Guest Commentary: Delays in Garland Hearing, and in Replacing U.S. Attorneys, Put Justice Reform in Jeopardy

Photo Credit: Susan Walsh – AP

Under Trump, the Department of Justice became politicized. To implement Biden’s reforms, quick action is needed. So is more progressive leadership.

By Shay Bilchik and Miriam Krinsky

Among the many highlights of President Joe Biden’s inaugural address was his promise that “we can deliver racial justice.” The Biden administration wasted no time putting executive action behind those words, issuing several orders on advancing racial equity. But “personnel is policy,” as the saying goes. And just as important as the new direction charted by these policies is who carries out the work.

But changing the latter might be delayed — something this administration, and people in need of justice, can’t afford.

A memo released last month by Department of Justice administrative chief Lee Lofthus gave many Trump appointees the green light to stay, stating that a good majority of “United States Attorneys and United States Marshals have been asked by the incoming administration to continue to serve for the time being.”

The U.S. Department of Justice shoulders much of the burden of ending mass incarceration and reforming policing, starting with not simply a policy reset but also new, more progressive U.S. attorneys.

While Biden has already indicated his intent to replace at least one U.S. attorney and some have resigned, it’s unclear when or whether others will be removed.

Even more alarming is the apparent delay in considering Biden’s nominee for attorney general. Congress had seemed poised to set a hearing date for Judge Merrick Garland last week. But his nomination has been stalled even as others have moved forward.

A politicized department

We should bear in mind that 93 U.S. attorneys lead 94 districts throughout the country and in American territories. Local federal prosecutors’ offices handle all manner of cases, from civil rights and police abuses to hate crimes and drug prosecutions. This work is where communities are most impacted by the federal criminal system.

Equally important, the Department of Justice, through its Community Oriented Policing Services (COPS) office, supports state and local leaders in pursuing racial justice and policing reforms grounded in research. Its Office of Juvenile Justice and Delinquency Prevention (OJJDP) is responsible for guiding national juvenile justice issues that impact our nation’s young people. Yet the leader of OJJDP was left vacant under the Obama administration for years.

Under the Trump administration, the Justice Department (and by extension, federal prosecutors) became deeply politicized. Amid concerns regarding corruption and collusion with Russia, Trump took the unprecedented step of interviewing candidates for U.S. attorney, according to Politico. Some were expected to faithfully execute Trump’s agenda — cracking down on immigrants, pursuing tougher drug penalties and threatening to block marijuana legalization. Some followed Trump’s lead on his personal crusades against the Biden family and attempted to undermine the Russia investigation.

Those who did not bend to Trump’s will were dismissed or pushed out.

Moving slowly to replace Trump appointees would be the wrong move for at least two reasons. First, current attorneys are tainted by the failures of the Trump administration. They might not have come up with Trump’s agenda, but they enabled him to carry it out.

In Massachusetts, for example, at the height of the coronavirus, the U.S. attorney’s office fought a federal judge who wanted to release Immigration and Customs Enforcement detainees at risk of the virus. The assistant U.S. attorney stated in open court that “there’s no evidence, zero evidence, COVID-19 is present among the detainee population.”

This thinking was echoed by federal prosecutors across the country although more than 200 people confined in federal prisons have died of the disease.

In Pennsylvania, the U.S. attorney dedicated time, energy and taxpayer dollars in a legal battle to prevent a lifesaving, evidence-based safe drug consumption space from opening.

And many U.S. attorneys’ offices took part in former Attorney General Jeff Sessions’ gun possession prosecution program, which targeted predominantly Black men, many stopped randomly for low-level offenses, and delivered hefty sentences.

Every day, these attorneys remain in office they continue to make decisions impacting the lives of countless Americans, including how COVID-19 is handled behind bars, when and how police accountability will be managed and how rebuilding trust with community will move forward.

The COPS leader, who chaired Trump’s controversial Commission on Law Enforcement and the Administration of Justice, has already departed.

Filling that critical role and ensuring that permanent leadership is in place at OJJDP is essential to begin the ambitious justice system transformations Biden has pledged to carry out.

Fresh start for criminal justice reform

Starting fresh with a new slate of U.S. attorneys and DOJ leaders who share a new vision for justice would reflect the transformative moment we’re in. Biden and Vice President Kamala Harris have spoken of the need for criminal justice reform and their desire to rethink policing.

To implement these types of policies means moving away from the traditional prosecutor mindset. Biden needs attorneys and DOJ leaders who embrace reform. It means looking at the burgeoning reform-minded state and local prosecutor movement for examples of leaders who are committed to systemic change. It means looking at defense lawyers and public defenders who know the federal justice system from the other side and know what it takes to reform it. And it means valuing diversity and personal experience with the failures of the justice system.

Already, local progressive prosecutors in Baltimore, Philadelphia and New York City have shown what can be done. They have created conviction integrity units to exonerate wrongfully convicted people, launched processes to review and reduce harsh sentences, stopped prosecuting many offenses tied to poverty and racial disparities such as drug possession and sex work, and held law enforcement accountable. This agenda would be a breath of fresh air.

On Jan. 20, Biden said, “A cry for racial justice some 400 years in the making moves us. The dream of justice for all will be deferred no longer.”

That cry must be heard — and acted upon — in the halls of the Department of Justice and in its attorneys’ offices around the nation.

Shay Bilchik, founder and director emeritus of the Center for Juvenile Justice Reform at Georgetown University McCourt School of Public Policy, previously headed up the Office of Juvenile Justice and Delinquency Prevention in the U.S. Department of Justice.

Miriam Aroni Krinsky, executive director and founder of Fair and Just Prosecution, is a former federal prosecutor.

This column is republished from a piece that originally ran on USA TODAY Opinion’s Policing the USA site

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About The Author

Disclaimer: the views expressed by guest writers are strictly those of the author and may not reflect the views of the Vanguard, its editor, or its editorial board.

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