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When will Biden make good on his promise to reform criminal justice?

The United States has the highest incarceration rate in the world. We spend roughly $182 billion annually to lock up a tragic percentage of our adult population.

President Joe Biden
President Joe Biden
REUTERS/Tom Brenner

Joe Biden has a long history of being tough on crime. In a 1994 Senate floor speech he likened himself to Richard Nixon: “Every time Richard Nixon, when he was running in 1972, would say, ‘Law and order,’ the Democratic match or response was, ‘Law and order with justice’ — whatever that meant. And I would say, ‘Lock the SOBs up.’”

While campaigning for president last year, however, Biden promised sweeping changes to the criminal justice system. And Biden could not have been more clear that he was committed to reform — promising, “as president” to “strengthen America’s commitment to justice and reform our criminal justice system.”

Then Biden got elected. And he’s been busy with other things.

Indeed, President Biden’s January executive order canceling contracts with private prison operators was merely a nice gesture. Given the perverse incentives behind for-profit mass incarceration, this was welcome news for the 14,000 people in applicable prisons.

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But what about the 2 million-plus Americans (Biden’s “SOBs”) who remain in jail? What about the hundreds of thousands serving multi-year sentences for nonviolent offenses? And what about former inmates still handicapped by the myriad harmful effects of serving time?

These millions of Americans — and their millions of loved ones — are anxiously awaiting Biden’s next move. To fulfill his campaign promises, Biden must do a lot more than cancel a few contracts.

The United States has the highest incarceration rate in the world. We spend roughly $182 billion annually to lock up a tragic percentage of our adult population.

It is of course true that some people belong in prison, particularly chronically recidivist or violent offenders. But an enormous number of Americans are in prison who shouldn’t be. Biden should take three initial steps to address this problem.

First, Biden must lead a legislative effort to eliminate mandatory minimum sentences. Mandatory minimums require judges to sentence defendants convicted of certain crimes to minimum — and usually excessive — sentences. This system eliminates the essential discretion traditionally vested in judges to sentence people in careful proportion to their specific offenses.

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Second, Biden and Congress must direct significant resources to enhance the representation of underprivileged defendants. America’s overburdened public defenders cannot adequately navigate the complicated thicket of American justice. As civil rights attorney Bryan Stevenson put it: “Our criminal justice system treats you better if you are rich and guilty than if you are poor and innocent.”

Third, Biden’s Department of Justice must improve conditions in state-run jails. America does not just send too many people to jail. Once imprisoned, inmates are often subject to unconscionable abuse and neglect. The DOJ must aggressively use its authorities to supervise and investigate state-run jails and, when necessary, enforce meaningful changes.

William Cooper
William Cooper
Taking these steps would put a dent in America’s mass incarceration problem. But it would only be a start. Fundamentally improving the system is an uphill battle. People in jail can’t vote, making them an easily dismissed political constituency. And a huge percentage of Americans harbor a reflexive law-and-order ideology resistant to reform.

Human beings in jail are just as important as those who are free. And battling the tens of millions of Americans who reject that view takes courage and hard work. Biden’s failure to fulfill his campaign promise to reform America’s broken criminal-justice system has been a stunning act of omission in an otherwise ambitious policy agenda. And his legislative window to get something done is closing fast. Biden must correct course before the victims of America’s mass incarceration epidemic are, yet again, spurned by those who have promised to help.

William Cooper is an attorney. He writes from California, where he has a national legal practice.