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Blog Post | March 10, 2023

DOJ IN THE NEWS: Early March Trends

Anti-MonopolyCriminal JusticeDepartment of JusticeGovernance
DOJ IN THE NEWS: Early March Trends

Early March Trends

This is the latest installment of a new biweekly blog series from RDP. Every two weeks, we call out ongoing trends in media coverage of the Justice Department’s focus and priorities, giving context from our past DOJ oversight work as needed, with an eye to the impact of DOJ capacity and resources, as well as alignment with the Biden administration’s professed goals.

  1. Pushback from DOJ on criminal legal reform efforts.

In mid-February, we noted that the DOJ was coming under scrutiny for its treatment of incarcerated people for several reasons. First, for the abusive conditions imposed on incarcerated people in the DOJ’s own Bureau of Prisons (BOP) facilities, and second, for DOJ’s failure to improve (similarly abusive) conditions for incarcerated people in the local jails and prisons the DOJ also oversees via its Special Litigation Section. 

At the start of March, another trend has emerged related to the fate of people imprisoned in federal and local facilities – DOJ seems to be staking out legal positions that resist changes criminal legal system reformers are calling for and (some) that President Biden committed to on the campaign trail.

On February 23, Robert Parker, head of DOJ’s criminal appellate section, appeared before the U.S. Sentencing Commission, and testified against a proposal to expand opportunities for compassionate release for incarcerated people. As Reuters reported, Parker took issue with a specific component of the proposal — language that would allow judges to consider changes in sentencing law, even if not made retroactively, to be “extraordinary and compelling” reasons to extend compassionate release to someone sentenced under a previous version of the law. So, if a law changed penalties for a given crime, someone sentenced under a previous iteration of the law could appeal for compassionate release on the basis that their sentence would have been different under the updated law.  

In response to this proposed language, Parker argued that consistency in sentencing should be the panel’s priority, rather than giving judges the discretion to conclude that more circumstances warranted compassionate release. Rejecting this reasoning, advocates for the proposal, including Connecticut public defender Kelly Barrett, argued that uniformity in sentencing should not be prioritized over the goal of creating more opportunities for relief from long and unfair sentences. 

The following day, Jessica Aber, US attorney for the Eastern District of Virginia, defended the practice of allowing judges to consider charges that defendants have been acquitted of by a jury in handing down sentences for other charges. Several cases challenging the practice are currently pending before the Supreme Court. As others have written — and as multiple judges testified before the Sentencing Commission in resistance to Aber’s arguments — there are clear fairness issues with the sentencing guidelines as they currently stand. Intuitively, it does not seem fair that one’s sentence could be increased on the basis of alleged conduct that the state failed to convince a jury actually occurred.

The DOJ’s active resistance to sentencing reform, even the bipartisan reforms advanced by the First Step Act — a criminal justice reform effort that President Trump signed into law in 2019 — seem to signal significant resistance to sentencing reform generally by Biden’s DOJ. This resistance runs counter to the administration’s purported goals of “ensuring fair sentences” and “eliminat[ing] overly harsh sentencing for non-violent crimes.” 

By pushing back on measures that would give judges more discretion to extend compassionate release, and less discretion to consider charges defendants have already been acquitted of in determining sentences, the DOJ is advocating for the continuation of a status quo that keeps more people incarcerated, and makes it easier to increase sentence lengths than to right past wrongs. 

Against this backdrop, DOJ has also been extremely slow to implement a new early release policy for incarcerated people reporting their experiences of sexual abuse by Bureau of Prisons staff. Under the current system, requests for compassionate release must first go through BOP officials before being escalated, creating a clear conflict of interest when BOP staff are being accused of sexual abuse, and supporting the compassionate release claim would require that BOP officials back those allegations. 

Taken together, DOJ’s reticence to implement compassionate release programs that have supposedly been initiated, and DOJ officials’ testimony before the US Sentencing Commission at the end of February, are extremely concerning. As the Brennan Center has reported, Attorney General Merrick Garland released directives in December 2022 that would limit the use of mandatory miminums in sentencing — a welcome component of sentencing reform. But the more recent actions of DOJ officials stand in stark contrast to these goals, and offer a concerning indicator of the limitations of DOJ’s commitment to addressing racial disparities, sexual violence, and other abuses in sentencing and the criminal legal system more broadly. 

Further, on March 3, the DOJ filed an appeal in a case that struck down gun rights bans imposed on people charged with “unlawful” marijuana use. While the original ruling is politically nuanced — it seems that the Trump-appointed judge made his interpretation based on a recent SCOTUS ruling that created a higher standard for policies seeking to restrict gun rights — the DOJ’s historical precedents rely on “antiquated case law” previously used to prevent Catholics, enslaved people, and Native Americans, among other oppressed and minoritized groups, from owning guns. Based on this use of precedent, the DOJ’s appeal can be read as an effort to restrict the rights of people previously charged with marijuana use — a clearly problematic step, given the anti-Black, racially biased enforcement of drug laws in the US over the past 50 years.

It’s important to note that both sides can be wrong, and we certainly aren’t suggesting that we support the judge’s reading of the Second Amendment in this case. But in the context of the DOJ’s other pro-status quo steps, which are making it harder to uphold and restore the civil rights of incarcerated people in a racist criminal legal system, this appeal is a notable data point.

It’s true that the Biden administration has made broad pronouncements regarding the importance of “criminal justice reform,” and appointed self-proclaimed “reformers” like Colette Peters to lead the BOP. But the recent actions of DOJ officials, and generally slow progress implementing reform measures, indicates the inadequacy of their motivation to address urgent forms of abuse which impact millions of incarcerated people in the US every day, especially a disproportionate amount of  Black, brown, Indigenous, and poor people caught up in an unjust criminal legal system. 

We’ll continue to follow the DOJ’s positions on criminal legal reform efforts like sentencing reform, compassionate relief, BOP facility abuses, and local jail and prison oversight in the coming months, and plan to write more broadly about the DOJ’s role overseeing mass incarceration in the US going forward. 

  1. Spotlight on DOJ’s antitrust efforts. 

The Justice Department’s ramped up efforts to enforce antitrust law have also continued to make news the past few months, from Big Tech to airlines and railroads. On Monday, at the State of the Net conference, Assistant Attorney General Jonathan Kanter, who helms the DOJ’s Antitrust Division, compared Big Tech to Standard Oil, the monopoly famously broken up into 34 smaller companies in 1911. Kanter’s comments underscored the DOJ’s commitment to addressing the massive power and market control of companies like Google, currently the subject of multiple antitrust lawsuits overseen by Kanter. The Department also took action last week to back up these bold statements, with a filing challenging Google’s bid to move the DOJ’s lawsuit challenging their digital advertising practices from Virginia federal district court to the Eastern District of New York, which the DOJ said would delay trial until 2025 “at the earliest” (Reuters).

Planned or pending DOJ suits against other companies across industries include: 

These suits suggest that the DOJ is not shying away from its mandate, supported by the presence of big business skeptics at DOJ, FTC, and the White House, to challenge uncompetitive practices that decrease safety and increase prices for consumers. 

Image: U.S. Department of Justice headquarters, August 12, 2006 is licensed under the Creative Commons Attribution-Share Alike 3.0 Unported license.

Anti-MonopolyCriminal JusticeDepartment of JusticeGovernance

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