The criminal justice system can be different in a Biden administration

In January, the Biden-Harris administration and the 117th Congress will inherit a federal criminal justice system that has spent much of the last four years in reverse. 

Despite the overwhelming momentum for criminal justice reform in the streets and statehouses, the Trump White House went in the opposite direction, reinstating practices proven to worsen mass incarceration and abdicating its duty to investigate racially biased policing. The incoming administration and Congress must work together to reverse course. This is more than a clean-up job, though. The system needs to be turned inside out.

In the last four years, we saw the undoing of policies that had been working to end mass incarceration and mitigate its damage on families and communities. For example, the Department of Justice (DOJ) criticized local prosecutors who had vowed to move away from incarceration-driven policies, and it reversed previous guidance to state courts against imposing excessive fees and fines. To be sure, President Trump signed the bipartisan First Step Act, which reduced some unnecessarily long sentences for those in federal prisons and aimed to improve programming for those who are incarcerated in the Federal Bureau of Prisons facilities. But the bureau has still not delivered on the promise to bring more programs to incarcerated people. The Trump administration has also opened only one federal investigation of unconstitutional policing and it eliminated the ability of police departments to opt into partnerships with the DOJ to encourage police reform. The list goes on.

To jumpstart transformative change to our criminal legal system, the Biden-Harris administration should take three steps early in 2021. These and other crucial reforms are part of the Brennan Center’s federal agenda for criminal justice, published today.

1. Stop subsidizing mass incarceration with federal incentives. Since the 1960s, the federal government has helped shape the nation’s criminal justice landscape with money, making grants contingent on states’ increasing arrests, prosecutions and imprisonment. From the Omnibus Crime Control and Safe Streets Act of 1968 to the Anti-Drug Abuse Act of 1986, federal dollars rewarded arrests and incarceration. At the high-water mark of the tough-on-crime era, the 1994 Crime Bill (the Violent Crime Control and Law Enforcement Act of 1994) authorized $12.5 billion in grants for states to build or expand prisons if they passed “truth-in-sentencing” laws. This legislation required those sent to prison to serve at least 85 percent of their sentence before they could be considered for release.

Together, the Biden-Harris administration and Congress can divert the flow of federal funding streams away from programs and policies that privilege incarceration. They can champion the Reverse Mass Incarceration Act, a bill pending in Congress that would incentivize states to reduce both crime and incarceration.  

2. Restart the DOJ’s civil rights investigations of police departments. The new White House can immediately reactivate the DOJ’s authority to investigate law enforcement agencies engaged in a “pattern or practice” of behavior that “deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.” This statute was enacted in 1994 in response to the acquittal of Los Angeles Police Department officers involved in the brutal beating of Rodney King, and it grants the federal government the power to significantly change local police departments’ policies and practices where racist conduct and other systemic problems are found. Since then, the Justice Department has initiated 70 pattern-or-practice investigations and established 40 reform agreements across Democratic and Republican administrations, with some significant results, including decreased police shootings and increased accountability. The Biden-Harris administration should rescind former Attorney General Jeff Sessions’ guidance that curtailed pattern-or-practice investigations during the Trump administration and also direct the Justice Department to engage in more aggressive enforcement of existing consent decrees.

To complement its pattern-and-practice investigations, the DOJ in the Biden-Harris administration should move quickly to revive the department’s Collaborative Reform Initiative, part of the Office of Community Oriented Policing Services, which had worked with cities to improve their policing as an alternative to federal litigation against them. When then-Attorney General Sessions cut the initiative in 2017, it was working with 16 police departments across the country, including Milwaukee and San Francisco, to address racial bias, use-of-force policies, or the departments’ relationships with their communities.

3. Create an independent oversight body with broad authority and capacity to monitor federal prisons and identify and prevent abuse against people behind bars. The coronavirus has made it all the more evident that we know too little about what happens inside federal prisons. These facilities operate between 12 and 19 percent over capacity, a level of crowding that was inhumane before the pandemic struck and is deadly now. Approximately 154,125 people are serving time in the federal system, and as of Dec. 1, 1,454 incarcerated people and 98 staff members have died of COVID-19. Congress should establish an oversight entity, such as a prison ombudsman, with broad authority and capacity to monitor federal prisons with the goal of investigating and ensuring the protection of rights and preventing mistreatment of incarcerated people. This would need to come with the mandate to regularly inspect each facility annually without providing advance notice in addition to unfettered, confidential access to incarcerated people, staff, documents and other materials.

By taking these three steps, the Biden-Harris administration and Congress can start to move federal funding, federal investigative powers and federal incarceration away from excessive punishment and towards fairness, accountability and humane treatment for all. They will have far more to do, but their path will be clear.

Lauren-Brooke Eisen is the director of the Justice Program at the Brennan Center for Justice. Ram Subramanian is the managing director of the Justice Program at the Brennan Center for Justice. They are co-authors of A Federal Agenda for Criminal Justice Reform.