DEPARTMENT OF JUSTICE IN THE NEWS
Early May 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.
- High-profile efforts to establish Biden’s and DOJ’s criminal legal reform credentials.
On Friday, April 21, following President Biden’s March 31, 2023 announcement of April as “Second Chance Month” (the 6th consecutive year that has seen such a White House proclamation), the DOJ hosted “A Celebration of Second Chances,” including a discussion on executive clemency for simple marijuana possession.
The same week, the DOJ released updated guidance on the assessment of fines and fees in state and local courts, and specifically juvenile justice agencies. The 20-page letter effectively reinstated guidance that had been issued by the Obama DOJ, and later revoked under Attorney General Jeff Sessions. The document points out possible violations of the Sixth, Eighth, and Fourteenth Amendments (guaranteeing access to counsel, offering protections against disproportionate fines and fees, and banning debtors’ prisons and discriminatory use of monetary sanctions, respectively) that may arise from current patterns in the imposition of fines and fees. It closes by “identif[ying] best practices and recommendations that courts can consider and adopt,” and previews a “best practice guide” being developed by the DOJ Office for Access to Justice.
The fight to address the imposition of fines and fees — which disproportionately affect Black and brown communities and put people in “poverty traps,” where the inability to pay initial monetary sanctions leads to a cycle of increased indebtedness and other collateral consequences, including suspension of drivers’ licenses and in extreme cases imprisonment — has been ongoing for decades. One recent flashpoint came in 2014, in the wake of the police murder of Michael Brown, when an investigation into local government revenue streams in Ferguson, MO showed how courts and police were extracting wealth from Black communities by using fines and fees to fund the municipality.
The timing of this DOJ release was not explained or justified in their letter, which received significant media coverage, with stories in the New York Times, Washington Post, The Hill, and many smaller publications. These guidelines largely reinstate guidance released in 2016, raising questions about why they were not released earlier in the Biden administration.
Further, as several of these stories rightfully pointed out, “The federal government has limited power to enforce such a directive” (NYT). While the guidelines and the threat of lawsuits against states that don’t comply may be positive steps in theory, they don’t have a direct enforcement impact to address the harsh impact of monetary sanctions on the ground.
All told, the timing of this release during “Second Chances Month” looks from some angles like a calculated PR move to shore up Biden’s criminal legal reformer credentials as he launches his reelection campaign, while continuing to break promises he made on the campaign trail last time around. Executive pardons for “nonviolent” offenses like marijuana possession, while they do release some number of people from unjust incarceration and are thus a positive step, are deeply inadequate to address the impact of the racist “War on Drugs” and the scale of mass incarceration in the US. And that’s not to mention that more than half of incarcerated people have been convicted of so-called “violent crimes,” a statistic that should be understood with the context that wrongful convictions, and escalations of convictions with shoddy evidence through coercive plea deals, are a routine practices in this nation’s criminal legal system, where more than 98% of federal criminal cases end in plea deals.
- Broken Promises: Continued lack of action on reform actions within Biden’s and DOJ’s reach.
As we’ve been highlighting, Biden has broken many of the bold reform promises he made on the campaign trail. My colleague Toni Aguilar Rosenthal and I wrote recently for The American Prospect about the rumored nomination of Keva Landrum for US Attorney. Landrum participated as a judge in creating a “modern day debtors’ prison,” unconstitutionally jailing people for being unable to afford excessive fines and fees she and other judges levied against them to fund their own court system. Her nomination would fly in the face of Biden’s promises to address the violence of mass incarceration and “end cash bail.”
Further, as I’ve noted in previous installments of this series, Biden’s DOJ continues to pursue the death penalty in many cases, despite Biden’s promise to work with Congress to end capital punishment, and the fact that he could single-handedly halt federal executions. In fact, Biden’s DOJ is actively fighting the efforts of defense attorneys to get their clients off death row, even in cases where judges have entered rulings preventing those clients from being executed, like in the case of Bruce Webster, as the AP reported recently.
Given the numerous signs that Biden and his DOJ are walking back promises related to criminal legal reform, it’s hard to take their moderated discussions on executive pardons and their largely theoretical proclamations on the use of fines and fees at face value, as supposed initial steps toward deeper reforms.
If Biden wants to convince criminal legal reform advocates that he’s serious, he should take immediate steps that are within his power to demonstrate his commitment, like halting federal executions; not nominating US attorney candidates who have racist and classist records in their positions of authority; and engaging with the question of pardoning people with so-called “violent” convictions, who make up 62% of people in state prison and 45% of people in federal prison, according to The Sentencing Project.
- Numerous asks for DOJ investigations into local police departments, while again, DOJ and Bureau of Prisons abuses continue.
Another recent trend is a number of requests by local lawmakers for the DOJ to investigate police departments.
- In California, two Democratic Congressmen have requested that the DOJ investigate “a chain of racist, misogynistic and homophobic text messages sent by Antioch police officers over [a] period of almost two years” in which “close to 40 percent of the entire police force may have been involved” (ABC 7 News).
- In Atlanta, GA, city councilwoman Liliana Bakhtiari is requesting an investigation into the January 2023 police murder of Tortuguita Terán. Tortuguita (their chosen name) was a land defender who was protesting the destruction of the Weelaunee forest to construct the so-called “Atlanta Public Safety Training Center — dubbed Cop City by protestors and many Atlanta residents — when police shot them at least 57 times. Recent autopsy results reveal Tortuguita had no gunshot residue on their hands when they were shot, undermining police claims that they fired on officers first.
Councilwoman Bakhtiari pointed out that the Georgia Bureau of Investigation’s “investigation was biased and tainted because of its involvement in the operation to clear the forest of protesters,” requesting DOJ involvement to counteract this bias. - In Akron, OH, US Representative Emilia Sykes joined other local and national officials and the NAACP in calling for a DOJ investigation into the police murder of Jayland Walker last year. Sykes announced her support for these calls after a Summit County, OH Grand Jury declined to indict any of the Akron police officers involved in Walker’s murder.
- In Indianapolis, IN, Representative Andre Carson is calling on the DOJ to investigate the police killing of Herman Whitfield III last year, after his parents called 911 for support with a mental health crisis.
These requests all occurred and were reported on within the past two weeks.
As I’ve noted previously, there is a certain irony to local jurisdictions asking the DOJ to step in to address police racism and violence, given the DOJ’s own slow progress and broken promises on reform efforts. Fundamentally, Biden’s DOJ must lead by example, addressing scandals in the treatment of people incarcerated in federal prison and reversing the trend by which Biden has overseen the first increase in the federal prison population in a decade. Rather than stopping at releasing guidance and best practices, they must take concrete action, like bringing lawsuits and cutting funding to intervene when local jurisdictions are abusing communities of color and incarcerated populations, rather than relying on empty rhetoric and unconvincing campaign promises.