New DOJ Views on Private Prisons, Bail Show Reform Trend

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By Jessica DaSilva

Aug. 23 — Changing ideas about private prisons and bail procedures from the Department of Justice fit into a trend of executive branch-based criminal justice reform that will likely continue if Congress fails to act on reform initiatives scheduled for a September vote, according to a criminal justice policy analyst.

On Aug. 18, the department stated it would phase out its use of private prisons by not renewing contracts after they end. On the same day, it submitted an amicus brief in the U.S. Court of Appeals for the Eleventh Circuit arguing that bail systems that automatically set prices without inquiring about an individual's circumstances are unconstitutional.

“We're going to see a trend because there isn't a lot happening in Congress,” said Arthur Rizer, director of criminal justice policy at R Street Institute, a conservative think tank in Washington. “Because nothing is happening, you'll see more happening in agencies.”

Congressional Inspiration

If Congress doesn't pass its planned reform bills in September, agencies will continue acting, Rizer said. That's because criminal justice reform is a mostly bipartisan issue, Rizer said.

However, it's possible that the announcements move some lawmakers who have been on the fence about federal criminal justice reform, Rizer added.

“It tells them, ‘If we don't do something, the administration is going to do something,'” he said.

Barry Pollack, president of the National Association of Criminal Defense Lawyers, agreed that the Justice Department's recent announcements demonstrate a continued trend toward reform, but said its ability to make a broader impact is limited. The biggest problems in the criminal justice system are in state systems, which are outside the department's control, he said.

“The Department of Justice can lead by example and put financial resources into spotlighting some of the problem areas,” Pollack said. “But the work that has to be done must be done at the state level.”

Pollack said that the entire nation spent 20-30 years swinging so far toward tough-on-crime policies that the nation is seeing politicians and policy makers at every level recognize the need to swing back.

“We dug a hole so deep it might take a generation or two to get out of it, but only if the effort to continue reform is sustained,” he said.

November Impact

Whether any agency trend would continue past the presidential election remains to be seen, Rizer said.

Rizer explained that not a lot of the campaign rhetoric focuses on criminal justice, which makes it difficult to judge the impact of a change in administration at the Justice Department.

Pollack also declined to predict the future of the Justice Department's trend past November. Even if Democratic Party Presidential Nominee Hillary Clinton won the election, that doesn't mean that criminal justice reform will be a priority for her like it has been for President Barack Obama.

“It's hard to read the tea leaves about who's going to do what,” Rizer said. “Do I actually think one president will use the agency more effectively? Maybe yes, but I don't know how.”

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