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April 28, 2021

Not even much lip service about sentencing reform in Prez Biden's first address to Congress

Prez Joe Biden gave a very lengthy speech this evening (full text here), but it only included a precious few sentences about criminal justice reform.  Here are these sentences:

We have all seen the knee of injustice on the neck of Black America. Now is our opportunity to make real progress.

Most men and women in uniform wear their badge and serve their communities honorably.  I know them.  I know they want to help meet this moment as well.

My fellow Americans, we have to come together.  To rebuild trust between law enforcement and the people they serve. To root out systemic racism in our criminal justice system.  And to enact police reform in George Floyd’s name that passed the House already.

I know the Republicans have their own ideas and are engaged in productive discussions with Democrats.  We need to work together to find a consensus.  Let’s get it done next month, by the first anniversary of George Floyd’s death.

The country supports this reform.  Congress should act.

Though I was pleased to hear small mention of policing reform by Prez Biden, I was disappointed (though not really surprised) that there was not any other mention of any other criminal justce reform efforts.  And this new NPR piece, headlined "Activists Wait For Biden To Take Bold Action On Criminal Justice Reform," picks up this theme.  Here are excerpts:

President Biden campaigned on a plan to remake the criminal justice system. He admitted that many of the tough-on-crime positions he staked out 30 years ago just did not work.  He said he would focus on drug treatments and on cutting long mandatory prison sentences.  NPR's Carrie Johnson has been talking to progressive activists who are waiting for that to happen....

JOHNSON: The Biden White House has been talking regularly with [Inimai] Chettiar and others who want to overhaul the justice system. Kevin Ring advocates for people in prison at the group Families Against Mandatory Minimums.

KEVIN RING: FAMM's been around 30 years. I don't know that we've ever had that kind of outreach from the White House or the Justice Department.

JOHNSON: Ring says he had a guarded optimism about Biden based on his campaign rhetoric.

RING: But there was also some skepticism that he was going to have to tear down the house that he built in some ways through the sentencing laws and prison policies he not only sponsored but bragged about.

JOHNSON: Ring says it's still early, but the White House seems to be trying to lay the groundwork for more foundational change. Kara Gotsch of the Sentencing Project isn't so sure about that.

KARA GOTSCH: The lip service is good, but we need more, more action....

JOHNSON: Other advocates credit the Biden team for supporting bipartisan legislation that would finally equalize the penalties for people caught with crack cocaine.  Since the 1980s, offenses involving crack have been punished 100 times more harshly than the powder form of the drug, which has been more popular with white people.  Chettiar of the Justice Action Network thinks that bill could become law this year.  With Congress so closely divided between the two political parties, the odds of legislation that would transform the justice system are pretty slim.  That's why advocates are pushing the White House and DOJ to go big now before time runs out.

April 28, 2021 at 10:47 PM | Permalink


I get that advocates want to relentlessly advocate, because that's most of their job description. That's fine of course. But I hope they also recognize the plain reality that no amount of advocating with the WH is going to change the nanofiber wide margin in the Senate. Someone commenting on the LGM blog put it very nicely—and I'm summarizing here—that Biden's apparent legislative strategy is just to push reconciliation to the limit, not invest a ton of political capital in other measures that would be DOA for now, and bank on that improving the Senate position for 2022 and beyond. I think it's a pretty smart approach and so far it seems to be paying off. Of course it means stuff like sentencing has to get postponed. I do think Biden is doing what he can on the DOJ side for now, but obviously that has a limit.

Again, I understand advocates focusing on the Prez because he's the big dog. Moreover, they expect a more sympathetic ear in a Democrat like Biden. But no amount of sympathy can alter basic Senate math right? If they're not doing it already, I wonder if the advocates might try with Senators who might not initially be that sympathetic, but for whom flipping might actually change the calculus in terms of getting bills passed.

Posted by: hardreaders | Apr 29, 2021 12:06:31 PM

The first comment has merit though unsurprising that a sentencing authority would be focused on this.

The person, e.g., years back was disappointed that Obama didn't do more, citing some speech he gave that few probably noted. Obama had lots of stuff on his plate, but again, I'm not surprised about the selective focus/disappointment levels.

Likewise, graded Trump on a curve since on balance he seemed to do something & since you didn't expect much anyway, kudos! That at some point got to be a bit offensive given who Trump was as a whole.

Biden too has a lot on his plate with certain areas more likely to pass. There is some room in the criminal justice area and it might have something to do with his priorities. He also might think a significant role there will be handled by existing discretion by the Garland Justice Department. I do hope stuff will be done there, including addressing reform of the pardon power.

There is also exactly what "criminal justice" entails. Does it entail violence against women? Gun regulations? Immigration reform? (Criminal justice repeatedly involves immigrants)

Posted by: Joe | Apr 29, 2021 3:06:46 PM

Appreciate Joe’s comments as always. No surprise at the OP being focused on the issue since it’s a specialty blog of course. The only surprise is just at the OP’s own surprise—if that’s a fair characterization—that Biden isn’t making a big deal of it given (1) what other priorities there are and (2) the political constraints he’s facing. Garland obviously isn’t known as being a thought leader on sentencing, but neither was Biden historically and he’s surprised in a lot of areas so far.

Agree that just like “infrastructure” it makes a lot of sense to view “criminal justice” broadly.

Posted by: hardreaders | Apr 29, 2021 4:05:13 PM

I am surprised and disappointed, Joe and hardreaders, that you do not see modest sentencing reforms as an opportunity for bipartisan action. I am not talking about abolishing the death penalty or eliminating all mandatory minimums, but I am talking about achievable reforms like:

-- further expanding home detention and compassionate release (at least during the pandemic)
-- ending the use of acquitted conduct at federal sentencing
-- eliminating the crack/powder sentencing disparity

The first two items listed above are bills that have been sponsored by Senator Grassley, the third is a policy endorsed by Jeff Sessions and so many others in the past. And here is a link to an effective CNN piece detailing a number of additional modest reforms that would seem ripe for bipartisan action:

Put another way, I think this is MUCH more about political priorities, not political constraints --- and I felt the same way about both Obama and Trump, largely because so many red and blue states have shown an ability to do all sort of important and consequential bipartisan work in this arena over the last 15 years.

Especially because Obama's campaign rhetoric was about doing much better in this arena, I was consistently troubled he did not make these issues more of a priority until late in his time in office. Because Trump's campaign rhetoric was "law and order" oriented, I was pleasantly surprised that he bit on historic reforms despite his tough-on-crime bark.

Biden's campaign rhetoric in this arena promised a whole lot, and he is yet to deliver much or seem all that interested in delivering much. He is, of course, entitled to define his political priorities, but his lack of action should not be attributed to "political constraints" nor should they escape criticism from those who believe he should have sentencing reform among his priorities.

Posted by: Doug B. | Apr 30, 2021 11:42:41 AM

"I am surprised and disappointed, Joe and hardreaders, that you do not see modest sentencing reforms as an opportunity for bipartisan action."

Speaking for myself, this isn't true.

The rest of the reply doesn't seem to explain why it's true. There is disagreement on the specifics -- e.g., Democrats didn't support certain legislation for a reason and that is a judgment call -- but that's another matter.

"I think this is MUCH more about political priorities, not political constraints"

State reforms are appreciated (one can read various books on the matter, including Rachel Barkow and Emily Bazelon), but there are very well strong political constraints on the federal level not in place in the state level that complicate this.

How MUCH MORE is a likely a reasonable debate. It still doesn't make the claim that I "do not see modest sentencing reforms as an opportunity for bipartisan action" true.

I welcomed reforms and since the issue at hand was broader -- criminal justice -- my final paragraph's more open-ended approach only helps the chance.


Obama's "campaign rhetoric" put criminal justice reform as a limited priority. Again, it's nice he made some nice speech or speeches or something. But, as a whole, the non-specialist is far from surprised that with all the areas -- economy, health care, foreign policy, LGBT etc., that he did less in that area. And, political constraints mattered. Republicans very well in that respect made it harder to get things done that they in theory might support.

This is especially the case that unlike in the past, criminal justice issues were less national issue (not that the tough on crime national concerns lead to great policy). This again might be a difference between local criminal justice policy and federal policy, showing the complexity.


Net, Trump was simply horrible even if he "bit" (or was willing not to veto or something stuff that didn't interfere with his main concerns ... this includes farming out court picks, some of whom the professor found good) on modest reforms.

This includes as a whole in a "criminal justice" nature, if we look at that writ large. To say otherwise, again, to me is sadly misguided. A horrible drunk husband might do something nice now and then, but net even "grading on a curve" he's horrible.

Posted by: Joe | Apr 30, 2021 12:48:31 PM

Since there is a lot there, I could say more, and missed some typos, but one more thing that underlines the difference is also in details.

On second thought, I'll leave it be.

Posted by: Joe | Apr 30, 2021 1:02:00 PM

Okay, I'll cover the last paragraph ..

"Biden's campaign rhetoric in this arena promised a whole lot"

I, like the average voter, didn't really focus much on his criminal justice (or specifically sentencing) promises as such, but again, logical a specialist is focused on that.

"he is yet to deliver much"

What is he supposed to have delivered? He came into office in late January. Again, I personally think a major factor in his criminal justice policy is the leadership of the Justice Department. Which ALREADY is acting on things. And, it will likely do more now that more of the supporting characters are getting there.

Maybe, the idea is policy. But, huh, maybe there are immediate emergencies that had to be addressed like COVID. EVEN THERE, using a wide brush, I think something was "delivered" that will help criminal justice in a wide sense, given what often factors in there.

"or seem all that interested in delivering much"

I'm not sure what this means really. What is "much"? He has supported the George Floyd bill. He supported putting people in positions that will deliver. He supports various things, with varying degrees of passion, of a criminal justice character.

Or maybe this is more specific to sentencing policy or whatever. It remains to be seen.

"He is, of course, entitled to define his political priorities, but his lack of action should not be attributed to "political constraints" nor should they escape criticism from those who believe he should have sentencing reform among his priorities."

Why shouldn't it be so attributed if that is a factor?

We can debate HOW MUCH, and I don't want to say it is the ONLY thing, but it is very well a factor. Not that in 100 days, as he has to deal with COVID, the border, getting out of Afghanistan etc., I think it is soon enough to truly judge.

He also should not "escape criticism" any more than anyone else. My complaint in that area was/is a sense of lack of perspective.

Posted by: Joe | Apr 30, 2021 1:16:19 PM

Joe, if there weren't "disagreement on the specifics," then every bill in every area would pass without a dissenting vote. The issue is how and when will a President prioritize using his political capital to cajole Congress to find enough agreement on the specifics to get a bill to his desk.

You are right that the political realities of getting stuff done is much different in DC than in state capitals, but I remain convinced there is a way to get significant bipartisan sentencing reform done in DC if and when a Prez makes this a priority --- and I say that, in large part, because Obama was able to help get (modest) bipartisan crack reform done in 2010 when he made that a priority, and Trump was able to help get (not so modest) bipartisan sentencing and corrections reform done when he made that a priority in 2018. This is my main point and concern --- when a Prez makes these issues a relatively priority, folks on the Hill invest more time trying to find enough agreement on the specifics to get a bill to his desk. So if Prez Biden does not express interest in sentencing reform, it is much less likely to get done.

I agree that the GOP hindered Obama's ability to do more reform when he started focusing on these issues a lot more starting in 2014/2015 -- which is why I was critical about his failure to make these issues more of a priority much earlier. Other folks with other concerns can surely defend Obama for having other priorities over his first six years. But I write a sentencing blog and have assailed mass incarceration and federal sentencing policies and practices for decades, so few should be surprised when I criticize what I see as Obama's failings in this arena.

As for Trump, I am not grading his whole presidency, but rather his criminal justice reform work. In Aug 2018, he embraced the "progressive" approach to the FIRST STEP Act by saying that it should include sentencing reforms in addition to the prison-only reforms that has been passed by the House. Doing so helped ensure the bill's bipartisan passage while also expanding its impact and import. That alone does not in any way "make up" for any other "horrible drunk husband" behavior, but it helped give him a sentencing reform legacy that is ultimately more consequential than Obama's.

I am hopeful, but not optimistic, that Biden might achieve even more than Obama and Trump combined. But that will happen only if he makes sentencing reform more of a priority, and that is why I will keep urging him to do so.

Posted by: Doug B. | Apr 30, 2021 1:31:02 PM

"The issue is"

A lot was said, so I again go back to one of my rule of thumbs -- there is usually more than one issue. The "specifics" debate was there writ large, not in the "no dissenting vote in a specific piece of legislation" way. So, e.g., WHY something didn't pass in the Obama years is a complex thing that helps judge his report card.

The next two paragraphs are generally of the "fine" variety (w/o agreeing with everything) more or less. This partially because as I said in my very first comment, I am not surprised people concerned about specific things will be concerned about specific things of a generalist like a POTUS. But, perspective there works both ways.

Again, I said even SPECIFICALLY in the criminal justice sense (and pardon sense, another thing raised on this blog at the time) as a whole he was horrible. How much is support of that legislation helped is unclear to me. But, the overall point to me holds.

It is myopic to speak of his "sentencing legacy" in that sense as much as talking of the drunk's "legacy" because he helped in a small way while in general even in that general field (the comparison to criminal justice -- specifically cited at the start of your blog comment, and my general concern) he was horrible.

I again wonder what Biden is supposed to have done already in 100 days & note he very well even in that sense did something. Again, maybe in the narrower sentencing area he will be bad. Who knows. OTOH, his opening gambits on criminal justice generally, from his picks at Justice, nominees to the courts (including a favorite of yours) and so forth, he has started on the right foot.

Posted by: Joe | Apr 30, 2021 2:10:40 PM

"it helped give him a sentencing reform legacy that is ultimately more consequential than Obama's"

It is noted that both Obama and Trump had "modest" reforms, but somehow Trump was "more consequential than Obama." Unclear to me, though not being an expert, I won't try to micro-analyze the details of that specific area. I remain suspicious with the idea that it is specific policy focus as compared to wider factors that led it to pass in 2018.

My concern is "criminal justice reform work" as a whole.

On that, Trump was horrible time and time again. Racist. Supporting police abuse. Pardoning those who abused civil rights. Heavy handed immigration policy, spreading lies and vitriol making sane criminal justice policy harder. His Justice Department weakened restraints on local abuses. I can go on. Even if one wants to criticize Obama on his use of pardon power (go ahead), Trump was horrible there too, especially without including some good ones in the final batch.

Grading him on a curve won't help much. Anyway, thanks for the responses.

Posted by: Joe | Apr 30, 2021 2:36:54 PM

I respect all your reasonable takes, Joe, and I can sum up my views up this way: in the sentencing reform arena, Obama did not do nearly as much as I had hoped, Trump was not as bad as I feared, and Biden still has years to define his legacy. And I will persistently urge this Prez, as I did the ones before, to prioritize long-overdue and long-needed sentencing reforms.

Posted by: Doug B. | Apr 30, 2021 2:57:26 PM

Through my own fault, I'm late to the party and it's going to be impossible for me to engage with all these lengthy follow-up comments midstream.

I will just reiterate two things about the President. One is that—and it's not limited to this area (sentencing)—I think the fixation on the President, while certainly understandable, is pretty excessive at times. Especially when it's something that requires a legislative solution. If he's not doing all he can on the agency side, then yeah, his bad for sure. For the legislative stuff, it's understandable because I get that he's the most important person in all of gov't and he certainly has influence with his own caucus and even the other side via the bully pulpit. But there are clear limits to that, particularly for the latter. It's not like he's a CEO so he just gives orders and then people carry them out. Many lay persons seem to have that impression although I hope not present company. Folks like to bring up LBJ sometimes, but LBJ had overwhelming legislative majorities to work with. That's obviously not the case here right now, and it wasn't with Obama either post-"shellacking".

Two is the idea of a President getting "credit" just because something happened to occur while he also happened to be president. I think many people would recognize that as a basic logical fallacy. Latin fans might call it post hoc ergo propter hoc, or more fashionably these days "correlation != causation". It's not like Former Guy was the driving force behind the FSA. While it might be "fake news", according to Wikipedia at least, it was also Senate *Democrats* who made the big push for sentencing reform in the Act. Former Guy wasn't even interested until failson-in-law Kushner cajoled him. (I'm sure Caligula also did at least a few good things on a whim or when people begged or flattered him enough. That doesn't make him a good guy.) And I'm sure it wasn't because he suddenly became enlightened about criminal justice; it had to be because he thought it would help him personally—that's the only reason Former Guy ever does anything. We pretty much know that's the case because after the Act passed he complained incessantly that he wasn't getting enough praise for it. So what I'm trying to say is Presidents don't get credit just for showing up and sitting around when other folks are doing all the heavy lifting. And other than the FSA, which I argue is disqualified, what else can even plausibly be to Former Guy's credit?

Posted by: hardreaders | Apr 30, 2021 8:12:16 PM

And just to be totally unequivocal, I completely am in favor of sentencing reform in a lot of areas. But as many folks know by now, in my view, white collar is definitely *not* one of those areas—at least not to make it more lenient.

Posted by: hardreaders | Apr 30, 2021 8:16:10 PM

Your points here, hardreaders, are not misguided, but I think your disaffinity for Trump prevents you from giving some credit when some credit is due. Can you think of any other issue on which Senate Democrats made a "big push" and then Trump embraced that push over opposition from some allies in his own party like Tom Cotton? And sure, he did a political calculation (like all politicians do) as well as a personal calculation (as Trump does more than others), but he should still should get credit for making that calculation in a way that led him to advocate to get the FIRST STEP Act to the finish line. If he had decided to be oppositional --- which would certainly have been more in line with his "law and order" brand and most of his base --- the bill would not have even gotten a vote in the Senate despite 5+ years of work on the Hill by so many.

These realities do not make Trump a sentencing refrom hero, nor does it make up for lots of lousy criminal justice stuff during his time in office. But it means Trump should get at least some credit for the biggest CJ reform passed by Congress in a generation. Moreover, it means the Trump brand --- which I fear will still define the GOP for years to come --- includes support for some important CJ reforms and thus provides even more space for GOP officials to vocally support the reforms that have long been pushed by some on the other side of the aisle.

This last point is why the Prez is really so important in this conversation. He is always a key leader of his party --- during and after his time in office --- and all members of his party will take cues from his words and deeds. If a Prez never prioritizes an issue, it is hard not just for those in Congress to get attention for that issue, it is hard for Govs and state legislatures and other state actors and advocates to get those issues prioritized. Not everything should or does flow through the work of a Prez, but his priorities almost always end up being the nation's priorities. This is certaintly NOT what the Framers wanted, but it is our modern reality.

Posted by: Doug B. | May 3, 2021 10:25:40 AM

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