Biden can’t let Trump’s DOJ legacy stifle reform

President Obama tried to liven up the annual Turkey Pardon with some dad jokes over the years, an effort that failed to impress his daughters.  

This year, though, no one should be laughing if Joe Biden keeps up the tradition: The juxtaposition of levity with the shocking backlog of nearly 18,000 clemency cases for actual people is just too stark. Biden has gotten there by simply ignoring clemency for humans, neither granting nor denying a single case. 

It is becoming clear how we got to the possibility of such a perverse spectacle. Biden has appropriately tried to steer clear of interfering with the Justice Department as it pursues its core duties of prosecution of crime and defending the nation in court. His predecessor too often pushed into those areas in dangerous ways. But Biden has overcompensated in his deference to prosecutors and now seems to refuse to engage in what are actually his duties under the Constitution: Establishing policy for agencies such as the DOJ to follow and using the pardon power to grant clemency to those who deserve it.       

Donald Trump’s interference with the Department of Justice was one of the most alarming aspects of his presidency. Trump repeatedly pressured DOJ officials to falsely claim the election was corrupt and file lawsuits so he could overturn Biden’s victory. He made public statements about his views on specific prosecutions and improperly urged investigations into political enemies and critics. Trump decimated the perceived independence of the department, so it is no surprise that Biden vowed, “to restore the honor, the integrity, the independence of the DOJ of this nation that has been so badly damaged.”

But restoring the independence of the department by staying out of individual decisions about investigations and prosecutions does not require the president to avoid policy calls that implicate the department. Yet it appears as if Biden does not understand that critical distinction. We are almost 10 months into his administration, and all signals point to Biden giving the department free rein to set criminal justice policies that should rest with him instead.

It is no small wonder that this approach has so far resulted in the first increase in the federal prison population in years. The DOJ is poorly situated to take the lead on whether to support legislation to reform sentencing and federal charges because its prosecutors inevitably want laws that make their jobs easier — even when the public interest and Biden’s commitment to reform criminal justice points in a different direction. Nothing Trump did challenges the urgent need to take DOJ out of its lead policymaking role on criminal law reform — in fact, criminal law reform in the form of the First Step Act was one of his very few bipartisan accomplishments and was accomplished without the imprimatur of the DOJ.

And then there is Biden’s do-nothing approach to clemency, which he seems to have delegated entirely to the DOJ. Biden inherited 14,000 pending clemency cases when he took office, and there was widespread agreement among those who studied the issue that the solution to the logjam requires moving clemency out of DOJ. Most of the Democratic candidates for president endorsed this change because the DOJ  had proven itself incapable of handling clemency impartially and efficiently for decades. That backlog is now 17,844.

So why doesn’t Biden take clemency away from DOJ and create the kind of advisory commission that President Ford used to aid him in processing a similar backlog of petitions from people with convictions for draft evasion during the Vietnam War? The only apparent answer is that Biden does not want to look like he is interfering with DOJ. But clemency should never have been in DOJ in the first place. It is there by historical accident — no state gives clemency decision-making power to the same prosecutors who bring cases in the first place because of the obvious conflict of interest problem it poses.

Biden is right to avoid the ways in which Trump tried to interfere with DOJ’s key prosecutorial functions (and realized it was a mistake when he recently opined that those who resist House subpoenas should be prosecuted). But he has given too much to the DOJ, and that has undermined reform where it is needed most. 

Last year, millions of people took to the streets and it was not about the pandemic, or the environment, or taxes. It was about criminal justice. He must now be bold and seek change, as is his duty, whether the DOJ wants it or not.

Rachel E. Barkow is a professor at NYU School of Law in New York and Mark Osler is a professor at the University of St. Thomas School of Law in Minneapolis.