November 13, 2020
Soon after entering the Democrat presidential primaries, Joe Biden apologized for his role in shepherding draconian anti-crime legislation through the Congress in 1994.
Here are five things a Biden administration can do to address criminal justice reform.
1. Death penalty
Attorney General William Barr oversaw the most federal executions of any administration in more than a half a century. After a 17-year hiatus, the federal government has executed seven prisoners this year, with three more scheduled before the end of the year.
Biden made eliminating the death penalty part of his criminal justice platform. A Biden attorney general could stop federal executions immediately. Biden could not intervene in state executions, but he could incentivize the abolition of the death penalty by tying federal criminal justice funding to eliminating the death penalty.
2. Qualified immunity
In the wake of nationwide protests inspired by the killing of George Floyd by a Minneapolis police officer, the doctrine of qualified immunity has come under increasing scrutiny. Qualified immunity shields government officials from most lawsuits.
Qualified immunity is rooted in a series of Supreme Court decisions finding that government officials will do their jobs less efficiently and with less enthusiasm if the threat of a lawsuit looms over them.
According to Vox, the Supreme Court justified qualified immunity by finding it ensures that the stresses of litigation won’t divert “official energy from pressing public issues,” and that concerns about being sued won’t deter “able citizens from acceptance of public office.”
Biden has an opportunity to examine how the nuances of qualified immunity can be balanced with rights of individuals.
3. School-to-prison pipeline
A representative of the U.S. Justice Department’s Office of Juvenile Justice and Delinquency Prevention described the school-to-prison pipeline as “the pervasive use of court referrals as a means of disciplining kids in school.”
According to the Washington Post, more than 3 million students each year are suspended or expelled from school across the United States. Federal data, though limited, reveals that more than 240,000 students were referred to law enforcement.
Left unsupervised during the day, without anything constructive to do, students are more likely to get arrested, go to jail, or ultimately drop out of school. According to a 2011 study from the Council of State Governments, students who have been suspended or expelled are twice as likely to repeat their grade and three times as likely to end up in the juvenile justice system—within a year—compared to similar students at similar schools.
A replacement for Education Secretary Betsy DeVos will have a lot to do, but the school-to-prison pipeline should be at the top of the list.
4. Mass incarceration
According to the Marshall Project, crime prevention was a central feature of Biden’s criminal justice plan. He has pledged to set aside $20 billion in federal funding to states that adopt evidence-based crime prevention programs and that opt for diversion programs over incarceration.
Under Biden’s plan, states would have access to federal funding if they agreed to implement programs designed to keep people out of prison.
5. Bail reform
There are 450,000 people sitting in local jails having been charged with a crime, and all—except for a small percentage facing life in prison—have a right to be free. These men and women sit in jail because they do not have the money to get out, pending trial.
Bail serves two purposes: To guarantee that defendants appear for court, and to protect the public from those who are a potential threat.
A recent study in Maryland found that people arrested in the state from 2011 to 2015 paid combined bail premiums of more than $256 million. Those who use the services of a bail bond company do not get back any of the money paid. More than 25 percent of that money was paid by people who were acquitted or never faced trial.
Sadly, the presidential transition is off to a slow start, but there is a whole lot of data and research on criminal justice issues to allow the new administration to hit the ground running.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.
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