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Policy Solution

A Federal Agenda for Criminal Justice Reform

Summary: From policing to prisons, the Biden administration and Congress must act to make our systems of public safety less punitive and more equitable.

Photo illustration
Julie Gueraseva/Getty

Foreword

The United States’ crim­inal justice system is broken. We have less than 5 percent of the world’s popu­la­tion but nearly 25 percent of its pris­on­ers. Mass incar­cer­a­tion has crush­ing consequences: racial, social, and economic. It rein­forces systemic patterns of racial inequity across our soci­ety, with vastly unequal treat­ment at every step. And it is not neces­sary to keep our communit­ies safe.

Plainly, crim­inal justice reform must be a core response to the demand for racial justice given voice in the wake of the killings of George Floyd and Breonna Taylor. If we are to make clear as a soci­ety that Black lives matter, there must be a new rela­tion­ship between police and the communit­ies they are charged with serving and protect­ing. But reform must go far deeper than poli­cing to address the broad reach and over­reach of the crim­inal justice system, its harshly punit­ive approach, and the need to invest in communit­ies. We must reima­gine the justice system. We must finally and fully commit to the vision that safety and equal­ity go together.

For the past decade, in fits and starts, govern­ment at all levels has finally begun to grapple with the need for reform. Amid partisan divi­sion, it has been a rare area where Repub­lic­ans and Demo­crats have worked together. Though most crim­inal justice policy is set at the state level, the federal govern­ment plays an outsize role. In 2018 Congress enacted the First Step Act, mean­ing­ful but limited senten­cing reform. Far more remains to be done. And the federal govern­ment, through its fund­ing of state systems and through the actions of the Justice Depart­ment, can help to shift paradigms and move the coun­try away from mass incar­cer­a­tion. Poli­cy­makers should aim high.

Pres­id­ent-Elect Biden, Vice Pres­id­ent Elect Harris, and lawmakers of both parties have a chance to make signi­fic­ant progress. This agenda offers an array of steps that would help trans­form the crim­inal justice system. Some of these steps require legis­la­tion. Others can be done by the exec­ut­ive branch. This can be a moment of creativ­ity and ferment. This agenda offers a path toward a more perfect union.

Michael Wald­man
Pres­id­ent
Bren­nan Center for Justice

Introduction

Pres­id­ent-Elect Joe Biden will take office at a crit­ical moment in the coun­try’s history. There is a tangible oppor­tun­ity to recon­sider and reima­gine how, and for whom, the crim­inal justice system oper­ates. The protests for racial justice that emerged in the summer of 2020 after the killings of George Floyd, Breonna Taylor, and so many others have intens­i­fied the demands for system and culture change, open­ing up polit­ical space for reform. foot­note1_r7ojcqi 1 Giovanni Russon­ello, “Have Amer­ic­ans Warmed to Calls to ‘Defund the Police’?,” New York Times, July 3, 2020 (updated August 4, 2020), https://www.nytimes.com/2020/07/03/us/polit­ics/polling-defund-the-police.html.

The crisis of over­crim­in­al­iz­a­tion and an excess­ive reli­ance on punit­ive enforce­ment feed the prob­lem of mass incar­cer­a­tion. Although local jails and state pris­ons account for 91 percent of the nation’s incar­cer­ated popu­la­tion, the federal govern­ment can lead the way. foot­note2_4ejr2fm 2 Laura M. Maruschak and Todd D. Minton, Correc­tional Popu­la­tions in the United States, 2017–2018, United States Depart­ment of Justice, Bureau of Justice Stat­ist­ics, 2020, 11, appendix table 1, https://www.bjs.gov/content/pub/pdf/cpus1718.pdf. The facts are well known: 2.2 million people are behind bars; more than 9 million people cycle in and out of the nation’s colossal network of local jails; more than 4.5 million people are on proba­tion or parole; and more than 70 million people have convic­tion histor­ies that subject them to lifelong consequences to their lives and live­li­hoods. foot­note3_uaal­b48 3 For incar­cer­a­tion and correc­tional control numbers, see Wendy Sawyer and Peter Wagner, Mass Incar­cer­a­tion: The Whole Pie 2020, Prison Policy Initi­at­ive, 2020, https://www.pris­on­policy.org/reports/pie2020.html; and Assist­ant Secret­ary for Plan­ning and Eval­u­ation, “Incar­cer­a­tion and Reentry,” U.S. Depart­ment of Health and Human Services, accessed Octo­ber 19, 2020, https://aspe.hhs.gov/incar­cer­a­tion-reentry. For the collat­eral consequences of justice system contact, see Terry-Ann Craigie, Ames Grawert, and Cameron Kimble, Convic­tion, Impris­on­ment, and Lost Earn­ings, Bren­nan Center for Justice, 2020, https://www.bren­nan­cen­ter.org/sites/default/files/2020–09/Econom­icIm­pact­Re­port_pdf.pdf. In addi­tion, about 40 percent of people in prison are incar­cer­ated with little public safety justi­fic­a­tion. foot­note4_t7dnc11 4 James Austin et al., How Many Amer­ic­ans Are Unne­ces­sar­ily Incar­cer­ated?, Bren­nan Center for Justice, 2016, 7, https://www.bren­nan­cen­ter.org/our-work/research-reports/how-many-amer­ic­ans-are-unne­ces­sar­ily-incar­cer­ated. In fact, over the last decade, 34 states have reduced both impris­on­ment and crime rates, prov­ing that less incar­cer­a­tion does not neces­sar­ily lead to unsafe communit­ies. foot­note5_mg257al 5 Cameron Kimble and Ames Grawert, “Between 2007 and 2017, 34 States Reduced Crime and Incar­cer­a­tion in Tandem,” Bren­nan Center for Justice, August 6, 2019, https://www.bren­nan­cen­ter.org/our-work/analysis-opin­ion/between-2007-and-2017–34-states-reduced-crime-and-incar­cer­a­tion-tandem.

The vast racial dispar­it­ies of Amer­ica’s justice system compound the unne­ces­sary harms of incar­cer­a­tion. For example, Black people are arres­ted at a rate more than three times that of white people. foot­note6_5ihw53e 6 Ezekiel Edwards et al., A Tale of Two Coun­tries: Racially Targeted Arrests in the Era of Marijuana Reform, Amer­ican Civil Liber­ties Union, 2020, 29, table 6, https://www.aclu.org/sites/default/files/field_docu­ment/tale_of_two_coun­tries_racially_targeted_arrests_in_the_era_of_marijuana_reform_revised_7.1.20_0.pdf. They endure inter­ven­tion­ist police prac­tices such as pedes­trian and traffic stops, excess­ive enforce­ment of minor offenses, and targeted poli­cing. foot­note7_q7f1st7 7 Emma Pier­son et al., “A Large-Scale Analysis of Racial Dispar­it­ies in Police Stops across the United States,” Nature Human Beha­vior 4 (2020): 736–45, https://www.nature.com/articles/s41562–0200858–1?proof=t; Eliza­beth Hinton, LeShae Ander­son, and Cindy Reed, An Unjust Burden: The Dispar­ate Treat­ment of Black Amer­ic­ans in the Crim­inal Justice System, Vera Insti­tute of Justice, 2018, 5, https://www.vera.org/down­loads/public­a­tions/for-the-record-unjust-burden-racial-dispar­it­ies.pdf; also see Robin Smyton, “How Racial Segreg­a­tion and Poli­cing Inter­sect in Amer­ica,” Tufts­Now, June 17, 2020, https://now.tufts.edu/articles/how-racial-segreg­a­tion-and-poli­cing-inter­sect-amer­ica. (Professor Daanika Gordon’s current research suggests Black community–­po­lice dynam­ics “reflect a common pattern in which predom­in­antly Black neigh­bor­hoods are simul­tan­eously over-policed when it comes to surveil­lance and social control, and under-policed when it comes to emer­gency services.”) One out of every three Black men is incar­cer­ated at some point during his life­time — with all the devast­at­ing impacts that result both from a crim­inal convic­tion and from time in custody — compared with 1 in 17 white men. foot­note8_4ugke93 8 Hinton et al., An Unjust Burden, 1; and Thomas P. Bonczar, Preval­ence of Impris­on­ment in the U.S. Popu­la­tion, 1974–2001, United States Depart­ment of Justice, Bureau of Justice Stat­ist­ics, 2003, table 9, https://www.bjs.gov/content/pub/pdf/pius­p01.pdf. Discrim­in­a­tion on the basis of race and a crim­inal record can all but disqual­ify these Black men from hous­ing, educa­tion, or employ­ment and in some places can perman­ently bar them from voting. foot­note9_uzxn­ros 9 Devah Pager, “The Mark of a Crim­inal Record,” Amer­ican Journal of Soci­ology 108, no. 5 (2003): 937–55, https://scholar.harvard.edu/files/pager/files/pager_ajs.pdf; Craigie, Grawert, and Kimble, Convic­tion, Impris­on­ment, and Lost Earn­ings, 22; and National Confer­ence of State Legis­latures, “Restor­a­tion of Voting Rights for Felons,” accessed Octo­ber 15, 2020, https://www.ncsl.org/research/elec­tions-and-campaigns/felon-voting-rights.aspx.

What is to be done?

Congress and the pres­id­ent should commit to signi­fic­ant crim­inal justice reform as a key early prior­ity. Elements of these reforms can be enacted as part of recon­cili­ation or other budget­ary meas­ures. Some can be accom­plished by exec­ut­ive action, through a renewed Justice Depart­ment, or directly by the pres­id­ent through exec­ut­ive orders. Quick action will show the public that the demands for account­ab­il­ity have been heard. Crim­inal justice reform will show that those in power under­stand the urgency of stat­ing, with actions as well as words, that Black lives matter.

By cham­pi­on­ing national use-of-force stand­ards, strength­en­ing police account­ab­il­ity mech­an­isms, and support­ing community-led public safety strategies, we can begin to redefine how communit­ies inter­act with the police. And although states have tradi­tion­ally led on senten­cing reform, Congress should learn from their successes and support expans­ive federal drug law reform to signi­fic­antly reduce the federal prison popu­la­tion. It can also play a greater role, reima­gin­ing incar­cer­a­tion itself by signi­fic­antly limit­ing the use of solit­ary confine­ment, improv­ing access to educa­tion, and enact­ing compre­hens­ive over­sight of federal pris­ons to ensure that incar­cer­ated people are treated with human­ity and dignity.

It is time for the federal govern­ment to lead on crim­inal justice reform. This docu­ment provides a blue­print for both Congress and the admin­is­tra­tion to initi­ate that trans­form­at­ive change. It outlines an affirm­at­ive agenda that would help slash Amer­ica’s high incar­cer­a­tion rate, shrink the wide reach of the justice system, help ensure that people in the system are treated humanely, assist people in rehab­il­it­a­tion and reentry, and reduce racial dispar­it­ies in the process, all the while keep­ing the coun­try safe. These solu­tions are ones for which, in many cases, there is already wide bipar­tisan consensus. Ending mass incar­cer­a­tion and reform­ing the Amer­ican crim­inal justice system should be a defin­ing legacy of the Biden admin­is­tra­tion. This report presents one path­way of achiev­ing this goal.

Incentiv­ize States to Reduce Their Prison Popu­la­tions

  • Enact the Reverse Mass Incar­cer­a­tion Act. Federal grants help shape crim­inal justice policy at the state and local levels. For decades these grants have subsid­ized the growth of incar­cer­a­tion. To reverse that flow, Congress can pass the Reverse Mass Incar­cer­a­tion Act, a bill that has been intro­duced in two separ­ate congres­sional sessions. This bill would dedic­ate $20 billion over 10 years to states that reduce both crime and incar­cer­a­tion, reshap­ing state and local policy.

Advance Poli­cing Reform

  • Cham­pion National Use-of-Force Stand­ards
    • Place strict limits on permiss­ible police use of deadly and nondeadly force. Congress should pass legis­la­tion that would rein in police use of force. For example, holds that restrict airways should be banned, and less-lethal weapons and tech­niques of control should be reserved for extraordin­ary circum­stances.
    • Require all law enforce­ment agen­cies to adopt a duty-to-inter­vene policy. Congress should promul­gate stand­ards requir­ing officers to inter­vene when their fellow officers misuse force or engage in miscon­duct — and to report it to their super­i­ors.
    • Mandate use-of-force report­ing to the federal govern­ment. The Justice Depart­ment should build a compre­hens­ive data­base that is access­ible to the public by mandat­ing use-of-force report­ing by all law enforce­ment agen­cies and making federal support to those agen­cies condi­tioned on their compli­ance.
  • Strengthen Police Account­ab­il­ity Mech­an­isms
    • Amend 18 U.S.C. § 242. Congress should amend 18 U.S.C. § 242 to lower the burden of proof in cases where civil rights may have been viol­ated, to better equip federal prosec­utors to hold law enforce­ment officers account­able for wrong­ful acts. The will­ful­ness stand­ard in § 242 should be expli­citly lowered to include know­ing and reck­less civil rights viol­a­tions, at the same time that the law is amended to more clearly enumer­ate the types of force that will trig­ger crim­inal liab­il­ity — includ­ing, for example, the use of choke holds.
    • Rein­vig­or­ate DOJ pattern-or-prac­tice invest­ig­a­tions. The Justice Depart­ment should resume pattern-or-prac­tice invest­ig­a­tions that focus on systemic prob­lem­atic beha­vior by a police depart­ment and should support legis­la­tion that would provide subpoena power for such invest­ig­a­tions.
    • Create a national data­base of police miscon­duct records and promote a national stand­ard for decer­ti­fic­a­tion. The Justice Depart­ment should create a national data­base of police records and promote national decer­ti­fic­a­tion stand­ards. Currently there is no national stand­ard for police train­ing or certi­fic­a­tion, nor is there a stand­ard process by which someone can lose the priv­ilege of hold­ing the public trust required to enforce laws.
  • Support Culture Change in Poli­cing
    • Support community-led public safety strategies and systems to identify and remedy racial inequit­ies in poli­cing prac­tices. The exec­ut­ive branch should support community-led strategies to identify and remedy inequit­ies in law enforce­ment. The Depart­ment of Justice Bureau of Justice Assist­ance should provide grants and tech­nical assist­ance to support the imple­ment­a­tion of new police success metrics — ones that go beyond merely tally­ing arrests and summonses — in order to reflect policies and prac­tices that better align with community-led values and public safety prior­it­ies. These metrics may include community engage­ment, the number of lives kept safe in danger­ous police encoun­ters, parti­cip­a­tion in youth outreach programs, and the success­ful diver­sion of people to community-based services.
    • Promote the creation of co-respon­der and diver­sion models. The next pres­id­ent and Congress should incentiv­ize the creation and scal­ing of diver­sion strategies that focus on deal­ing with the root causes of crime and social disorder, such as mental illness, home­less­ness, substance use, and poverty. This would ensure that more Amer­ic­ans are diver­ted from the justice system entirely.
    • Rein­vig­or­ate compre­hens­ive police reform suppor­ted by the COPS Office. The Justice Depart­ment should resume previ­ous efforts under­taken by the Collab­or­at­ive Reform Initi­at­ive to encour­age and support police reform at the local level — whether to address racial bias, reform use-of-force policies, or improve police depart­ments’ rela­tion­ships with their communit­ies.
    • Encour­age the demil­it­ar­iz­a­tion of the police by elim­in­at­ing the 1033 Program. To encour­age the demil­it­ar­iz­a­tion of police, the next admin­is­tra­tion should elim­in­ate the 1033 Program and prohibit the trans­fer of all milit­ary-grade weapons to state and local law enforce­ment agen­cies.

Encour­age Best Prac­tices in Prosec­u­tion

  • Support federal, state, and local prosec­utors to make trans­form­at­ive change. Prosec­utors are among the most power­ful offi­cials in the crim­inal justice system, and they are well posi­tioned to reverse Amer­ica’s over­re­li­ance on incar­cer­a­tion. The new admin­is­tra­tion should exam­ine how the Justice Depart­ment can undo regress­ive policies that have taken hold in recent years and rein­state former Attor­ney General Eric Hold­er’s Smart on Crime Initi­at­ive, which direc­ted federal prosec­utors to prior­it­ize seri­ous and viol­ent crime over lower-level drug cases. It should also seek to elev­ate and replic­ate the efforts of local, state, and national lead­ers imple­ment­ing more justice-oriented prosec­utorial prac­tices and appoint a diverse slate of U.S. attor­neys who are commit­ted to reform.

Advance Senten­cing Reform to Reduce the Federal Prison Popu­la­tion

  • Support More Expans­ive Drug Law Reform
    • Repeal mandat­ory minimum sentences for drug offenses. The new admin­is­tra­tion should encour­age Congress to repeal mandat­ory minimum sentences for drug offenses, return­ing discre­tion to judges who are best placed to determ­ine an appro­pri­ate sentence based on the circum­stances of a partic­u­lar case.
    • Repeal the 18:1 dispar­ity between crack and powder cocaine. Congress should elim­in­ate senten­cing dispar­it­ies for crack and powder cocaine. These dispar­it­ies are based on outdated and incor­rect under­stand­ings of the connec­tion between drug use and other offenses and have had racially dispar­ate impacts that under­mine community trust in police.
    • No longer use quant­ity as the primary yard­stick in drug senten­cing. Congress should elim­in­ate the weight-driven senten­cing scheme for drug offenses and focus instead on the circum­stances of the crime and culp­ab­il­ity of the accused person.
    • Expand altern­at­ive sentences, includ­ing the exist­ing stat­utory safety valve. If Congress main­tains mandat­ory minimum senten­cing schemes, it should be encour­aged to expand judi­cial and prosec­utorial options to avoid those schemes where appro­pri­ate.
    • Reduce the number of people currently held in federal prison by making changes retro­act­ive. Recent reforms that reduce the length of custodial sentences — whether congres­sional or exec­ut­ive — should be retro­act­ive, to directly and imme­di­ately impact the incar­cer­ated popu­la­tion. Those sentenced under old laws should also reap the bene­fit of a more equit­able and reas­on­able senten­cing scheme.

Improve First Step Act Imple­ment­a­tion

  • Issue clear guid­ance for federal prosec­utors to encour­age full imple­ment­a­tion of resen­ten­cing provi­sions. Prosec­utors should not need­lessly obstruct applic­a­tions for sentence reduc­tions under the First Step Act. Any oppos­i­tion from federal prosec­utors should be based on a case-by-case eval­u­ation of the person apply­ing for reduc­tions.
  • Expand and fund rehab­il­it­at­ive program­ming. The First Step Act requires evid­ence-based recidiv­ism reduc­tion programs, but the Federal Bureau of Pris­ons has failed to ensure that enough program­ming is avail­able in federal pris­ons. The next admin­is­tra­tion must fully fund these programs so that every­one who wants to parti­cip­ate in voca­tional train­ing, educa­tion, and other programs can do so.
  • Fully util­ize or expand compas­sion­ate release to better respond to the coronavirus pandemic. The next admin­is­tra­tion must fully util­ize First Step Act compas­sion­ate release mech­an­isms, includ­ing by proact­ively identi­fy­ing and releas­ing those who are partic­u­larly vulner­able to Covid-19, acknow­ledging that Covid-19 outbreaks and medical vulner­ab­il­ity are suffi­cient bases on which to request compas­sion­ate release, direct­ing federal prosec­utors to stop obstruct­ing merit­ori­ous claims, and ensur­ing release oppor­tun­it­ies are provided in a racially equit­able manner.
  • Make the amend­ments that limit § 924(c) stack­ing retro­act­ive. The First Step Act amended § 924(c) so that the 25-year addi­tional penalty, applic­able to those convicted of crimes of viol­ence or drug traf­fick­ing who also used, carried, or possessed a fire­arm, applied only to those who had a prior, final § 924(c) convic­tion. Congress should pass legis­la­tion making this change retro­act­ive. Altern­at­ively, the next pres­id­ent should categor­ic­ally commute the sentences of those sentenced before the provi­sion was amended.

Improve Prison Condi­tions

  • Signi­fic­antly limit the use of solit­ary confine­ment. Limit­ing the time and improv­ing the condi­tions of solit­ary confine­ment can reduce harm to indi­vidu­als and the communit­ies to which they even­tu­ally return. Addi­tion­ally, Congress should incentiv­ize states to minim­ize harms by tying grant fund­ing to the condi­tions and extent of solit­ary confine­ment.
  • Lift the ban on Pell Grants for incar­cer­ated people. Ninety-five percent of incar­cer­ated people will return to their communit­ies. With access to educa­tional oppor­tun­it­ies, they will be better prepared to secure and sustain employ­ment after release. Lift­ing the ban on Pell Grants will allow indi­vidu­als to seek the educa­tion they need to break the cycle of incar­cer­a­tion and poverty.
  • Improve over­sight of Bureau of Pris­ons facil­it­ies. Congress should create an inde­pend­ent over­sight body with the broad capa­city to monitor and inspect Board of Pris­ons facil­it­ies. This over­sight body should have unfettered and confid­en­tial access to incar­cer­ated people, staff, and docu­ments and should not be required to give notice before inspec­tion. Find­ings should be publicly repor­ted.

Restruc­ture and Stream­line Exec­ut­ive Clem­ency Power

  • Estab­lish a perman­ent and inde­pend­ent clem­ency review board. The next pres­id­ent should estab­lish an inde­pend­ent clem­ency review board to identify both indi­vidual cases and categor­ies of people who qual­ify for clem­ency. An inde­pend­ent review process will help avoid giving the impres­sion that clem­ency is meted out as a personal or polit­ical favor.
  • Estab­lish clear stand­ards and explain clem­ency decisions. Clem­ency decisions should be guided by clear stand­ards and be publicly trans­par­ent. To avoid the percep­tion of arbit­rar­i­ness, the review board should provide robust writ­ten reas­on­ing and explan­a­tions for its recom­mend­a­tions and publish an annual report of decisions and other activ­it­ies.

Help Formerly Incar­cer­ated People Rejoin the Work­force and Community with Clean-Slate Legis­la­tion

  • Expand the reach of federal expun­ge­ment law. “Clean slate” legis­la­tion removes barri­ers for formerly incar­cer­ated people who want to rejoin the work­force and be contrib­ut­ing members of their communit­ies. Currently the federal system has few ways to protect crim­inal records, which are then used to deny indi­vidu­als’ access to employ­ment, educa­tion, and hous­ing. Expand­ing expun­ge­ment options for people with low-level or victim­less crimes will give them more oppor­tun­it­ies to thrive in their communit­ies and stay out of prison.

Elim­in­ate the Death Penalty

  • Declare a morator­ium on federal execu­tions and enact the Federal Death Penalty Abol­i­tion Act. There is substan­tial evid­ence that the death penalty is applied inequit­ably in the United States and that people sentenced to death suffer in ways that may well viol­ate the consti­tu­tional prohib­i­tion on cruel and unusual punish­ment. The next pres­id­ent should imme­di­ately declare a morator­ium on federal execu­tions and should encour­age Congress to enact legis­la­tion abol­ish­ing the federal and milit­ary death penal­ties and commut­ing exist­ing death sentences.

End Notes