3 Under-the-Radar Executive Actions for the Biden Administration’s Criminal Justice Reform Agenda
President Joe Biden began his administration with a barrage of executive orders designed to undo his predecessor’s most dangerous and harmful policies, including those relating to criminal justice reform. With the goal of advancing racial equity throughout federal policies and institutions, President Biden reinstated an Obama-era policy that prohibits the U.S. Department of Justice (DOJ) from entering into new and renewed contracts with private prison companies. Additionally, acting U.S. Attorney General Monty Wilkinson reinstated the DOJ policy that prosecutors should use individualized assessments when making charging and sentencing decisions instead of automatically prosecuting cases to obtain the lengthiest and harshest sentences possible.
These initial steps were only the start of President Biden’s ambitious criminal justice agenda, which cannot be realized through executive actions alone. Biden’s campaign commitments—such as eliminating mandatory minimum sentences, cash bail, and the death penalty at the federal level—will require legislation. Yet the value of executive action as the first foray should not be dismissed.
Executive actions can quickly eliminate bad policies put in place by the previous administration, as the president recently emphasized. They also have the ability to set the agenda and reestablish the baseline upon which more transformative policy initiatives can flourish. To those ends, the Biden administration should immediately implement the following executive actions on criminal justice reform: (1) reestablish a Science Advisory Board at the DOJ; (2) reconvene a permanent working group on transfers of military equipment to law enforcement; and (3) hire justice-involved people throughout the administration.
1. Reestablish a Science Advisory Board
Quality research on criminal justice issues has increased dramatically in recent years, especially compared with what was available in the 1980s and 1990s. The field now has more and better evidence than it did three decades ago to inform policymakers that tough-on-crime measures—such as unnecessarily lengthy and punitive sentences—have a marginal deterrence impact on crime but cause long-term harms for people when they are released from incarceration. Advances in criminology, public health, sociology, and related fields have thus coincided with the growth of public support for justice reform measures.
The Biden administration has stressed the importance of science, especially in relation to its policies on the COVID-19 pandemic and climate change. The same emphasis should extend to its criminal justice reform policies, which could be jump-started by reestablishing the Science Advisory Board (SAB) at the DOJ. The SAB was created under the Obama administration specifically to provide “the Office of Justice Programs (OJP) with valuable advice in the areas of social science and statistics for the purpose of enhancing the overall impact and performance of its programs and activities in the areas of criminal and juvenile justice.” The OJP is the DOJ’s primary grant-making component, providing funding and technical assistance to states, localities, community groups, and researchers. Although the SAB was comprised of influential and respected researchers who gave valuable input to the OJP, the Trump administration disbanded it in 2018.
The Biden administration’s DOJ should not only reestablish the SAB but also elevate it and have it advise the U.S. attorney general on departmentwide policies, in addition to the OJP’s grants and programs, especially when so many complex issues are at stake. The SAB should, for example, inform how the department responds to the spike in homicides in 2020 and analyze the impact the coronavirus pandemic has had on crime, as well as other Biden priorities such as decriminalizing marijuana and ending the death penalty. The SAB could also evaluate the department’s data collection efforts or design a racial impact assessment tool that analyzes the effects of criminal statutes on communities of color, which is consistent with the White House directive to advance racial equity.
2. Reconvene a permanent working group on military equipment
As a candidate, Biden spoke on the campaign trail about the need to stop “transferring weapons of war” to police forces, and his campaign website stated that he will “establish a panel to scrutinize what equipment is used by law enforcement in our communities.” The Obama administration took a significant step to curb the federal government’s transfer of military equipment to local law enforcement by prohibiting the agencies from acquiring certain equipment categories. It also placed stringent requirements on police agencies that sought to obtain “controlled equipment,” which includes riot gear, batons, and wheeled armored vehicles. In 2017, however, the Trump administration removed all constraints on the transfer of military equipment to law enforcement.
Support for reinstating restrictions on military equipment transfers has grown over the past several years. Recent polls indicate that a majority of Americans—including a majority of Republicans respondents—supports eliminating police access to military equipment. And Congress recently included in the National Defense Authorization Act for Fiscal Year 2021 a prohibition on the transfer of bayonets, grenades, weaponized tracked combat vehicles, and weaponized drones to law enforcement.
A key element of the Obama administration policies was the establishment of a permanent working group comprised of representatives of agencies that traditionally provided resources to law enforcement. Among the agencies were the DOJ’s Office of Justice Programs; the Department of Defense’s Defense Logistics Agency, which is in charge of the 1033 program; and the Federal Emergency Management Agency, which provides equipment to first responders. The permanent working group was tasked with reviewing the prohibited and controlled equipment categories to determine if they should be amended. Additionally, the working group partnered with federal offices of civil rights to audit procedures and practices of law enforcement agencies that received controlled equipment to determine if they comport with federal civil rights laws and programmatic rules. This was designed to serve as an essential check to determine whether law enforcement agencies had appropriate policies in place and sanction them if their practices did not adhere to federal requirements. Unfortunately, however, the program had not been fully implemented before the Trump administration disbanded it in in 2017.
While some advocates have pressed for stronger restrictions than those the Obama administration proposed, the permanent working group is one element that President Biden should reestablish regardless of where it ultimately lands on prohibitions. If the Biden administration decides to prohibit local law enforcement from acquiring any “weapons of war” from the federal government, a structure like the working group is needed to define which equipment categories would be prohibited. Not all federal agencies have a catalog of equipment such as the Defense Department’s 1033 program, where the government can identify specific categories based on a product code. The DOJ, for example, provides grant funding which can be used to purchase equipment from commercial sources. Moreover, technology advances in artificial intelligence and surveillance mechanisms will create new equipment categories that the federal government would want to review before allowing them to be purchased with federal resources. Clear direction is therefore required to guide both law enforcement agencies and federal program officers on what can and cannot be acquired using federal funds.
3. Hire justice-involved people
As the Biden administration continues to staff up the federal government, it should prioritize placing formerly incarcerated people in significant policy positions. Two of the most prominent advocates in the criminal justice reform movement today—Daryl Atkinson and DeAnna Hoskins—were influential leaders in the Obama-era DOJ. Atkinson, the first-ever DOJ second chance fellow, advised the attorney general and department leadership on barriers posed by criminal convictions and the support that formerly incarcerated people need when reentering their communities. Hoskins was a senior policy adviser at the Bureau of Justice Assistance and managed the corrections, reentry, and second chance grants. Both Atkinson and Hoskins drew from their policy expertise as well as their experiences as formerly incarcerated people to lead significant criminal justice reform portfolios that were administration priorities.
The Biden administration can build off this model by expanding the number of justice-involved employees. Formerly incarcerated experts could have a significant policy role in, for example, the Federal Bureau of Prisons as it navigates how to provide more effective job training and educational resources for those incarcerated. People with records should also be part of reforming the clemency process either at the DOJ’s Office of the Pardon Attorney or the White House. Justice-involved people would provide invaluable insight at other agencies as well, including the U.S. Department of Housing and Urban Development, to help meet the Biden campaign’s goal of providing housing for 100 percent of formerly incarcerated people.
Executive actions on criminal justice reform cannot achieve the Biden administration’s sweeping criminal justice reform agenda—and reprising Obama-era policies alone would be insufficient. But in the early days of the president’s first term, the administration should continue to reinstitute policies that were seeded in prior administrations as the starting point to more transformative change.
Ed Chung is a senior fellow at the Center for American Progress.
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