Connecting state and local government leaders
President-elect Joe Biden's sweeping criminal justice proposal focuses on prevention and diversion in an attempt to prod states away from locking people up.
President-elect Joe Biden’s criminal justice plan is a behemoth, with goals that span the gamut of the lofty—eliminating racial disparities in sentencing—to the highly specific—working with states to eliminate laws that revoke driver’s licenses for unpaid parking tickets. Standing at 4,400 words (by comparison, his tax plan is around 2,300 words and health care plan is around 3,200 words), Biden seems to be making a statement: criminal justice reform will be a priority in his administration.
“This isn’t a secondary issue as it might have been in the past,” said Ryan King, the director of research and policy at the Justice Policy Institute. “There’s a base of folks where criminal justice was the driving issue that brought them out to vote for Biden. So there’s an expectation these issues will be front and center now.”
At the center of Biden’s criminal justice plan is a big promise to state governments: a $20 billion competitive grant program to fund projects that focus on crime prevention and alternatives to incarceration, an idea based on a 2015 proposal by the Brennan Center. The incoming president wants to see state and local plans to support juveniles at risk of getting caught in the justice system, expanded opportunities for drug treatment and mental health services, and expand reentry supports for people leaving prison to prevent recidivism.
The “sheer scope of the funding” signals Biden’s interest in spurring prevention efforts quickly, said Emily Mooney, a policy fellow at the R Street Institute. “It’s a tried and true method for change—the dangling carrot,” she said. “This is where the federal government is best able to help states out as they’re looking at their budgets and saying, ‘Do we really need to incarcerate these people?’”
The grant money may be a carrot, but there are some sticks involved, Mooney noted. To get funding, Biden wants to require states to do things like eliminate mandatory minimums for non-violent crimes, end the use of private prisons, and sunset cash bail—all policies that have grown in popularity in recent years (even in Republican states). But while local officials may agree with the policy changes, or at least some of them, they might not be ready to comply. For example, Mooney pointed out that New Mexico relies on private prisons to house around 50% of their incarcerated population.
For help, states and localities may be asked to turn to each other for ideas. Under former President Barack Obama, there was a commitment to working groups and peer-to-peer learning, said King, but “that really dried up under Trump.” King is hopeful that Biden “picks up where Obama left off” by providing leadership, technical assistance, research, and funding to states. “Fighting crime is largely a local effort, so the feds should be partners as opposed to imposing their views,” he said.
Megan Quattlebaum, director of the Council of State Governments Justice Center, said that the Justice Department’s Office of Justice Programs, the main agency that dispenses criminal justice grant money, can use this money as a “significant lever” to “build on innovation already happening at the state and local level.” But, like Mooney, she warned that conditions on getting the money could cause some tension. “In recent years, states and localities have passed on federal funding because…the expense and difficulty of compliance outweighs the benefits of the grant,” she said. “There’s not an endless ability to attach conditions.”
Whether Biden will be able to funnel significant federal dollars to criminal justice at the state and local level remains unclear, something that will especially be true if Republicans retain control of the Senate after January run-off elections in Georgia. Even if Congress does embrace the idea, some of the ambitious conditions to grants might not survive. But if grants are expanded and qualifiers like ending contracts with private prisons make it through, will that mean most grant money will end up in Democrat-led states that are already ideologically aligned with Biden?
Not likely, experts said. Criminal justice has become a uniquely bipartisan issue in the past few years, drawing in conservatives concerned about the billions of dollars spent on incarceration each year and those skeptical of government overreach. Under the Obama administration, many Republican-led states took steps to reduce prison populations, reform sentencing guidelines and close prisons. Obama praised the efforts of red states “for demonstrating that making our criminal justice system more fair is a bipartisan idea.”
The reality now, in light of a pandemic that is ravaging state prison systems and wreaking havoc on local budgets, is that both red states and blue states will need the money, said Quattlebaum. “The challenges are there,” she said. “States and localities are going to want support.”
Even though Biden’s plan is expansive, criminal justice experts noted that there are some gaps. There isn’t much, for example, on how Biden plans to use his clemency powers—arguably the easiest move for him to make because it doesn’t require any legislative buy-in. With over 20,000 cases of coronavirus in the federal prison system, some advocates say Biden should be aggressive with his pardoning powers to reduce the population and allow greater room for social distancing behind bars.
Daryl Atkinson, the co-director of Forward Justice and a former DOJ Second Chance Fellow under the Obama administration, had a more critical evaluation of the proposal, saying “nothing in the plan is earth shattering” and that much of what Biden is proposing was initiated during the Obama presidency. He’s concerned that the focus on diversion and crime prevention might end up having a “net widening effect” that brings more people into “entanglements related to the criminal legal system.”
“That can be counterproductive,” he said. “We need transformative changes. We need to find ways to leave people alone, like issuing citations in lieu of arrest.”
Some of Biden’s priorities—like increasing literacy and strengthening the foster care system—seem out of place in a criminal justice plan and would be better suited for an education initiative, Atkinson said. While he said he understands the concept of crime prevention efforts that “address the underlying factors that bring people into contact with the criminal legal system,” Atkinson said he’d rather not “deal with all of our social ills” through the lens of criminal justice.
Others say acknowledging these root causes of crime—like the fact that 90% of foster youth with five or more placements enter the justice system—displays a strong pivot away from a reactionary mentality. “I think this framing shows they understand the problems of the criminal justice system are actually failures to provide a functioning social safety net,” King said.
King saw some things missing in Biden’s plan, too, such as the lack of policies addressing people convicted of violent offenses. Biden takes aim at mandatory minimums for non-violent offenses and says he wants to see people put into diversion programs instead. But people serving time for violent offenses make up 55% of state prison populations. “Typically people who are convicted of violent crimes are specifically exempted from reform,” King said. “But the reality is that this is not a population we can ignore. Many of those who committed serious violent crimes were victims of serious violent crimes beforehand. We can’t throw them under the bus.”
The Possibility of Federal Reform
While grantmaking would be the main engine for change at the state and local level, federal reform can also be a “really important signaling mechanism for states,” said Mooney. Congress approved the First Step Act in 2018, which changed sentencing guidelines for the federal prison system. In the nearly two years since its passage, legislatures in at least 16 states have considered bills to change state sentencing guidelines, including states like South Carolina, Florida, Arizona, and Alaska.
Mooney thinks there’s a “strong chance” of more federal action on criminal justice under Biden, especially given the president-elect’s calls for unity and collaboration with Republican lawmakers. “I really hope Republicans in the House and Senate take up Biden’s offer,” she said. “It would be a great message to the public that regardless of our policy preferences, we care about individual liberty and human dignity, we care about making sure people are treated fairly under the law.”
Emma Coleman is the assistant editor for Route Fifty.