March 04, 2021 HUMAN RIGHTS

The Next Four Years: What Biden Should Prioritize on Policing and Criminal Justice Reform

by Malia Brink

During his campaign for the presidency, Joe Biden set forth four core principles that would guide his criminal justice policy: (1) reduce incarceration; (2) root out racial, gender, and income-based disparities; (3) refocus the system on redemption and rehabilitation; and (4) eliminate profiteering off our criminal justice system (The Biden Plan for Strengthening America’s Commitment to Justice, Joe Biden’s Criminal Justice Policy | Joe Biden). While much of the criminal justice policy is set at the state level and federal reform often requires the cooperation of Congress, there are immediate steps President Biden can take to demonstrate his commitment to turning these four principles into action, many of them already supported by ABA policy.

As a presidential candidate, Joe Biden laid out an ambitious agenda for criminal justice reform founded on four core principles.

As a presidential candidate, Joe Biden laid out an ambitious agenda for criminal justice reform founded on four core principles.

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Reduce Incarceration

On a forward-looking basis, many of Biden’s stated policy priorities related to reducing incarceration, including the elimination of mandatory minimums and the elimination of jail time for drug use offenses, will require legislative action. However, President Biden can immediately set these policies in place for those currently incarcerated for federal crimes using the clemency power.

In 2004, the ABA’s Kennedy Commission proposed reforms to address harms caused by decades of tough-on-crime policies, many of which were then adopted by the ABA House of Delegates. Among these was a policy urging jurisdictions to “to expand the use of executive clemency.” The policy urges jurisdictions to “(1) establish standards governing applications for executive clemency, including both commutation of sentence and pardon; and (2) specify the procedures that an individual must follow in order to apply to clemency and ensure that they are reasonably accessible to all persons.” (2004A121C)

On day one in office, the Biden administration could develop a specific clemency application for federal prisoners serving mandatory minimum sentences and/or serving time for drug-use offenses and prioritize those cases for review and action. To be effective, his actions in granting clemency would need to be broad and bold, but they are feasible. Moreover, the power to undertake and execute such clemencies lies exclusively with President Biden.

The ABA president, in a letter sent shortly before the inauguration of President Biden, similarly urged use of the clemency power to mitigate against the harsh collateral consequences of conviction that impede successful reentry. To effectuate these types of changes, some experts have also called on the president to remove the supervision of the Department of Justice (DOJ) and establish an independent Clemency Commission, which would allow for a more proactive, policy-based clemency process (Fair and Just Prosecution, How the Biden-Harris Administration Can Advance Criminal Justice Reform). In addition to demonstrating a commitment to the priority of reducing incarceration, pursuing policy-based clemency would also help reestablish the legitimacy of the clemency power and the norms surrounding its use.

Root Out Race, Gender, and Income-based Disparities

Biden’s criminal justice policies rightly link disparities to unequal opportunities and tie correction of these disparities to investing in educational opportunities, expanding health insurance access, and funding mental health and substance-use disorder services and research. More directly related to criminal justice, the Biden policy goals prioritize investing in public defense to ensure defendants’ access to quality counsel. All of these are critical, but they are also long term. As an initial and immediate matter, President Biden should focus on requiring data collection and reactivating the DOJ’s Civil Rights Division to conduct investigations into accusations of improper and unconstitutional behavior in police departments and other aspects of the criminal justice systems.

You cannot fix what you cannot see is broken. In the criminal justice system, too often we cannot see the impact of race, ethnicity, gender, etc., because the data simply does not exist. Noting this, the President’s Task Force on 21st Century Policing included in its 2015 final report several recommendations regarding the collection of demographic data. Specifically, the report suggested that race, ethnicity, age, and gender data should be collected on police personnel “and made available to the public so communities can assess the diversity of their departments and do so in a national context” (Recommendation 2.5). The report also recommended that law enforcement agencies should “collect, maintain, and analyze demographic data on all detentions (stops, frisks, searches, summons, and arrests)” (Recommendation 2.6). Ideally, this data collection would continue through prosecution and the courts, allowing for analysis of charging, plea agreements, trials, sentencing, and probation/supervision. To immediately move in this direction, the Biden administration should ask the Bureau of Justice Assistance and the Bureau of Justice Statistics to review all relevant existing data collection processes and projects to add demographic questions. Further, the Biden administration should review all grant programs administered by the Department of Justice to determine if demographic data collection could be supported or required as part of the grant process. And if, as he has discussed, President Biden creates a task force on Prosecutorial Discretion, the Task Force should be directed to consider issues of bias and the collection, analysis, and release of demographic information.

The Task Force on 21st Century Policing was a response to the protests over police violence that began in Ferguson, Missouri, and spread to every major city in America over the fall of 2014. During that same period, the Civil Rights Division of the Department of Justice conducted an investigation of the Ferguson Police Department. The report from this investigation, published in March 2015, concluded that “Ferguson’s law enforcement practices are shaped by the City’s focus on revenue rather than by public safety needs.” The report detailed not only the fines and fees practices of the civil citation system and their consequences, but also the racial bias and even animus that undergirded Ferguson’s approach to law enforcement. Its public release brought issues of criminalization of poverty and police abuse to the forefront of public debate.

The Ferguson investigation was one of more than 20 pattern and practice investigations conducted by the Civil Rights Division during the Obama administration. They proved useful not only at reforming the specific subject law enforcement agencies, but also in bringing to light the impact of bad law enforcement policies on American communities. Unfortunately, during the Trump administration, these investigations all but came to a halt, most notably with the DOJ refusing to investigate the Minneapolis Police Department following the death of George Floyd. The Biden administration should take immediate steps to rebuild and reinvigorate the Civil Rights Division, specifically pattern and practice investigations.

Pivot the System Back to Rehabilitation and Redemption

As part of the recent stimulus program, Congress restored Pell grants to incarcerated individuals. Pell grants provide financial assistance to undergraduates from low-income households that generally does not have to be repaid. The stimulus also included funding for the Bureau of Prisons (BOP) to, among other things, implement the First Step Act. The Biden administration can immediately begin to improve the rehabilitation opportunities for those incarcerated in the federal system by prioritizing the development of a clear system for awarding earned time credit for early release or home confinement, which was part of the First Step Act. President Biden should also push the Bureau of Prisons and the Department of Education to build on Pell grant access and the First Step Act partnership funding to improve the educational and skills training programs available in prisons. Consistent with ABA policy, each incarcerated individual “should be engaged in constructive activities that provide opportunities to develop social and technical skills, prevent idleness and mental deterioration, and prepare the prisoner’s for eventual release. Correctional authorities should begin to plan for each prisoner’s eventual release and reintegration into the community from the time of that prisoner’s admission into the correctional system and facility.” (CJS Standards on the Treatment of Prisoners, Section 23-8.2(a))

End Profiteering in the Criminal Justice System

The Biden campaign focused attention on two aspects of profiteering in the criminal justice system—private prisons and prison communications. But, as a recent report by the ABA Working Group on Building Public Trust demonstrated, private companies are profiting from many other aspects of the criminal justice system, including diversion programs, pretrial supervision and probation, mandatory classes, and home confinement devices. (Privatization of Services in the Criminal Justice System, June 2020.) The fees charged for these privatized services not only entrench poverty, but also create a cycle of criminal justice system involvement. The Biden campaign pledged to condition grant funding on eliminating such profiteering, which is an excellent step. President Biden should also ask the Bureau of Prisons to review all programs or services for which incarcerated individuals incur charges, what the charges are, and whether those funds are charged by an outside corporation or the BOP. On the broader issue of charges in the criminal justice system, the Biden administration should request that the DOJ establish a policy, consistent with the ABA 10 Guidelines of Court Fines and Fees, that all federal prosecutors ensure that before fines and fees are imposed, the issue of ability to pay is raised and addressed. Further, the DOJ Civil Rights Division should be asked to prioritize the investigation of court practices related to the imposition of fines and fees on those who lack an ability to pay and the resulting debt collection practices.

Conclusion

As a presidential candidate, Joe Biden laid out an ambitious agenda for criminal justice reform founded on four core principles. His level of commitment to this agenda as president will be measured by whether, as part of his immediate efforts upon taking office, he takes those unilateral steps available to him to pursue these goals.

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Malia Brink

Counsel for Indigent Defense, ABA Standing Committee on Legal Aid and Indigent Defense

Malia Brink serves as counsel for Indigent Defense for the ABA Standing Committee on Legal Aid and Indigent Defense.