Evidence-Based Reform Critical to Biden Justice Agenda, say Law Profs

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Two law professors have proposed the establishment of federally funded specialized charging units, participatory defense programs and increased criminal justice resources in rural areas as ways that the Biden administration could “move the needle” in criminal justice reform.

The opinion piece, published by the Hill, was written by Jon Gould and Pamela Metzger. Gould was a senior policy advisor for the Department of Justice during the Barack Obama administration and is currently a foundation professor at Arizona State University and director of the University’s School of Criminology and Criminal Justice.

Metzger is a Director of the Deason Criminal Justice Reform Center and Professor of Law at the Southern Methodist University Deadman School of Law.

Gould and Metzger said their three key reforms could have the potential for the most influence as examples of evidence-based reform.

Their proposal for specialized charging units was drawn from the harsh reality of prosecutorial discretion.

The problem with prosecutorial discretion is that prosecutors can let their own biases or preconceived ideas influence their charging decisions, which have large impacts on the criminal justice system.

Especially when faced with a casework overload, prosecutors in over-policed areas can face the problem of having too many cases and not enough time for all of them, which can lead to more influence of bias.

Prosecutorial discretion can drastically change the outcome of a defendant’s sentence, demonstrated in a 2020 study where 541 prosecutors had to charge a defendant for a fake crime. Although all the prosecutors were analyzing the same case, some filed 11 charges, while some filed one or two, with an average of 3.26. The study illuminated just how much one prosecutor’s discretion could influence their decision in what to charge.

“A lack of training and written guidance may mean that novice attorneys never implement the well-intentioned reform policies adopted by elected district attorneys,” said Gould and Metzger.

By creating a specialized charging unit, offices that are already overworked with cases would have a special sector dedicated to making fair and researched decisions. With the help of federal funding, specialized charging units could also work with researchers to increase the fairness in decision making and timeliness as well.

The second recommendation made by the authors concerned a participatory defense program, aimed at alleviating some of the problems associated with public defense.

Much like prosecutors, public defendants can often become overworked with the caseload that they get, and can get little time with their defendant.

By becoming involved in the case, a defendant’s family members, close friends and community members can advocate for them in an effort to influence the court’s decision. Support by family and community members have the potential to lessen charges against a defendant or possibly even have them dropped entirely.

Should the Biden administration fund some sort of participatory defense efforts, they would be encouraging the community to join with the public defender to advocate for the defendant.

In what the authors describe as “part policy initiative and part movement,” participatory defense would “rebalance power disparities that harm poor defendants and reduce the footprint of the U.S. criminal justice system that incarcerates a higher percentage of its citizens than do other industrialized nations.”

The last proposal made by the authors is to increase support for rural and STAR communities.

According to the authors, while cities and suburbs often get the most attention rural areas are often left without any consistent research, data collection or experienced criminal lawyers.

And while rural communities often have less funding allocated to law enforcement, they can still encounter similar problems of violent crime and drug use that an urban environment experiences, says a 2019 study.

With little available data on the crime climate in rural areas, it’s difficult to allocate resources to better serve them. While groups have begun to study rural areas in hope of reform, federal funding might help those areas get more justice.

These “legal deserts” can be served by the Biden administration if they provide more access to positions in law enforcement and legal practice to those who live in rural areas. The authors also propose a system where students in STAR communities can get financial benefits from committing to a legal practice in a rural community.

“It’s time to ‘follow the evidence’ and reform our criminal legal system,” said the authors.

This summary was prepared by TCR justice reporting intern Emily Riley.

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