By Robert Barton and Pam Bailey
When my collaborator Pam told me that President Biden has nominated Judge Merrick Garland to be his attorney general, my first reaction was YES. This had to be good for criminal justice reform, I thought, since he was Obama’s pick to replace Justice Antonin Scalia on the Supreme Court. But as Pam shared more articles with me, and we dug deeper into his background, it became increasingly clear that we won’t get a progressive justice agenda unless we all mobilize to push the Biden team — including Garland — in the right direction.
The justice correspondent for The Nation responded to the Garland nomination this way: “I am a little bit underwhelmed by the Garland pick. Garland was a compromise candidate; he was nominated for the Supreme Court to entice Republican votes. But when he was martyred by the Republicans (to deny Obama a Supreme Court pick), he acquired a sort of cult-like status. We need to remember that Garland is a centrist jurist who has a history — a troubling one, to me — of being deferential to the police and being unwilling to hold them accountable for acts of brutality and misconduct.”
Like Vice President Kamala Harris, Garland is a former prosecutor. A 2016 analysis by The New York Times documented that of 14 criminal cases in which Garland differed from at least one fellow judge, he came down in favor of law enforcement 10 times. It found no cases in which Garland favored a criminal defendant.
No wonder Garland is now attracting support from the likes of Sen. Lindsay Graham! So, why did Biden choose Garland for such a critical position, when he was elected in part by African-Americans angered by a growing number of police killings of unarmed Black people and disproportionately burdened with the impact of the COVID-19 pandemic?
Explains The New York Times: “Biden’s choice reflects his respect for Garland’s reputation as a centrist and his belief that he can restore the Justice Department’s independence and inspire a deeply demoralized workforce that the Trump administration often treated as an insurgent enemy to be dominated — qualities that Biden prioritized over requests from progressive groups that the nation’s top law enforcement officer be a woman or person of color and have a progressive track record on issues around race and policing.”
I get it. Trump sowed such polarity and divisiveness that calm water is an alluring prospect. But after all that has transpired this past year, symbolized most potently by the murder of George Floyd by police over a counterfeit $20 bill, we need so much more than that to address the continuing inequalities and inequities faced by African Americans.
What can we likely expect?
Since Garland is a pragmatist without a reformist mission, it is likely he will follow the lead of the man who appointed him. So, we took a close look at the Biden-Harris platform. There is a lot to like, but when you dig into the details, two glaring blind spots emerge — namely a near-total exclusion of persons convicted of violent crime from his reforms and incomplete attention to the impunity with which federal prisons currently operate.
In the new administration’s platform, the Biden-Harris team lays out several core principles:
Reduce the number of people incarcerated while also reducing crime. YES! But the description goes on to talk only about persons imprisoned for nonviolent, mostly drug-related crimes. For example, he pledges to use his clemency power more fairly, leveraging it “to secure the release of individuals facing unduly long sentences for certain nonviolent and drug crimes” (italics added for emphasis). Even when talking about keeping children out of the adult penal system, Biden says he will create a new grant program to “encourage states to place nonviolent youth in community-based alternatives to prison.” Do we really want to characterize all the other kids as being “lost causes”? I was one of them. So were Pete and Roy. We weren’t (and aren’t) violent people. We were troubled adolescents who needed alternatives just as much as them.
The same exclusionary language can be found in the otherwise good bill Biden touts: the Safe, Accountable, Fair and Effective (SAFE) Justice Act (H.R. 4261). The summary of its key provisions calls for “concentrating prison space on violent and career criminals.” That one phrase, which is used in one form or another again and again throughout Biden’s comments, basically throws all of us away — as if we are not individuals with different stories and different states of rehabilitation.
Overhanging the conversation about second chances is the fear of another Willie Horton. But we need to face up to two facts: 1) Society will never be totally safe, no matter what we do. And 2) repeat homicides after release is not the norm. A case in point: A 2012 class-action case, Unger v. Maryland, resulted in the release of nearly 200 people who had served more than 30 years after being sentenced to life terms. Most of these individuals had been convicted of murder or rape. In the seven years since the decision, only 5 out of the 188 people released have returned to prison for violating parole or a new crime. (Only one returned due to a new incident that most would consider serious and it was robbery, not murder.)
We should not keep individuals who could be assets to their families and communities in prison, simply because they “might” impact public safety. Biden says in his platform that he believes in redemption. But nowhere in any moral or religious text is that grace limited to only certain kinds of people.
Do you believe in second chances?
We are so much more than our worst mistakes
And then there is this hard fact: A significant reduction in America’s mass incarceration problem is simply not possible without including people like me. Fifty-five percent of people in state prisons and residents of D.C. in federal institutions (since the District doesn’t have its own prison) are there for violent crimes.
Root out the racial, gender and income-based disparities in the criminal-justice system. Of course, yes. But it talks only about Black parents feeling confident that their children are safe and the unique needs of women and children. Racism is rampant in prison!
End profiteering. Yes, yes, yes. One of Biden’s first acts was an executive order phasing out the federal use of private prisons. That’s good, but inhumane practices also are common in public prisons (where most people are incarcerated). And there are many forms of profiteering, including the exorbitant prices charged by the companies with which even public prisons contract to offer their inmates music, phone calls, video visits and email services. (One step in the right direction: Biden has said he will support legislation to crack down on private companies that charge incarcerated individuals and their families outrageously high fees to make phone calls.)
Prisons and profits: legalized extortion of inmates and families
Want to call? Email? Visit by video? It will cost you, big time
And then there are prison commissaries. In 2016, the Prison Policy Initiative estimated they racked up total sales of $1.6 billion a year nationwide. Commissaries are leveraged as an opportunity for prisons to shift their costs to incarcerated people and their families. Prices aren’t always exorbitant; the real problem is the unfairness of a system that forces incarcerated people or their often low-income families to pay for basic needs.
Focus on redemption and rehabilitation. Again YES. But then Biden’s platform goes on to talk only about support for returning citizens so they can be productive members of their communities. This will be so much more difficult if that focus on redemption and rehabilitation doesn’t begin while people are in prison. Federal (and many state) prisons have become mere warehouses — particularly the penitentiaries where people convicted of violent crimes are housed. We are locked down all day, treated like animals, and deprived of educational and development opportunities. A system based on retribution rather than rehabilitation breaks people down rather than builds them up. Likewise, communities are not served well when returning citizens arrive home broken and dysfunctional.
In December, before Biden took office, Congress at last ended the ban on the use of Pell grants for prison education. But too often, people in prison for indeterminate sentences (like me) or who have been given life without parole are denied access to programming because prison officials consider it “pointless.” What incentive do we have, then, to be “good prisoners” and abide by the rules?
Another positive is the Biden team’s pledge to work to stop the use of solitary confinement. That is a huge first step. But as I have discussed in so many of my posts, prison conditions are inhumane in almost every aspect of their operations — from the lack of healthy food to substandard health care to extended lockdowns.
Should edible food be a basic human right?
In prison, the food is so bad, inmates eat it only to live
Federal prisons are in almost perpetual lockdowns these days. And while that’s exactly not the same as solitary (we have cellies [roommates]), it’s just as punitive.
The Feds’ answer to everything: Lockdown
Solitary confinement is becoming standard operating procedure in federal prisons
What is missing, in my mind, is an independent body, such as an ombudsman’s office, that reviews and reports on the conduct of the Bureau of Prisons, as recommended by the Brennan Center for Justice. The BOP is infamous for its willful lack of transparency and accountability. We are typically punished when inmates file grievances related to the way we are treated by our captors. And if our grievances actually make it to the regional director, it doesn’t really matter, since he or she is part of the system that created our conditions. And when anyone comes in to inspect, the staff and administration know about it in advance and put on their best front, while not allowing us to talk. (Even when we get roughed up, a CO will often threaten us to keep us silent by saying, “We’re about to turn the camera on; you’d better not saying anything crazy.”)
Hidden abuse in America’s gulags
Is it time to require prison guards to wear body cams?
But what is key is this: Any review body has to have “teeth.” As the Brennan Center states, it must be able to demand a prompt and public response to its findings. I’d also go a step further and mandate that a recently released person be included in the oversight process.
So, here’s our call to action
I’m sure everyone who reads my blog agrees we need to work to end the system’s reliance on incarceration as the method to achieve “justice.” But we need reform now. Two steps on the way to that ultimate goal is to lobby Biden, Garland, and the House and Senate judiciary committees to fill two glaring gaps in the reforms they say they want to be their legacy:
- Offer the hope of a second chance to everyone who shows evidence of rehabilitation. (Ask Sen. Cory Booker and Rep. Karen Bass to reintroduce their federal Second Look Act, which would encourage many states to follow D.C.’s lead!)
- Create prison conditions that facilitate that transformation.
The United States can stop being the pariah of the Western world and take steps toward being the example it should want to be.