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December 17, 2020

Lots of recommendations for criminal justice reform for the incoming Biden Administration

The PBS News Hour has this recent piece headlined "What a Biden administration could mean for criminal justice reform," and it does a nice job providing a broad overview of the wide array of issues of concern to criminal justice reform advocates.  Here is the first paragraph of the extended piece:

President-elect Joe Biden will face pressure when he takes office to make swift changes to the Department of Justice.  But while he’ll be able to implement some reforms on his own, expected pushback from Congress and legal fights could make it hard for Biden to deliver many of the sweeping criminal justice reforms that advocates say are necessary.

I recommend the PBS piece for a quick and summary account of "the sweeping criminal justice reforms that advocates say are necessary."  But anyone interested in a fuller accounting of criminal justice issues of interest and concern on the eve of a new administration, be sure to check out these three big recent reports from prominent reform organizations setting forth ideas and recommendations for the incoming Biden Administration:

There reports collectively run well over a hundred pages, which serves to highlight just how robust and agenda some groups have for criminal justice reform as we anticipate a new administration and Congress.  I would welcome reader input and feedback (in the comments or via email) about whether any particular pieces of advice and specifics recommendations in these reports seem especially astute (or especially misguided).

December 17, 2020 at 02:31 PM | Permalink


I appreciate all you do Mr. Berman, this blog is a great source of information for the federal court family. Wishing you and your family a safe and happy holiday season. Looking forward to a new 2021.

Posted by: atomicfrog | Dec 17, 2020 2:37:16 PM

Three things come to mind..... One all of the First Step Act changes should be made retroactive. Another is with all of these compassionate releases and appeals the Biden administration or a Biden Justice Department would be smart not to pursue this issue to the Supreme Court. In other words are they going to seek to put hundreds if not thousands of black people back in prison by arguing that District Court judges did not have the authority to determine what constitutes extraordinary and compelling reasons to reduce a sentence. Right now the Government is contemplating filing a Writ of Cert to the Supreme Court in McCoy and other cases.

Last but not least the Biden administration should be thinking about clemency for those that did not get the benefit of the sentencing changes in law from the First Step Act because the changes were not made retroactive.

Posted by: Chad Marks | Dec 17, 2020 4:38:17 PM

Mass incarceration will not end w/o changes to AEDPA. Elizabeth Warren wanted to repeal it, but even with wins in the peach state, I have a hard time seeing serious habeas reforms in the offing.

Posted by: John | Dec 18, 2020 12:11:18 AM

John has a great point, and not one that I’ve seen discussed much (at least in places I frequent). AEDPA is an infernal horror, at least w.r.t. the habeas portions, and should be obliterated at the earliest possible opportunity.

Sadly, I share John’s pessimism about reform, but maybe we’ll be pleasantly surprised.

Posted by: hardreaders | Dec 18, 2020 1:24:59 PM

Having clerked in the state courts and later on the state habeas unit for the AG, I am dubious about any significant changes to AEDPA and habeas.

The judges that I worked with as a clerk were very conscientious about claims made in criminal cases and followed (as best they could given the sometimes splintered decisions that come from the Supreme Court) the governing precedent. However, there was a big disagreement about whether they had to follow federal appellate courts (or worse yet have to guess how a federal appellate court might view a certain issue). Given that you have some circuits (e.g., the Ninth Circuit and Sixth Circuit) that include both more conservative states and more liberal states, I can't see Congress voting to make judges in Arizona answer to judges from California. I also think that a change to habeas would force the Supreme Court to look at more habeas cases on the merits rather than through AEDPA deference. I don't think that would change the ultimate result in the cases and actually might result in the Supreme Court issuing rather conservative decisions on the merits that would harm defendant's trying to raise those types of claims in state court.

On the limits on successive habeas claims, I can't count the number of inmates in the years that I did habeas work that kept on trying to re-file the same basic claim thinking that they just failed to use the right "magic words" to get the court to accept the claim previously. While the appellate courts might not like their gatekeeping role, I would hate to think how it would swamp the lower courts if they had to analyze each successive petition on the merits.

There is certainly room for some tweaking of the current rules under AEDPA (but I am not sure that habeas proponents will like what might emerge from Congress). However, I can't see any change to habeas that would be permitted by the Constitution that would make a significant change to incarceration rates. My experience is that, unless you give federal courts the ability to hold new evidentiary hearings, over 95% of habeas petitions have little or no legal merit.

Posted by: tmm | Dec 18, 2020 2:59:41 PM

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