Decrying “tough-on-crime” policies, a group of more than 100 law enforcement leaders, mostly prosecutors, sent a letter to President Joe Biden on August 17, asking him to create a Presidential Task Force on 21st Century Prosecution by the end of the year.
On its face, it’s an ambitious request, but Biden has created a multitude of new task forces during his first year in office. Presidential task forces are advisory in nature, meaning they can only make recommendations, but they are still influential. When Trump was in office, his Coronavirus Task Force effectively blocked a federal recommendation to mandate masks on public transit.
The drop in US incarceration during the early days of the pandemic has been gradually turning back into a rise. Between summer 2020 and spring 2021, the number of incarcerated people across the country shrank by just two percent. While prisons continued to release slightly more people than they locked up, county jails have been filling back up for at least most of 2021.
The people in a position to stop this are prosecutors, who decide which people get charged and with what crimes.
The letter’s signatories, who include former Alabama US Attorney Joyce Vance and Westchester County, New York, District Attorney Mimi Rocah, write that this new task force should be modeled on the one former President Obama made to address police violence after Ferguson, Missouri, officer Darren Wilson killed 18-year-old Michael Brown. A 2015 report from that task force purportedly led to around 40 percent of the nation’s largest police departments changing training and use-of-force practices within two years. It did not, however, lead to any reduction in the rates at which police officers kill civilians.
The task force could help correct the narrative that drug courts are preferable to prosecution.
A Biden task force on prosecution would be located outside of the Justice Department and would study the work of reform-minded prosecutors at the local level with the hope of replicating it. Part of that work includes some top prosecutors effectively decriminalizing minor drug possession charges (and, more rarely, possession with intent to distribute) by their use of executive discretion. In these jurisdictions, people who use and sell drugs face less incarceration and discrimination due to criminal records than they would otherwise.
A report by Fair and Just Prosecution, the nonprofit that assembled the letter’s signatories, detailed what the new task force hopes to address. Some of the proposed topics involve parts of the system that prosecutors can unilaterally improve, such as charging fewer people for nonviolent drug misdemeanors. Others involve the expansion of non-police emergency responder programs and alternative-to-arrest diversion programs like Law Enforcement Assisted Diversion.
In a promising twist, the report suggests that the task force lead conversations on the “efficacy and limits of drug diversion programs,” which could help correct the mainstream narrative that innovations like drug courts are a preferable alternative to prosecution.
The federal government has shown little interest to date in the recent local- and state-driven trend toward reforming prosecution, which started in earnest in 2015. Under the Trump administration in particular, top federal criminal justice officials broke from the norms of their respective offices to attack prosecutors they deemed progressives.
Opting to not prosecute certain crimes has historically not been in most US attorneys’ DNA. If they decline categories of cases—like when former Arizona US Attorney Paul Charlton stopped prosecuting the possession of marijuana under 500 pounds in the 2000s—they generally signal that it’s other prosecutors’ jobs to handle them.
Many of the law enforcement leaders who signed are on record supporting safe consumption sites.
But the movement has gotten the attention from influential Washington, DC think tanks like the conservative Heritage Foundation and the liberal Center for American Progress. Both Heritage and CAP serve as partisan pipelines to jobs in presidential administrations.
Virtually all of the signatories calling for the task force on prosecution are elected Democrats, and most represent the left flank of the party on criminal justice. Even so, the creation of the new task force might make moderates more comfortable with the idea of prosecutors who view their jobs more holistically, rather than hard-nosed trial warriors who pride themselves on high conviction rates and harsh sentencing.
That is especially true if it could survive in some form the next time a Republican is president. There are already prominent Republicans who support it. “We need @POTUS to lead on #cjreform. Form this task force,” tweeted Brett Tolman, the executive director of Right on Crime and a former Utah US Attorney under President George W. Bush.
Many of the law enforcement leaders who signed are on record supporting safe consumption sites (SCS), including King County (Seattle), Washington, Prosecuting Attorney Dan Satterburg and Los Angeles County District Attorney George Gascon. If Biden authorizes the task force, it’s safe to assume that some of the letter’s signers would be at the front of the line for membership status. That may help invigorate national-level conversations about SCS as well.
Photograph via Federal Bureau of Investigation