Build a bridge, not a wall, between administrations on justice reform
Given his pre-White House record on matters such as the Central Park Five, as well as a campaign launched with false claims that Mexican immigrants were more likely to commit crimes than native-born Americans, many expected that former President Trump would preside over explosive growth in the federal prison population. In fact, as of Jan. 21, there were 151,646 people in federal prison compared with 192,170 at the end of 2016. In pushing forward his agenda, President Biden can maximize bipartisan support by accounting for both the successes and failures of the prior administration on criminal justice.
Few would dispute that the First Step Act was the crown jewel of bipartisan achievements over the last four years. It contributed to the shrinking of the federal prison population through provisions such as lowering mandatory minimum penalties for drug offenses and making retroactive a reduction in the crack and powder sentencing law disparity. Additionally, the CARES Act earlier this year expanded medical parole eligibility in the face of the wrenching impact of COVID-19 on incarcerated people and staff.
Other bipartisan accomplishments flew under the radar. In 2018, the Juvenile Justice and Delinquency Prevention Act was reauthorized with provisions added to phase out the shackling of pregnant girls, require the separation of jailed youth from incarcerated adults, and ensure that racial disparities are tracked and addressed. In 2019, legislation was passed to stop abusive IRS prosecutions for “structuring,” which put some law-abiding small business owners through a dragnet simply because they made bank deposits of $10,000 or more.
Just two days before leaving office, Trump took action on another justice-related topic, overcriminalization. In an effort to rein in the proliferation of obscure criminal penalties that can unwittingly trip up individuals and businesses, Trump issued an executive order mandating that when federal agencies create criminal offenses through regulations, they specify the culpable mental state required for conviction.
While the Biden administration should seek continuity in these areas, there is no shortage of work to do on other aspects of criminal justice reform. In June 2020, the Council on Criminal Justice convened a bipartisan Task Force on Federal Priorities, chaired by former Georgia Gov. Nathan Deal, that issued numerous recommendations, including the reinstatement of Pell grants for people in prison that was adopted in December. Among the most important items deserving action by the White House and Congress are Task Force recommendations to abolish federal drug mandatory minimums, expand record sealing, and allow courts to take a second look at certain sentences after individuals have spent many years behind bars.
Fortunately, many of these priorities are already teed up for bipartisan action in Congress. For example, acquitted conduct legislation backed by lawmakers ranging from Sen. Richard Durbin (D-Ill.) to Sen. Mike Lee (R- Utah) would prohibit prosecutors from contaminating the sentencing phase of a trial with references to conduct that the jury determined the defendant was not guilty of.
Another priority is marijuana reform, which — at a minimum — should include waiving federal laws that interfere with state legalization of medicinal or recreational marijuana. All but six states have now legalized marijuana in some form, and yet federal law inexplicably continues to classify it as a Schedule 1 drug, along with heroin, LSD, and crack cocaine.
This continued federal war on cannabis drives underground what should be legitimate activity going through reputable financial institutions. The new administration and Congress must not only start a new chapter on marijuana policy, but also remedy the injustices and inequities of the past by authorizing actions such as automatic record clearing of marijuana convictions.
Finally, while policing is largely and rightly a state and local function, President Biden should seek to bridge the gap between the House and Senate policing bills that deadlocked in 2020 following the killing of George Floyd. Common ground exists on many provisions, including the legitimate federal role in ensuring that a rogue police officer cannot be fired for misconduct in one state and then hired without knowledge of that in another.
Criminal justice policy is too important to leave to any one political party.
Tax policy affects how much every American pays to Uncle Sam, but it is in the justice system that our liberty and lives are most directly at stake.
While the Trump administration ended in the worst way imaginable, the bipartisan accomplishments over the last four years, combined with the growing consensus around many urgent next steps, offers hope that criminal justice reform can continue to transcend the partisan divide.