During his presidential campaign, Joe Biden ran on a progressive criminal justice reform platform that stands in stark contrast to some of his previous positions on crime. In fact, his current plan aims to undo the damage caused by previous policies he championed for decades, starting in the 1990s.

The article will outline President-Elect Biden’s criminal justice plans now; will touch on Vice President-Elect Kamala Harris’ record on criminal justice issues; and will explain in layman’s terms what he can and can’t do as president without congressional support.

What criminal justice changes has Biden promised?

During this election cycle, Joe Biden stated that too many minorities are locked up and that we need to rethink who we send to jail, how we treat them in jail, and how to help them successfully rejoin society after they serve their time. On Biden’s Criminal Justice Policy website he promises, among other things, to:

• End Mandatory Minimum Sentencing
  As President, Biden says he will work to pass legislation to repeal mandatory minimums at the federal level. He will give states incentives to repeal mandatory minimums.
• End the Monetary Bond System
  Biden calls cash bail the “modern-day debtors prison” that disproportionately harms low-income people. He said he will lead a national effort to end cash bail and reform the pre-trial system by putting in place a system that is fair but does not inject further discrimination or bias into the process.
• End Private Prisons
  Biden says he will end the federal government’s use of private prisons. He will make it clear that the federal government should not use private facilities for any type of detention, including detention of undocumented immigrants. Biden will make eliminating private prisons and all other methods of profiting off incarceration – including diversion programs, commercial bail and electronic monitoring – a requirement for his new state and local prevention grant program. Biden will also support legislation to crack down on private companies charging incarcerated individuals and their families high feed to make calls.
• End the Death Penalty
  Biden promises to work to pass legislation to eliminate the death penalty at the federal level and to incentivize states to follow the federal government’s lead. He contends these defendants should instead serve life sentences without probation or parole.
• Decriminalize Marijuana
  Biden believes no one should be in jail due to cannabis use. He vows to decriminalize cannabis use and automatically expunge prior convictions. He will support the legalization of cannabis for medical purposes, let the states decide to legalize recreational use, and reschedule cannabis at as schedule II drug so researchers can study its positive and negative impacts.
• Create a $20 billion grant to help states reduce incarceration
  Biden vows to create a new $20 billion competitive grant allowing state, counties and cities to receive funding to invest in efforts to reduce crime and incarceration. In order to receive the funding, states must eliminate mandatory minimums for non-violent crimes, institute earned credit programs and make other efforts to reduce incarceration rates without impacting public safety.
  
• Check prosecutorial power by asking the Justice Department to investigate prosecutorial misconduct
  Under the Biden administration, the Justice department will use its authority to identify unconstitutional or unlawful policing. Specifically, Biden promises to appoint Justice Department leadership who will prioritize the role of using pattern-or-practice investigations. He will push for legislation to clarify that this pattern-or-practice investigation authority can also be sued to address systemic misconduct by prosecutors’ offices.

How does Biden’s current promises contrast with his previous positions?

In 1994, Joe Biden, who was then chairman of the Senate Judiciary Committee, authored and shepherded through a controversial crime bill called the Violent Crime Control and Law Enforcement Act of 1994. The Crime Bill imposed mandatory minimum sentences, imposed the three-strikes mandatory life sentences for repeat violent offenders, and increased the number of federal crimes that are subject to the death penalty. It also provided funding for the Brady Handgun Violence Prevention Act and a ban on certain semi-automatic weapons for 10 years. Over the years, Biden supported many more “tough on crime” laws that critics say helped lay the groundwork for mass incarceration, particularly among black communities. He has since admitted that he hasn’t always “gotten things right.”

What is Kamala Harris’ record on criminal justice issues?

Vice-President Elect Kamala Harris also has a mixed record on criminal justice issues. Harris was a former prosecutor, San Francisco District Attorney, and California Attorney General before becoming a US Senator for California. She has been walking the line between top cop and criminal justice reformer. For example, when she was the DA of San Francisco, she declined to pursue the death penalty, but as AG of California, she defended the use of the death penalty.

What changes can Biden make without congressional support?

Changes at the federal government happen at a glacial pace. The president has the power to grant pardons  – or set aside punishment – in federal cases. He can also grant clemency, thereby reducing sentences for federal crimes. He can also direct the Department of Justice himself – or through the Attorney General – on what offenses to prioritize and how often to allow diversion instead of prosecution.

The president can set up task forces to make recommendations on how to make changes under the existing legal framework. Biden has promised to create an independent Task Force on Prosecutorial Discretion, which would make recommendations for tackling discriminations that stem from arrests and charging decisions. (For example, in 2019, 52 percent of marijuana cases filed by the Tarrant County District Attorney were against individuals who are black, even though they make up only 15 percent of Tarrant County population – this despite the Brookings Institution, an American think tank, finding little variation in marijuana use between races.)

The President can direct the DOJ to look for violations of any police department or prosecutor’s office that violates the “rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.”

What changes require Congress to act?

Much of Biden’s plans for criminal justice reform are going to require legislative support. With the Senate majority still to be determined, it is difficult to predict how many of these campaign promises can be kept. It is also important to note that whatever changes are made at the federal level, the states still have the ability to make laws more stringent at the state level. For example, if marijuana is decriminalized at the federal level, it may remain illegal at the state level – subject to what each state legislature does. Some changes may also be mostly symbolic – for example, very few federal cases are for possession or even distribution of marijuana alone.

If Biden can build support in Congress, Congress can pass laws at the federal level that could eliminate mandatory minimum sentences in federal drug cases, provide greater avenues for early release, and put pressure on the states (by controlling federal funds) to enact state laws that conform with these stated criminal justice goals. The federal government cannot order state or local governments to fall in line with these goals.

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