. §§ 1915(a), (b) 

7.  Amend "three-strikes provision" (which requires indigent prisoners who have previously had three cases dismissed to pay the full filing fee up front, except in cases of imminent danger of serious physical harm) by limiting it to prisoners who have had 3 lawsuits or appeals dismissed as malicious within the past 5 years. 

Amend 28 U.S.C. § 1915(g) 

Improve Transparency 

1. Pass strengthened Juvenile Justice and Delinquency Prevention Act.

Amend 42 U.S.C. § 5601 et seq.

2. Hold a hearing on prison oversight models that include:

a. an international model;

b. the California model of the Office of Inspector General;

c. Vera Institute's project to implement oversight mechanisms in local/state jurisdictions; and

d. DOJ Civil Rights Division Special Litigation Section.  

3.   Draft/introduce legislation to implement independent oversight mechanism for BOP (based on info gathered in the hearings).

4.   Draft/introduce legislation to track the success of former BOP prisoners reentering society (in terms of employment, housing, education, recidivism, etc.  This is a recommendation of the Commission on Safety and Abuse in America's Prisons. 

Reduce Recidivism and Strengthen Families 

1.  Pass the Federal Prison Work Incentive Act of 2008.

Amend 18 U.S.C. §§ 4161-4165 

2.  Draft and introduce a "reentry behind bars" bill that would provide grants to states to provide programs to better prepare prisoners for reentry such as the following:

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

Long Term: 

1. Appropriate full funding for Second Chance Act.

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

• Pass the Democracy Restoration Act, H.R. 7136 and S. 3640 from the 110^th Congress.

3. Restore welfare and food stamp benefits for individuals with drug felony convictions.

• Eliminate the lifetime ban on TANF and food stamp eligibility for people with drug felony convictions.
• Repeal Section 115(a) of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (21 U.S.C. 862a(a)).  

4. Repeal the financial aid ban for Students with drug convictions.

• Pass legislation to fully repeal the aid elimination penalty from the Higher Education Act.
  • Repeal 20 U.S.C. 1091 (r) 

5. Remove unfair barriers to housing.

• Pass the No One Strike Eviction Act, H.R. 6785 from 110^th Congress.
  • Amend 42 U.S.C. 1437d(k)           
• Pass the Public Safety Ex-OffEnder Self Sufficiency Act, H.R. 6206 from 109^th Congress.
  • Amend Subpart D of part IV of subchapter A of chapter 1 of the Internal Revenue Code of 1986 

6. Expand employment opportunities for people with criminal records.  

• Amend the Higher Education Act to restore Pell Grant eligibility to incarcerated people.
  • Amend the Higher Education Act (most recently reauthorized in August 2008, now PL 110-315) to allow incarcerated persons to apply for Pell Grants. In 1994, Congress eliminated Pell Grant eligibility for people who are incarcerated. Most post-secondary higher education programs in prisons closed as a result. Education is one of the best deterrents to re- offending. In a study conducted for the U.S. Department of Education, researchers found that participation in state correctional education programs lowers the likelihood of re-incarceration by 29 percent. In addition, this study concluded that for every dollar spent on education, more than two dollars in reduced prison costs would be returned to taxpayers. 
• Codify Current EEOC Guidance on Hiring People with Criminal Records
  • Create a federal standard based on the Equal Employment Opportunity Commission (EEOC) policy guidance on the use of criminal background checks for employment purposes when screening for arrest and conviction. This guidance currently asks employers to consider the relationship between the offense and the job position, how long ago the offense occurred, the severity of the offense, and any evidence of rehabilitation.  
  • Criminal record policies that bar applicants with criminal record histories from employment should be amended to not only include a requirement for individualized determinations but may include a graduated period of consideration of the criminal record based upon the severity of the individual's criminal history. Consideration of a criminal record should not be permitted beyond seven years.
• Strengthen the Work Opportunity Tax Credit. 
• Amend the Work Opportunity Tax Credit (WOTC), authorized by the Small Business Job Protection Act of 1996 (Public Law 104-188). Currently, under the WOTC program, employers who hire low-income individuals with criminal records can reduce their federal income tax liability by up to $2,400 per qualified new worker. Congress should increase the WOTC tax credit for individuals with criminal records to match the tax credit available for individuals who qualify as Long-term Family Assistance recipients. There is a $6600 difference between the two credits. 
• Reauthorize the Workforce Investment Act. 
  • Any reauthorization of the Workforce Investment Act (Public Law 105- 220) should include provisions for hard to serve populations, including those individuals with criminal histories, through the WIA one-stop system.  
• Pass the "Fairness & Accuracy in Employment Background Checks Act." 
  • Approve the "Fairness & Accuracy in Employment Background Checks Act" bi-partisan legislation introduced in the House at the end of the 110^th Congress (H.R. 7033); this legislation seeks to provide critical safeguards when the FBI conducts criminal background checks for employment purposes.  

7.  Expand access to drug and alcohol treatment. 

Appropriate increased funding for the Substance Abuse Prevention and Treatment Funding 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.  Fund the John R. Justice Prosecutors and Defenders Incentive Act of 2008, which authorizes student loan repayment assistance for prosecutors and public defenders.

2.  Adopt the recommendation of the American Bar Association that it establish and fund a National Center for Public Defense Services to serve as an independent, national, oversight authority that would strengthen state public defense services.

3.  Coordinate and fund a study to determine whether failure by states to provide constitutionally adequate public defense systems contributes to racial disparities within criminal justice systems. 

Long-Term:

1.  Provide sufficient financial support as applicable to the states, local government and territories for the provision of public defense services in state criminal and juvenile delinquency proceedings.

CHAPTER 12: DEATH PENALTY/HABEAS CORPUS REFORM

Short-Term: 

1. Fund defender organizations providing post-conviction representation in every applicable jurisdiction in order to ensure adequate representation for all death-row inmates.

2. Hold hearings and take other necessary steps to begin the legislative process of (a) reforming the habeas provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and the USA PATRIOT Improvement and Reauthorization Act of 2005 (PIRA), (b) exempting people with mental illness and developmental disabilities from the death penalty, and (c)establishing an inference of discrimination based on race, ethnicity, or national origin through statistical evidence.

3. Appoint an independent committee with substantive input from members of the criminal defense bar to recommend language amending 28 U.S.C. §2254(d).

4. Fund 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. 

Long-Term: 

1.  Eliminate or amend the restrictions on habeas corpus relief for only those state court convictions that are "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "based on an unreasonable determination of the facts" pursuant to 28 U.S.C. § 2254(d).

2.  Repeal or amend habeas provisions concerning statute of limitations, state exhaustion, and successive petitions.

3.  Ensure that states truly provide effective post-conviction counsel consistent with the U.S. Constitution. 

4.  Permit claims of innocence or racial bias to overcome any statute of limitations or other procedural bar.

5.  Repeal or amend the Chapter 154­ Special Habeas Corpus "Opt-In" Procedures that expedite federal post-conviction proceedings.

6.  Make all amendments to AEDPA and PIRA retroactively applicable.

7.  Transfer the defense function from the federal courts to a new Office of the Defender General. 

8.  Allow any lawyer appointed to represent state death-row prisoners in federal court, including without limitation Capital Habeas Unit attorneys, to appear in state court.

9.  Regarding counsel for prisoners seeking federal habeas review, require federal judges to appoint the legal team nominated by Capital Habeas Unit attorneys or the resource counsel from the Administrative Office of the Courts unless compelling reasons deem otherwise.

10.  Establish a right to counsel for capital defendants at all stages of the legal process through post-conviction proceedings and ensure appropriate funding, including funds for attorney's fees, investigative expenses, and expert witnesses.

11.  Permanently fund an Office of the Defender General and defender organizations providing post-conviction representation in every applicable jurisdiction in order to ensure adequate representation for all death-row inmates.

12.  Provide funding to a National Capital Bar of qualified and experienced attorneys to represent capital defendants. 

13.  Establish an inference of discrimination based on race, ethnicity, or national origin through statistical evidence.

14.  Require public officials to collect data on all factors relevant to the imposition of the death penalty and to make that data publicly available.

15.  Eliminate the increased number of peremptory challenges given to federal prosecutors in capital cases, which has created a perverse incentive to seek death sentences when they are not warranted.

16.  Exempt people with mental illness and/or developmental disabilities from capital sentences.

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

CHAPTER 13:  JUVENILE JUSTICE REFORMS

1.  Strengthen and reauthorize the JJDPA, and authorize and appropriate sufficient federal funding to enable state compliance with the Act. 

2.  Include language in the JJDPA requiring states to prohibit use of dangerous practices, unreasonable restraint and unreasonable isolation of youth, to improve screening and assessment for youth with mental health conditions, and to ensure prompt access to qualified counsel for all youth in the juvenile justice system. 

3.  Support and pass comprehensive gang prevention legislation, e.g., the Youth Prison Reduction through Opportunities, Mentoring, Intervention, Support, and Education Act (Youth PROMISE Act),[i] and reject legislation that prioritizes and increases the arrest, prosecution and incarceration of youth, e.g., the Gang Abatement and Suppression Act,[ii] when introduced in the 111^th Congress.[iii]

4.  Approach mental health and substance abuse through the lens of a public health model, including the availability of broad-based mental health screening, and pass legislation to provide greater availability of mental health and addiction services to students and youth at-risk for contact with the juvenile and criminal justice systems.[iv]

5.  Exempt juveniles from the Prison Litigation Reform Act. 

6.  Promote the use of developmentally appropriate sanctions, remove children from adult jails and prisons, and eliminate the use of life without parole sentences for juvenile offenders.

7.  Require local educational agency grantees to minimize the referral of students from schools to the juvenile and criminal justice systems, eliminate the use of zero tolerance policies, and eliminate the use of corporal punishment.[v]

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

Short-Term: 

1.   Beginning immediately, the 111^th Congress should adopt proposed H.R. 6481: Avena Case Implementation Act of 2008 or similar legislation.  Because the Supreme Court concluded that the VCCR was not self-executing, Congress should enact stand-alone legislation to fulfill the United States' core obligations under the VCCR, including the International Court of Justice's decision in Avena.  The text of H.R. 6481 is presented in relevant part below: 

JUDICIAL REMEDY:

(a) Civil Action- Any person whose rights are infringed by a violation by any nonforeign governmental authority of article 36 of the Vienna Convention on Consular Relations may in a civil action obtain appropriate relief.

(b) Nature of Relief- Appropriate relief for the purposes of this section means--

(1) any declaratory or equitable relief necessary to secure the rights; and

(2) in any case where the plaintiff is convicted of a criminal offense where the violation occurs during and in relation to the investigation or prosecution of that offense, any relief required to remedy the harm done by the violation, including the vitiation of the conviction or sentence where appropriate.

(c) Application- This Act applies with respect to violations occurring before, on, or after the date of the enactment of this Act.

CHAPTER 15:  VICTIM ISSUES AND RESTORATIVE JUSTICE 

Short-Term: 

1.  Enact legislation to establish a National Commission on Restorative Justice charged with researching restorative justice research and programs in the US and abroad in order to develop a national strategy and action plan for developing and funding a research agenda, for supporting systemic change on the local/state level and for expanding the use of restorative approaches on the federal level. 

2.  Increase the VOCA Cap beyond the amount requested in the item herein about returning the cap to 2006 levels. 

Long-Term:

1.  Authorize funding a National Commission on Restorative Justice, for pilot projects on systemic change and targeted research efforts to test effectiveness of restorative justice for victims of different types of crimes, and for different cultures (and appropriate funds for National Commission over 5 years - approx $3.5M, and for DOJ funds for pilot projects - approx $1.5M).

2.  Increase the VOCA Cap beyond the 2006 levels to make available new funds for services to incarcerated persons who are or become victims of violent crime.

3.  Add any necessary language to authorizations to permit VOCA funds be used for assisting victims in restorative justice practices used in place of conventional court proceedings and in corrections-based victim services in which offenders may also benefit. 

4.  Reauthorize and fully fund the Prison Rape Elimination Act (PREA) to implement PREA standards and provide funds for victim services.

5.  Hold hearings regarding the appropriate use of restitution and alternative means of addressing compensation of crime victims within the federal system. 

6.  Create a Victims Restitution Fund and require that all proceeds from the sale of property forfeited under federal law be deposited in it for the disbursement to the victim(s) of the individual defendant or be used to meet other victims' needs.

7.  Clarify 18 U.S.C. 3572(b) to ensure that restitution takes priority over forfeitures, so that the government cannot claim that the words "other monetary penalty" does not include criminal forfeitures, even when the forfeiture is in the form of a money judgment against the defendant. 

8.  Protect the position that all funds collected from federal defendants under orders for restitution should be used exclusively to meet the needs of current or future victims of crime, either individually, or if not available or appropriate, collectively.

9.  Remove requirement of "mandatory restitution," allow judges to acknowledge the actual damages, but to have the discretion to order a reasonable amount and payment schedule based on a determination of the defendant's income and other financial resources, defendant's reasonable living expenses and responsibility for support of legal dependents. Payment of restitution should have "a place in line" ahead of requirements to pay fines or court-ordered services and court- or system-imposed costs.

10.  Change the current federal law stating that mandatory restitution orders may not be "settled" to permit victims and defendants to, voluntarily and without coercion, reach a settlement regarding the amount or manner of payment. The settlement process could be overseen by, or require the approval of, a federal magistrate.

11.  Create or change policy to state that court orders for restitution that are not completed within the probation or parole period, if reasonably paid by the defendant according to financial capability, should not be used to extend probation or parole, although could continue to be a condition if probation or parole is extended for other reasons. 

[i] For more information about the Youth PROMISE Act, introduced in the 110^th Congress as H.R. 3846, see http://www.house.gov/scott/hotissues_youthpromiseact.shtml.

[ii] Introduced in the 110^th Congress as S. 456 and H.R. 3547.

[iii] For more information contrasting these federal approaches to gang crime and violence, please see: http://www.house.gov/scott/pdf/HRW_supportypa_opphr3547.pdf and http://chhi.podconsulting.com/assets/documents/publications/NO%20MORE%20CHILDREN%20LEFT%20BEHIND.pdf.

[iv] One study cited in the Congressional findings of the All Healthy Children Act, H.R. 1688, revealed that when juvenile offenders arrested for minor offenses had access to intensive and coordinated mental health services, more than a third fewer were re-arrested the following year, compared to those who only had access to basic mental health services. Congressional findings for H.R. 1688, the All Healthy Children Act of 2007, finding # 15. http://www.thomas.gov/cgi-bin/query/F?c110:1:./temp/~c1108uUEGX:e1331.

[v] For more information about school referrals and zero tolerance policies, see the Children's Defense Fund Cradle to Prison Pipeline Campaign http://www.childrensdefense.org/site/PageServer?pagename=c2pp.  For more information about the use of corporal punishment in schools, see Human Rights Watch, A Violent Education: Corporal Punishment of Children in US Public Schools http://www.hrw.org/reports/2008/us0808/us0808web.pdf.