March 09, 2021

Credit: CNN, Van Jones and Louis Reed

Political commentators continue to wonder whether President Joe Biden can deliver on his promise of national unity and healing.

While his prospects for doing so seem increasingly limited, there is one area that offers some hope: criminal justice reform. Last week, our team at Dream Corps JUSTICE (an organization Van founded and Louis helps to lead) organized the annual National Day of Empathy to advocate for justice reform and remind the new administration that this issue can bring Americans of all stripes together in service of a common cause.

How criminal justice reform became bipartisan

The Biden team won’t have to break new ground on this issue. Instead, it can build upon a bipartisan movement that began under President Barack Obama and continued under President Donald Trump.

In 2010, Obama signed the Fair Sentencing Act, a bipartisan bill that reduced the racist disparities in sentencing between crack and powder cocaine. Over the course of his administration, he granted clemency to 1,715 people behind bars — more than any president in US history, according to his administration. And to give people a fair shot at getting their lives back on, he signed an executive order banning federal agencies from asking about criminal records during the hiring process — a reform known as “ban the box.”

During the Trump era, criminal justice reform continued to be an area of bipartisan collaboration. To be sure, Trump’s Department of Justice resisted progress, accelerated federal executions and rolled back many Obama-era policies. But Trump also famously granted clemency to Alice Johnson, a Black woman who had served decades for a first-time nonviolent drug offense. And on the legislative side, Trump heeded the counsel of close advisers like Jared Kushner, Jaron Smith and Ivanka Trump — who helped him advance a justice reform agenda in Congress.

The result was the First Step Act — a bill that addresses many aspects of the criminal justice system: curbing mandatory minimum sentencing, increasing compassionate and elderly release, reducing sentences for people who complete rehabilitative programs, and more. The bill, which passed in a bipartisan landslide during the Trump presidency, has already led to more than 16,000 people coming home early from federal prisons.

The issue’s power to unify people across party lines was on full display: most Republicans and Democrats got on board. But the true benefits extended far beyond those thousands of families welcoming home loved ones. By investing in criminal justice reform and willingly working with Democrats on the issue, Trump helped de-weaponize and depolarize criminal justice reform — an outcome no one could have expected when he first entered office.

Biden’s big bipartisan criminal justice reform opportunities

Biden has a unique opportunity to build on his predecessors’ progress. To start, he can:

1. Increase funding for the First Step Act. Biden can build on the existing bipartisan consensus by allocating more money to the kinds of educational and job training programs prescribed in the First Step Act. One of the core features of this legislation is “earned time credits,” which lets people shorten the length of their sentences by completing various programs.

Demand is high. There is a waiting list of more than 11,000 people even for basic literacy programs. Access to these kinds of programs has been diminished even further during the Covid-19 pandemic. However, it’s worth the investment because increasing educational and job training, treatment, and compassionate release programs can significantly reduce the federal prison population and recidivism rates.

2. Fix federal supervision systems. When people are released from federal custody, many enter an incredibly harsh supervised release system. Due to laws requiring mandatory supervision sentences and mandatory prison time for noncriminal “violations,” many people get saddled with years or even decades of invasive monitoring and additional time behind bars for things like missing a meeting.

Biden could push for smart bipartisan reforms like capping the amount of time people spend under supervision, preventing people from returning to prison for noncriminal violations and allowing people to get off supervision early based on good behavior and participation in educational programs. Reforms like these are already winning favor in red states (like Louisiana), purple states (like Michigan) and blue states (like California).

3. Back existing bipartisan legislative efforts. There are some measures that already have support from both sides of the aisle. None are perfect; the legislative process would likely strengthen many of them. But if Biden is looking for common ground issues, these measures offer him a great starting point:

Safer Detention Act: This bill, introduced last month by Democratic Sen. Dick Durbin of Illinois and Republican Sen. Chuck Grassley of Iowa, allows more compassionate release for the elderly and most medically vulnerable people. It also shortens the period courts must wait before considering a compassionate release motion from 30 days to 10 days — which in the midst of the Covid-19 pandemic can mean the difference between life and death.

Smarter Pretrial Detention for Drug Charges Act: Under current law, federal judges usually detain people with drug charges before their trial and require cash bail. Sens. Durbin, Republican Mike Lee of Utah and Democrat Chris Coons of Delaware have introduced a bill that would eliminate this practice and reduce reliance on pretrial payment. This means authority would be in the judge’s hands to determine whether or not to detain someone pretrial based on their individual circumstances, as opposed to a cookie-cutter approach that often lands people behind bars while wasting resources, exacerbating racial and economic inequality, and causing longer sentences in the process.

The Driving for Opportunity Act: Sens. Coons and Republican Roger Wicker of Mississippi are backing the bipartisan Driving for Opportunity Act. Right now, more than 30 states are punishing people who have unpaid debt by suspending their licenses. The current approach puts people in an impossible situation: their ability to get and keep a job is severely impacted, which further reduces their ability to pay off the debt that got them in trouble in the first place. This law would incentivize more states to stop this senseless, harmful practice.

Reintroduce the Smarter Sentencing Act: Sens. Durbin and Lee led this legislation in the previous session. It reduces the length of mandatory minimum sentences for drug crimes and creates a pathway for people who are currently incarcerated to petition for their sentences to be reduced. Committed advocates would prefer that mandatory minimum sentences be done away with altogether, but this legislation would move the conversation and the system in the right direction.

Reintroduce the Community First Pretrial Reform and Jail Decarceration Act: Democrat Rep. David Trone of Maryland and Republican Rep. Kelly Armstrong of North Dakota introduced this bill last session. It is designed to strengthen communities, reduce jail populations and improve community safety through grants to community-based organizations and local governments. This legislation is particularly important because it focuses on reducing the prison population in small towns and rural communities, which are often left out of the national discussion about decarceration.

In addition, Biden has a ready-built, bipartisan grassroots army that includes a wide range of people — from formerly incarcerated advocates, to people with loved ones impacted by the system, to artists and athletes, to elected officials willing to back this work, just as they supported decarceration moves under the last presidents.

If leaders in Congress want to learn how to get things done, they should study the track record of this colorful group of activists who helped pass meaningful reform in red, blue and purple states with initiatives like “Dignity for Incarcerated Women.” The Dignity campaign alone has improved conditions in 12 states for more than 30,000 women by changing policies that allowed women to be shackled during childbirth, denied access to feminine hygiene products and much more.

Biden needs a way to begin bringing the country together. The past two administrations — in different ways and for different reasons — have left a door open for him to do so.