Branch and Burger are Policy Specialists, and Gander is a Policy Analyst at the Crime and Justice Institute

The 2020 social justice protests underscored a sentiment Black, Indigenous, and People of Color (“BIPOC”) in America have felt for far too long: the criminal justice system lacks credibility and legitimacy. This perspective stems from the harms caused by mass incarceration and America’s tough on crime approach, proliferated by the 1994 Violent Crime Control and Law Enforcement Act (“Crime Bill”). Through federal policy changes and incentivized funding, the Crime Bill catalyzed states to crack down hard on crime—prioritizing prison and jail construction, sentencing enhancements, and other punitive measures that caused incarceration rates to climb. In nearly three decades since the passage of the Crime Bill, the appetite for tackling the failures of the justice system has surged—polls show near unanimous support for criminal justice reform across all demographics, and results of ballot-led initiatives during the 2020 election cycle indicate clear bipartisan demands for reform in a number of key areas including racial justice, policing, and drug policy at the state and city levels. 

The newly elected leaders in this country further epitomize the evolution of the national narrative from “tough on crime” to “smart on crime.” After being criticized for positions each took earlier in their careers, the Biden-Harris campaign called for “equality, equity, and justice,” and their platform included promises for bold federal reform. So far, the President has already made good on one of his promises. In the very first week of his term, President Biden signed an executive order to phase out contracts with private prisons. This action signals a very important first step in the administration’s commitment to reform; however, it provides little solace to most reformers concerned about reducing the prison population.

With the majority of the justice-involved population held in state and local jurisdictions, the federal government is limited in its direct impact to reduce the footprint of the justice system and improve outcomes. For this reason, achieving significant reduction in the prison population will require the new administration to invest in state and local recidivism reduction efforts. 

The Biden Administration can affect state level reform specifically through discretionary grants. Discretionary grants create a competitive process for jurisdictions to receive federal funds—unlike formula grants which guarantee funding, this method makes federal funding contingent on applicants adhering to conditions set by the federal government. Discretionary funding also allows experts to review grant proposals for merit and their pursuit of evidence-based policies aligned with the administration’s objectives. Discretionary grants provide promise in the sense that initial grantee’s progress can be evaluated and viewed as pilot programs to be later pursued by other states. These grants will allow the Department of Justice to oversee the grantees’ progress at a time when the public is demanding criminal justice reform. 

By pursuing criminal justice reform through discretionary grants, the new Biden Administration can make good on campaign promises while also capitalizing on the momentum generated on the ground. State and local leaders have already taken on several key areas of justice reform—many of which were captured in the President’s platform—including sentencing, pretrial, driver’s license policy, and reentry. While these are not the definitive solution to what has been exposed to be a very broken system, the new administration should embrace the following recommendations if they are to work towards legitimizing justice in this nation. 

Curtailing the prison population should start by rooting out the tough-on-crime era policies contributing to mass incarceration and racially disparate sentencing outcomes. 

In recent years, bipartisan commitment to front-end sentencing reform on the state level has taken off—more jurisdictions than ever before are walking back mandatory minimum policies, limiting the use of incarceration as a response to drug addiction, and decriminalizing cannabis possession. Allowing individuals—disproportionately BIPOC—to remain incarcerated for cannabis sales or possession is morally reprehensible in an era in which corporations reap significant profit from cannabis sales and states use cannabis taxation to prop up their budgets.

The Biden Administration has a responsibility to not only match this momentum at the federal level, but to advance state and local efforts in overhauling draconian sentencing schemes that keep prisons full. With current projections placing 2020 in the running for the deadliest year in U.S. drug usage, the legitimacy of criminal justice reform in this presidential term depends on the federal government prioritizing prison alternatives that more effectively address behavioral health needs, including substance use disorders—and incentivizing states to do the same.

Pretrial detention should be used only when necessary—to safeguard against long-term public safety harm. 

The benefits of imprisonment must be weighed against potential risks. Research shows that incarceration can in fact increase the future likelihood of offending. In addition, prisons and especially jails often do not have adequate programming and treatment services shown to reduce future offending. Even short stays in jail have a destabilizing effect on economic well-being, including restricting access to jobs, limiting wage growth, and increasing dependence on public assistance.

 

Debt-based driver’s license suspension policy should be reformed to ease reentry and reduce unnecessary incarceration. 

Driver’s license reform, which has picked up bipartisan momentum in a variety of states, can further improve formerly incarcerated peoples’ job prospects and ease societal reintegration. States using license suspension as a response to offenses unrelated to dangerous driving are unnecessarily impeding opportunities for advancement and hurting their economies. Simply put, suspending licenses of those who fail to appear in court or pay legal debts is counterproductive—it ensnares individuals without economic means in the justice system and does nothing to enhance public safety. 

For many people, driving is essential to a productive life, and employers often require a valid license even if driving isn’t required for the job. This puts people with suspended licenses at an economic disadvantage, often creating barriers for them to get hired, travel to work, and stay employed. This makes it more difficult to pay outstanding fines, court costs or child support, attend court dates or probation check-ins, and contribute to society. Moreover, license suspensions can lead to unnecessary incarceration, which is costly on both economic and personal levels. In many jurisdictions, driving on a suspended license is a criminal and sometimes felony-level offense.

Improving opportunities for successful reentry and reintegration will reduce recidivism.

It is a known fact that the majority of people who enter the justice system will be returning to our communities, and therefore the new administration will need to bolster supports for successful reentry and reintegration, particularly against the backdrop of historic national unemployment figures due to the COVID-19 pandemic. The U.S. economy loses nearly $90 billion annually for underemployment of formerly incarcerated people, although research shows that employment can decrease recidivism. Modernizing criminal justice infrastructures by adopting automatic record sealing for nonviolent offenses removes employment barriers and strengthens the economy for everyone. Automatic record clearance has been done at the state level in bipartisan fashion. Drawing from these successful state examples, President Biden can support a renewed version of the Federal Clean Slate Act, which provides expungements for federal drug offenses. 

Encouragingly, results from the 2020 election indicate Americans are more energized than ever to vote yet millions are barred from doing so by voter disenfranchisement laws that are remnants of Jim Crow. In 19 states, a person with a felony record loses their right to vote during, and for a period after, incarceration. In 11 states people with a felony record could lose their right to vote indefinitely or require additional action like a governor’s pardon to vote depending on their circumstance. 

States are increasingly trending towards ending these felony disenfranchisement laws. For example, two years after passing state reforms mirroring the John Lewis Voting Rights Act, Virginia is trying to join 18 other states that restore voting rights automatically for people with felonies. The Biden Administration can assist state efforts to reform voter disenfranchisement laws by leveraging the President and Vice President’s Senate networks to support the Democracy Restoration Act, which passed the House in 2019, and restores federal voting rights upon release from prison.

There is no shortage of criminal justice areas in need of reform, and 2020’s summer protests show that there is great demand for change. While the Biden Administration enters the White House with multiple crises including a global pandemic, struggling economy, and civil unrest, there are reasons to be optimistic that criminal justice reform will remain a priority. Current momentum at the state level and bipartisan interest in justice reform indicate the issues are less divisive and more politically viable than in preceding years. Further, former President Trump was able to make criminal justice reform a more palatable topic for conservatives and normalized criminal justice reform options within the GOP. Most importantly, the Biden Administration has a mandate from voters, particularly BIPOC voters, to take the momentum from Black Lives Matter protests and restore hopes of a fair and impartial justice system. A combined push in both statehouses and in Congress can accelerate efforts of the BIPOC communities to turn the page on a harmful chapter in America’s criminal justice history. 

Disclaimer: The views expressed above are the author’s own and do not reflect those of SALPAL or Georgetown University.