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.
Coming off a presidential campaign revived by the support of Black voters in a year marked by national protests against racial injustice and police brutality, Biden is expected to address systemic racism and discrimination that persists in the criminal justice system.
When he takes office, Biden will have some powers to shape federal, state and local policing. He has pledged to launch robust investigations into patterns of local police misconduct, which could pave the way for long-term changes by providing a model and set of standards for agencies around the country, criminal justice researchers said.
Biden’s potential influence on the high incarceration rates in state and local prisons or jails will be more limited. He has pledged to end mandatory minimum sentences, a particular sore point for the president-elect, who championed legislation in the 1990s that drove the use of mandatory minimums and other punitive measures. At the federal level, his Justice Department is expected to reinstate guidance to end the use of private prison contractors.
But funding goals aimed at reform will be an uphill battle for Biden’s administration. His campaign platform proposed a $20 billion grant to incentivize states to reduce prison population numbers, as well as provide funding for mental health and substance abuse services. The success of those will depend on congressional support for his agenda. Congress will also determine how the Justice Department’s Civil Rights Division can enforce voting rights, as Republicans prepare to lead 2021 redistricting for a majority of congressional districts.
Changing police culture
Biden’s experience as a senator and vice president has given him intimate insight into some of the changes reform advocates hope to see when he takes office. The 1994 Violent Crime Control and Law Enforcement Act, which Biden played a lead role in writing and which has been blamed for accelerating mass incarceration, also gives the Justice Department the authority to investigate a “pattern or practice” of unconstitutional conduct by police. Using that power, the Obama administration launched 25 investigations into police departments.
Such probes can result in consent decrees — court-enforced agreements — between police agencies and the DOJ that have largely been used to help reduce racial discrimination and increase accountability in policing through use-of-force restrictions, body cameras or bias trainings. Data on racial bias in police use of force is scarce, but research indicates that Black, Latino and Native American people are more likely to experience fatal and nonfatal police force.
President George W. Bush’s administration was reluctant to push for these court-enforced agreements, but launched about 21 pattern or practice police investigations — three that resulted in consent decrees. Of Obama’s 25 total police investigations, 15 led to consent decrees.
But police investigations declined sharply under Trump. Before Attorney General Jeff Sessions was ousted by Trump in 2018, he issued a memo limiting the department’s ability to pursue and enforce consent decrees with local police.
Under Trump, Justice Department officials have rejected accusations that police departments suffer from systemic problems like racial bias. Amid protests following the police killings of Breonna Taylor, George Floyd and others this year, Trump called for “law and order,” mobilized federal officers to address protests, referred to protesters as “terrorists” and downplayed the seriousness of police use of force. Trump’s administration has not opened investigations into either of the departments involved in Taylor and Floyd’s deaths, and has only opened one new pattern or practice investigation of a police department during his presidency.
“You saw the Department of Justice just simply stop this important project of going to places where there were serious constitutional violations and addressing them in a way that would not only begin to create a fix in that community, but would also create a model [for other police departments],” said Jonathan Smith, who from 2010 to 2015 was chief of the DOJ’s Special Litigation Section tasked with investigating police for patterns of civil rights violations.
Biden has pledged to expand the use of pattern or practice investigations and reverse the restrictions placed on the DOJ’s ability to pursue consent decrees, though it’s unclear how aggressive he will be, Smith said.
The president-elect’s campaign platform also pledged to reinvest in the Community Oriented Policing Services (COPS) office that was established by the 1994 crime bill. That office is largely responsible for providing funding to local departments for hiring and training. During Obama’s presidency, the COPS office also funded the Collaborative Reform Initiative, where police departments could voluntarily request that the DOJ review their practices and issue an assessment with recommended reforms.
That approach can allow departments to mitigate areas of concern before they become patterns of unconstitutional conduct, said Christy Lopez, a Georgetown University law professor who served as deputy chief of the Special Litigation Section under Obama.
Trump’s administration restructured the collaborative reform program to focus on providing funding and tactical training for police departments to address violent crime, gangs and protests. More broadly, the Trump White House has repeatedly proposed large budget cuts to COPS office programs.
Trump’s 2021 White House budget proposal, released in February, included a 58 percent cut to the hiring program from $235 million to $99 million to reallocate funds to support federal law enforcement.
But Biden is pushing for a $300 million investment in COPS to support community policing, though such initiatives can vary widely from department to department. Some community-focused strategies may improve police-civilian relationships, but it’s unclear from current research what effect they have on officer behavior and use of force.
Ultimately, Biden’s administration won’t be able to investigate or provide grants to every police department in the country, but it can play a key leadership role. Moving the needle on reform will require Biden to foster a culture both within the DOJ and among local law enforcement that embraces federal oversight as a necessary tool, experts said.
The DOJ can require departments to report use of force data as a condition of federal funding. The DOJ’s current collection of use of force data is voluntary and only 5,043 federal, state, local and tribal agencies out of about 18,000 submitted use-of-force information in 2019. Additionally, Biden’s administration can champion national standards for behavior and issue guidance on what successful policing should look like, said Sean Smoot, a policing consultant who is a member of the consent decree monitor teams for the Cleveland and Baltimore police departments.
“We ask the police officers to do a whole lot of things,” said Smoot, who was also a member of Obama’s Task Force on 21st Century Policing in 2014. “One minute we’re asking them to direct traffic. … Another minute we’re asking them to respond to someone who’s having a mental health or drug reaction problem.”
Biden’s justice plan proposed federal grants to partner mental health and substance abuse specialists with police departments, as well as expanded treatment insurance coverage.
Tackling mass incarceration and prison conditions
Biden will face skepticism from reform advocates critical of his role championing tough on crime legislation that had a disproportionate impact on low income communities and communities of color.
During his presidential campaign, Biden called the 1994 crime bill a “big mistake” and promised to make changes to curtail its effects. In recent years, prison reform initiatives have received increasing bipartisan support among state and federal officials. Cities across the country are decriminalizing illicit drug possession and establishing alternatives to incarceration for certain drug offenses, although these have their own challenges.
The Trump administration received widespread praise for its support of the 2018 First Step Act, which among other things, allowed for harsh drug sentences to be relieved and gives judges more discretion to avoid mandatory minimum sentences. But the First Step Act has its challenges, including hurdles that make it difficult to complete programs required for early release eligibility, said Lauren-Brooke Eisen, director of the Justice Program at the Brennan Center for Justice at New York University.
Beyond the First Step Act, the Trump administration rescinded an Obama-era memo instructing DOJ officials not to renew contracts with private prison operators. Trump’s DOJ has also resumed federal executions after a nearly 20-year pause and cut funding to numerous services like transitional housing that support former inmates, said Wanda Bertram, communications strategist for the nonprofit Prison Policy Initiative.
Biden’s proposals include expanding funding for transitional housing, ending the use of private prison contractors, ending all incarceration “for drug use alone,” and doubling the number of mental health professionals in schools as a way to help address the school-to-prison pipeline. Bertram said that Biden’s goals are admirable, but she is skeptical of how he will pursue them.
“I think that we’re going to be able to tell how committed Biden really is with the way that he implements some of this stuff,” Bertram said. “How much effort will his staff put into implementing some of these reforms in the correct way?”
Biden’s campaign platform, for example, called for using the president’s clemency power to release people convicted of nonviolent drug crimes. Obama launched an ambitious clemency initiative and commuted sentences for more prisoners than any other U.S. president. But the clemency program also created layers of administrative oversight that made it difficult for clemency applications to be approved, Bertram said. Addressing these layers of review is one key way Biden can make the clemency process more efficient, some experts say.
Jack Donson, a prison consultant who worked for the Bureau of Prisons for 23 years, said he also wants to see more focus from Biden on improving transparency within the bureau.
“I think politicians should understand that we need better leadership and more accountability of the agency,” Donson said. “Let’s deal with the systemic cultural agency issues first.”
When it comes to large-scale prison reform, Biden’s administration could be limited. The DOJ oversees federal prisons, which only account for roughly 10 percent of the country’s total incarcerated population of about 2.3 million people. But as with law enforcement agencies, the department can investigate and pursue consent decrees with states or individual facilities in order to change conditions in prisons and jails determined to be in violation of the constitution, such as the 8th Amendment forbidding cruel and unusual punishment.
Trump’s Justice Department proposed a consent decree in August after concluding an investigation of a Virginia jail. The department also sued the state of Alabama this month for failing to prevent prisoner-on-prisoner violence and sexual abuse, as well as excessive force used by correctional staff.
To address mass incarceration, Biden’s Justice Department could incentivize state and local prisons to take steps to reduce inmate populations or improve conditions through the use of federal grants, said Margo Schlanger, a law professor with the University of Michigan, who was a trial attorney with the DOJ’s Civil Rights Division from 1995 to 1998.
Biden’s platform includes a plan, inspired by a 2015 Brennan Center proposal, to create a $20 billion grant program to help states fund initiatives aimed at reducing incarceration. But that would require congressional approval. With control of the Senate contingent on two runoff races in January, successfully enacting such a system would require that either Democrats win a Senate majority or some Republican cross the aisle and support the grant funding.
Eisen of the Brennan Center expressed optimism that the program could receive bipartisan support, noting it could help reduce the prison population by 20 percent over 10 years, as well as decrease government costs to imprison people.
Voting rights enforcement
The Justice Department’s Civil Rights Division will be tasked with implementing many of Biden’s major criminal justice reform initiatives, including strengthening federal oversight of local policing through consent decrees and other reforms.
But the division is also responsible for voting rights enforcement — an area advocates say was ignored by the Trump administration and should be a top priority under Biden as states prepare for a bruising redistricting battle based on the results of the 2020 U.S. Census.
The upcoming drawing of new state and congressional district lines, which state legislatures take up once a decade to account for population changes recorded by the census survey, will be the first redistricting process since the Supreme Court’s 2013 decision in Shelby County v. Holder.
The ruling allowed certain states and local jurisdictions — most of them in the Deep South — with a history of discrimination in voting to make election law changes without clearing them first with the federal government under Section 5 of the Voting Rights Act.
After the ruling, states like Georgia and North Carolina that had required preclearance under Section 5 moved quickly to implement changes that critics said were designed to make it harder for people of color to vote.
Republican-controlled state legislatures were further emboldened under Trump because the Civil Rights Division stopped prioritizing voting rights enforcement, former Justice Department officials and voting rights advocates said.
“That part of the enforcement agenda has seemed to almost disappear,” under Trump, said Williams Yeomans, who served as acting assistant U.S. attorney general for the Civil Rights Division under President George W. Bush. “That’s a way to kill civil rights enforcement. The Civil Rights Division is a proactive division. It has to launch investigations. If it just does nothing, it becomes completely ineffective.”
Biden’s ability to act will depend on Congress, however. The 2013 Supreme Court decision gave Congress the option to set a new coverage formula determining which states and local governments should get federal approval first before changing their election laws.
But Congress hasn’t addressed the issue, and if Republicans retain control of the Senate in January, it’s unlikely lawmakers will approve a new Section 5 formula.
Even if Republicans retain control of the Senate, though, voting rights advocates said there are other steps the Justice Department can take to boost enforcement, including filing lawsuits against state legislatures under Section 2 of the Voting Rights Act, which bars voting rules that discriminate based on race.
“You have to have a Department of Justice that’s willing to engage in that litigation. That’s what the Biden Justice Department can start doing” once he takes office, said Teresa Cosby, a political science professor at Furman University.
Cosby and others acknowledged the legal challenges under Section 2 of the Voting Rights Act take years to work their way through the courts. High-profile lawsuits could wind up before the Supreme Court, where the new 6-3 conservative majority is unlikely to expand voting rights protections, legal experts agree.
Still, targeting Georgia and other states with long histories of racial discrimination in voting would send a strong signal that the Civil Rights Division’s priorities under Biden have changed, said Nancy Abudu, the deputy legal director for voting rights at the Southern Poverty Law Center.
“We want to see the Biden administration suggesting its own amendments to bills, we want to see them testifying [before Congress on voting rights] and want to see their lawyers in the field,” Abudu said.
Biden’s Justice Department will face pressure to act right away. More than 20 states have deadlines requiring that their legislatures or independent commissions draw new political maps by the end of 2021.
The process will set new district lines for state legislative seats and will play a role in the fight for control of the House in the 2022 midterms. Democrats hold a slim majority in the House after losing more than 10 seats in November.