Research Brief on the Biden Administration’s Justice Policies, Proposals, and Promises

By Katie Ann Costa and Max Bauer

President Joseph Biden has expressed his prospective plans for criminal justice reform throughout campaign promises and active administration decisions, focusing highly on inclusion and reform initiatives centering on racial and financial justice. Outlined in the following sections are summaries of the scope, scale, and limitations of reform proposed by the Biden Administration.

Reversing Mass Incarceration

While campaigning, one of Biden’s most concrete proposals on criminal justice reform was a $20 billion grant program meant to incentivize states, counties, and cities to adopt new reforms with the goal of reducing the incarcerated population. This proposal is directly inspired by a piece of draft legislation made by the Brennan Center known as the “Reverse Mass Incarceration Act.”^[1] This legislation is meant to reconcile the fallout of the infamous 1994 Crime Bill which used financial incentives to encourage states to build more prisons and adopt Truth-in-Sentencing laws.^[2] Since grants are what drove states to adopt policies which caused the mass incarceration crisis, the logic is that grants can similarly reverse the problem. Specifically, these new grants would only be open to states which “eliminate mandatory minimums for nonviolent crimes,” address “factors like illiteracy and child abuse that are correlated with incarceration” and most importantly to the MJA, “institute earned credit programs.”^[1] Due to the structure of the American federal system, a grant program such as this is the most direct manner in which Congress and the Presidency can address state-level justice policy. The Brennan Center’s legislation was introduced to Congress in 2019,^[3] but died without a vote.^[4] Hopefully, with new pressure from the Biden Administration and a unified Congress, this legislation may become a reality in the near future. Based on this research, this proposal is the most relevant and encouraging for the efforts of MJA to reform Michigan’s criminal justice system.

Police Reform and Racial Justice

In past statements, Biden recognized the reality of bias and racial discrimination plaguing the justice system, stating that “black mothers and fathers should feel confident that their children are safe walking the streets of America.”^[1] He has further promoted this message in speeches and debates, driving home the importance of such reform, especially in light of the Black Lives Matter movement. Yet, Biden has provided little in terms of exact policies to be implemented in the future, other than a return to the “pattern-or-practice”^[5] investigation method for police accountability which was used by President Obama’s Justice Department.^[6] This method involves “conducting a thorough and independent investigation to bring to light any persistent patterns of misconduct within a given police department,”^[5] followed by a court-enforced agreement of what changes that specific department must implement to prevent future misconduct. As of right now, it simply seems that the Biden administration has recognized that something more needs to be done, especially in light of the current social and political climate, but lacks a specific plan as to what. This is likely due to the fact that America’s decentralized system of 18,000 law enforcement agencies renders police reform “primarily a local issue” leaving the Biden Administration’s hands effectively tied when it comes to wide-scale reform.^[7]

Promoting Rehabilitation

Another focus of Biden’s criminal justice reform is emphasizing rehabilitation rather than incarceration. This includes preventative rehabilitation policies and increased support for incarcerated citizens during and after their time behind bars. The idea encourages others to recognize incarcerated individuals as full citizens after their sentence is over, re-working them into society correctly to prevent the likelihood of recidivism. On the front end, preventative rehabilitation works to treat mental health patients and drug users, rather than throwing them into the prison system where they won’t receive proper treatment.^[1] In concrete policy terms, this takes the form of Congressman Jason Lewis’ SAFE Justice Act—proposed legislation that “curtials overcriminalization, concentrates prison space on violent and career criminals, increases government accountability, and strategic sentencing for drug offences.”^[8] The act also includes a new earned time policy that seeks to combat mass incarceration. The flip side of this also offers economic benefits, as “reducing the number of incarcerated individuals will reduce federal spending on incarceration,”^[1] presumably freeing up more funds for preventive initiatives. However, this legislation is only federal in nature, and thus would have no direct effect on the state prison systems. Still, successful implementation on a federal level might encourage independent state reform and serve as a model for states like Michigan to follow.

Other Promises

Further promises follow a theme of pursuing fairness in “investments of public defenders,”^[1] ending the criminalization of poverty by eliminating cash bail, differing the severity of criminal charges for different crimes, especially in the area of drug offences (cocaine vs crack charges, decriminalizing cannabis, drug use charges vs selling charges), and “supporting the needs of incarcerating women”^[1] by conditioning the receipt of federal criminal justice grant on the ability of states and prison facilities to provide healthcare for women in the system that meet or exceed the standard proposed by the NCCHC.^[9]

This seems like a logical and important step as moral and health questions have been looming surrounding conditions in jails and prisons, with increasing numbers of inmates growing yearly. Additionally, Biden has “vowed to use [his pardoning] powers, much like President Barack Obama did, to reduce “unduly long sentences” for nonviolent and drug offenses.”^[10] Beyond purely justice related reform, the Biden administration also aims to provide under-funded areas with affordable education systems. This contributes to the preventative measures discussed in the previous section because higher levels of education reduce the likelihood of falling into patterns of criminalization. However, as of right now, all of this is purely rhetorical. It remains to be seen what, if any, of these loft promises the administration is able to push through a nearly deadlocked Congress.

Actions Already Taken

Though his official time in office has been brief, Biden has made multiple executive orders towards enacting criminal justice reform including not renewing federal contracts between the DOJ and private prisons^[11] and, “advancing racial equity and support for underserved communities through the federal government, preventing and combating discrimination of the basis of gender identity or sexual orientation, and enabling all qualified americans to serve their country in uniform.”^[12] Other memoranduma include “condemning and combating racism, xenophobia, and intolerance against Asian Americans and Pacific Islanders in the United States and redressing our nation’s and the federal government’s history of discriminatory housing practices and policies.”^[12] However, many of these executive orders are more symbolic than substantial since the executive branch has only so much sway of domestic policy. Additionally, Biden’s picks for his justice department seem promising, with 2016 Supreme Court nominee Merrick Garland for Attorney General, Lisa Monaco for Deputy, Vanita Gupta for Associate Attorney General, and Kristen Clarke to lead the civil rights division, “signaling that civil rights will certainly be a top concern.”^[13] Yet, we will have to see what comes of such a department, and if it is able spearhead any of Biden’s hopeful reform policies like the DOJ did back in the 1960s.

Limitations On Reform

The unfortunate truth is, however, that the Biden administration cannot do much on its own. The executive branch is currently throwing all of its political capital into handling the “pandemic and the related economic fallout”^[7] while trying to undo the damage dealt to the federal bureaucracy by the Trump Administration. Congress is so evenly divided it might as well be deadlocked, and even if it was able to pass legislation like the SAFE Justice Act, it would only apply to the 9% of prisoners incarcerated on a federal level.^[14] Neither the Biden Administration nor Congress can directly intervene to reform the state-level justice systems due to the 10th Amendment, leaving them instead reliant on cooperative federalism—the carrot and stick method of financial encouragement which motivates states to follow federal directives. Even Biden’s pardon power is reserved for federal offences. And in addition to all that, the federal government has barely even implemented the last piece of criminal justice reform legislation (Trump’s First Steps Act, passed in 2018) yet, making it difficult for the Biden Administration to move onto new reform efforts.^[15] As demonstrated by the COVID-19 pandemic, the federal government moves slowly and indecisively, leaving it unequipped to deal with one crisis, let alone the numerous ones facing America right now. Ultimately, while the Biden Administration is ideologically aligned with reform efforts, it’s clear that real change will have to rise from the ground up.

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By Katie Ann Costa and Max Bauer

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