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Analysis

How the Criminal Justice System Can Be Reformed Under Biden

Bipartisan criminal justice reform was moving forward, and then the Trump administration went in the opposite direction.

This piece was origin­ally published in The Hill.

In Janu­ary, the Biden-Harris admin­is­tra­tion and the 117th Congress will inherit a federal crim­inal justice system that has spent much of the last four years in reverse. 

Despite the over­whelm­ing momentum for crim­inal justice reform in the streets and state­houses, the Trump White House went in the oppos­ite direc­tion, rein­stat­ing prac­tices proven to worsen mass incar­cer­a­tion and abdic­at­ing its duty to invest­ig­ate racially biased poli­cing. The incom­ing admin­is­tra­tion and Congress must work together to reverse course. This is more than a clean-up job, though. The system needs to be turned inside out.

In the last four years, we saw the undo­ing of policies that had been work­ing to end mass incar­cer­a­tion and mitig­ate its damage on famil­ies and communit­ies. For example, the Depart­ment of Justice (DOJ) criti­cized local prosec­utors who had vowed to move away from incar­cer­a­tion-driven policies, and it reversed previ­ous guid­ance to state courts against impos­ing excess­ive fees and fines. To be sure, Pres­id­ent Trump signed the bipar­tisan First Step Act, which reduced some unne­ces­sar­ily long sentences for those in federal pris­ons and aimed to improve program­ming for those who are incar­cer­ated in the Federal Bureau of Pris­ons facil­it­ies. But the bureau has still not delivered on the prom­ise to bring more programs to incar­cer­ated people. The Trump admin­is­tra­tion has also opened only one federal invest­ig­a­tion of uncon­sti­tu­tional poli­cing and it elim­in­ated the abil­ity of police depart­ments to opt into part­ner­ships with the DOJ to encour­age police reform. The list goes on.

To jump­start trans­form­at­ive change to our crim­inal legal system, the Biden-Harris admin­is­tra­tion should take three steps early in 2021. These and other crucial reforms are part of the Bren­nan Center’s federal agenda for crim­inal justice, published today.

1. Stop subsid­iz­ing mass incar­cer­a­tion with federal incent­ives. Since the 1960s, the federal govern­ment has helped shape the nation’s crim­inal justice land­scape with money, making grants contin­gent on states’ increas­ing arrests, prosec­u­tions and impris­on­ment. From the Omni­bus Crime Control and Safe Streets Act of 1968 to the Anti-Drug Abuse Act of 1986, federal dollars rewar­ded arrests and incar­cer­a­tion. At the high-water mark of the tough-on-crime era, the 1994 Crime Bill (the Viol­ent Crime Control and Law Enforce­ment Act of 1994) author­ized $12.5 billion in grants for states to build or expand pris­ons if they passed “truth-in-senten­cing” laws. This legis­la­tion required those sent to prison to serve at least 85 percent of their sentence before they could be considered for release.

Together, the Biden-Harris admin­is­tra­tion and Congress can divert the flow of federal fund­ing streams away from programs and policies that priv­ilege incar­cer­a­tion. They can cham­pion the Reverse Mass Incar­cer­a­tion Act, a bill pending in Congress that would incentiv­ize states to reduce both crime and incar­cer­a­tion.  

2. Restart the DOJ’s civil rights invest­ig­a­tions of police depart­ments. The new White House can imme­di­ately react­iv­ate the DOJ’s author­ity to invest­ig­ate law enforce­ment agen­cies engaged in a “pattern or prac­tice” of beha­vior that “deprives persons of rights, priv­ileges, or immunit­ies secured or protec­ted by the Consti­tu­tion or laws of the United States.” This stat­ute was enacted in 1994 in response to the acquit­tal of Los Angeles Police Depart­ment officers involved in the brutal beat­ing of Rodney King, and it grants the federal govern­ment the power to signi­fic­antly change local police depart­ments’ policies and prac­tices where racist conduct and other systemic prob­lems are found. Since then, the Justice Depart­ment has initi­ated 70 pattern-or-prac­tice invest­ig­a­tions and estab­lished 40 reform agree­ments across Demo­cratic and Repub­lican admin­is­tra­tions, with some signi­fic­ant results, includ­ing decreased police shoot­ings and increased account­ab­il­ity. The Biden-Harris admin­is­tra­tion should rescind former Attor­ney General Jeff Sessions’ guid­ance that curtailed pattern-or-prac­tice invest­ig­a­tions during the Trump admin­is­tra­tion and also direct the Justice Depart­ment to engage in more aggress­ive enforce­ment of exist­ing consent decrees.

To comple­ment its pattern-and-prac­tice invest­ig­a­tions, the DOJ in the Biden-Harris admin­is­tra­tion should move quickly to revive the depart­ment’s Collab­or­at­ive Reform Initi­at­ive, part of the Office of Community Oriented Poli­cing Services, which had worked with cities to improve their poli­cing as an altern­at­ive to federal litig­a­tion against them. When then-Attor­ney General Sessions cut the initi­at­ive in 2017, it was work­ing with 16 police depart­ments across the coun­try, includ­ing Milwau­kee and San Fran­cisco, to address racial bias, use-of-force policies, or the depart­ments’ rela­tion­ships with their communit­ies.

3. Create an inde­pend­ent over­sight body with broad author­ity and capa­city to monitor federal pris­ons and identify and prevent abuse against people behind bars. The coronavirus has made it all the more evid­ent that we know too little about what happens inside federal pris­ons. These facil­it­ies oper­ate between 12 and 19 percent over capa­city, a level of crowding that was inhu­mane before the pandemic struck and is deadly now. Approx­im­ately 154,125 people are serving time in the federal system, and as of Dec. 1, 1,454 incar­cer­ated people and 98 staff members have died of COVID-19. Congress should estab­lish an over­sight entity, such as a prison ombuds­man, with broad author­ity and capa­city to monitor federal pris­ons with the goal of invest­ig­at­ing and ensur­ing the protec­tion of rights and prevent­ing mistreat­ment of incar­cer­ated people. This would need to come with the mandate to regu­larly inspect each facil­ity annu­ally without provid­ing advance notice in addi­tion to unfettered, confid­en­tial access to incar­cer­ated people, staff, docu­ments and other mater­i­als.

By taking these three steps, the Biden-Harris admin­is­tra­tion and Congress can start to move federal fund­ing, federal invest­ig­at­ive powers and federal incar­cer­a­tion away from excess­ive punish­ment and towards fair­ness, account­ab­il­ity and humane treat­ment for all. They will have far more to do, but their path will be clear.