Right after the election, I blogged a bit (here and here) about some criminal justice reform recommendations from the Biden-Sanders Unity Task Force (available here pp. 56-62). And last week, as explained here, I decided to start a series of posts to spotlight and amplify some recommendations from the CJUTF that ought to be of particular interest to sentencing fans. This post will focus on prosecutors, and begin by noting this recent Hill commentary by Miriam Krinsky headlined “Biden can rebuild trust in our justice system by prioritizing prosecutorial reform.” I recommend this piece in full, and here are a few choice passages:
[P]rosecutors wield vast power to determine whether someone comes into the justice system and the course of their case thereafter. They control which charges to bring and make the high-stakes determination of whether to seek to keep people in jail as they await trial — which, in turn, makes them four times more likely to be sentenced to prison than if released pre-trial….
[T]he new administration’s ability to impact the criminal justice system will depend, in significant part, on its ability to support and work alongside local prosecutors. To start, a robust task force on “21st Century Prosecution” can propel a new national vision of what it means to be a fair and just prosecutor — and a strategy for how to get there.
In other words, prosecutors are arguably the most consequential players in the criminal justice system, and reform advocates are eager to see the Biden Administration advance a “new national vision of what it means to be a fair and just prosecutor.” So, here is some of what the CJUTF has to say on this front:
Task Force on Prosecutorial Discretion: Create a new task force, placed outside of the U.S. Department of Justice, to make recommendations for tackling discrimination and other problems in our justice system that result from arrest and charging decisions….
Federal Prosecutorial Guidelines: Immediately withdraw the Trump Administration’s guidance advising prosecutors to pursue the harshest penalties possible, even for low-level offenses. Reinstate the Obama-Biden Administration’s Smart on Crime Initiative, and issue new federal guidelines that advise prosecutors not to overcharge cases in order to coerce plea deals, or to pursue harsher sentences in order to penalize citizens for exercising their right to a jury trial….
Appointing Prosecutors: Appoint people committed to criminal justice reform to key prosecutorial positions, including AG, DAG, and U.S. Attorneys.
Transparency & Data Collection: Direct DOJ to collect data on federal prosecution practices and make it public. Include opening investigations, charging, pretrial detention and release, plea offers, and sentence recommendations. Include data on racial disparities….
Support Progressive Prosecutors: Support new state prosecutors through funding and technical support in their efforts to ensure public safety while reducing incarceration.
The commitment to reinstate the Obama-Biden Administration’s Smart on Crime Initiative strikes me as notable, though not quite game-changing. A serious commitment to require DOJ to collect comprehensive data about its practices could be a bigger deal than any particular substantive policy change, though it is unclear just how this data might be collected and used. Perhaps an independent task force on prosecutorial discretion can and will figure out how to effectively gather and operationalize federal prosecutorial data.
In the end, the biggest game-changer could be if the Biden Administration were really to go all in with the progressive prosecutors movement. Directing special federal funding and support to local progessive prosecutors could add momentum to an already significant local movement. And the commitment to appoint reform-minded folks to all “key prosecutorial positions, including AG to DAG, and U.S. Attorneys” sounds like a commitment to having progressive prosecutors throughout the federal criminal justice system.
In the end, I suspect we will see a broad definition of “people committed to criminal justice reform” in key Biden appointments, and I do not think anyone should expect dramatic change in this arena right away. But I do think there is reason to be hopeful that in coming years the US Department of Justice could become more of an ally, rathen than a persistent opponent, of at least some progressive criminal justice reforms.
Prior related posts:
- Notable criminal justice reform recommendations from Biden-Sanders Unity Task Force
- Can we be hopeful federal leaders will make deals to advance federal criminal justice reforms in the next Congress?
- Tomorrow can be today for some Biden-Sanders Unity Task Force criminal justice recommendations
- Reviewing Criminal Justice Unity Task Force Recommendations: a new series to welcome a new President