14 Steps Biden’s DOJ Can Take Now to Reform America’s Criminal Legal System

Rachel Barkow & Mark Osler

As the Biden Administration takes shape and the nation recovers from four years of Donald Trump, there may be a temptation to return to “normal.” That could be especially true at the Department of Justice, where so many longstanding norms—independence from politics, high ethical standards, a commitment to facts—took a beating. With many Obama-era appointees back in high-level positions, there is likely a desire to go back to the way things were when the same people were last in power. But that’s setting the bar too low. While it’s critical that the department rededicate itself to its core values, it’s not sufficient to simply create an “Obama Lite” initiative. Instead, the DOJ, with its vast authority and discretion, and its power to unilaterally shape the federal criminal legal system, should be a driving force for dramatic, high-impact change. 

President Biden’s Executive Order stating that the DOJ will not renew contracts with private prison companies is a prime example of largely symbolic but practically useless reform. It is a positive step that builds off an Obama-era policy, but it is only a tiny step forward. It does not get to the heart of what really needs to change. No one will be released or serve less time because of this order. Private prisons account for a small percentage of where people in federal prisons are housed, and most of the private contracts at the federal level are with the Department of Homeland Security, which is not covered by the Executive Order. In addition, many of the private contracts have long time periods, so another administration might undo this order before it ever takes effect. It is therefore possible the order will not change anything at all.

The Obama Administration, just like administrations before it, had fatal flaws when it came to criminal justice, and the Biden Administration should aim to cure them. This isn’t just important for better criminal justice policies and public safety. It’s also important because of the institutional weakness that Trump put into stark relief. For too long, the DOJ has relied on the notion that it should have broad discretion because good people work at the department. While we agree that competent, well-meaning people generally do work at the DOJ, the Trump Administration showed why that isn’t enough. For example, Obama’s Department might have opposed abolishing mandatory minimum sentences because of its own policy to curb their use (though even that policy was inconsistently enforced), but preserving those laws enabled the Trump Administration to use them far more aggressively. If the Biden Administration wants both a lasting legacy of real criminal justice reform and to show a commitment to the rule of law, it needs to pursue critical institutional reform at the Department even if at the expense of its own discretion.  

With those goals in mind, we propose the following 14 policy recommendations. These are largely aimed at structural issues that can be addressed without legislation that would have the biggest impact in reducing prison populations and remedying disportionate punishments and discriminatory policies. These reforms cover different topics, but they are all backed by empirical evidence as being in the interest of public safety, reducing racial disparities, and giving the DOJ back its good name. These include substantive policy changes and personnel priorities, and we will cover those first precisely because they can be done without Congress. Other reforms require Congress’s cooperation. While there is no guarantee Congress will agree, this is the time to pursue these shifts, with Democratic leadership and bipartisan support for criminal justice reform. But legislation will not move without DOJ support. DOJ opposition has been a chief impediment for more significant criminal justice reforms, so it’s long past time for it to take the lead on breaking the logjam.

1. Revise Charging Policies 

The Justice Department has long had memos urging prosecutors to charge “the most serious, readily provable offense” in a given case. The recent rescinding of a 2017 charging memo does not change this—it effectively reinstates a 2010 memo from then-Attorney General Eric Holder directing that “a federal prosecutor should ordinarily charge the most serious offense that is consistent with the nature of the defendant’s conduct and that is likely to result in a sustainable conviction.” While the policy memos have shifted in different administrations to create more or less discretion to depart from that norm, the overall message has remained the same: Charge the most serious crime. 

But this default has no basis in empirical evidence or public safety. The department appears to have assumed that longer sentences are always better, but that is not the case. Evidence shows that at a certain point, sentences themselves become criminogenic because of how difficult it is for people to reenter free society after serving long periods of time in prison. Research also shows that people generally “age out” of crime, and so lengthy prison terms yield an aging prison population that is both low-risk and high-cost, with some prison wings turned into de facto nursing homes. In federal prison today, thanks largely to the Justice Department’s insistence on seeking serious charges and harsh sentences, nearly one in five people is over age 50. It is long past time to remove this presumption. 

For the correct model, the Justice Department need look no further than its corporate charging policies. In that context, the department has issued a series of memos laying out a multi-factor analysis for prosecutors to consider to make sure the offense charged is commensurate with a business organization’s culpability. Prosecutors are to consider the adequacy of other possible remedies and the collateral consequences of bringing criminal charges, and no single factor is to be deemed dispositive. Instead, prosecutors are told that they need to use their “thoughtful and pragmatic judgment in applying and balancing these factors.” There is simply no basis in punishment theory or public safety analysis for treating corporations more favorably than individuals. If “collateral consequences” should caution against prosecuting corporations, then prosecutors should also consider how sending someone to prison might traumatize their children or lead to economic devastation for their family. If other means of accountability can be pursued to avoid those harmful consequences on third parties, prosecutors should pursue them.

Further, if states already have adequate remedies for addressing the underlying criminal conduct, federal prosecutors should not bring charges and especially not solely for the sake of getting a harsher penalty. The Justice Department should also respect the Constitution’s jury guarantee. That means it should not impose penalties on those who exercise their right to a jury trial by seeking more serious charges or longer sentences that amount to a trial penalty. Likewise, if a jury acquits someone, the department should not rely on the acquitted conduct to enhance that person’s sentence for other charges.

2. Reform Clemency

If the Biden Administration cares about fighting mass incarceration, it will not be enough to change charging policies going forward. It must also remedy past excesses, and clemency is a crucial tool for this. Parole doesn’t exist in the federal system, and other “second-look” provisions rely on the uneven support of federal judges—a bench that is now full of Trump appointees who, along with other appointees of conservative presidents, are far more reluctant to grant release. Biden bears a special responsibility for remedying excessive sentences because he was a driving force behind some of the worst drug mandatory minimum sentencing laws that people continue to serve today. 

Biden inherits a clemency crisis. There are currently more than 15,000 petitions waiting for an answer, having piled up over the course of the Trump presidency. But the problem is not unique to Trump; President Obama commuted more sentences than any president since Harry Truman, but still approved only 5 percent of requests. The current formal review process is hopelessly broken and cannot deal with the backlog, and a restructure is essential. 

The current structure bears not one but two fatal flaws: It is overly bureaucratic and is a captive of the deeply conflicted DOJ. It features seven levels of review, sequential to one another, coursing through the pardon attorney, the deputy attorney general, and the White House counsel. Like too many sieves stacked up, it eliminates nearly everything, and what comes through can be random and arbitrary. Too much of it is embedded in the DOJ—the very institution that usually sought too-long sentences in the first place and is inclined to say no to requests to overturn its initial judgments. 

The solution is simple: Take the process out of the DOJ; create a clemency advisory board with bipartisan, diverse membership; charge them with evaluating clemency petitions; and consider the board’s recommendations regularly. The power stays with the president, and he will get advice untainted from the bias of the prosecutors who charged all those cases in the first instance.

3. Commit to Compassionate Release 

The second key mechanism that the Biden Administration can use to release those currently and unnecessarily incarcerated is compassionate release. The Bureau of Prisons (BOP) has an abysmal track record on this score, opposing just about every motion for compassionate release, even when the people making the requests are at death’s door. (Indeed, many have died shortly after being denied by BOP.) DOJ needs to shift course, particularly during the pandemic. It should identify elderly and infirm people in prison for release—not merely home confinement—and, at a minimum, it should support their release when requested. 

In addition, those who have been put in home confinement during the pandemic should not be required to return to prison, as a recent Trump-era Office of Legal Counsel memo suggests. BOP should use compassionate release, or the president should use his clemency authority, so that they do not return to prison. This is not only a just policy, it is also in the interest of public safety. These people are not a recidivism risk, and the more people who stay in federal prison, the more deadly prisons are for spreading COVID. Prisons have been superspreaders throughout the country, and BOP facilities have been among the worst. DOJ can thus show its commitment to combating the pandemic and crime by making compassionate releases a priority.

4. Ensure First Step Act Programming Credit 

The Justice Department needs to commit to robust implementation of the First Step Act. Parts of that law allow people in prison to earn time off their sentence after participating in programming. During the Trump Administration, BOP proposed a rule that would block reduction eligibility for far too many people, make it too difficult to earn credits, and far too easy to lose them. While public comment on that proposal closed on January 25, it is not too late for DOJ to shift course and propose a different rule that makes this programming—and therefore release eligibility—as widely available as possible, consistent with the statutory language of the First Step Act. Decades of data show that programming is most beneficial for those in higher risk categories, so unduly limiting it for the lowest risk population is counter to the public safety mission of the department.

5. Reform and Move the Bureau of Prisons

Flawed compassionate release and First Step Act implementation are emblematic of larger problems at the BOP. Nearly everyone outside of government who deals with the BOP finds it to be dysfunctional; it’s inefficient, overly bureaucratic, and prone to cruelty.

A large part of the problem is cultural, as the BOP views itself as embattled and misunderstood, and too often circles the wagons instead of embracing change. It is structured as a law enforcement agency, and currently is overseen by the Department of Justice. One key to change would be to support legislation to shift the entire bureau over to the Department of Health and Human Services. In the end, the work of the BOP is to not only securely detain people, but to prepare them for life after incarceration. They are much better at the first task than the second.  A shift to a department dominated by social work would help change the culture that produces the BOP’s current problems.

Along with that, the BOP needs to do a better job of the basic blocking and tackling in their field, and that starts with ensuring adequate staffing throughout the system. There needs to be additional resources for mental health needs, and even for basic issues like ensuring there is a state ID for every person in prison when they are released.

6. Abolish the Death Penalty 

One of the most shameful acts of the Trump Administration was its rush to kill people in its waning days. While the Obama Administration did not seek execution dates for those people, it failed to grant them clemency so that they would no longer be eligible for the death penalty, which paved the way for Trump’s actions. A mere moratorium on executions is inadequate, as recent experience has proven. The Justice Department must urge Biden to commute all remaining death sentences so that this does not happen again, and it should urge Congress to abolish the death penalty. It serves no deterrent function, and the 174 exonerations of people on death rows in the U.S. have undermined its credibility.

7. Appoint Reformers to Key Positions Within DOJ

Biden should appoint people with commitments to criminal justice reform—including career civil rights attorneys and public defenders—in leadership positions throughout the Justice Department. This includes United States attorney posts in districts nationwide, as well as Main Justice appointments.

A major shift in American politics has occurred with the election of progressive prosecutors across the country, with voters rejecting the old, tough-on-crime archetype for leaders who will prioritize supporting people and their communities with policies that work instead of seeking excessive punishments that don’t. Biden will not be leading by seeking out such change agents as head prosecutors—he will be following the will of the people as expressed by their votes in Chicago, San Francisco, Philadelphia, Los Angeles, and many other cities across the country. Recycling Obama appointments and relying on former prosecutors would be a sore disappointment for those who have new hope in real change.

8. Support Reform at the Sentencing Commission 

The United States Sentencing Commission wields extraordinary influence as the agency responsible for promulgating the Sentencing Guidelines, and the DOJ has a seat at every commission meeting because the attorney general (or his designate) is an ex officio member. The Justice Department is often a key driver of the commission’s agenda through the letter it sends each year stating its priorities. The department can and should use these levers of influence to reform the commission and federal sentencing. 

For example, advocates have long urged for federal public defenders to play a similar role on the commission, and the department should enthusiastically support this reform. Having input from both DOJ and the federal defenders early in the commission’s process makes for better overall decision making. Defenders bring an important perspective that is otherwise missing, particularly given that so few commissioners have any public defense experience. Just like the federal courts, the commission has been dominated by former prosecutors, and having an ex officio defender could help to shift that balance. 

Additionally, the department should encourage the commission to reduce federal sentences, including seeking lower sentences for those with no criminal history “points” under the Guidelines and reforming the Guidelines’ approach to group crimes by more closely linking liability to culpability. The current “reasonably foreseeable” standard allows convictions based on the unintended conduct of others. Instead, people should only be liable for the criminal conduct that they intended or expected. 

More generally, the department needs to be proactive in seeking other sentencing reductions. All too often the department has reflexively opposed broad reforms at the commission. While there have been some exceptions, the overall pattern has been one of resistance. It is critical to change that mindset.

9. Support Creating a High-Level Criminal Justice Advisor Position 

Imagine a president who said he would only take advice on criminal justice from federal defenders. No doubt, there would be an outcry over the lack of balance in that construct. And yet, we seem content to have only the DOJ—a building full of prosecutors—advise the president on these crucial issues. 

If criminal law reform is a goal, Biden should create a cabinet or sub-cabinet level position, independent of the Department of Justice, to advise him on the issue. Similar constructs have been created in the area of national security (where the national security advisor floats as an independent advisor between the security agencies and the president), foreign policy (where the secretary of state is just one of many advisors weighing in on crucial questions), and trade (where the U.S. trade representative operates independently of the Department of Commerce).

The Justice Department should support this kind of innovation and welcome input from other sources instead of seeking a monopoly on criminal justice policy-making at the White House. Another advisor that is not driven by prosecutorial interests will allow the president to receive a more balanced perspective, and the DOJ should support that.

10. Implement Forensic Science Reform 

Right now, the DOJ, through the Federal Bureau of Investigation, dominates the field of forensic science (that is, the analysis of DNA, fingerprints, ballistics, and other evidence) as used in federal courts. This is problematic, and during the Obama Administration both the National Academy of Science (NAS) and the President’s Council of Advisors on Science and Technology were sharply critical of the FBI’s handling of this task. In 2015, for instance, the FBI admitted that, between 1985 and 1999, an elite forensics unit at the bureau gave false hair-analysis testimony in about 96 percent of cases, including in 32 cases that led to a death sentence. Not surprisingly, the NAS concluded that forensic science should be independent of the DOJ. The reasoning is simple: Scientific analysis is not the province of law enforcement. Moreover, having prosecutors and law enforcement agents control the science presents a clear conflict of interest, and creates incentives to skew data and not improve methods and standards. At the time, the DOJ opposed the idea of an independent commission regarding assessing forensic science. 

When journalist Radley Balko surveyed experts in 2019 he found genuine concern with junk science in the courtroom. Their conclusion? That forensic science needed to become independent from law enforcement. It is time to make that change. Indeed, for an administration that came in with an express and vocal commitment to science, anything less would be shameful.

11. Revise Discovery Policies

Basic fairness requires defense attorneys to have all the information available about a case. Prosecutors are already required to disclose exculpatory evidence under the Supreme Court’s decision in Brady v. Maryland, but that rule is routinely violated and has proven inadequate to ensure fair trials and prevent wrongful convictions. The most effective solution is to provide “open file” access to anyone charged with a crime—meaning that the defense has access to the entire prosecution file well before trial. 

While some U.S. attorneys have mandated open file discovery (at least for some types of cases), the Justice Department has long resisted such a policy. This resistance persists even as prosecutors around the country have recognized it is in everyone’s interest—the prosecution, the defense, and the public—for convictions to be based on full information so that we are accurately identifying the right people for the right charges. The department should embrace an open file policy, just as states like Texas and North Carolina have adopted. If Texas is ready to accept such a measure in the interests of justice, so should the rest of the country.

12. Support Legislative Reform 

The Justice Department is the most important lobbyist on criminal justice reform in Congress. Its legislative affairs office plays an outsize role, and it’s critical that the department shift its stances on a number of issues, starting with mandatory minimums. The department was an obstacle to mandatory minimum reform during the Obama Administration. While Attorney General Holder shifted internal mandatory minimum charging policies, that kind of memo does nothing to bind future administrations. That is how the Trump Administration was able to completely shift course, once again pursuing outrageously long mandatory minimum sentences. 

To get real reform, we need legislation that eliminates mandatory minimum sentences from the federal code, and the key to getting that legislation is DOJ support. All the evidence cuts against mandatory minimums—they increase racial disparities, they do not provide deterrence, and they lead to disproportionate sentences. They do not eliminate discretion in sentencing, they merely shift that discretion from judges to prosecutors, who exploit mandatory minimums to compel plea deals and cooperation, ultimately leading to the same disparate outcomes that mandatory sentencing laws are supposed to prevent. 

But DOJ did just fine getting pleas and cooperation when the Holder memo on mandatory minimum charging was in place, and plenty of states have well functioning criminal legal systems without mandatory minimums. 

It is long past time for the DOJ to recognize how pernicious these laws have been. Biden has apologized for his role in their passage, and his Justice Department should be at the forefront in correcting these. This includes mandatory minimums in all contexts—drug offenses, child pornography, career offender, and everywhere else they exist in the federal code. Mens rea reform, which would require that people be convicted only when they know or have subjective awareness that a wrong will occur, also has legislative support but has stalled in the past because of DOJ opposition. It is long past time for the DOJ to recognize how important mens rea is, even if it makes winning cases more difficult. And such proposals only scratch the surface of federal reform that the DOJ could advocate to reduce the federal reliance on incarceration. 

13. Support Release Through Parole 

The Parole Commission has been a forgotten stepchild within the Department of Justice, and was scheduled to dissolve in November of last year after being kept on life support since it’s original dissolution date in 1992. It currently has only two of five slots filled, and an acting chair.  

One of the commission’s primary roles is limited but important: evaluating parole for those sentenced in federal court prior to November 1, 1987 and for District of Columbia cases sentenced before August 5, 2000. In short, the Parole Commission evaluates release for several thousand federal and D.C. prisoners, many of whom are elderly. The commission has been heavily criticized for its retributivist approach, particularly with D.C. cases.

The president should push Congress to renew the tenure of the board for another two years, but with a caveat: Those responsibilities relating to D.C. prisoners should be returned to the district’s government, leaving the Parole Commission to focus only on the few remaining federal prisoners. Biden should then appoint active, engaged commissioners who do not have a background primarily in law enforcement, and charge them with a genuine review of the remaining cases. The elderly are among the most expensive people to house, and the least dangerous to society. A stingy approach to parole benefits no one.

14. Eliminate Financial Incentives to Charge Cases

Economists tell us that incentives matter, and they are right. Unfortunately, funding for federal prosecutors often is tied to the number of cases they bring. For example, last year the Department of Justice sought funding specifically to increase the number of drug cases brought by federal prosecutors. And it would surprise no one to find that the funding of U.S. attorney’s offices has been tied to the sheer number of cases they bring. 

These financial incentives cut against reform, and are a perverse metric. U.S. attorneys should have incentives to actively solve problems—for example, by reducing specific types of crime, a goal which is often better achieved by strategic prosecution of fewer people than by grabbing the low-hanging fruit of easy cases. Creating incentives to simply bring more drug cases—a category that overlays completely with state jurisdiction—ignores any semblance of federalism and, worse, solves no problem. Making an easy drug case doesn’t deny anyone access to drugs, after all, at least not for long. The department should not seek funding for expansion to bring more cases but should instead analyze its existing resources to see how they can be deployed more effectively to target problems and not simply pursue numbers. If particular U.S. attorney offices are bringing minor cases because there is nothing else to bring in that jurisdiction, the department should consider downsizing those offices and transferring people instead. 

Yes, we are calling for imaginative thinking by even the Department of Justice. But for too long, the department has been a goalie, blocking every shot at changing criminal justice for the better. If the Biden administration truly believes in a better, less carceral future, it is time to pull the goalie and go on the offense with criminal justice reform.

14 Steps Biden’s DOJ Can Take Now to Reform America’s Criminal Legal System