Before leaving, here’s what Biden must do on criminal justice

President Biden still has two months during which he can greatly improve the situation with criminal justice in America. | AP

Donald Trump’s second presidential term will begin on Jan. 20, bringing with it promises to dramatically reshape many aspects of the criminal justice system. The U.S. Senate — with its authority over confirming judicial nominees — will also shift from Democratic to Republican control.

In the 65 days between now and then, the outgoing — or “lame duck” — Biden Administration will likely take steps to maximize its influence and legacy or preempt some Trump administration priorities. Here are three key areas where that may happen.

Judicial nominees

The Biden team has already begun pushing the Senate to confirm its roughly 30 pending judicial nominees for vacancies on the federal bench. This week, Senate Majority Leader Chuck Schumer said that he plans to devote “significant floor time” to the effort, but the Democrats’ slim majority in the Senate could slow down the fast-paced process that some in the party are hoping for. Any confirmations will come over the objections of President-elect Trump, who has suggested that judges should not be approved by a lame-duck administration.

Some in the judiciary bristle at the idea of “Trump judges” or “Biden judges,” as the role is supposed to be nonpartisan. Studies routinely find dramatic and persistent differences in case outcomes based on party affiliation, however, and the effect may be widening in step with increasing political polarization. Over the last two administrations, there have also been vast demographic differences in judicial picks based on the party that made the nomination, with the Biden administration selecting far more women and people of color.

Federal judges restricted hundreds of Trump administration policies during his first term, and will likely play a significant role in determining the trajectory of his second.

It’s not uncommon for judges to decide whether to retire based on the presidential administration that will be picking their replacement. This week in Ohio, a federal district judge who had planned to take “senior status” — a kind of semi-retirement — withdrew that decision, leaving one less vacancy for Trump to eventually fill. Many observers expect Supreme Court Justices Clarence Thomas and Samuel Alito — who are 76 and 74 years old, respectively — to retire during Trump’s next term, giving the president-elect the ability to make his fourth and fifth appointments to the court. Some have also suggested that 70-year-old Sonia Sotomayor, one of three liberal justices on the court, should retire now, to allow Joe Biden to appoint a younger replacement before Trump takes office. However, reports indicate that Sotomayor is not considering such a move.

Pardons and commutations

While court appointments require Senate confirmation, the president has the sole authority to issue pardons or shorten sentences for federal crimes. In the face of Trump’s frequent calls for retribution against his political enemies, Paul Rosenzweig argues in The Atlantic that Biden should preemptively pardon some of the figures Trump has in his sights. Rosenzweig, a law professor who served in the George W. Bush administration, names prominent Democrats, Republicans, military officials, and former Trump administration members who testified against Trump during congressional hearings as possible pardon recipients.

Others are pushing for Biden to commute the sentences of people on federal death row to life in prison. Dozens of Catholic organizations are appealing to Biden on the basis of their shared religious faith. This kind of mass death-row clemency has been done before by several state governors.

In 2020, Biden ran on a campaign promise to end the federal use of the death penalty. While there have been no federal executions during his time in office, he did not take any steps that would prevent the Trump administration from picking up where it left off in 2020, executing people on death row at a rate not seen in generations — something Trump has indicated he plans to do.

Because of how slowly the death penalty appeals process moves, a commutation of all death row sentences would likely stop the Trump administration from completing any executions during this four-year term, assuming current legal precedents remain intact.

Abraham Bonowitz, the executive director of Death Penalty Action, a group that opposes capital punishment, told Newsweek that Biden has the chance “to take away one of the things Donald Trump loves, which is the power to execute people.”

Biden also has some 8,000 petitions for clemency from federal prisoners serving non-death penalty sentences that the president could either commute (shorten) or throw away with a pardon. To date, Biden has made much less use of this power than his predecessors, but it’s often in the waning days of a term that presidents use the power most.

Policing and prisons reform

It’s far less clear what the Biden administration can do to preserve its efforts to shepherd reforms in troubled police departments and prison systems. Under Biden, the Department of Justice’s Civil Rights Division has launched 12 investigations into local police departments to determine if they engage in a pattern or practice of civil rights violations.

In October, Reuters reported that only four of those investigations have been completed, and none of those have led to a final agreement, known as a consent decree, on how the department will be required to fix the problems — though two have produced preliminary agreements.

One of those two is Louisville, Kentucky. This week, Mayor Craig Greenberg said he would not commit to signing a final agreement before the Trump administration takes over. Minneapolis is the other city with a preliminary agreement, and there are doubts there, too, about whether an agreement will materialize, although city attorney Kristyn Anderson expressed hope to the Star-Tribune that it could be completed.

Under the first Trump administration, the Civil Rights Division largely stopped using these kinds of investigations. It’s expected that they will also halt such investigations in a second term. More than that, Trump and his allies have expressed a desire to “reorganize and refocus” the division, reported Vox in the days before the election, aiming to make it into “the vanguard” of the administration’s crusade against “an unholy alliance of special interests, radicals in government, and the far Left.”

This article is reposted from The Marshall Project.

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CONTRIBUTOR

Jamiles Lartey

Jamiles Lartey is a New Orleans-based staff writer for The Marshall Project. Previously, he worked as a reporter for The Guardian covering issues of criminal justice, race, and policing. Jamiles was a member of the team behind the award-winning online database “The Counted,” tracking police violence in 2015 and 2016. In 2016, he was named “Michael J. Feeney Emerging Journalist of the Year” by the National Association of Black Journalists.