The Marshall Project

What Biden’s Win Means for the Future of Criminal Justice

Joe Biden ran on the most progressive criminal justice platform of any major party candidate in generations. So what can he actually do?

During his presidential campaign, Joe Biden promised to end private prisons, cash bail, mandatory-minimum sentencing and the death penalty. Candidate Biden also said the U.S. could reduce its prison population by more than half. While he didn’t put forward as progressive or as detailed a platform as many of his competitors for the Democratic nomination (including his running mate Kamala Harris), Biden has nevertheless, quietly, been elected on the most progressive criminal justice platform of any major party candidate in generations. So what can he actually do?

Biden will face the same constraints as all incoming presidents after a campaign of big promises. Government moves slowly, time and political capital are limited, and his administration will likely need to prioritize the pandemic and the related economic fallout in the early days. But if he’s serious about tackling criminal justice, here’s what experts say to expect from the Biden administration on key issues.

Jamiles Lartey

Policing Reform

Along with the COVID-19 pandemic, policing has been at the forefront of public consciousness for much of 2020. That interest gives Biden the political capital to act, but doesn’t change the fact that policing is primarily local, and nationwide change is hard to enforce at the federal level.

The U.S. has some 18,000 law enforcement agencies, all with their own rules and regulations. If Biden wants to make changes on his own (he has suggested banning no-knock raids and chokeholds, for example) he will mostly be limited to offering funding or threatening funding cuts to departments based on whether they follow guidance issued by his Department of Justice.

Notably, the Trump administration has already moved to ban restraint maneuvers that “restrict an individual’s ability to breathe” via executive order, announcing plans for implementation last week.

This strategy has had some impact in the past, but federal funding makes up only 3 percent of local law enforcement spending nationwide, so changes are hardly a slam-dunk. Biden has also promised to revitalize federal investigations of departments that demonstrate a pattern of civil rights violations. These investigations. Historically they have led to consent decrees in some of the nation’s largest cities and produced the now

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