Published on: Wednesday, February 10, 2021

President Joe Biden campaigned on a pledge to reform the criminal justice system–an issue that has stalled in Congress more often than not (article available here).

As the Senate prepares to confirm President Biden's pick for attorney general, Merrick Garland, it is worth thinking about how those urgently needed reforms can be realized. The bottom line: The administration need not wait for Congress to act. It has all the tools necessary to make good on some of its most significant promises on criminal justice.

The question facing the next attorney general is not whether to issue charging guidance, but what that guidance will be. Federal prosecutors have enormous discretion in what to charge, and the federal criminal code gives them no end of options.

The next attorney general should not authorize federal prosecutors to seek the death penalty in any new case and should de-authorize cases where they are currently seeking it. In addition, President Biden can directly commute all death sentences already imposed to lengthy prison terms, including life without release. These steps would instantly eliminate one of the most grotesque sources of racial inequity and unfairness in the federal system.

There are many other areas of the federal criminal legal system in need of reform: excessive pretrial detention, an appalling lack of disclosure of evidence necessary for a real defense and the practice of threatening severe sentences to force people to plead guilty rather than exercise their constitutional right to trial.