Illustration Jail Cell

Criminal Law | Brandon Garrett

Refocus prosecution priorities, examine innocence, and lead on police reform

This is an urgent time for comprehensive criminal legal reform.  There are remarkable opportunities now, at the local, state, and national level.

Brandon Garrett photo
Brandon Garrett

In the short term, there is incredibly important work that the Department of Justice can do to reorient priorities in federal criminal cases. The department could restore policies that discourage prosecutors from always pursuing the most severe charges, including by avoiding mandatory sentences. The administration could emphasize the importance of compassionate release, including in response to COVID, and second-looks at old cases. The federal death penalty should be reconsidered.

In the short term, there is incredibly important work that the Department of Justice can do to reorient priorities in federal criminal cases.

There is every reason to think that the Biden Administration will step away from the federal death penalty. Federal death sentences have long been uncommon, and until recently, executions had also long been on hold. One lesson from this rash of lame-duck executions is that even if an administration issues a moratorium on death sentences or on executions, a future administration can change how it approaches death-row cases. Setting an execution date quickly can short-circuit the process needed to adequately consider pre-execution legal claims. The only way to be sure that unsound cases do not result in executions that we will come to regret is to grant clemency: to exercise the pardon power to permanently lift death sentences. While a moratorium or a more careful look at federal death penalty policy would be welcome, we now know so much about the failings of death sentences, including that innocent people may be sentenced to death and that death sentences and executions are powerfully racially biased. Clemency can end the federal death penalty permanently.

Further, we have never had an innocence commission at the federal level. We did have a National Forensic Science Commission, which played an important role in improving federal practices concerning potentially unreliable forensic evidence. We need that role again and it could be expanded to concern wrongful convictions and innocence claims more broadly. We have never had a racial justice-focused commission at the Department of Justice. We have a task force of that type in North Carolina now, and years ago, Sen. James Webb, Jr. proposed a federal commission to look broadly at criminal reforms.

The executive branch can also play a leadership role in police reform. The new administration can build on the 21st century policing work done under the Obama administration. It can support police reform legislation in Congress. Moreover, the Department of Justice can restore the Civil Rights Division focus in prior years on police reform through consent decrees. More broadly, grant-making and research support in the executive branch can support efforts to decarcerate and address racial disparities in the criminal system.

Relating reading:
Books by Brandon Garrett:
End of its Rope: How Killing the Death Penalty Can Revive Criminal Justice (Harvard University Press, 2017)

Too Big to Jail: How Prosecutors Compromise with Corporations (Harvard University Press, 2014)

Autopsy of a Crime Lab, California University Press, forthcoming in March.

Share this article:

Magazine Cover - Rebooting America

Winter 2021
Volume 40 | No. 1