Access to The Champion archive is one of many exclusive member benefits. It’s normally restricted to just NACDL members. However, this content, and others like it, is available to everyone in order to educate the public on why criminal justice reform is a necessity.
The battles being fought in Congress to try to stop or even to modify horrendous bills continue as Congress prepares for its holiday recess. It became apparent years ago that major reforms that adequately protected the rights of the accused were unlikely to be coming out of Congress in the foreseeable future. Instead, Congress enacted the PATRIOT Act and the Feeney Amendment. Just this year alone, Congress proposed legislation to:
- prohibit federal courts from considering habeas claims based on facts that were concealed by the prosecution at the state court level, even if the defendant is innocent;
- require lifetime registration and Internet notification for juveniles of any age who are adjudicated delinquent based on sexually inappropriate conduct;
- grant authority for federal law enforcement to collect and store DNA from anyone they detain; and
- repeal a rule in federal death penalty cases that prescribes life without parole when a jury is deadlocked on sentencing and, in its place, authorize unlimited retrials of the sentencing phase.
Recognizing that major criminal justice reforms would not be coming from Congress, NACDL and its affiliates and other allies have become more actively involved in state legislative efforts. As Scott Ehlers describes in his State Legislative Affairs Update in this issue of TheChampion, those efforts have resulted in significant successes. For example, problems with the quality of the work done in crime labs around the country has resulted in corrective legislation in at least two states. In response to the issues raised concerning evidence contamination and fabrication by the Houston Police Department’s Crime Lab, the Texas Legislature created a nine-member Texas Forensic Science Commission to develop and implement a statewide crime lab oversight system. Similarly, after a finding that the Virginia state crime lab had botched its DNA analysis in the case of Earl Washington, Jr. — which left him in prison for 17 years and on death row for 9 before he was exonerated — Virginia created a new Department of Forensic Science as an independent department in the executive branch charged with providing forensic laboratory services in criminal cases for all state law enforcement agencies.
Efforts to enact statutes requiring the electronic recording of interrogations have also started to gain momentum in a number of states. The District of Columbia Council enacted legislation to require police to record custodial interrogations of violent crime suspects. New Mexico law now requires the electronic recording of custodial interrogations in felony cases; and Illinois has legislation requiring electronic recording of custodial interrogations of juvenile and adult suspects in homicide, certain sex offenses, and DUI cases resulting in death.
Progress was also made in indigent defense reform. Montana enacted a new Public Defender Act, creating a statewide public defender system and adopting the ABA’s “Ten Principles of a Public Defense Delivery System.” North Dakota established a state commission to develop and monitor the delivery of state-funded defense services for indigent criminal defendants; and Massachusetts raised compensation rates and added approximately 130 new public defender positions.
Juvenile justice reform also received attention in many states. Perhaps most dramatically, the Illinois Legislature created a new Department of Juvenile Justice to separate the juvenile justice system from the adult correctional system. State Senator John Cullerton explained: “Senate Bill 92 is a new start with a new mind set regarding juvenile justice in Illinois. Establishing a separate department will do more to reduce crime and rehabilitate juveniles rather than placing them in a system where they become hardened criminals.” Focusing once more on rehabilitation for juveniles rather than retribution and incarceration is long overdue. Hopefully, other states will adopt a similar approach.
Finally, eyewitness identification reform was adopted in Virginia and Wisconsin. The Virginia legislation requires law enforcement agencies to establish written policies and procedures for in-person and photographic lineups. The Wisconsin Legislature unanimously passed a bill that contains a variety of criminal justice reforms, including a provision that requires law enforcement agencies to adopt written policies “designed to reduce the potential for erroneous identifications by eyewitnesses in criminal cases.” At the same time, the Wisconsin Department of Justice has issued guidelines for best practices when conducting eyewitness identification procedures and has started training police officers around the state in the use of those techniques.
The Wisconsin reform efforts were based on the recommendations of the Avery Task Force, which had been created after DNA evidence exonerated Steven Avery who had spent 18 years in prison for a rape he did not commit. The DNA evidence had also affirmatively identified the real rapist. Unfortunately, Steven Avery was recently arrested and charged with the murder of a young woman in Calumet County, Wisconsin. However, because he had been such a visible symbol of the criminal justice reform efforts in Wisconsin, the filing of these charges threatens to undermine future reforms. That would be another tragedy. As the Wisconsin Innocence Project, which had represented Mr. Avery during his exoneration proceeding, said after Mr. Avery’s arrest: “The criminal justice system is not perfect, and cases in which innocent people are convicted undermine the system and the public’s trust. Minimizing the risk that innocent people will be convicted remains the goal of all in the criminal justice system, and the Wisconsin Innocence Project will continue to work on that important mission.”
In the coming months, the criminal justice system will determine Mr. Avery’s guilt or innocence in the pending case. Regardless of that outcome, we must continue to focus our efforts on implementing reforms that reduce the risk of erroneous convictions for all those accused of crime
