Criminal Justice Reform

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Criminal Law & Procedure Practice Group, was recorded on Tuesday, August 27, 2019, during a live teleforum conference call held exclusively for Federalist Society members.          

 

Micah Wallen:  Welcome to The Federalist Society's teleforum conference call. This afternoon's topic is "Criminal Justice Reform." My name is Micah Wallen, and I am the Assistant Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the experts on today's call.

 

      Today we are fortunate to have with us our moderator, John Malcolm, who is Vice President of the Institute for Constitutional Government and Director of the Meese Center for Legal and Judicial Studies and Senior Legal Fellow at The Heritage Foundation. John will be introducing Robert Alt today. After our speakers give their opening remarks, we will then go to audience Q&A. Thank you all for sharing with us today. John, the floor is yours.

 

John Malcolm:  Well, thank you, Micah, and thanks everyone who's called in. It's now my distinct pleasure to introduce my former Heritage colleague, Robert Alt. Robert is the President and Chief Executive Officer of the Buckeye Institute, which, to those of you who may not know of it, it is an Ohio-based think tank whose mission is to advance free market public policy in the states. Robert joined Buckeye in 2012. Since he's been there, he has started Buckeye's Economic Research Center and a Legal Center.

 

      As I mentioned, he's a former colleague of mine. Prior to joining Buckeye, Robert was a distinguished scholar and director in The Heritage Foundation's Meese Center for Legal and Judicial Studies, which I now head up. Robert serves on the board of The Federalist Society's Columbus Lawyers Chapter, and he's previously taught national security law, criminal law, and legislation at Case Western Reserve University School of Law. He's a graduate of the University of Chicago Law School and clerked for Sixth Circuit Justice Alice Batchelder.

 

      He's a frequent speaker and commentator. He actually served for five months as a war correspondent in Iraq, and he's testified numerous times before Congress, the Federal Election Commission, and various state legislative committees. Robert recently wrote an article that was published by The Federalist Society entitled "Criminal Justice Reform: A Survey of 2018 State Laws," and that is the subject of his remarks this afternoon. Robert, the floor is yours.

 

Robert Alt:  Thank you, John. I appreciate it. What I'm looking to do in my presentation in chief here is to give a little bit of an overview of what happened in 2018, which is what we did in the paper. Necessarily, doing something of that scope, looking at criminal law changes in all 50 states is a pretty broad endeavor. For those of you, if you haven't had a chance to take a look at the paper on The Federalist Society's website, I encourage you to do so.

 

      But to preempt the angry calls that I anticipate getting at the end of this session, necessarily, the product is not intended to be entirely comprehensive. While it is long, it didn't include every single criminal law that was passed I the last year. It was intended to be representative. And as part of that, I sought to include both, for lack of a better term, both pro-prosecution or defense-friendly policies to give a genuine reflection of what happened in the states last year. As such, in addition to research, just to give a little bit of a window to the methodology, I actively consulted with leaders in the prosecution and defense bars to see which laws they deemed to be significant and worthy of inclusion, and in the end, sought to identify trends and outliers.

 

      Now, taking a step back, as a broad overview, the laws in the states did not trend in one particular direction, to either pro-defense or pro-enforcement. indeed, the didn't even necessarily trend that way in any given state. Take Ohio, for example, where the Buckeye Institute is located and where we're heavily involved in issues of criminal justice reform. Ohio passed some of the most pro-reform legislation in the country, including laws that, for instance, allow defendants to expunge their records if they've been victims of human trafficking, requiring courts to consider drug treatment or rehabilitation in felony sentencing, expanding local community based corrections facilities, and allowing more people to have criminal charges dropped after completing drug treatment, and reinstating indefinite sentencing for some felonies.

 

      At the same time, Ohio also passed very pro-prosecution legislation, including creating a violent offender registry and providing for significant enhancement for penalties for those who are engaged in trafficking fentanyl-related compounds. So picking up on some of those pro-enforcement and pro-reform ideas that were mentioned there and trying to ascertain larger trends that we saw across states in the last year.

 

      Two of the big trends that occurred involved drug policy, both for reform or pro-defendant and pro-prosecution. Beginning with the pro-liberalization approach, a number of states liberalized their marijuana policy in the past year. Two states, Vermont and Michigan, decriminalized possession and use of recreational marijuana. And I think it's worth actually taking a look and noting a point of commonality between those two states. They both border Canada, and Canada became only the second country in the world to legalize pot, effective October of last year. Michigan passed its new policy as a ballot initiative, and the passage seems to have been motivated in some measure by Canada's legalization and concerns by the electorate there about smuggling and drug drivers transporting marijuana back and forth across the Canadian border.

 

      But I tend to think, in this particular case, that Michigan is kind of a canary in a coal mine when you look at marijuana policy in the states. It's the first midwestern state to have adopted a liberalization of its policy with regard to recreational marijuana. And it suggests a broader trend than just the hippy-dippy coastal states and Rocky Mountain highs.

 

      It's worth noting, then, that Illinois followed suit this year, passing a law legalizing possession of up to 30 grams of marijuana, and that law goes into effect next year in 2020. Vermont as a state was interesting because it was the first state to legalize recreational marijuana by a legislation rather than by a ballot initiative. And again, this probably says something about a shift in public sentiment whereby politicians, I would gather, did not see this as a dangerous or hard vote, whereas previously, they were more than happy to leave these sorts of questions to the electorate.

 

      Two states also legalized medical marijuana. Those were Utah and Missouri. And while Utah passed legislation under threat of a voter initiative, the fact that a traditionally conservative state like Utah is liberalizing marijuana policy is, again, I think, somewhat telling in terms of the trends.

 

      So while you have those four states liberalizing their policy with regard to marijuana possession, a number of states passed stricter drug penalties, particularly with regard to the opioid crisis. At least four states enhanced criminal enhancement provisions for drug-induced homicide and opioid trafficking. Highlighting just a few of those, Rhode Island passed Kristen's Law which targets fentanyl trafficking. Among other things, it allowed for life sentences for drug-induced homicide and included mandatory minimum sentences. This is something of a shift away from -- there's, I think, been a lot of criticism in recent years and reconsideration of mandatory minimums. This was a definite step back toward mandatory minimums.

 

      Tennessee passed a law which allows dealers of fentanyl to be charged with second degree murder for drug-induced deaths and implemented one of the strictest and most aggressive opioid prescription policies in the nation, requiring in most cases that a doctor cannot prescribe more than a three-day regimen of opioids. Ohio, as I previously mentioned, increased penalties for drug trafficking if the offense involves a fentanyl-related compound. And Maryland passed a new law requiring drug distributors—these would be the distributors who distribute opioids to pharmacies—to report suspicious orders.

 

      Another major area that we saw movement in in 2018 was civil asset forfeiture reform. More than half a dozen states passed some kind of civil asset forfeiture reform. I'd say leading the way last year was Wisconsin, which became the 15th state to require a criminal conviction before the state may seize a personal asset. Wyoming passed a law prohibiting law enforcement officers from requesting a person to sign a document waiving their interest in a property for the purpose of effecting a forfeiture. Idaho passed a law prohibiting seizing assets simply because they were in proximity to contraband, passed a number of restrictions with regard to the seizure of vehicles. And Kansas and Virginia, respectively, passed versions of transparency laws that improve record keeping regarding asset forfeiture.

 

      It's interesting to note, while outside the scope of the paper that the trend continued this year or is continuing this year. In 2019, both Michigan and Arkansas have passed civil asset forfeiture laws that require a criminal conviction in most cases.

 

      Another area that we saw quite a bit of movement on in the last year was cash bail reform. Two states, New Hampshire and California, passed significant legislation in this regard. New Hampshire revised its bail law to require, among other things, that a court shall not impose a financial condition that will result in pretrial detention of a person solely as a result of that financial condition. And California passed a comprehensive set of criminal law changes which included bail reform. It required, among other things, the use of risk assessments conducted by a pretrial assessment services office, and it creates a presumption that the court will release defendants on their own recognizance at arraignment with the least restrictive non-monetary conditions that will reasonably assure both public safety and that the defendant will return to court.

 

      This, again, looking at trends, seems to be one which has had staying power into 2019. Missouri's Supreme Court promulgated rules to effectuate cash bail reform, and Ohio, there was a task force set up by the Supreme Court which issued significant recommendations for  a rule change regarding the use of cash bail.

 

      Beyond the scope of this study, there were a couple of trends that I think were somewhat ancillary to -- the fat center of the criminal law looked more at some of the incidents of a conviction and/or issues associated with the victims, both of which I think are worth highlighting here. The first is that a number of states looked at the question of felon re-enfranchisement. At least three states passed some form of felon re-enfranchisement statute. Florida passed State Constitutional Amendment 4, which was estimated to restore voting rights for 1.5 million felons after the completion of their sentence.

 

      This year, in June, Governor DeSantis signed legislation that required felons to pay all fees, fines, and restitution before reinstatement of voting rights. In the aftermath of that legislation, numerous lawsuits were filed challenging the law both as a poll tax or as racially discriminatory, and those cases have been consolidated in federal district court in Florida. Louisiana also passed a law that reinstated voting rights after a five-year waiting period. The restitution would apply to individuals on parole or probation, and it was estimated that this would affect about 69,000 people in Louisiana. In New York, Governor Cuomo issued an executive order which restored voting rights to New Yorkers on parole, which was estimated to impact approximately 35,000 people.

 

      The other major area, again, ancillary to the paper's topic where we saw quite a bit of action was on Marsy's Law. This is a law that's been promoted as a valid initiative, predominantly by Henry Nicholas, cofounder of Broadcom Communications. It has a number of provisions that putatively seek to protect victim's rights, including the right to be notified about present proceedings, the right to be heard at proceedings involving release, pleas, sentencing, disposition, or parole of the accused, and other provisions. Marsy's Law passed in six states in 2018, including Georgia, Kentucky, Nevada, North Carolina, and Oklahoma. Although in Kentucky, the Kentucky Supreme Court subsequently invalidated the vote because the entire text of the amendment was not on the ballot.

 

      Another interesting footnote related to Marsy's Law arises in Ohio. The Supreme Court of Ohio recently agreed to hear a case which raises the question of whether or not the state can be a victim for the purposes of the law. In April of last year, Michael Knab called 9-1-1 to report an active shooter at his home, but there was no active shooter, and he was subsequently convicted of making a false report and improper use of a reporting system. As part of his sentence, he was ordered to pay restitution in the amount of nearly $14,000. That was overturned on appeal. However, some of the provisions of Marsy's law with regard to restitution the state is claiming would be applicable in this case because the state is claiming that it is the victim of this particular crime.

 

      So some interesting questions arising in that context here in 2019, but in general, taking a look back at 2018, again, I think you see quite a bit going on in the general criminal justice reform area, the pro-defense side. But particularly in the area of opioid enforcement and opioid trafficking questions, the states were willing to engage both in stricter sentences, mandatory minimum sentences, and other provisions seeking to guarantee public safety. What we're seeing so far in 2019 is that many of the trends that began in 2018 are definitely continuing.

 

      So with that, I'd be happy to take any questions.

 

John Malcolm:  So Robert, let me ask you a couple of questions. So one with respect to marijuana, there are states that are under tremendous pressure to legalize or at least decriminalize marijuana. Few of them have rejected that. Has there been, so far as you can tell, any backlash against this movement because of the increase in driving while intoxicated incidents? Have there been dramatic increases in fatalities in some of these states?

 

      And my second question is what effect do you think, if any, the federal government's movement and passage of the First Step Act has had here? Has this been a catalyst for some of these changes? Do you expect that these state initiatives are going to perhaps to lead to more federal reform? What role do you think, if any, that plays?

 

Robert Alt:  Looking at your first question with regard to the effects on states that have chosen not to legalize, you certainly saw particularly in the aftermath of Colorado's legalization a spike in the number of enforcement actions in adjoining states where you had individuals who were going over the border who either were simply in possession of marijuana that they had purchased in Colorado or perhaps they were under the influence of it. And this was creating burdens for law enforcement there. I know at one point there were actions to try and seek some form of compensation from Colorado with regard to the increase costs in adjoining states. And obviously, this is only aggravated by situations like what happened in Canada.

 

      As I mentioned, there does seem to be -- whether or not you would call it backlash, it does seem to be a motivating factor with regard to the decision making on some of the border states as to how it is that they will formulate their policy. New York, I believe, if they have not, is slated to actually legalize marijuana here in the not too distant future. Again, seems to be motivated in some measure by Canada's legalization. Michigan's clearly talking to individuals up there. There was a concern about individuals driving up to Canada to procure marijuana and perhaps driving back under the influence or bringing it illegally into the state, that being a source or an impetus with regard to some of the policy changes.

 

      With regard to the First Step Act and its influence, of course, there's no particular way to prove or demonstrate this, but I tend to think that the hydraulic effect with regard to change came more from the states up. While I'm sure that there may be some impetus based upon changes that were made in the First Step Act for states to reevaluate some of their policies, the states really actually probably have been more aggressive, I would say, in the past decade or so on criminal justice reform policies, looking at ways to reduce costs with regard to administering the criminal justice system as well as reexamine some of the sentencing provisions that were already in place.

 

      One of the other advantages, though, I would say in the federalist system, is that I don't think it's necessarily a one-way rachet. If states, for instance, were to find that certain other provisions that were enacted in the First Step Act were, in fact, having detrimental effects, they would potentially be able to fill those gaps. For instance, the First Step Act modified the sentencing provisions with regard to the possession and use of guns in the commission of a felony. If, for instance, they found that this was having a detrimental effect on the criminal justice system, the states could obviously choose to go ahead and enhance their own penalties in that space. The advantage, I would say, is this is an iterative process. If, in fact, it seemed that the federal government went too far, the states have more than enough authority and power to go ahead and correct in that space.

 

      But my general sense is that the First Step Act and much of the federal action in this space has been a response to what's already been going on for some time in the states. And to a certain extent, I think that that's in some measure a point of this paper, which is to say I think we spend an awful lot of time looking at what's happening at the federal level, but in the criminal justice space, of course, the overwhelming number of criminal prosecutions occur at the state level, at the state and local level. There are more superior courts in the State of California than there are federal courts in the entire system, just to put none too fine a point on it.

 

      And even with regard to, as we're talking about drug enforcement policy, it's of course important to note that whether or not a state chooses to decriminalize or to legalize marijuana has zero direct impact, necessarily, on the fact that the federal government still restricts the distribution of marijuana and still has restrictions with regard to the use of banking resources for the proceeds of marijuana related businesses. So in terms of that, looking at the iterative process that the acts taken by the state in that context don't necessarily percolate up to the federal system, but certainly the states have been more aggressive, I think, with regard to criminal law reform.

 

John Malcolm:  So the Obama administration, I remember, was winking and nodding, not only with respect to marijuana enforcement, unless it was a massive importer, but it was also allowing the Commerce Department and the Treasury Department to come up with regulations that would allow banks to facilitate the transactions of these very, very large legal—within the state system, not federal system—cannabis growers. I don't know what's happened with all of those efforts under the Trump administration. I'm just curious whether you do.

 

Robert Alt:  Generally speaking, those non-enforcement provisions have continued in some form or another. It's interesting to note it's still a relatively small, as I understand it, number of banking institutions that are willing to do business with cannabis related businesses. As such, I had a conversation a number of years ago with a state solicitor in Colorado, and they were explaining that, for instance, the cannabis related businesses there deliver their tax proceeds to the Department of Revenue in cash because they cannot, in fact, engage in business with a bank. So it does create certain complications with regard to carrying out those businesses, even some interesting complications for the state.

 

      But these non-enforcement provisions are -- to say that they're precarious might be an understatement. They place an extraordinary burden, for instance, on the banking institutions to assure that the cannabis related businesses that they are working with are, in fact, working within the confines of state law, that they are not, in fact, selling to individuals who they are not supposed to be selling to, that they are not distributing in ways that are contrary to state law, and essentially opens them up to significant penalties, if, in fact, they are dealing with a bad actor. It strikes me that for a lot of the banking institutions you would have to be using quite a bit of your client's product if you we're willing to take this risk without having a serious risk premium attached.

 

John Malcolm:  Yeah. I wonder how they delivered their taxes to the federal government.

 

      So one of the things that was really interesting in your article, Robert, is you talk about all the changes to the cash bail system. And that appears to be clearly a growth industry. There are a lot of states that feel that this sort of fill in the numbers, you're charged with X crime, therefore Y is your bond, regardless of any ability to pay, is allowing some people who ought to be detained to be released, and a lot of people who ought to be released to be detained. And so a lot of those changes appear to be taking place.

 

      And one thing that strikes me as unusual—I wonder if it struck you this way—is that they are all using risk assessment tools, but these risk assessment tools in terms of their validity are very much in their infancy. And I know that when they start using risk assessment tools for sentencing, for instance, that that engenders a lot of disagreement, and in some cases, law suits because some of the factors that go into those risk assessment tools, your neighborhood, socioeconomic background, are deemed as having if not -- clearly a racially disparate discriminatory impact. So I'm wondering whether there's been any discussion about risk assessment tools in this context and studies validating this stuff or whether people are just plowing ahead and coming up with a tool that seems to make sense for them, and as long as they're letting people out of jail, no one's kicking up too much of a fuss.

 

Robert Alt:  This is a hot topic of debate in terms of risk assessment tools. I mean, generally speaking, one of the first questions is just making sure that the factors that are being included in the risk assessment that the methodology is sufficiently transparent to allow individuals to be able to make those assessments. Another question is the degree to which the judges have discretion with regard to the implementation. And in most cases I'm aware of, they are advisory. In a number of reforms that have been proposed, there's a strong presumption in favor of allowing individuals to be released on their own recognizance.

 

      Taking a step back to the larger question on this with regard to cash bail and how it is used, we have to think about what the purposes of pretrial detention and bail are. Of course, it's impermissible, it's unconstitutional to punish an individual prior to their conviction for a crime. So we lock people up pretrial to preserve public safety where there are risks involved, and we also do so for the purposes of assuring that they actually show up at trial.

 

      And looking at those two purposes, one can do a lot with anecdotes, but pointing out two examples shows why it is -- from Ohio, for example, shows why it is that there's been this drive toward looking at alternatives to cash bail. So in 2015, Dragan Sekulic of Stark County, Ohio, used his car as a battering ram, attempting to kill his ex-wife. Mr. Sekulic's would-be victim survived the crash, and he was charged with domestic violence. Previously, he faced charges of felonious assault, domestic violence, and operating a vehicle while intoxicated. Working with a bail bond agent, he was able to post $100,000 bond set by the court and walked free to await his trial. Two weeks later, while he was free on bail, Mr. Sekulic found his ex-wife and finished what he had started, shooting her dead.

 

      By contrast, Markcus Brown of Dayton spent nine days in jail after being arrested for trespassing when his clothes violated the Greater Dayton Regional Transportation Authority's dress code. After his arrest, Mr. Brown's bail was set at $150, which his family could not afford. As a result, Brown sat in jail until his mother secured a car title loan nine days later. I recognize that these are anecdotal examples, but it demonstrates, I think, some of the concerns associated with simply looking at cash as the basis for determining whether or not someone should be in or out of jail.

 

      Looking at the larger questions of racial disparity, in terms of that, I agree. I think that these systems are in their infancy. Some of the data is pretty good. I think that the emphasis should be with regard to the risk assessment tools making sure that -- I think everyone I'm aware of uses facially non-discriminatory factors, but making sure that they don't have an undue racially disparate impact and that they are doing a better job at meeting those goals of maintaining public safety and assuring that individuals show up at trial.

 

      So far, in a number of the jurisdictions I'm aware of, for instance, in Ohio where they've done some initial trials on them, the results have been very, very strong, which is to say substantial savings for the municipalities based upon the fact that they have to detain fewer individuals pretrial, a higher number of individuals showing up for trial because resources are put toward those purposes, reminding individuals through texting services and other things to actually show up to their trials, and fewer crimes committed because of the risk assessment. Those individuals who are more significant risks are detained pretrial. Those who are not are able to be released on their own recognizance.

 

John Malcolm:  Robert, did you have any other thoughts that you wanted to offer?

 

Robert Alt:  No. I think that your question with regard to federal versus state is an important one, and to my mind, it might be the key to what we're talking about. There's a number of issues, I think, that have languished in Congress for some time that you see significant action on in the states. I think about something like mens rea reform, criminal intent reform, which --

 

John Malcolm:  -- Certainly asset forfeiture reform.

 

Robert Alt:  Asset forfeiture as well. Those are both areas where you've seen significant action by the states in terms of reform. And in many cases, where you saw some of the abuses that those abuses were going on in the states as well. If you take a look -- obviously, the Institute for Justice has done tremendous work in highlighting the issue of civil asset forfeiture and has done studies. The Heritage Foundation as well has done significant work highlighting the abuses. And a number of these cases that were highlighted involved local policing agencies, and so it makes great sense that it would be the states taking the lead in this space.

 

Wesley Hodges:  All right. Well, on behalf of The Federalist Society, I would like to thank both of our experts for the benefit of their valuable time and expertise today. We welcome listener feedback by email at [email protected]. Thank you all for joining us. We are adjourned.

 

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