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Criminal Legal Reform One Year into the Biden Administration

There’s still tremendous work to be done to live up to Biden’s promise to make the criminal legal system more just.

President Biden walks away from a podium, framed by American flags
Chip Somodevilla/Getty

Pres­id­ent Biden campaigned on a pledge to “strengthen Amer­ica’s commit­ment to justice and reform our crim­inal justice system.” Unfor­tu­nately, that prom­ise remains unful­filled in several key areas. That’s espe­cially disap­point­ing given how many key reforms lie within the discre­tion of the exec­ut­ive branch.

As the admin­is­tra­tion completes its first year, it’s worth look­ing at key areas where action must be taken in the second.

Little or No Progress

Revital­iz­ing the federal clem­ency power

Biden campaigned on a prom­ise to “broadly use [the] clem­ency power for certain non-viol­ent and drug crimes.” The exec­ut­ive’s pardon power is extraordin­ar­ily broad, and could serve as a power­ful correct­ive to excess­ive punish­ment in the federal system gener­ally, as well as a tool for right­ing specific wrongs. However, as of Janu­ary 10, 2022, Biden had not gran­ted any peti­tions for a pardon or commut­a­tion.

To be sure, Pres­id­ent Obama waited several years before launch­ing his clem­ency initi­at­ive, with most of his grants coming months before leav­ing office. But such polit­ical caution is no longer neces­sary — if it ever was — due to the broad, bipar­tisan support for clem­ency.

This inac­tion also under­scores the need for broader reform. For years, experts of all polit­ical affil­i­ations have called for a rework­ing of the federal clem­ency power.

Recom­mend­a­tions

  • Pres­id­ent Biden should estab­lish a perman­ent clem­ency review board and routin­ize the process for apply­ing for clem­ency. This step would be consist­ent with research by Profess­ors Rachel Barkow and Mark Osler, and draw on years of advocacy by civil rights attor­ney Nkechi Taifa, convener of the Justice Roundtable.
  • The admin­is­tra­tion should create clear stand­ards to guide clem­ency decisions, ensure trans­par­ency in the decision­mak­ing process, and provide detailed reas­on­ing for its decisions. These steps will increase public confid­ence in the process and help applic­ants and attor­neys under­stand how to navig­ate it.
  • As of Janu­ary 10, 2022, there were more than 18,400 clem­ency peti­tions await­ing pres­id­en­tial action. Biden should ensure that each applic­a­tion receives a timely review and liber­ally use the clem­ency power to correct excess­ive sentences and other miscar­riages of justice.
  • Biden should use the clem­ency power to ensure that people released to home confine­ment during the pandemic are not forced to return to prison. Thanks to a recent policy change, discussed below, this need should arise only rarely, if at all.

Empower­ing the U.S. Senten­cing Commis­sion

The U.S. Senten­cing Commis­sion plays an import­ant role in the federal crim­inal legal system. It sets the rules that help govern federal senten­cing and conducts vital research on outcomes in federal cases. Unfor­tu­nately, since 2019, the commis­sion has lacked the quorum required to conduct busi­ness, and Biden has yet to take any public steps to fill the vacan­cies.

This fail­ure severely limits the commis­sion’s abil­ity to influ­ence senten­cing policy on issues big and small, as Justices Sonia Soto­mayor and Amy Coney Barrett recently high­lighted. In 2014, for example, the commis­sion passed the Drugs Minus Two Amend­ment, decreas­ing the Senten­cing Guidelines range for many federal drug offenses, lead­ing to an aver­age sentence reduc­tion of over 17 percent. And when Congress passed the Fair Senten­cing Act of 2010, redu­cing the infam­ous crack/powder cocaine punish­ment dispar­ity, the commis­sion made the result­ing guidelines reduc­tions retro­act­ive, lead­ing to reduced sentences for at least 6,880 people. Commis­sion reports also cata­lyzed broader under­stand­ing of the dispar­ity and its impacts.

There’s no short­age of work wait­ing for the commis­sion today. Among other things, it has yet to revise the Senten­cing Guidelines to account for the First Step Act, poten­tially lead­ing to unequal outcomes, even while allow­ing for import­ant relief in indi­vidual cases.

Recom­mend­a­tions

  • Pres­id­ent Biden should fill the commis­sion’s entire seven-member roster, or at least appoint the commis­sion­ers needed for a quorum. While each nominee should be scru­tin­ized to ensure their commit­ment to evid­ence-based policies that reduce unne­ces­sary incar­cer­a­tion while expand­ing public safety, there is no short­age of qual­i­fied candid­ates who could fit this role.
  • Congress should pass the Senten­cing Commis­sion Improve­ments Act to add an ex offi­cio member to the commis­sion who has a back­ground as a public defender. A defense-side voice would present an invalu­able contri­bu­tion, and correct for the commis­sion’s historic overrep­res­ent­a­tion of prosec­utors.

Limited Policy Changes

Fixing the First Step Act and the Bureau of Pris­ons

Congress passed the First Step Act of 2018 to, among other things, improve access to classes, coun­sel­ing, and other program­ming for those incar­cer­ated in the federal system. Progress has been slow, but in mid-Janu­ary the admin­is­tra­tion took one major step toward ensur­ing the law is faith­fully imple­men­ted. That said, several other vital matters still require imme­di­ate atten­tion from the pres­id­ent and Bureau of Pris­ons (BOP).

The core of the First Step Act is an incent­ive program meant to encour­age people in prison to parti­cip­ate in programs like train­ing courses and beha­vi­oral ther­apy. A draft BOP regu­la­tion issued in late 2020 would have severely under­mined that goal by making it all but impossible for imprisoned people to earn mean­ing­ful bene­fits from parti­cip­a­tion. Thank­fully — and due in part to bipar­tisan pres­sure from the law’s drafters in Congress — the Justice Depart­ment reversed course on Janu­ary 13, 2022, publish­ing a final rule that will ensure people are able to earn cred­its in a way more consist­ent with congres­sional intent. Cred­its will also be awar­ded retro­act­ively, lead­ing to many people being trans­ferred imme­di­ately to prerelease custody or super­vised release.

Yet, there are addi­tional and import­ant changes that need to be prior­it­ized. Three years after the law’s passage, prison program­ming remains in short supply. The law also calls for a risk assess­ment tool to help determ­ine when, among other things, people parti­cip­at­ing in program­ming can be trans­ferred to pre-release custody such as a resid­en­tial reentry center. Unfor­tu­nately, the initial release of the tool raised concerns about racial bias due to its reli­ance on data tain­ted by discrim­in­at­ory poli­cing. And that didn’t stop the BOP from using the tool for another purpose, one for which it was never designed: making life-or-death decisions about trans­fers to home confine­ment during the pandemic. The tool was recently updated, but it still appears to leave several concerns unad­dressed, includ­ing some related to racial bias.

Turn­ing to the BOP more broadly, the agency’s lack of trans­par­ency and unwill­ing­ness to use release mech­an­isms signi­fic­antly hindered its response to Covid-19. And, accord­ing to the Asso­ci­ated Press, “more than 100 federal prison work­ers have been arres­ted, convicted or sentenced for crimes since the start of 2019,” indic­at­ing a pattern of “abuse, graft and corrup­tion.”

Recom­mend­a­tions:

  • The BOP’s current director, Michael Carva­jal, plans to retire. Pres­id­ent Biden should direct the DOJ to appoint a successor dedic­ated to (at a minimum) success­fully imple­ment­ing the First Step Act and respond­ing flex­ibly and promptly to public health emer­gen­cies.
  • The Justice Depart­ment should completely rebuild the First Step Act’s risk assess­ment tool in consulta­tion with external stake­hold­ers.
  • Congress should fund a full build-out of rehab­il­it­at­ive program­ming in federal prison. This will require more fund­ing than Congress has author­ized to date.
  • Congress should create an inde­pend­ent over­sight body for the BOP to ensure more consist­ent and thor­ough review of the prison system.

Elim­in­at­ing the Federal Death Penalty

On the campaign trail, Biden pledged to elim­in­ate the death penalty. Yet a full year into the Biden admin­is­tra­tion, the DOJ has merely announced a morator­ium on federal execu­tions while commit­ting to study the issue.

Today, 27 states and the federal govern­ment allow the death penalty, and oppos­i­tion among Amer­ic­ans is at its highest level since May 1966.

Nonethe­less, in 2019, the federal govern­ment announced it would resume execu­tions after an almost two-decade pause. In fact, the Trump Admin­is­tra­tion executed 13 people during its last six months in office. These execu­tions under­scored the arbit­rary nature of capital punish­ment. We also know that the death penalty is levied in a racially biased way. One study found that 96 percent of reviewed death penalty cases exhib­ited a pattern of bias. And a start­ling number of people on death row have been exon­er­ated over the decades, dramat­ic­ally illus­trat­ing the fallib­il­ity of our legal system.

On July 1, 2021, Attor­ney General Merrick Garland announced a review of DOJ policies, citing the “arbit­rar­i­ness in [the death penalty’s] applic­a­tion, dispar­ate impact on people of color, and the troub­ling number of exon­er­a­tions in capital and other seri­ous cases.” However, given the long list of reas­ons that the death penalty cannot be fairly imple­men­ted, one more report is not neces­sary for the Biden admin­is­tra­tion to take decis­ive action. It is also diffi­cult to square the admin­is­tra­tion’s state­ments with its request that the Supreme Court rein­state the death penalty against Dzhokhar Tsarnaev, who was convicted of perpet­rat­ing the 2013 Boston Mara­thon bomb­ing.

Recom­mend­a­tions

  • Even without congres­sional action, the pres­id­ent can commute all federal death sentences to life without the possib­il­ity of parole. This would ensure that even if future admin­is­tra­tions revive federal execu­tions, they would not be able to execute anyone currently on death row in the federal system.
  • The DOJ should instruct every U.S. Attor­ney not to pursue capital charges.
  • Congress should pass — and the Pres­id­ent should cham­pion — the Federal Death Penalty Prohib­i­tion Act of 2021, which abol­ishes the federal death penalty and provides for resen­ten­cing for anyone who was sentenced to death before enact­ment of the legis­la­tion.
  • Pres­id­ent Biden should urge Congress to provide federal incent­ives for state and local prosec­utors to avoid seek­ing capital punish­ment.

Limit­ing DOJ’s Reli­ance on For-Profit Deten­tion

While campaign­ing, Biden pledged to end the federal govern­ment’s use of private pris­ons, declar­ing that “the federal govern­ment should not use private facil­it­ies for any deten­tion, includ­ing deten­tion of undoc­u­mented immig­rants.” The admin­is­tra­tion took some steps toward this goal in its first year, but much more needs to be done.

Within weeks of taking office, Biden issued an exec­ut­ive order direct­ing the Justice Depart­ment not to renew any contracts with for-profit firms that oper­ate pris­ons. The order stated, “privately oper­ated crim­inal deten­tion facil­it­ies do not main­tain the same levels of safety and secur­ity for people in the Federal crim­inal justice system or for correc­tional staff,” and referred to a 2016 DOJ Office of Inspector General report compar­ing certain privately oper­ated BOP pris­ons to govern­ment oper­ated ones.

The order expands on an Obama-era policy but still does not apply to privately owned or managed immig­ra­tion deten­tion centers. As the federal govern­ment has outsourced approx­im­ately 80 percent of Immig­ra­tion and Customs Enforce­ment deten­tion to for-profit compan­ies, these firms still have a signi­fic­ant foothold in federal ICE deten­tion. And it’s espe­cially consequen­tial given that the detained ICE popu­la­tion has since increased by more than 50 percent since hitting a low point in the first few months of 2021.

Addi­tion­ally, the exec­ut­ive order leaves loop­holes. For one, for-profit firms remain able to sign contracts with counties, which then contract with the federal govern­ment. For example, since the company Core­Civic could not renew its contract with the U.S. Marshals Service (USMS) for 990 beds at the firm’s North­east Ohio Correc­tional Center, Core­Civic instead entered an agree­ment with the local sher­iff’s depart­ment, which then allowed people in USMS custody to stay there. This arrange­ment allows the USMS to tech­nic­ally comply with the exec­ut­ive order because Core­Civic is not contract­ing directly with the govern­ment.

Addi­tion­ally, some for-profit firms have shif­ted to provid­ing immig­ra­tion deten­tion to preserve their contracts. In Janu­ary 2021, the DOJ declined to renew its contract with GEO Group, another for-profit firm that manages pris­ons and deten­tion centers, to run the Moshan­non Valley Correc­tional Facil­ity in cent­ral Pennsylvania. Then, later in the year, GEO Group entered into a brand new five-year contract to reopen the facil­ity as a roughly 1,900-bed deten­tion facil­ity for ICE detain­ees.

These strategies illus­trate that the Biden admin­is­tra­tion’s exec­ut­ive order jump­star­ted a game of musical chairs where custodial popu­la­tions have been moved from one facil­ity to another while for-profit firms look to creat­ive contract­ing to secure addi­tional busi­ness oppor­tun­it­ies.

Recom­mend­a­tions

  • Pres­id­ent Biden should focus on detain­ing fewer people in immig­ra­tion deten­tion centers across the coun­try so that the federal govern­ment can finally stop rely­ing on for-profit firms to house those indi­vidu­als.
  • Biden should follow up on Pres­id­ent Obama’s attempt at work­ing with the Depart­ment of Home­land Secur­ity to exam­ine its reli­ance on for-profit firms and draft an action plan for how the federal govern­ment can once and for all move away from deleg­at­ing this respons­ib­il­ity to corpor­a­tions. Once this work is done, the Biden admin­is­tra­tion can issue a new exec­ut­ive order banning DHS from contract­ing directly with for-profit firms.
  • The Pres­id­ent should also ensure that the Fiscal Year 2023 and subsequent year budgets contain far less fund­ing for ICE deten­tion centers.

Notable Progress

Relief for People on Federal Home Confine­ment

In the last days of 2021, the Biden admin­is­tra­tion finally took action to prevent thou­sands of people from being sent back to federal prison from home confine­ment. The admin­is­tra­tion’s action will help keep famil­ies together and make it that much easier for people to rein­teg­rate into their communit­ies.

Accord­ing to a DOJ memor­andum issued in the waning days of the Trump admin­is­tra­tion, all those trans­ferred from federal prison to home confine­ment under expan­ded author­ity created by the CARES Act of 2020 would not be entitled to remain there when the pandemic “ends.” Instead, they would have to report back to prison for the remainder of their term. As of Decem­ber 6, 2021, the memo would have required the rein­car­cer­a­tion of at least 2,800 people.

There was no public safety justi­fic­a­tion for return­ing these people to prison; less than 300 of the thou­sands trans­ferred had even broken the rules of their super­vi­sion, and all were released to home confine­ment only after an exhaust­ive review of their case files. Initially, however, the Biden admin­is­tra­tion insisted that the law required their return to federal prison, and invited only some of those affected to apply for clem­ency.

In a reversal of the Biden admin­is­tra­tion’s initial assess­ment, the DOJ Office of Legal Coun­sel rescin­ded its earlier guid­ance on Decem­ber 21, 2021, stat­ing that, upon further review, the Bureau of Pris­ons was entitled to decide on a case-by-case basis whether people should remain in home confine­ment after the Covid-19 emer­gency recedes. The decision came after months of determ­ined, bipar­tisan advocacy. The same day, Attor­ney General Merrick Garland announced a “rule­mak­ing process” to determ­ine whether trans­fer­ees could remain on home confine­ment through the end of their prison term.

Recom­mend­a­tions

  • The DOJ should ensure that its rule­mak­ing process includes a presump­tion against rein­car­cer­a­tion in all cases, includ­ing for people who have more than five years left on their prison sentence. People on expan­ded home confine­ment were extens­ively vetted before their trans­fer, and return to prison should be author­ized only where public safety unequi­voc­ally demands it.
  • The success of the CARES Act program strongly suggests that more people could be trans­ferred to home confine­ment from federal prison without jeop­ard­iz­ing public safety. Congress should study the program, and consider revis­ing exist­ing law to author­ize earlier trans­fers to home confine­ment even after the Covid-19 emer­gency recedes.

Nomin­a­tions for U.S. Attor­ney Posi­tions and Federal Judge­ships

Pres­id­ent Biden campaigned on a prom­ise to diver­sify the federal judi­ciary. In his first year, he star­ted to make good on this pledge, appoint­ing judges who bring diversity to the bench in many senses of the word. Biden has also faced pres­sure to ensure that U.S. attor­neys come from diverse back­grounds. Here, the admin­is­tra­tion can and should expand on its efforts.

By the end of 2021, Biden had nomin­ated 75 people to the lower federal courts, 40 of whom had been confirmed. That meant the admin­is­tra­tion tied a record “not seen since former Pres­id­ent Ronald Reagan.”

Accord­ing to one report, Biden’s 2021 judi­cial nomin­ees were also roughly 65 percent people of color and 75 percent women. And they reflect a great breadth of exper­i­ences. Approx­im­ately half of his 2021 nomin­ees had spent part of their career in public defense or advocacy roles, and only a quarter had worked as prosec­utors. A recent slate of nomin­a­tions announced in Janu­ary 2022 contin­ued this trend, includ­ing a federal public defender and attor­neys from the ACLU and NAACP LDF. Prosec­utors have histor­ic­ally been over-repres­en­ted on the federal bench, making Biden’s nomin­a­tions a signi­fic­ant break with the past.

Regard­ing U.S. attor­neys, Biden nomin­ated 37 to the office in his first year, 20 of whom were Black and 13 were women. At least one nominee — Rachel Rollins, who was narrowly confirmed in Decem­ber as U.S. attor­ney for the District of Massachu­setts — comes from a progress­ive back­ground. Rollins had previ­ously served as District Attor­ney of Suffolk County, Massachu­setts, cover­ing Boston, where she expan­ded the office’s list of offenses that it would decline to prosec­ute, with posit­ive results for the community. She is also the first Black woman to lead federal law enforce­ment in Massachu­setts.

Recom­mend­a­tions

  • The admin­is­tra­tion should continue to prior­it­ize the selec­tion of diverse, highly qual­i­fied judi­cial nomin­ees. While Biden has made progress, the courts still fail to reflect the diversity of the communit­ies they serve or the legal profes­sion.
  • Pres­id­ent Biden should seek to expand the number of senior federal law enforce­ment offi­cials commit­ted to innov­at­ive strategies that preserve public safety while redu­cing mass incar­cer­a­tion and its collat­eral consequences.  

Invest­ment in Community Anti-Viol­ence Programs

As part of its over­all strategy for redu­cing crime, the Biden admin­is­tra­tion has made signi­fic­ant invest­ments in locally-led crime reduc­tion efforts called community viol­ence inter­ven­tion organ­iz­a­tions (CVIs). Addi­tional invest­ments may be coming, a sign that the admin­is­tra­tion is taking innov­at­ive solu­tions to crime seri­ously.

CVIs use a range of strategies to improve public safety — for example, trans­itional job place­ment, or outreach work to “inter­rupt” inter­per­sonal viol­ence. They are ideally led and staffed by people from the neigh­bor­hoods they serve. Unfor­tu­nately, these programs have histor­ic­ally lacked the fund­ing and invest­ment needed to succeed on a larger scale. Federal support could make a real differ­ence.

In April 2021, Biden announced a series of exec­ut­ive actions that direc­ted or empowered key agen­cies to support CVI work through, for example, expan­ded grant eligib­il­ity or guid­ance. The admin­is­tra­tion contin­ued this work in June, noting Treas­ury Depart­ment guid­ance that permits juris­dic­tions to apply the Amer­ican Rescue Plan’s $350 billion in state and local fund­ing to CVIs.

Biden also created the Community Viol­ence Inter­ven­tion Collab­or­at­ive with the goal of enhan­cing and scal­ing programs across 15 juris­dic­tions. It is suppor­ted by a group of phil­an­throp­ies and includes community offi­cials from the selec­ted juris­dic­tions.

Through the Amer­ican Jobs Plan, the pres­id­ent has also called for an unpre­ced­en­ted $5 billion invest­ment in CVIs. The proposed fund­ing became part of the Build Back Better Act, which passed the House in Novem­ber but remains the subject of contin­ued nego­ti­ations in the Senate. If passed and signed into law, the law would alloc­ate this $5 billion toward grants, train­ing, research, and data collec­tion to both eval­u­ate and improve work in the field.

Alloc­at­ing dollars and resources for CVIs is a step in the right direc­tion, and will enable state and local poli­cy­makers to work towards thought­ful community-led solu­tions that reduce viol­ence and enhance neigh­bor­hood well­being. However, the success of these endeavors hinges on imple­ment­a­tion and long-term commit­ment.

Recom­mend­a­tions

  • Pres­id­ent Biden should expand the Community Viol­ence Inter­ven­tion Collab­or­at­ive beyond its set, 18-month period and loca­tions. There should be oppor­tun­it­ies for changes if organ­iz­a­tions feel that their needs are not being met.
  • The Senate should pass the Build Back Better Act, complete with the proposed $5 billion for CVIs. This money is vital for ensur­ing that these programs have the time and stable fund­ing they need to succeed.

Leily Arzy contrib­uted research and edit­ing support.