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Holder's Justice Reforms Realize Kennedy Commission's Vision

By William Peacock, Esq. on August 12, 2013 | Last updated on March 21, 2019

"The work of the Kennedy Commission that began 10 years ago is today an ongoing mission for the Criminal Justice Section and the ABA," American Bar Association President Lauren Bellows remarked on Saturday, while introducing Justice Anthony Kennedy. "That report has become a blueprint for the ABA's criminal justice agenda."

It may also have been a blueprint for Monday's announced initiative and changes in policies by Attorney General Eric Holder on behalf of the Obama administration.

Holder's Call for Reform

In a prepared speech before the ABA House of Delegates, Holder announced a few immediate reforms, such as changing Department of Justice policies to use prosecutorial discretion to abstain from federally prosecuting certain low-level drug offenses unrelated to gangs or large-scale drug operations.

The DOJ is also looking into racial disparities in sentencing and updates to the framework for compassionate release for elderly convicts who pose no threat to the community.

Holder also announced the beginnings of bipartisan legislative efforts to modify the applicability of mandatory minimum sentences, along with changes in internal policies that will lead to less severe charges, and fewer mandatory minimum sentences, where appropriate.

Finally, Holder also discussed parallel federal and state efforts to explore alternatives to incarceration such as diversion programs, drug treatment programs, and efforts to address the difficulty of re-entering society for those who have served their time, in hopes that such efforts will reduce recidivism.

The overall message was that our prison system, at 140 percent of its capacity, cannot remain at the status quo. Efforts must be made before, during, and after prosecution to reduce the prison population that has expanded greatly since the "war on drugs" began five decades ago.

The Justice Kennedy Commission

Ten years ago, in a speech at the ABA Annual Meeting, Justice Kennedy urged the ABA to explore these exact issues. The result was the Justice Kennedy Commission, a study resulting in recommendations on sentencing and mandatory minimums, racial disparities in sentencing, clemency in extraordinary circumstances, prisoner reentry, and other issues.

Nearly all of the Commission's 2004 recommendations were adopted, nine years later, in Holder's speech, albeit in more limited and specific forms (i.e., reforming mandatory minimums instead of outright abandoning the practice).

A member of the ABA House of Delegates, moments ago, urged his fellow delegates to adopt another resolution, reminding them of the importance of their votes and citing the connection between the ABA's Justice Kennedy Commission and today's announced initiatives.

While those of us who are in the room, on the tail end of a session that began seven hours ago, are straining to stay focused on a seemingly unending string of nonbinding policies, model laws, and resolutions, that connection is a reminder of the ABA's role as a think tank and advisory body. A few votes by a few tired, weary lawyers in a conference center can lead to drastic changes in our justice system, even if those changes were actually 10 years in the making.

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