Biden Must Do More To Fulfill His Campaign Promises On Criminal Justice Reform

President Biden (shown above with George Floyd's family)
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Photos: Twitter\YouTube

President Biden (shown above with George Floyd's family) 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.

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