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Filed 6:00 a.m.
11.08.2020

What Biden’s Win Means for the Future of Criminal Justice

Joe Biden ran on the most progressive criminal justice platform of any major party candidate in generations. So what can he actually do?

Democratic presidential nominee Joseph R. Biden spoke during a drive-in campaign rally in Pittsburgh, Pennsylvania, on Nov. 2. Drew Angerer/Getty Images

During his presidential campaign, Joe Biden promised to end private prisons, cash bail, mandatory-minimum sentencing and the death penalty. Candidate Biden also said the U.S. could reduce its prison population by more than half. While he didn’t put forward as progressive or as detailed a platform as many of his competitors for the Democratic nomination (including his running mate Kamala Harris), Biden has nevertheless, quietly, been elected on the most progressive criminal justice platform of any major party candidate in generations. So what can he actually do?

Biden will face the same constraints as all incoming presidents after a campaign of big promises. Government moves slowly, time and political capital are limited, and his administration will likely need to prioritize the pandemic and the related economic fallout in the early days. But if he’s serious about tackling criminal justice, here’s what experts say to expect from the Biden administration on key issues.

Jamiles Lartey

Policing Reform

Along with the COVID-19 pandemic, policing has been at the forefront of public consciousness for much of 2020. That interest gives Biden the political capital to act, but doesn’t change the fact that policing is primarily local, and nationwide change is hard to enforce at the federal level.

The U.S. has some 18,000 law enforcement agencies, all with their own rules and regulations. If Biden wants to make changes on his own (he has suggested banning no-knock raids and chokeholds, for example) he will mostly be limited to offering funding or threatening funding cuts to departments based on whether they follow guidance issued by his Department of Justice.

Notably, the Trump administration has already moved to ban restraint maneuvers that “restrict an individual’s ability to breathe” via executive order, announcing plans for implementation last week.

This strategy has had some impact in the past, but federal funding makes up only 3 percent of local law enforcement spending nationwide, so changes are hardly a slam-dunk. Biden has also promised to revitalize federal investigations of departments that demonstrate a pattern of civil rights violations. These investigations were routinely conducted by the Obama administration but abandoned by President Donald Trump. Historically they have led to consent decrees in some of the nation’s largest cities and produced the now frequently-cited Ferguson Report.

The president-elect repeatedly spoke about wanting to convene “cops, social workers … and the Black and Brown community,” and experts say they expect him to build on some of the relationships and work that the Obama administration’s Task Force on 21st Century Policing started.

Biden could encourage lawmakers to pass a version of the George Floyd Justice in Policing Act, which passed the House earlier this year before being stymied in the Senate. The legislation would have a much larger impact than the administration could have on its own. The bill, among other things, would set a national use-of-force standard, make it easier to charge police with crimes at the federal level and establish a national registry of misconduct by law enforcement officers. How far such a comprehensive policing bill would go will depend on which party maintains control over the Senate.

Biden brings to the White House a long history of close relationships with law enforcement, but one that has recently frayed as police unions largely defected to Trump. Biden’s loss of political capital with cops stems partly from his slight shift leftward during this year’s Democratic primaries, when he started openly using terms like “systemic racism” in conversations about policing. It is also a result of how the Obama administration, with Biden as vice president and point person on law enforcement issues, aggressively investigated police departments accused of excessive use of force and racist practices.

Jamiles Lartey and Eli Hager

Juvenile Justice

On an often overlooked issue, a Biden administration has the chance to make real change.

The juvenile justice system gets less attention than hot-button issues like immigration, policing and private prisons. That’s why it went largely unnoticed when Trump appointed a former prosecutor and professor at the evangelical Liberty University to run the federal agency that oversees youth justice nationwide—who then dismantled a range of protections for children of color in the justice system.

The Biden administration will likely reinvest in this agency, the Office of Juvenile Justice and Delinquency Protection, to ensure that juveniles’ records are expunged, to prohibit them from being incarcerated in adult facilities, and to end the practice of jailing them for so-called “status offenses”—crimes that would not be crimes if you were an adult, like underage drinking and truancy.

Biden’s campaign pledged $1 billion for these efforts and the goal of reducing juvenile imprisonment to near zero, which children’s advocates say is possible in coming years. His plan is to create a grant program that would provide money to states to set up alternatives to incarceration like repurposing empty youth jails into community centers and mentorship, counseling and job programs.

Importantly, the Biden plan does not suggest GPS monitoring as an alternative to youth incarceration, which has often resulted in increased surveillance of kids by the justice system.

Finally, Biden will likely return to Obama-era policies designed to plug the school-to-prison pipeline. Before Trump took office, the Justice Department’s civil rights division had been active in pressing school districts to stop calling the police on kids for minor misbehavior and stop suspending and expelling students of color, which can lead to a greater chance of them being arrested.

Eli Hager

The federal execution chamber is located at Terre Haute Federal Correctional Complex in Indiana.

The Death Penalty

Biden can’t unilaterally end the death penalty, but he can speed up its demise and use symbolism to signal a new era.

Ultimately, the death penalty is symbolic. It has never been used to punish more than a tiny fraction of the most serious murders, but it makes very long prison sentences appear lenient by comparison.

On the campaign trail, Biden said he’d work to end the federal government’s use of the death penalty. His record is mixed. As a senator, he pushed for a bill in which “we do everything but hang people for jaywalking,” but also fought to make sure death-row prisoners had good lawyers. He now argues that some serious crimes should still lead to life sentences without parole, which some consider worse than execution.

Although only Congress can fully abolish the federal death penalty, the president can do a great deal to speed its yearslong decline across the country.

Trump’s attorney general, William Barr, oversaw the most federal executions of any presidential administration since Eisenhower. A new attorney general could stop them immediately, and return to the Obama-era practice of seeking no executions. A new attorney general could tell U.S. attorneys to only seek new death sentences for rare crimes like terrorism and mass shootings, which would still apply to defendants like Charleston church shooter Dylann Roof and Boston Marathon bomber Dzhokar Tsarnaev.

Biden could also initiate a moratorium on executions and halt all action while his administration studies the punishment’s use, which President Barack Obama promised but never delivered.

Most death sentences are handed out in state courts, but the president can push states to slow down executions, by withholding federal grants unless states guarantee that death row prisoners have access to DNA tests that may help them prove their innocence. Robert Dunham, executive director of the Death Penalty Information Cetner, said the president could set up a project to help defend military veterans who commit serious crimes. “There is a unique federal interest in protecting people who have served the country,” he explained, noting many veterans develop PTSD or suffer head trauma in service and their lawyers struggle to get their military records.

If Biden wants to really opt for symbolism, he could follow the lead of California Gov. Gavin Newsom—who ordered that the state’s execution chamber be dismantled last year—and close the federal chamber in Terre Haute, Indiana. He could also aggressively pursue a mass clemency campaign, commuting the sentences of the more than 50 people currently on federal death row, if he believes that the death penalty system is too broken to be fixed.

Maurice Chammah

Bail Reform

Biden has promised to “lead a national effort to end cash bail,” but his pathway to do so is limited.

Cash bail is money a defendant pays as collateral in exchange for being let out of jail during the time between their arrest and a trial or plea. Biden repeatedly called the practice a “modern-day debtors’ prison” in campaign literature, but no president has much direct influence on bail, since it’s rarely used in the federal justice system.

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Biden can help push local governments by asking his Department of Justice to issue guidance on bail, convening White House events, or assembling a task force as the Obama administration did with policing in 2015. “That bully pulpit that the president has, he really exercises through the attorney general position on these issues,” said Cherise Fanno Burdeen, an Executive Partner at the Pretrial Justice Institute.

Biden could also work with Congress to pass legislation like Bernie Sanders’ “No Money Bail Act” which would have offered grants to states to adopt alternatives to money bail. Incoming Vice President Kamala Harris co-sponsored a similar bill in 2017.

Much depends on what the White House would push for as a replacement. State-level bail reform efforts that have replaced money with increased discretion for judges to order preventative detention have divided justice advocates. In the federal system for example, thanks in part to a 1984 reform bill that Biden co-sponsored as a senator, criminal defendants are often presumed too dangerous to release before trial, either because of the nature of the crime they are accused of, or because of factors calculated in a risk assessment.

Biden has promised that he will pursue reforms that are “fair” and “do not inject further discrimination or bias into the process.” But that has so far proven easier said than done.

Jamiles Lartey

Mandatory Minimums

Biden has said he wants to eliminate mandatory minimum sentences, a legacy of the tough-on-crime ’80s. To make this happen at the federal level, he’d need to appoint a range of officials who share this view, and get buy-in from Congress.

Beginning in 1984, Congress passed dozens of laws requiring minimum prison terms for a wide range of crimes, including buying and selling drugs, possessing guns unlawfully, or downloading child pornography. Over the years mandatory minimums have been singled out for leading to decades behind bars or life sentences for possessing or selling tiny amounts of drugs. Biden’s criminal justice platform pledges to eliminate federal mandatory minimums. Biden hasn’t specified which ones, but advocates say if he does tackle them, he will likely focus on drug crimes.

There are more than 60,000 people currently serving mandatory minimum sentences in federal prison, according to the U.S. Sentencing Commission. 10,000 entered the system last year alone. A broad clemency effort or a law change, if it were retroactive, could reduce the federal prison population by a quarter almost overnight.

Repealing mandatory minimums—or passing a “safety valve” law that doesn’t repeal them but gives judges the discretion to sidestep them—would require an act of Congress. Part of the problem, say scholars who study the issue, are the Attorney General and the Department of Justice, whose opinions carry a lot of weight with Congress. So the first step a President Biden could take to signal his commitment to repealing mandatory minimums is to appoint officials who share his view, says Rachel Barkow, a law professor at NYU and a former member of the U.S. Sentencing Commission, which helps draft federal sentencing guidelines. An Attorney General who is skeptical of mandatory minimums could also instruct federal prosecutors to use them judiciously, as Eric Holder did in 2013.

Barring legislative changes, a president can use his clemency powers to shorten the sentence of anyone serving a mandatory minimum, or use his commutation power to give judges the opportunity to shorten their sentences, said Paul Larkin, a legal research fellow at the Heritage Foundation. Biden says he now regrets his support of the 1984 and 1986 laws that created many of today’s mandatory minimums.

Beth Schwartzapfel

Clemency

Biden has lots of power to revamp and supercharge the clemency process—but he hasn’t given much indication that he intends to use it.

Clemency, which includes reversing criminal convictions (pardons) and shortening sentences (commutations), is the president’s most direct means to reduce incarceration. Biden made no bold promises on these topics during the campaign. He has promised to “broadly use his clemency power for certain non-violent and drug crimes,” as Obama did at the end of his administration.

Under Trump, clemency has slowed considerably. Trump has issued fewer than 50 total pardons and commutations as president and they have disproportionately gone to his political allies, like Roger Stone, Dinesh D'Souza and Joe Arpaio. Compare that to over 1,700 issued under Obama, which set a record as more acts of clemency than the previous 13 presidents combined.

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Biden could ask Harris to take the lead on clemency since she laid out a more detailed plan than his own during the Democratic primary. Harris said she would remove clemency decisions from the Department of Justice and open a federal sentence review unit, where a team of lawyers would be exclusively tasked with reviewing old sentences and considering reductions. These would be within the administration’s authority and could speed the pace of clemency considerably.

Another option for the administration would be to create an independent White House clemency advisory board to speed the pace of clemency decisions, something Sens. Bernie Sanders, Elizabeth Warren and Amy Klobuchar all supported during their presidential campaigns.

Jamiles Lartey

A detainee buys goods at the commissary at the Stewart Detention Center, which is run by CoreCivic, in Lumpkin, Ga., in 2019.

Private Prisons

Biden can move the 14,000 federal prisoners currently held in private facilities without too much struggle. After that it gets harder.

Biden and Harris both pledged to end the federal government’s use of private prisons during the 2020 campaign, a position that is extremely popular among Democrats partywide. Experts say the incoming administration is likely to build on guidance issued under the Obama administration in 2016, rescinded by Trump, that encourages the director of the Bureau of Prisons to stop renewing contracts with private facilities when they expire, in an effort to ultimately phase out their use.

At that time, about 22,000 people were being held in private facilities under contract with the bureau. The number has since fallen to around 14,000 because several prisons were closed and federal incarceration declined both under Obama and Trump. The 2018 First Step criminal justice reform bill and coronavirus-related policy changes have both driven federal prison populations down to some extent.

Prisoners serving sentences for federal crimes only make up a small percentage of the people the federal government currently detains in private facilities, however. Some are held pretrial for the U.S. Marshals Service and the vast majority are being detained for U.S. Immigration and Customs Enforcement. Unlike the prisons bureau, these agencies have few of their own detention facilities and rely heavily on private companies (as well as local jails) to hold people for them. In 2019, ICE booked some 500,000 detainees into a system where private companies make up about 80 percent of the available beds.

Together, the major two detention providers, CoreCivic and GEO Group, made about $1.3 billion last year in contracts with ICE, and each company relies on ICE for around 30 percent of its revenue, according to the Associated Press. Both companies secured multiple 10-year contracts with ICE this year that experts say would be difficult for the federal government to get out of, and would theoretically extend past the end of even a two-term Biden presidency.

That creates a challenge for Biden, who also pledged to “end for-profit detention centers.” Experts say the only realistic way to make good on that promise is to detain far fewer people. The Biden campaign has strongly endorsed case-management strategies for those arrested on immigration violations instead of detention.

Jamiles Lartey

Immigration Detention

Biden can’t abolish private immigration detention without a dramatic reduction in the number of people being detained. Holding fewer people will be within Biden’s power, but may come at a political cost.

Tucked away deep in Biden’s 18-page plan for immigration is a pledge to end private detention centers. “No business should profit from the suffering of desperate people fleeing violence,” it says, without specifying how to accomplish that ambitious goal.

After decades of expansion, the detention system overseen by Immigration and Customs Enforcement, or ICE, held more than 52,000 people a day at its peak in 2019. Four in five detainees were held in privately-run facilities, according to the American Civil Liberties Union. The major players are the GEO Group and CoreCivic, publicly-traded companies.

Trump rapidly expanded detention, especially for asylum-seekers. Officials ordered most of them to be confined while their cases moved through immigration courts, all but eliminating release on bond. Since 2017, ICE has opened more than 40 new detention centers, bringing the total to 220. In 2020 ICE’s budget for custody operations was $3.1 billion.

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Largely because the Trump administration cited the pandemic to expel border crossers, ICE’s average daily detention headcount dropped from 50,218 in October 2019 to 20,365 in September. Even so, there are not enough vacant public facilities in the country to house immigrant detainees unless their numbers drop substantially.

Biden’s plan calls for investing in alternatives to detention, like community-based case management programs to ensure people show up for court hearings, which proved effective in pilots under the Obama administration.

Biden has also said he would send a bill to Congress in his first 100 days with a “roadmap to citizenship” for more than 10 million undocumented immigrants, a measure that could eventually greatly curtail ICE arrests within the country. Biden’s chances for passing that legislation will likely diminish if Republicans retain control of the Senate.

Intense resistance will likely come from officials in places that depend on detention centers for jobs, said César Cuauhtémoc García Hernández, a law professor at the University of Denver who has argued for abolishing immigration detention.

Biden’s victory has amplified calls from Democrats to end detention of children in chain-link cages and other Custom and Border Protection holding cells at the border. Biden has said he will not allow separation of children from migrant families, and he can instruct U.S. border authorities to hold young border-crossers in more appropriate government facilities and speed their release.

Some Biden campaign aides worry that his victory will spur a new surge of migration to the border, which might imperil support in Washington for broader reform. Pressure to wait on closing detention centers could emerge from within the Biden White House.

Julia Preston

Reducing The Prison Population

Biden can’t implement new programs or rewrite outdated sentencing laws at the state level. But he can use federal funding to send a message.

Crime prevention is a central feature of Biden’s criminal justice plan. He has pledged to set aside $20 billion in federal funding to states that adopt evidence-based crime prevention programs and that opt for diversion programs over incarceration.

Biden’s plan is adopted from The Reverse Mass Incarceration Act, a 2015 policy proposal by The Brennan Center for Justice, a nonpartisan law and policy organization working to reform the justice system.

Under Biden’s plan, states would have access to federal funding if they agreed to implement programs designed to keep people out of prison. The funding comes with some stipulations: States must eliminate mandatory minimums and they must create earned credit programs for people currently serving time.

It’s unclear what kinds of programs states could or should adopt in order to get the funding. Biden has emphasized the need for states to invest in programs that address several underlying drivers of crime such as illiteracy and limited early education.

Congress would have to enact Biden’s plan. He has allies in both chambers: Senator Cory Booker and Representative Tony Cardenas introduced a bill in 2019 modeled after the Brennan Center proposal. But neither bill has moved forward. And even if Biden wins the presidency, the success of his plan hinges on the outcome of 2020 congressional races, and the makeup of the Senate might not be determined until January.

States have already begun to decarcerate. In 2019, the state prison population declined for a third year in a row. And crime is at historic lows, despite a recent uptick. But the changes are uneven. Spurred by federal funding through the Justice Reinvestment Act, some states have let people out of prison early, only to increase the number of people on probation and parole.

Nicole Lewis