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March 15, 2021

"14 Steps Biden’s DOJ Can Take Now to Reform America’s Criminal Legal System"

The title of this post is the title of this notable new commentary at The Appeal authored by Rachel Barkow and Mark Osler. I highly recommend the full piece, and here are parts of the preamble and the listed "14 steps":

As the Biden Administration takes shape and the nation recovers from four years of Donald Trump, there may be a temptation to return to “normal.”  That could be especially true at the Department of Justice, where so many longstanding norms — independence from politics, high ethical standards, a commitment to facts — took a beating.  With many Obama-era appointees back in high-level positions, there is likely a desire to go back to the way things were when the same people were last in power.  But that’s setting the bar too low.  While it’s critical that the department rededicate itself to its core values, it’s not sufficient to simply create an “Obama Lite” initiative.  Instead, the DOJ, with its vast authority and discretion, and its power to unilaterally shape the federal criminal legal system, should be a driving force for dramatic, high-impact change.

President Biden’s Executive Order stating that the DOJ will not renew contracts with private prison companies is a prime example of largely symbolic but practically useless reform.  It is a positive step that builds off an Obama-era policy, but it is only a tiny step forward.  It does not get to the heart of what really needs to change.  No one will be released or serve less time because of this order.  Private prisons account for a small percentage of where people in federal prisons are housed, and most of the private contracts at the federal level are with the Department of Homeland Security, which is not covered by the Executive Order.  In addition, many of the private contracts have long time periods, so another administration might undo this order before it ever takes effect.  It is therefore possible the order will not change anything at all.

The Obama Administration, just like administrations before it, had fatal flaws when it came to criminal justice, and the Biden Administration should aim to cure them.  This isn’t just important for better criminal justice policies and public safety.  It’s also important because of the institutional weakness that Trump put into stark relief.  For too long, the DOJ has relied on the notion that it should have broad discretion because good people work at the department.  While we agree that competent, well-meaning people generally do work at the DOJ, the Trump Administration showed why that isn’t enough.  For example, Obama’s Department might have opposed abolishing mandatory minimum sentences because of its own policy to curb their use (though even that policy was inconsistently enforced), but preserving those laws enabled the Trump Administration to use them far more aggressively.  If the Biden Administration wants both a lasting legacy of real criminal justice reform and to show a commitment to the rule of law, it needs to pursue critical institutional reform at the Department even if at the expense of its own discretion.

With those goals in mind, we propose the following 14 policy recommendations.  These are largely aimed at structural issues that can be addressed without legislation that would have the biggest impact in reducing prison populations and remedying disportionate punishments and discriminatory policies.  These reforms cover different topics, but they are all backed by empirical evidence as being in the interest of public safety, reducing racial disparities, and giving the DOJ back its good name.  These include substantive policy changes and personnel priorities, and we will cover those first precisely because they can be done without Congress.  Other reforms require Congress’s cooperation.  While there is no guarantee Congress will agree, this is the time to pursue these shifts, with Democratic leadership and bipartisan support for criminal justice reform.  But legislation will not move without DOJ support.  DOJ opposition has been a chief impediment for more significant criminal justice reforms, so it’s long past time for it to take the lead on breaking the logjam.

1. Revise Charging Policies...

2. Reform Clemency...

3. Commit to Compassionate Release...

4. Ensure First Step Act Programming Credit...

5. Reform and Move the Bureau of Prisons...

6. Abolish the Death Penalty...

7. Appoint Reformers to Key Positions Within DOJ...

8. Support Reform at the Sentencing Commission...

9. Support Creating a High-Level Criminal Justice Advisor Position...

10. Implement Forensic Science Reform...

11. Revise Discovery Policies...

12. Support Legislative Reform...

13. Support Release Through Parole...

14. Eliminate Financial Incentives to Charge Cases...

March 15, 2021 at 06:40 PM | Permalink

Comments

Remove AUSA privileged immunity. Sanctions for Brady violations should include hefty monetary fine.

Posted by: Fluffyross | Mar 17, 2021 12:09:46 PM

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