President Joe Biden campaigned on a pledge to reform the criminal justice system–an issue that has stalled in Congress more often than not. As the Senate prepares to confirm President Biden's pick for attorney general, Merrick Garland, it is worth thinking about how those urgently needed reforms can be realized. The bottom line: The administration need not wait for Congress to act. It has all the tools necessary to make good on some of its most significant promises on criminal justice.
Take mandatory minimums, a key contributor to mass incarceration and racial inequity. President Biden ran on ending them–a commitment he reiterated in the last presidential debate. That is a promise his administration can deliver right now. Every Department of Justice formulates its own charging policies via memoranda from the attorney general to all federal prosecutors.
George W. Bush's Attorney General John Ashcroft required prosecutors to charge the most serious available crimes–a policy shift from the previous administration's guidance. In the Obama administration, Attorney General Eric Holder issued his own memoranda rescinding the Ashcroft Memo and set out limits on the use of mandatory minimum sentences–but only in certain cases. Attorney General Jeff Sessions once again reversed course under the Trump administration and issued his own guidance. And just last week, the Acting Attorney General Monty Wilkinson issued an interim policy rescinding the Sessions' policy. These shifts are part and parcel of the American legal system–prosecutorial discretion is embedded in our rule of law and is yet another reminder that elections have consequences.
The question facing the next attorney general is not whether to issue charging guidance, but what that guidance will be. Federal prosecutors have enormous discretion in what to charge, and the federal criminal code gives them no end of options.
Any federal drug offense that carries a mandatory minimum sentence can be charged under a different code provision that does not carry one. The same holds true for almost every other type of federal crime where a mandatory minimum sentence is possible. The choice not to charge a mandatory minimum would not diminish respect for the law or undermine public safety. Indeed, it does not necessarily mean the person charged will ultimately receive a lower sentence if convicted. It only means that the judge will have the discretion to take into account the individual circumstances of the person and the crime. The erosion of that judicial discretion over the past three decades, and prosecutors' increasing control over sentencing through their charging decisions, is a key driver of mass incarceration and racial disparity. Until Congress acts to make necessary reforms, the next attorney general could take an enormous step toward rectifying this decades-long problem with a single memo that eliminates the use of mandatory minimums where an alternative charge is available.
So too with the death penalty. In the last six months of the Trump administration, the Department of Justice carried out 13 executions following a 17-year period with none. More people were executed in the last six months than in the previous 56 years of federal executions combined. It has been a horrifying killing spree.
The Biden administration can fulfill the promise to end the federal death penalty immediately and for many years to come without congressional action. Once again, the decision whether to seek the death penalty is a core prosecutorial prerogative that requires authorization from the attorney general, and federal law allows prosecutors to seek life in prison without the possibility of release in lieu of capital punishment.
Consistent with President Biden's campaign pledge, the next attorney general should not authorize federal prosecutors to seek the death penalty in any new case and should de-authorize cases where they are currently seeking it. In addition, President Biden can directly commute all death sentences already imposed to lengthy prison terms, including life without release. These steps would instantly eliminate one of the most grotesque sources of racial inequity and unfairness in the federal system.
Lastly, the administration can advance criminal justice reforms by appointing judges and U.S. attorneys who are as committed to ending mass incarceration and racial injustice.
Personnel is policy, as the old Washington adage goes. Department of Justice policies will not go far without prosecutors on the ground who are committed to their goals. And even without mandatory minimums, exorbitant sentences will remain if federal judges are not inclined to moderation.
For too long, Democratic and Republican leaders have overwhelmingly appointed to these positions former prosecutors with no appetite to change the practices of the past 35 years. A new approach is long overdue.
There are many other areas of the federal criminal legal system in need of reform: excessive pretrial detention, an appalling lack of disclosure of evidence necessary for a real defense and the practice of threatening severe sentences to force people to plead guilty rather than exercise their constitutional right to trial. These too can be addressed by the Department of Justice, individual U.S. attorneys and new federal judges.
The most permanent way to ensure any of these reforms is through legislation. Laws on the books outlast any single administration, and the Biden administration should push Congress for reforms. But while legislation awaits, the administration should immediately issue policies and make appointments that reflect President Biden's campaign promises.
Lisa Freeland is the federal defender for the Western District of Pennsylvania.
David Patton is the federal defender for the Southern and Eastern Districts of New York.
The views expressed in this article are the writers' own.
