Politics in the Department of Justice can be a good thing

Last week at his confirmation hearing before the Senate Judiciary Committee, Merrick Garland pledged to run the Department of Justice (DOJ) independently from presidential politics if he is confirmed as attorney general. Garland’s comment that he is “not the president’s lawyer” was likely meant to reassure members of Congress that the DOJ would not bow to political pressure from the White House over individual prosecutions, as many claim occurred during Attorney General William Barr’s tenure.

While the DOJ should be free from political interference when making individual prosecution decisions, the department should defer to the president’s positions on broader criminal justice policy. The DOJ’s deference to politics is a good thing.

The DOJ has largely been on the wrong side of criminal justice policy for the better part of four decades. It has lobbied for the creation of thousands of federal criminal laws and longer sentences. It has argued against criminal justice reforms, even those that would increase public safety and fairness, if the reforms also create burdens for federal prosecutors and make it harder for them to charge and incarcerate people. 

The DOJ’s criminal justice policies have led the land of liberty to have the world’s highest incarceration rate and a federal prison population that increased over 653 percent between 1980 and 2017. Experts from both sides of the political aisle acknowledge that we can scale back the criminal justice system without increasing crime, and President Biden seems to agree.

The DOJ’s political independence is one reason why, over the span of several administrations, it remains impervious to meaningful policy and cultural change on criminal justice issues. When President Obama wanted to grant clemency to thousands of people convicted of nonviolent drug offenses, the DOJ and its federal prosecutors fought against it. When President Trump declared his support for the First Step Act – a criminal justice reform bill designed to reduce sentences and recidivism – the DOJ continued to undermine its passage in Congress and argued to narrow the scope of its reforms in federal courts after it was enacted.

But the power to set criminal justice policy rests with the president, not the DOJ. Often times a new president will change criminal law policies. As President Obama noted, “Presidencies can exert substantial influence over the direction of the U.S. criminal justice system.” When they do so, the DOJ must follow the president’s lead, for under our Constitution it is the president – not the attorney general or anybody else at the DOJ – who is democratically elected to “take care that the laws be faithfully executed.” 

If Garland is confirmed, he should ensure that the DOJ and its line prosecutors follow President Biden’s policy changes, which include reducing the number of people in prison, eliminating racial disparities in the enforcement of criminal law and changing the focus of our federal criminal laws from punishment to rehabilitation and restoration.

As attorney general, Garland could prevent the DOJ from lobbying against criminal justice reform legislation introduced in Congress or proposed changes to the U.S. sentencing guidelines that decrease the length of sentences. He could aggressively reduce the federal prison population due to the dangers presented to vulnerable prisoners by COVID-19. He could instruct prosecutors to interpret and apply the First Step Act fairly and not reflexively oppose early release when federal prisoners apply for compassionate release. And he could change the DOJ’s culture by ensuring that federal prosecutors rely less upon pretrial detention and measure justice by more than high conviction rates and long punitive sentences. The DOJ’s policies and culture have long needed reshaping, and Garland has the opportunity to ensure that it happens. 

Not all political influence at the DOJ is bad. When President Biden sets a criminal justice policy of deincarceration, the DOJ must follow his lead. 

Shon Hopwood is an associate professor of law at Georgetown University Law Center and the author of “Law Man: Memoir of a Jailhouse Lawyer.”