Editor’s Note: Karl A. Racine is the attorney general for the District of Columbia. Miriam Aroni Krinsky is a former federal prosecutor and the executive director of Fair and Just Prosecution, a national network of elected prosecutors working towards common-sense, compassionate criminal justice reforms. The views expressed in this commentary are their own. View more opinion articles on CNN.
The night of his victory, President-elect Joe Biden declared that the American people had given him a mandate to “marshal the forces of decency…fairness… science and… hope in the great battles of our time” – among them, the battle for racial justice.
As immigrants, criminal justice leaders and Americans who believe in our nation’s promise of liberty and justice for all, we applaud the incoming President’s commitment to this important work. Moreover, we believe he should make full use of his authority as President – beginning on day one – to root out racist and failed policies prevalent in our justice system.
For decades, elected leaders sought to portray themselves as “tough on crime” through misguided choices – including the war on drugs, mandatory minimum penalties and the militarization of the police force – that eroded trust with communities, while cementing racial oppression and mass incarceration.
This election revealed that many people now see these policies as grave errors. In red and blue states alike, voters backed initiatives propelling criminal justice and policing reform, while delivering Joe Biden a historic victory. The calls for systemic change came from every corner of the country. Now it’s up to the President-elect to see it through.
He should start with the adage that personnel is policy. Currently, 85% of US attorneys are White men, up from 58% under former President Barack Obama. Biden should strive to make these critical leaders of the Justice Department better reflect the country’s diversity. More importantly, he must tap individuals who not only understand that racial inequities are built into the system, but whose careers demonstrate deep commitment to righting these wrongs – particularly when it comes to his attorney general.
That individual must embrace transparency to restore the Justice Department’s integrity following four years of erosion. Collecting, tracking and releasing data on race in the criminal justice system – as several local prosecutors across the country are doing – gives the public both a window into disparities and the ability to hold the administration accountable in addressing them.
Biden should also direct the attorney general and US attorneys to adopt evidence-based policies that will alleviate the disproportionate harms done to people of color. These concerns are particularly prevalent in matters of drug policy, juvenile justice, second chances and police accountability.
On drug policy, the Biden-Harris administration should refrain from enforcing the federal prohibition on marijuana, which has left millions of Black and brown Americans needlessly ensnared in the criminal legal system. They should further lead the effort to end the criminalization of substance use disorder and embrace harm reduction. To do so, they should retract threats to prosecute clients, staff and volunteers at overdose prevention sites – locations (successfully operated in other parts of the world) where people can use drugs under the supervision of individuals trained to immediately reverse overdoses and where connections can be made to medical care, social services and harm reduction supports – and make clear that these lifesaving programs do not violate federal drug laws.
On juvenile justice, the Biden administration should follow in the footsteps of reform-minded prosecutors and prohibit federal prosecutors from seeking life without the possibility of parole or de facto life sentences for young people. These changes would reflect the consensus among cognitive scientists that the brain isn’t fully developed until the age of 25, and that most young people respond to rehabilitative treatment and “age out” of criminal behavior.
On second chances, it’s time to embrace the consistent research showing that lengthy sentences do not deter crime. The President-elect should direct the attorney general and Bureau of Prisons to implement policies embraced by numerous elected local prosecutors promoting sentencing reductions and compassionate release. And he would be wise to establish an independent clemency commission – a freestanding agency with credible leadership and tasked with immediately and proactively investigating and addressing clemency requests.
Biden should also immediately direct the Justice Department to reassess onerous conditions of federal probation and supervised release, which create an unnecessary cycle of incarceration for countless men and women – many imprisoned for technical non-violent infractions – and waste hundreds of millions of dollars. The department could also provide financial incentives for state and local governments to do the same.
Additionally, Biden should look to local prosecutors working to exonerate wrongfully convicted individuals and order US attorney’s offices to establish conviction integrity units, while offering incentive funds to local prosecutors prioritizing this endeavor. Finally, he can codify equity and compassion by reversing the Trump administration’s resumption of federal executions, commuting all federal capital sentences, dismantling the federal death chamber and working to eliminate the death penalty federally and nationwide.
While policing may largely be a matter of municipal policy, the President-elect can have the Justice Department use several tools to propel change. The attorney general can tie federal funding and grants for local police departments to the adoption of stronger use-of-force standards, alternative responder models, body-worn camera programs, peer intervention training, databases tracking police misconduct and other best practices. Further, the Justice Department’s Civil Rights Division should resume the important work of investigating police departments and seek consent decrees – court supervised agreements – addressing patterns of abusive, racist policing.
These proposals are all well within the broad powers of the executive branch, and Biden could enact many on Inauguration Day. This is not to suggest, however, that his criminal justice agenda should simply ignore the legislature. We hope that members of Congress will heed the public’s clear desire for such reforms and work to make headway. Indeed, if the parties can find common ground around more expansive, longer-lasting change, we urge them to seize it.
But with lives on the line and calls for change in 2021 mounting, there is no time to waste. Biden should not hesitate to strike quickly and often in the ongoing battle for racial justice.