CRITICAL ANALYSIS: President Joe Biden's 'Plan for Criminal Justice Reform'
Updated: Sep 29, 2021
- An Article by Federal Sentencing Alliance in collaboration with Interrogating Justice
President Joe Biden's 2021 "Plan for Criminal Justice Reform" Video together with a written "The Biden Plan for Strengthening America’s Commitment to Justice". Click HERE for both.
This is a bullet point outline of President Biden's Plan for Criminal Justice Reform, 93 second VIDEO presentation (introduction- where everyone is entitled to "equality, equity, fairness and decency"):
1. Immediate passage of H.R. 4261 - The Safe Justice Act (115th Congress 2017-2018);
2. Eradication of ALL minimum mandatory sentences;
3. An end to private prisons;
4. Additional funding for drug courts;
5. Bail Reform;
6. No juvenile will serve time in an adult prison;
7. Mandatory treatment in lieu of jail for drug addicts;
8. Decriminalizing marijuana offenses with automatic expungement of records;
9. Job training while an inmate is in prison; and
10. Nobody addicted to drugs goes to jail.
If you have not seen this 10 point 93 second video yet click HERE.
For purposes of this Article, we will call President Biden's Plan for Criminal Justice Reform an altruistic Vision. The Vision both falls short of any hard and fast promises made, and does not state how any of the major system changes can occur.
So, we decided to look a little deeper into each item enumerated by President Biden to see which items on the list could gain bipartisan support, or be achieved simply through available funding, without bipartisan support.
This is what we see:
-1. H.R. 4261 The Safe Justice Act:
President Biden's Vision calls for the immediate passage of the H.R. 4261 - aka The Safe Justice Act (2017-2018), that died immediately after it was introduced in the U.S. House on 11/21/2017. The Safe Justice Act predates the First Step Act signed into law on 12/21/2018 by President Donald J. Trump, and is duplicitous in many areas of the First Step Act.The First Step Act likely replaced The Safe Justice Act in 2017. H.R. 4261 - The Safe Justice Act has no chance of being passed at all, much less immediately. H.R. 4261, the sequel, would need to be re-drafted from scratch in 2021-2022 to be viable. For those reasons, we see The Safe Justice Act as a Trojan horse. We have no idea how it can be the opening main thrust in the President Biden Video.
Failure to Embrace Other Viable Bills Pending-
President Biden’s Criminal Justice Reform Vision does not embrace two important First Step Act implementation and inmate rights expansion Bills pending the U.S. Senate and U.S. House, sponsored by Senator Dick Durbin (D-IL) and Representative Jerry Nadler (D-NY) right now.
The two Durbin/Nadler Bills not publicly embraced by President Biden include:
1.) S.1014 - First Step Implementation Act of 2021 (like Bill H.R. 3510 in the U.S.House);
2.) S.312 - COVID–19 Safer Detention Act of 2021 (like Bill H.R. 3669 in the U.S. House).
Both of these pending Bills are very important First Step Act implementation legislation filed and pending in the 2021-2022 117th Congress, but not publicly supported by President Biden. It may very well be that President Biden does not want to support any Bill connected to the First Step Act signed into law by President Trump. We cannot think of another reason.
-2. No Minimum Mandatory Sentences:
To achieve this monumental Vision hundreds of United States Criminal Codes provisions would need to be amended by Congress. This would require both the U.S. House and U.S.Senate to have time to write this legislation, time to gain bipartisan support along a grueling path, and then, actually pass. It is unlikely that eradication of minimum mandatory sentences will ever gain enough support for the legislation even to be drafted. We see this legislation as a political bombshell. Moreover, this legislation would require the Federal Sentencing Guidelines to be re-drafted removing minimum mandatory sentences. The United States Sentencing Commission remains without a quorum of Members necessary to amend the Federal Sentencing Guidelines, and has been without a quorum for the last 3 years. We do not expect to see eradication of minimum mandatory sentences any time soon, certainly not in President Joe Biden's tenure.
We think that the smarter approach, and the smarter Vision here, would be to just give United States District Court Judges statutory authority and discretion to go below minimum mandatory sentence requirements on a case by case basis. That would only require one new law enacted, instead of a pretense that hundreds of existing laws will be modified. Giving Judges more discretion at sentencing could easily gain bipartisan support. That would be a win for both parties, while removing minimum mandatory sentences for those who really deserve that consideration, on a case by case basis. That one change would be great.
-3. The End To Private Prisons:
This Vision looks easy enough on a first blush. President Biden signed an Executive Order on January 26, 2021 calling for just that. So, this is a WIN right? Wrong.
Just like everything else in the World today, you have to read all the clauses and the fine print.
Actually, the Executive Order calls for the Attorney General not renew the private prison contracts when they would otherwise expire, or come up for renewal. We have no idea when that is, whether they are all different and staggered, or whether these are long term contracts that span decades. We don't know if existing contracts will be in effect for many years at this point. Private prison contracts that are executory are not being cancelled.
Secondly, the entire Executive Order is "subject to the availability of appropriations." That means that in order defund the old operations, there must be funding for new operations.
So, this shut down private prisons thing is not as easy as it seems at first blush. To the extent the contracts are long term, and the United States is not in a posture to build more prisons to replace private prisons, the Executive Order could very well be rendered delayed into obscurity. Lastly, the next President that takes Office would certainly have authority to revoke this January 26, 2021 Executive Order outright. We do not expect anything radical to happen with private prison eradication any time soon.
-4. More Money For Drug Court:
More money appropriations for drug court is achievable in the short term. This particular Vision would likely gain bipartisan support, because it is a good thing on its face with no downside. The only negative possibility would be the failure to appropriate the funds necessary for this project, and actually pay the funds meaningfully for drug court expansion.
-5. Bail Reform:
This is one of the more interesting items listed by President Biden, who does not have control over State Bail or Bond Systems. Lets start with that. President Biden cannot and will not force States to meddle with their Bond Systems in place, just like he cannot Order States to require COVID-19 masks worn in public.
That leaves the federal system. In order for President Biden to reform federal bail systems, this again, would require writing the legislation, bipartisan support, and passage by the U.S.House and U.S. Senate first. This Vision is vague, depending on what the actual stated goals would be or could be. We do know this would be a massive undertaking, but see that its only cited briefly. For that reason we do not expect to see "Bail Reform" any time soon, and never regarding the individual States. We see Bail Reform as a talking point only, and certainly not a realistic plan under the Biden Presidency.
-6. No Juveniles Will Be Incarcerated In Adult Prisons:
This Vision is achievable. It just takes willingness to house juveniles in age appropriate facilities with others reasonably in their same age groups. This would require funding and potentially more facilities. So, it would be about money mostly and paying for this Vision. But, certainly achievable. This item could very easily gain bipartisan support.
-7. Mandatory Treatment In Lieu Of Jail Time For Drug Offenders:
For some this could apply. This Vision looks simple enough on a federal level and is achievable for some meeting certain qualifying criterion.
It could work for drug users that are non violent, without weapons, using drugs personally, and not associated with any other criminal activity whatsoever. A sticky wicket could arise when the drug offender has prior felony offenses, or where the drug offender engages in other criminal activity alleged to fund drug usage.
Again, this would require legislation written, and passed with bipartisan support first. It would require United States Sentencing Commission Policies. This Vision could be achievable specific qualifying legislation was timely written, bipartisan support gained, and passed. At some point the federal probation department would need to be involved in this process in order to qualify drug offenders.
The expensive part of this Vision is the drug treatment, in lieu of incarceration . The federal system is not presently set up that way. It could be achieved by tapping into State and local drug offender programs that have existed for years. This Vision would require lots of thought, planning, and commitment for a meaningful end result. This is not something that can be achieved overnight, but rather, would likely take years of planning and funding.
-8. Decriminalizing Marijuana and Expungement of Marijuana Conviction Records:
Initially this sounds nice for those who like to smoke pot. In reality, this will never happen and will never happen for the reasons stated here.
Many States have legalized medical marijuana or personal use marijuana. For the most part, this is subject to State laws, regulations, policies, licenses and the like. States have done a pretty good job overall keeping track of marijuana.
If President Biden decriminalized marijuana for real, this is what would happen.
First, people would start using the United States Mail to send marijuana all over the place, creating thousands of unlicensed marijuana dealers in the United States. The States would completely lose control over there systems in place, and that would be a virtual disaster.
Second, this would require legislation to change numerous federal criminal laws on the books, including those for marijuana production, trafficking, etc.. That would require bipartisan support to amend all those laws, which we do not see happening any time soon.
Third, marijuana producers all over the world would ship marijuana to the United States from online Websites, similar to what they already do with Kratom now. This would again cause a State nightmare.
Fourth, the decriminalization of marijuana would increase use of Crypto Currency to purchase marijuana online from out of the United States, because normally credit card companies do not permit a cardholder to purchase marijuana online from unlicensed Vendors. This would create a virtual nightmare for the United States Financial Crimes Enforcement Network (FINCEN), as well as for all States requiring money transmitter licenses.
We do not believe that decriminalization of marijuana on a federal level is a realistic Plan, because it would create a litany of ancillary problems that President Biden is not thinking about. Don't expect to see marijuana decriminalized any time soon at the federal level.
(Does "decriminalized" mean that someone would just pay a fine? That's another conundrum. We don't know exactly what that term means for sure.)
Regarding automatic expungement of records, that all sounds nice, but there are problems with that Plan also. Expungement of records in 2021 does not erase privately owned arrest records that appear on Google for a fee, as sold by private businesses. Various employers utilize the information services of dozens of criminal history information vendors for a fee.
President Biden has no authority to Order private business that keep and sell arrest records from removing that information legally obtained by them from the public record.
Normally criminal convictions cannot be expunged, so President Biden would be breaking new ground nationally with the expungement of a prior conviction Plan.
-9. Complete Job Training While In Prison So When One is Release They Can Get A Job:
This Vision is an altruistic goal that cannot be achieved in the short term. Generally speaking, the Bureau of Prisons is not a technical or vocational school or college. That means Vendors would need to come to facilities nationally to train all inmates willing to learn a trade or vocation. That would be a massive undertaking in order to provide job training to all inmates that wanted to learn a trade or profession, while incarcerated.
However, this is already being accomplished for a many inmates that are present in a facility that provides technical and vocational training. To suggest that all facilities could train all inmates desiring job training is disingenuous.
An additional approach should be to permit inmates to fully embrace self study correspondence college programs through the mail. This concept is viable, but is not presently being utilized to the extent it should be. Many inmates would not be able to pay for correspondence college programs personally. Several United States Colleges offer correspondence college degree programs through the mail. It is likely that some inmates do participate in such programs, personally paid for, but this concept is not widely accepted in Bureau of Prisons facilities nationally.
-10. Nobody Goes to Jail that is [Just] Addicted:
This Vision was already covered above and is duplicitous for that reason. It does show intent however. President Biden's focus today is on drug offenders. That is clear. That is not a bad thing, but we believe the focus could be on all non violent offenders, instead of just limiting Criminal Justice Reform Plans to drug offenders.
That is a brief synopsis of underlying issues that we see with Joe Biden's Criminal Justice Reform Plan, as stated. We see that some of these Visions are achievable, while most in our opinion, are not achievable during the pendency of the Biden Administration, or achievable at all.
We see a litany of real constraints, numerous conflict of law issues, lack of time, and the failure of bipartisan support. President Biden's "Green New Deal" of Criminal Justice Reform, although couched in terms of what certain groups want to hear prior to the 2022 mid term elections, does not appear achievable in the short term. The Trojan horses in the mix are especially troubling, considering certain of the Plans stated have zero chance of success.
We watched President Joe Biden's 93 second Video Plan for Criminal Justice Reform multiple times and didn't hear any promises made. As such, we consider most of what we heard to be altruistic statements, such as when a beauty contestant "visualizes world peace".
For further information please contact Federal Sentencing Alliance on this Site or Interrogating Justice through its Site at www.interrogatingjustice.org
Please also visit Interrogating Justice Website for a fantastic array of think tank breaking news articles regarding prison reform and criminal justice reform.
"Interrogating Justice specifically focuses on four longstanding failures by the criminal justice system:
the failure to hold governmental actors accountable,
the failure to ensure fairness in sentencing,
the failure to meaningfully consider reentry, and
the failure to provide access to justice for all."
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