President Joe Biden and Vice President Kamala Harris took office during a raging pandemic and amid the first violent transition of power in our nation’s history. Their ascension also followed a campaign in which bipartisan criminal justice reforms backed by evidence were routinely conflated with caustic clashes over “defunding the police.”
But these challenges are no excuse for inaction.
Too many Americans cannot wait a day longer for our national promise of safety and justice to be fulfilled. And all Americans deserve the right to walk alone at night in the park and wake up in a world free of news stories whose searing ending is given away by just three words: “unarmed Black man.”
Few realistically expected major criminal justice reform legislation to pass Congress within the administration’s first 100 days. The president and an evenly divided Congress were understandably focused on responding to the pandemic and its economic consequences.
Despite that, the administration has begun to drive some positive momentum through executive actions and the appointment of experienced, strategic people to senior positions.
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Within days of taking office, according to HuffPost, the Department of Justice rescinded a controversial memo issued by former Attorney General Jeff Sessions that upended the traditional role of prosecutorial discretion that required prosecutors to pursue the most severe charge and sentence possible in every case.
More recently, Justice reversed the Trump administration’s moratorium on “pattern-or-practice” investigations of police departments — and launched probes of agencies in Minneapolis and Louisville.
Often, the consent decrees that stem from these investigations have, particularly when accompanied by independent monitoring, improved policing outcomes, including reducing excessive force, in the affected jurisdictions.
While these steps represent a worthy start, the administration has much more executive ammunition at its disposal.
The DOJ must clearly and fully reverse a Trump-era memo that may soon require some people who received release from prison during the COVID-19 pandemic to be reincarcerated, even though they have been law abiding since being discharged. The Biden administration has issued memos that appear to limit its applicability, but directives are very unclear.
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The administration also has yet to take needed steps to curb the transfer of military equipment to police departments and overhaul the clemency process to provide independence from DOJ prosecutors.
When it comes to legislation, the White House must put the same political muscle behind policing and criminal justice reforms as it is using on other priority issues, such as infrastructure. Although the administration’s historic proposal for $5 billion for community violence-prevention programs is laudable, many promising and largely bipartisan bills in Congress could also benefit from the president’s encouragement.
The House and Senate are working to reconcile dueling police reform bills that would bolster police training, establish a duty to intervene and create a registry of officers who have committed misconduct. Pending bipartisan bills that deserve the administration’s support would eliminate the disparity in sentencing laws between crack and cocaine and create a mechanism to automatically seal old, low-level federal convictions.
Next steps should include eliminating all federal mandatory minimum sentences for drug offenses, creating waivers from federal prosecution for banking and other activities in states with legal marijuana, launching a process to strip the federal code of unnecessary and duplicative statutes, and establishing stronger oversight of the federal Bureau of Prisons.
Beyond using his authority to champion new laws and take executive actions, Biden must convey to Americans that a fair, effective criminal justice system is a national priority — and essential to a unified democracy.
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That message must vigorously address the country’s ongoing journey toward racial equity. In recent decades, America has made significant progress in closing the pernicious racial disparities in our justice system. Between 2000 and 2016, for example, the disparity in the rate of imprisonment for African Americans for drug crimes dropped significantly. But the murder of George Floyd and its painful aftermath have exposed the persistent and corrosive cracks of racial injustice in our nation’s foundation.
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We need to build back better, but we cannot do so on shaky ground.
Instead, to deliver a justice system that is worthy of our nation’s founding principles and merits the trust of all Americans, this administration and Republican leaders must work together to confront the failed policies of the past and mold the promising elements of Biden’s first 100 days into lasting change.
Marc Levin is chief policy counsel for the Council on Criminal Justice, a nonpartisan criminal justice think tank and invitational membership organization. Khalil Cumberbatch is the council’s director of strategic partnerships.