Criminal Justice Reform Progress and Setbacks

Retrenchment on the Federal Death Penalty

The Biden administration has made little to no progress on its campaign pledge to end the death penalty. While the Department of Justice took some initial steps, such as withdrawing requests for the death penalty in seven cases and announcing a moratorium on federal executions, these changes could easily be reversed by the next administration. President Biden’s recent actions, such as seeking the death penalty in high-profile cases, suggest a reconsideration of his stance on this issue. Currently, there are 44 people on federal death row, and the stakes remain high.

Limited Progress on Prison and Criminal Justice Reform

The appointment of Colette Peters as the new director of the Bureau of Prisons offers hope for reform within the agency. Peters has a track record of successfully implementing reforms in the Oregon Department of Corrections, including the dismantling of the state’s death row.

However, she has inherited decades of dysfunction within the Bureau of Prisons, including serious allegations of sexual abuse, a corruption inquiry, inadequate medical care, and staffing shortages. Additionally, implementing the First Step Act, a bipartisan reform bill, remains incomplete. Racial bias in the risk assessment tool used in federal prisons is also a concern. The DOJ has acknowledged these issues and pledged to address them.

Notable Nominations and Confirmations

President Biden has made significant nominations and confirmations that aim to reshape the administration of federal law. The appointment of Ketanji Brown Jackson to the Supreme Court is particularly notable, as she is the first Black woman to sit on the high court and has a background as a federal public defender.

The president’s nominees for lower federal courts have also been diverse, with a record number of former public defenders appointed. Most of the nominees have been women and nonwhite individuals, reflecting a commitment to diversity in the judiciary. The recent confirmation of nominees to the U.S. Sentencing Commission is also a positive development.

Updates to DOJ Charging Policy

Attorney General Merrick Garland has issued directives that limit the application of mandatory minimum penalties, particularly in drug cases. These directives aim to reduce excessive sentences in the federal system and ensure that the severity of a defendant’s criminal conduct is adequately reflected. Prosecutors are instructed to avoid triggering mandatory minimums in cases where conviction on other charges would suffice.

Additionally, prosecutors should exercise discretion in drug cases involving quantity-based mandatory minimums, considering factors such as violence and aggravating factors.

This policy also seeks to address the sentencing disparity between crack and powder cocaine offenses, reflecting the Justice Department’s commitment to eliminating this disparity.

Limited Progress on Clemency

After a year of inaction, President Biden granted pardons and commutations in April 2022. While this was a positive step, the number of grants was relatively small. The president granted another round of pardons at the end of 2022, benefiting individuals convicted of minor drug- and alcohol-related crimes. In November 2022, he also issued a pardon for all convictions for simple marijuana possession under federal and District of Columbia law. While this pardon is significant, it has limitations and does not apply to individuals convicted of distributing or selling cannabis.

The president’s use of a categorical pardon for simple marijuana possession is a potential shift in federal clemency and could lead to further actions to correct injustices in federal sentencing law.

Mixed Record on Immigration Detention

While the Biden administration has taken steps to decrease the number of undocumented individuals detained and reduce reliance on for-profit detention, there is still room for improvement. The administration sought funding for fewer ICE detention beds in its FY 2023 budget and increased funding for its Alternatives to Detention program. However, the administration continues to heavily rely on detention, and conditions in detention facilities remain poor. The use of for-profit correctional firms in electronic monitoring also creates perverse incentives.

While funding has been allocated to community violence intervention programs (CVIs), it is unclear how much has reached the organizations that need it most. Some funding has been used for other purposes, and the grant application process excludes certain community-led organizations.

New Investments in Community Violence Interventions

The Biden administration has supported community violence intervention programs (CVIs) as part of its crime reduction strategy. These programs aim to break cycles of violence through social programming and other interventions led by individuals from the communities they serve.

While funding for CVIs has increased, it is difficult to determine how much federal money has reached the organizations most in need. Some funding has been used for purposes unrelated to CVIs, and the grant application process can be complex and exclusionary. Improvements to the grantmaking process and clearer guidelines can ensure that more organizations benefit from federal grants and that the strategies supported align with the goals of CVIs.

Conclusion

In conclusion, the Biden administration has made some progress in criminal justice reform, but there are still significant challenges and missed opportunities. The retrenchment on the federal death penalty, limited progress on prison reform, and mixed record on immigration detention highlight areas where more work is needed.

However, notable nominations and confirmations, updates to DOJ charging policy, limited progress on clemency, and investments in community violence interventions demonstrate steps in the right direction. The administration has the power to continue making progress in these areas and should prioritize efforts to build a fairer and more effective criminal justice system.