The Biden Plan For Strengthening America’s Commitment To Justice is one of the most progressive plans for reforming the criminal justice system put forth by any politician that I’ve seen.

It makes big promises.

Not the “we’re going to build a big wall and Mexico will pay for it” type of big promises. Unrealistic, inconsequential, and easy to explain away if they aren’t kept.

The Biden Plan makes the types of big promises that could erode trust if they don’t follow through.

I felt a mix of emotions as I studied his plan.

There were moments when I’d find myself nodding in agreement, satisfied that he’d taken a certain approach to a particular subject.

But then my emotions would flip. I’d find myself wondering whether he was just pandering for the black and brown vote by making promises impossible to keep.

That has become a habit of the Democratic party.

I’m glad that The Biden Plan takes a holistic approach to reversing mass incarceration. I really am.

Many of the ideas in the plan are ones that I fully support, and most of the rest are ideas that I can live with.

People who hate critical race theory will likely hate The Biden Plan. The Plan’s approach to decarceration focused on addressing problems that uniquely affect black and brown people.

Amidst harsh political divisions in the US, criminal justice reform has become a bipartisan issue.

The Plan spent plenty of time implicitly suggesting that these progressive measures will help conservative states save money in the long run while also making their communities safer.

I think the data supports that suggestion.

More federal funding for re-entry programs and the idea of giving people “second chances” often tends to appeal to conservatives who believe in reforming the system.

However, I see plenty of things that would make people with conservative values shudder.

I think it’s crucial for reformists and decarcerators like you and me to think soberly about The Plan.

Generally, the federal government can do bad things better than good things when it comes to criminal justice reform. (cough-cough-1994 Crime Bill-cough-cough).

Sure, they can change federal laws, throw around grant money, and try to incentivize states to follow the federal lead, but the good moves can be easily overwritten with the stroke of a pen.

The real reform happens at the local and state levels.

The truest reform happens at the grassroots because of reformists and decarcerators like you.

How I wrote this.

When you see something in a block quote like this, then I’m pulling it directly from his plan.

And the text beneath this quote—like this text—will be my thoughts.

One way to read through this is to open The Biden Plan For Strengthening America’s Commitment To Justice in a separate tab. If you see a section below that fires up your neurons, then switch over to that tab to learn more.

Aight. Let’s get after it.

The Biden Plan’s core principles.

We can and must reduce the number of people incarcerated in this country while also reducing crime.

Incarcerating more people doesn’t make us safer, and decarcerating more people won’t put us in more danger.

The best approach to reducing most crime is to decriminalize current “crimes,” and create legitimate employment or entrepreneurial opportunities for low-income communities.

Our criminal justice system cannot be just unless we root out the racial, gender, and income-based disparities in the system.

What a lofty statement!

I guess he’s right, in a sense. The only way that “justice” will be distributed equally is if the system treats everyone equally.

But let’s say that we witness a miracle and level out our criminal justice system. That’d be fascinating, but it wouldn’t be enough.

We shouldn’t be satisfied with a criminal justice system that’s equally unjust for everyone.

Our criminal justice system must be focused on redemption and rehabilitation.

Nothing controversial about this principle, right? Well…

The first people to advocate for the abolition of slavery believed that slavery was a sin. Man—especially a Christian man—should not possess another man—especially if that other man was a Christian.

However, early white abolitionists also believed black people were born a sin. Africans apparently descended from Cain. The skin was black because the soul was too.

Their blackened souls were redeemable.

White abolitionists may have abhorred slavery, but they didn’t love black people for who they were. They loved Africans because of their potential to be redeemed and rehabilitated.

Now isn’t the time to unpack how this mindset was also used against Native Americans and Mexicans. (For a non-fun time, google “manifest destiny” and “mexican american war.”)

And let’s keep in mind that the American penitentiary system was developed by people who believed that our system should be designed to redeem and rehabilitate.

That went downhill fast.

So do I disagree that our system would be better if redemption and rehabilitation were the main purposes of our criminal justice system? No, I don’t.

I just want reformists and decarcerators like you and me to really ask people what they mean when they say they want to rehab and redeem people.

People might be surprised at how often it’s us who needs the redemption.

No one should be profiteering off of our criminal justice system.

As I chronicled in my piece This Is Mass Incarceration: 50 Facts That Every New Reformist And Decarcerator Should Know, revenue-generating incarceration is not a new concept.

The role of private industry in our criminal justice system is highly controversial. How much should private industry interact with public incarceration?

If I had to make a prediction, I’d say that this conversation—private vs. public—is going to be a topic I change my mind on a few times before my time on this floating rock is up.

The answer seems to depend on all the rest of the shit going on. As you know, shit changes.

Currently, nothing private companies do leads to decarceration.

The private prison industry is almost completely unregulated. Their business models perpetuate incarceration, recidivism, and government control. Everything they do leads to poverty of the wallet and of the soul—excluding their share holders, who experience poverty of only one of those things.

At this point in time, I fully back the de-privatization of our criminal justice system.

Immediate passage of the Safe Justice Act.

The Safe, Accountable, Fair, and Effective Justice Act (SAFE) “takes a broad-based approach to improving the federal sentencing and corrections system, from front-end sentencing reform to back-end release policies.” It additionally addresses the reforms to the federal supervision system.

The goals of the SAFE Justice Act are to:

• Reduce recidivism,

• Concentrate prison space on violent and career criminals,

• Increase use of evidence-based sentencing alternatives,

• Curtail over-criminalization, and

• Reduce crime.

You can read the 2-page version of the bill here.

Preventing crime and providing opportunities for all.

This section opens by acknowledging that the best way to keep our communities safe and to reduce incarceration is to prevent crime.

Crime prevention techniques in the past usually focused on increasing the size and power of law enforcement.

This idea depended on the belief that thugs will be thugs, and criminals will be criminals. And, apparently, the only thing that would stop them is to see a cop or get caught by one.

Biden is approaching crime prevention differently.

The Plan treats crime as environmental. Change the environment, and the behavior will often change too.

Create a new $20 billion competitive grant program to spur states to shift from incarceration to prevention.

This grant program was inspired by a proposal by the Brennan Center titled The Reverse Mass Incarceration Act.

For the states to be eligible for the grant money, they must commit to the reforms that Biden hopes to make at the federal level, like eliminating mandatory minimums for non-violent crimes.

If your organization addresses issues that are correlated to incarceration—like overcoming illiteracy, improving the foster care system, or ending violence against young women—then I encourage you to do two things:

1. Start persuading your representative to advocate for the reforms needed to qualify the state for the grant, and

2. Prep your development and marketing teams to earn that money if it becomes available.

(And you already know that we can support your team to prepare for that push! You can learn about our fierce pay-what-you-can marketing guidance here.)

Invest in educational opportunity for all.

Biden hopes to make Pre-K available for every 3 and 4 year old in the country.

Other than providing a much-deserved opportunity for parents with 3 and 4 year olds to day drink, there doesn’t seem to be completely convincing research showing that Pre-K is the god send we’ve been looking for, especially when it comes to decarcerating the US.

I’d really like to know what research they’re looking at. I’m willing to change my mind!

Expanding access to Pre-K is only one item on a long list of things he’d like to do for education.

Feel free to grab a cup of green tea and dive into his full Plan for Educators, Students, and our Future and his Plan for Education Beyond High School.

Expand federal funding for mental health and substance use disorder services and research.

It’s irresponsible to talk about mass incarceration, decarceration, and criminal justice reform without seriously discussing mental health and substance use disorders (SUDs).

I’m so damn for this expansion in funding it’s not even funny.

When it comes to SUDs, too many people in our jails and prisons have one.

A report from 2010 suggested that 65% percent of our prison population had an SUD. There may be another 25% who didn’t meet the official criteria for an SUD but were under the influence of drugs or alcohol when they were arrested.

(BTW, I dove into the intersection of SUDs and mental health issues a little more in this piece. Don’t worry. If you click that link then it’ll open in another tab.)

I recently got to visit The Next Door in Nashville.

Their incredible work with women seeking high quality mental healthcare and SUD treatment should be enviable and inspirational to anyone else trying to provide the same.

If Biden promises to expand funding for services like them, then do the most!!

Get people who should be supported with social services – instead of in our prisons – connected to the help they need.

This section opens by acknowledging that, “Too often, those in need of mental health care or rehabilitation for a substance use disorder do not get the care that they need. Instead, they end up having interactions with law enforcement that lead to incarceration.”

Interactions between law enforcement and people living with serious mental illnesses are harmful to everyone involved.

“[F]or Americans with serious mental illness,” writes Alisa Roth in her book Insane: America’s Criminal Treatment of Mental Illness (affiliate link), “it is estimated that as many as one in two will be arrested at some point in their lives.”

Roth continues, “It’s not just arrests. One in four of the nearly one thousand fatal police shootings in 2016 involved a person with a mental illness.”

These situations aren’t safe for either the person with the illness or the officer(s) responding to the call.

The Biden Administration hopes to change the nature these interactions.

He wants to fund initiatives that promote partnerships between mental health experts and law enforcement.

I’m a proponent of establishing a service-first approach to enforcement for most dispatches. That’s where a social worker is the first to approach the scene, re-enforced by (mostly) unarmed enforcement officers.

Or, at the very least, officers approach the situation with their thumbs tucked into their vests—instead of their hands on their weapon—while asking, “Do you need any help tonight? How can I help you?”

That approach may have prevented Breonna Taylor’s murder.

For a policy change like this to work, we have to first have a mindset shift. People living with mental illnesses or SUDs aren’t enemies. Instead, they’re people who need someone to listen, care, and connect them to treatment.

Eliminating racial disparities and ensuring fair sentences.

In addition to the anecdotal evidence, plenty of research supports that racial disparities pervade the entire criminal justice system.

More than half of our incarcerated population is black or Latinx, despite making up only one third of our country’s population.

Eliminating racial disparities in the criminal justice system is tricky.

As Nazgol Ghandnoosh, Ph.D. writes in a 2015 publication for The Sentencing Project, “Many ostensibly race-neutral policies and laws have a disparate racial impact.”

He notes how “broken windows” policing, stop-and-frisk practices, and plea bargain guidelines are race-neutral in writing but racial in practice.

We’ve come a long way from overtly race-based laws—like the black codes—but power is slippery and policy is sneaky.

Michelle Alexander made us all acutely aware of how colorblindness in our criminal justice system contributes to its entrenched racial disparities.

In my view, the most effective way to eliminate racial disparities and to ensure fairer sentencing is to end the war on drugs, decriminalize most of the offenses charged to people of color thanks to overpolicing and poverty, and completely eliminate cash bail.

As for eliminating racial bias in the system, well, I honestly don’t know.

Expand and use the power of the U.S. Justice Department to address systemic misconduct in police departments and prosecutors’ offices.

Pick your poison.

Or, rather, pick your police.

What we have here is the interesting situation in which we need to rely on The Department of Justice—an agency that has worked diligently to execute multiple people in the remaining months of Trump’s presidency—to police the police.

The Plan talks mainly about increasing the number of “pattern-or-practice” investigations to hold state and local police departments accountable.

Pattern-or-practice investigations try to determine if the discriminatory actions were regular practice, rather than an isolated instance. A "pattern or practice" means that the defendant has a policy of discriminating, even if the policy is not always followed, according to the DOJ website.

The Plan states that “Biden will push for legislation to clarify that this pattern-or-practice investigation authority can also be used to address systemic misconduct by prosecutors’ offices.”

This is nice, but let’s not get our hopes up.

These investigations will be saved for the most egregious offenders, but can’t mitigate the harm they inflict before the investigation.

Here are the best ways to ensure that our prosecutors’ offices aren’t filled with tyrants and assholes:

1. Get educated. Watch the video below to understand the power of prosecutors and district attorneys.

2. Vote. Most district attorneys are elected officials, so vote for prosecutors who deeply care about both victims and perpetrators. (Also, don’t blindly vote along party lines. Vote for the person.)

3. Support progressive prosecutors. One of my favorite organizations changing the culture of prosecution is Prosecutor Impact. We need prosecutors who build diversion programs, don’t put up with shitty cops and judges, and who don’t measure their success by how many people they convict.

Establish an independent Task Force on Prosecutorial Discretion.

If this happens the way Biden wants it, then this task force will operate outside of the Department of Justice. That’s a good thing.

The purpose of the task force will be “to make recommendations for tackling discrimination and other problems in our justice system that results from arrest and charging decisions.”

Invest in public defenders’ offices to ensure defendants’ access to quality counsel.

The Sixth Amendment guarantees the defendant certain rights:

• the right to a public trial without unnecessary delay,

• the right to a lawyer,

• the right to an impartial jury,

• and the right to know who your accusers are and the nature of the charges and evidence against you.

Sometimes defendants can afford to hire a private defense attorney. When they can’t, then the court will appoint them a lawyer. This is called indigent defense.

Public defenders’ offices provide that indigent defense.

These offices have generally been under-funded, under-resourced, and overwhelmed for the last few decades. This came to a head in my home state of Missouri in 2016.

Michael Barrett led Missouri’s public defender office at the time. Even though his office had a $40 million budget and 600 employees, they still couldn’t handle the caseload. Each of his attorneys was fielding an impossible 80 to 100 cases a week.

Barrett had sounded the alarm already, but that didn’t stop then-Gov. Jay Nixon (Missouri - D.) from shrinking the indigent defense budget and vetoing a bill that would have capped a public defender’s case load.

So Barrett played chess with the Governor. He appointed Gov. Nixon to represent an indigent defendant.

Then-Gov. Nixon’s office claimed that Barrett couldn’t legally call the Governor to defense. Nixon did not take the case, but Barrett had gotten his point across.

This problem doesn’t only exist in Missouri.

Under-resourced public defenders’ offices are so prolific that The Sentencing Project advocated for fully funded indigent defense offices in its Report to the United Nations on Racial Disparities in the U.S. Criminal Justice System in 2018.

Increased funding and resources will certainly help protect our rights, but this is only one part of the equation.

Public defenders’ offices must also improve their management skills while we collectively end cash bail and reduce their caseloads through decriminalization.

Eliminate mandatory minimums.

Biden wants to eliminate mandatory minimums at the federal level, then incentivize states to do the same.

Mandatory minimum sentencing was introduced in 1984.

At the time, it seemed to some people like the fairest way to sentence people would be to sentence people equally for the same offense.

Some people even saw mandatory minimums as a way to make sure black and brown people weren’t being punished more than white people for the same crime.

Mandatory minimum guidelines took the gavel from the judge’s hand and gave it to Congress.

Unfortunately, mandatory minimums didn’t level the sentencing field. If anything, it opened the door to harsher policing of lower-income black and brown communities.

Mandatory minimum sentencing—both at the federal and state levels—contributed more to mass incarceration than it did to safety in our communities.

Eliminating mandatory minimum sentencing at the federal level will only have a positive effect if there are safeguards in place. Those safeguards must prevent runaway sentencing by judges who feel invigorated by getting their powers back.

End, once and for all, the federal crack and powder cocaine disparity.

The Anti-Drug Abuse Act of 1986 punished crack cocaine 100 times more severely than powder cocaine.

Get caught with 5 grams of rock, and the book gives you a mandatory minimum of 5 years. You’d have to possess 500 grams of dust to become subject to the same amount of time.

Under the Obama Administration, Congress passed The Fair Sentencing Act of 2010. This brought the sentencing disparity from 500-to-1 to 18-to-1. It also eliminated mandatory minimums for simple possession of crack cocaine.

The Biden Administration wants to completely eliminate the sentencing disparity between the two and apply that change retroactively.

Crack cocaine and powder cocaine (aka “coke,” “blow,” and a million other monikers) are pharmacologically the same, but there are several differences between the two.

Crack and coke look different, affect the body at different speeds, and one costs much less than the other.

But the most important distinction between crack and coke in the 1980s was the user.

The perception was that black, brown, and poor users tended to use crack while white, middle and upperclass users used coke.

When we consider the Reagan Administration’s entire approach to the War On Drugs, it requires a lengthy mental leap to conclude that the war had nothing to do with race.

Ending the federal sentencing disparity between crack and powder cocaine gets us one step closer to ending the racialized War on Drugs.

It also gets us closer to decarcerating the US.

Decriminalize the use of cannabis and automatically expunge all prior cannabis use convictions.

Many states have led the way on decriminalizing marijuana even though the federal government still classifies marijuana as a Schedule I drug.

The United States Drug Enforcement Administration (DEA) explains that “drugs, substances, and certain chemicals used to make drugs are classified into five (5) distinct categories or schedules depending upon the drug’s acceptable medical use and the drug’s abuse or dependency potential.”

“Schedule I drugs”—like marijuana—”are defined as drugs with no currently accepted medical use and a high potential for abuse.”

Marijuana doesn’t quite fit that definition.

The Biden Administration would like to reschedule marijuana as a Schedule II drug. This would allow researchers to officially study its impact.

I think the Drug Policy Initiative gets it right when describing the positive effects of decriminalizing marijuana at the federal level:

• Reduces harm. The criminalization of marijuana use disproportionately harms young people and people of color, sponsors massive levels of violence and corruption, and fails to curb youth access.

• Creates jobs. Legalizing and regulating marijuana will bring one of the nation's largest cash crops under the rule of law. This will create jobs and economic opportunities in the formal economy instead of the illicit market.

• Saves money. Scarce law enforcement resources will be better used to ensure public safety while reducing corrections and court costs. State and local governments would acquire significant new sources of tax revenue from regulating marijuana sales.

• Promotes consumer safety. Marijuana product testing is becoming a standard requirement for legalized marijuana markets. This means consumers are better informed about the marijuana they use.

The Plan also aims to expunge cannabis use charges.

This is important for many reasons, but let me address one. In almost every circumstance, people with a felony record can’t own, operate, or work in the legal marijuana industry.

It’s absurd that the head shops moving into low-income neighborhoods ravaged by shitty drug policies and over-policing can’t be owned, operated, or employed by people with felony drug convictions.

Expunging use convictions could address that absurdity.

With that said, I would like to see a courageous leader extend expungements to people who’ve also distributed marijuana.

End all incarceration for drug use alone and instead divert individuals to drug courts and treatment.

The Biden Administration wants to require federal courts to divert people living with a substance use disorder (SUD) from incarceration to treatment.

Like many other points in The Plan, the administration will try to incentivize states to do the same by offering opportunities to receive funding for drug courts.

Drug courts are designed specifically for people with an SUD.

Instead of sending someone to prison because of their drug use, drug courts try to send people into treatment.

There are a shit ton of people behind bars living with an SUD, and hardly any of them are receiving treatment.

The Center On Addiction estimated in 2010 that about 65% of our prison population had an active SUD.

Another 25% didn’t meet the official medical standard of addiction, but were under the influence of alcohol or another substance when they committed their offense. Only 11% of those folks received any treatment during their incarceration.

Drug courts work, at least somewhat.

It looks like drug courts generally lower recidivism. Drug courts also seem to save tax payers money compared to outright incarceration.

Several things must work well for a diversion program like a drug court to be effective.

• First, there needs to be effective treatment programs available. Those programs must be willing and able to receive the patients, especially those who can’t pay.

• Next, enforcement officers must approach people with SUDs as people who need help, not punishment.

• Then the prosecutors, defense attorneys, and judges must somewhat agree to what “justice” looks like for someone living with a substance use disorder. That doesn’t happen as often as it could.

• Last, the parole office must willingly work with the service providers.

People are typically still on probation or parole as they go through treatment. This is a lot like navigating a world of laser tripwires.

One bad move and you’re back in cuffs.

Increasing funding to drug courts will likely result in a net positive towards decarceration. But we have to be careful.

We shouldn’t become reliant on drug courts.

Many people who end up in drug courts today still spend time in jail before their court appearance. When you can’t pay bail, you stay in jail.

Relying on drug courts could potentially lead to more arrests by both benevolent and less savory police.

Benevolent officers may arrest more people with SUDs because their only route to treatment is through the drug court. Less savory officers may arrest more people with SUDs because they want to overwhelm the drug courts to prove that “criminals will be criminals.”

And in some cases, a reliance on drug courts might even lead to a decrease in drug-related arrests by unsavory cops seeking to deny people access to treatment. This (hopefully) won’t be common, but I’ve seen dumber shit than this!

I look at drug courts like I see re-entry services.

We should have a lot of them now to get us out of the mess we’re in. Then they should gradually phase out as a result of decriminalization, broader access to high-quality treatment, and service-first policing.

Expand other effective alternatives to detention.

When someone uses the phrase “alternative to detention,” I usually assume they’re talking about immigrant detention.

I don’t think that The Plan is referring to immigration here.

It looks like it’s referring to alternatives to incarceration, specifically for people convicted of non-violent offenses.

The administration wants to increase funding to bodies like veterans courts and youthful offender courts.

Eliminate the death penalty.

The Biden Administration wants to pass legislation that will eliminate the death penalty at the federal level. He’d then like to incentivize states to follow the lead by opening more opportunities for grant funding.

The Plan notes that “[o]ver 160 individuals who’ve been sentenced to death in this country since 1973 have later been exonerated.” Inaccuracy, it seems, is the main justification for eliminating the federal death penalty.

Instead of the death penalty, the administration will advocate for life without the possibility of probation or parole.

In 2019, the Department of Justice (DOJ) under the Trump Administration announced that it would resume federal executions. It had been 16 years since the last federal execution.

Biden defeated Trump in the 2020 election. Shortly after, the DOJ rushed to schedule more executions before the end of the year.

“With tragic albeit unintended symmetry,” writes Nathalie Baptiste in Mother Jones, “when Trump closes out his presidency with three federal executions during the lame duck sessions, it will be because his successor helped make them possible with the 1994 crime bill. Orlando Hall, a 49-year-old Black man who was one of the first people sentenced to death under the legislation Biden championed as a senator nearly 30 years ago, is scheduled to die on November 19.”

Orlando Hall was executed as I wrote this piece.

In 1992, then-Senator Joe Biden (Delaware - D) stood up to his Republican colleagues to talk about how tough his legislation was on crime: “It provides 53 death-penalty offenses. Weak as can be, you know? We do everything but hang people for jaywalking in this bill.”

We are allowed to change our minds. Maybe Biden has changed his.

However, I’d rather know that he’s eliminating the death penalty because the practice is wrong, not because it’s imperfect.

Use the president’s clemency power to secure the release of individuals facing unduly long sentences for certain non-violent and drug crimes.

The Plan states that Biden would “broadly use his clemency power for certain non-violent and drug crimes.”

What is clemency, and how much clemency power does the president have?

Clemency means mercy. The president’s clemency powers come from the Constitution—Article 2, Section 2, Clause 1, to be precise.

The president can grant clemency to people who have committed “Offenses against the United States, except in Cases of Impeachment,” and can only issue clemency to people convicted (or about-to-be convicted) of a federal crime.

The president’s clemency powers are largely beyond Congress’ control.

There are five forms of clemency:

1. Pardon. A pardon releases the individual from punishment and guilt.

2. Amnesty. Amnesty functions the same as a pardon, except that it can be applied to entire groups.

3. Commutation. Commutation replaces one punishment for a lesser punishment, or no punishment at all. For example, a president can shorten someone’s prison sentence. The person’s sentence has been commuted, but the person hasn’t been pardoned of their offense.

4. Remission of fines and forfeitures. A remission of fines and forfeitures forgives the court-ordered fees owed by the individual.

5. Reprieve. A reprieve is a delay. The president might issue a reprieve to delay an execution.

It’s nice to believe that people convicted of non-violent offenses could get pardoned, commuted, and released.

I hope that we can one day be courageous enough to extend the same clemency to the people convicted of violent offenses.

End the criminalization of poverty.

The Biden Administration will advocate for reforms that accomplish a couple things:

• End cash bail.

• Stop jailing people for being too poor to pay fines and fees.

As I wrote in This Is Mass Incarceration: 50 Facts All New Reformists And Decarcerators Should Know, the criminal justice system preys on poor people and it creates poor people.

Cash bail is one of the most visible examples of this.

Even though the system can vary from jurisdiction to jurisdiction, here’s how cash bail generally works.

I’m arrested for public intoxication. The police take me to jail. The prosecutor and judge decide to set my bail amount at $800.

If I can round up $800, then I can pay the court and be released from jail. They’ll give me the $800 back—sometimes minus a “holding fee”—if I show up to court.

If I can’t find $800, then I usually have two options. I could find a bail bondsman, or I could sit in jail until my trial.

If I find a bail bondsman, then I’ll pay him $80—they usually charge 10%—and he’ll pay the court the full cash bail amount.

Many people can’t pay their cash bail. This is especially true for people accused of a felony offense. The average cash bail amount in this case is $10,000.

A large handful of states began passing bail reforms in 2018.

The Biden Administration wants to lead a national effort to end cash bail once and for all.

Stop corporations from profiteering off of incarceration.

Of all of the bold reforms in The Biden Plan For Strengthening America’s Commitment To Justice, this may be the trickiest to pull off.

How can an administration prevent the more than 4,000 for-profit companies from profiting off the criminal justice system?

Let’s look at two companies that get a lot of attention regarding privatization of the criminal justice system, CoreCivic and GEO Group.

GEO and Corrections Corporation of America (CCA) were founded in the 1980s.

The Reagan Administration deliberately opened public prison doors to private interests. GEO and CCA—which rebranded to CoreCivic in 2016—made themselves at home.

Private prison companies promised governments tremendous savings, better conditions for incarcerated people, and safer communities. It’s hard to find evidence of this being true.

About 9% of incarcerated people are inside private prisons. More than 70% of immigrant detention facilities are operated by private companies.

But they’ve been diversifying for years.

They’ve expanded beyond prisons in preparation for the day when America woke up.

CoreCivic has begun buying up residential reentry houses. These are more commonly known as “halfway houses.”

Formerly incarcerated people often live in halfway houses as part of their parole or before they can find and afford their own housing.

CoreCivic has also quietly become the largest private owner of real estate used by U.S. government agencies. The company buys commercial property to lease back to government agencies, like the Social Security Administration and the Department of Homeland Security.

GEO, not to be left behind and not one to let down its investors, became the nation’s largest electronic monitoring company.

Ask the right spokesperson from either of these companies, “Why do you exist?” and they’ll say that they’re just responding to the government’s needs.

So when the Biden Administration declares that they’re going to mandate that federal courts divert non-violent drug offenders to treatment, you can bet your ass that these companies will swoop into that sector.

Just like they swooped in to help the government “house” all the new “criminals” in the 1980s.

More funding flowing to re-entry? You know we’ll see even more investment into community supervision and re-entry from the two companies.

It’s not in their best interest to decarcerate the US. How could it be?

Weeding out private companies from the criminal justice system is going to be a monumental task.

From my perspective, it’s irresponsible to include a promise like this in The Plan.

Provide for the unique needs of incarcerated women.

The number of incarcerated women has grown more than 700% since 1980.

Black, Latina, and Native American women are especially gripped by the system. All three are incarcerated at a higher rate than white women.

Incarceration is chaos, and it’s especially harmful to women.

“Correctional facilities exacerbate the vulnerabilities of female inmates without providing rehabilitation or treatment services needed,” writes psychologist Dr. Beryl Ann Cowan.

These women needed treatment before they entered the criminal justice system. Many of them had trajectories of sexual, physical, or substance abuse.

“Given the prevalence of abuse histories of women and girls in correctional facilities,” Dr. Cowan writes, “the need for trauma-sensitive settings and services is paramount.”

Women have different healthcare needs than men, but prisons weren’t designed for women.

The Biden Administration claims that it will withhold federal criminal justice grants until recipients provide “adequate provision of primary care and gynecological care for women, including care for pregnant women.”

Ensure humane prison conditions.

Setting aside the argument that prisons are inherently inhumane…

The Plan suggests that the administration will “require” states to eliminate environmental health problems at their prisons. This includes things like providing access to clean air and water.

Unfortunately, America’s infrastructure has been failing for years.

While I’m hopeful that we could make prisons cleaner—and even carbon neutral—I won’t hold my breath for it. It’s unlikely that prisons are at the top of the “infrastructure to make nicer” list.

There’s one thing The Plan mentions in this section that could happen (and something I really hope happens): The end of solitary confinement.

This would be tremendous, because solitary confinement really fucks people up.

People who experience solitary confinement are more likely to develop anxiety, depression, suicidal thoughts, and psychosis.

Solitary confinement (aka “the hole,” “segregated housing,” “seg,” and “the SHU”) can also have physical effects, like:

• chronic headaches

• eyesight deterioration

• digestive problems

• dizziness

• excessive sweating

• fatigue and lethargy

• genitourinary problems

• heart palpitations

• hypersensitivity to light and noise

• loss of appetite

• muscle and joint pain

• sleep problems

• trembling hands

• vitamin D deficiency

• less ability to prevent diseases like diabetes, hypertension, and heart disease

Just to name a few.

And as if that weren’t enough, a new study showed that any amount of time spent in solitary more than doubled the risk of premature death after release from prison.

You leave solitary, but it doesn’t leave you.

It needs to end.

Encourage states to collect sufficient data so we can make evidence-based criminal justice policies and eliminate disparities.

I’m not sure how the administration plans to “encourage” states to do this.

The Plan sees better data as a way to identify and address different biases throughout the criminal justice system.

Undoubtedly, protecting those biases are the reasons why they don’t collect—and why we can’t access—better data.

When it comes to data about the criminal justice system, I rely on organizations like Prison Policy Initiative and The Vera Institute of Justice.

Those organizations collect research from many different sources. A main source is The Bureau of Justice Statistics (BJS).

But BJS has slowed down the velocity of their reports. So much so that Prison Policy Initiative wrote an article about it.

Timely data is crucial when lives are at stake.

Latinx and Native American populations are disproportionately screwed by the system, yet we lack reliable data about them.

All systems are subject to entropy.

The data collection systems vary from office to office, jurisdiction to jurisdiction, and from state to state.

Sometimes it’s best to organize what we have before looking for something new.

Juvenile justice.

Juvenile crime rates have been on the decrease for the last two decades, but we’re still dealing with the results of an incredibly harmful idea born 25 years ago: the superpredator.

The term “superpredator” was unintentionally coined by John J. DiIulio, Jr. in a November 1995 cover story in a conservative opinion magazine, The Weekly Standard.

The Princeton academic warned that the country would be flooded by young criminals who were “so impulsive, so remorseless, that he can kill, rape, and maim without giving it a second thought.”

He predicted that the crime rates would double and then double again thanks to these superpredators.

Many in the media couldn’t get enough of the superpredator concept. Suddenly, the country devolved into a moral crisis. Superpredators were presumed to be black or brown. Politicians took the opportunity to pass even tougher on crime measures. Those measures came down hard on black and brown people.

(Remember, the 1990s was the decade that Democrats and Republicans battled over who was tougher on crime. Their pissing match led to intense anguish, severed families, and ruined lives.)

As more juveniles faced harsher sentences—many even being tried for their crimes as adults—something strange began to manifest…

Juvenile crime rates plummeted.

Yeah. DiIulio (and others, like criminologist James Fox) had been causing a ruckus while predicting that crime rates would rapidly double and then double again. But juvenile crime was halving, then halving again.

Dilulio and Fox were wrong.

The two ultimately admitted their predictions were wrong and harmful. They even signed an amicus brief in Miller v. Alabama, supporting the idea that life-without-parole sentences for juveniles constituted cruel and unusual punishment.

The superpredator stigma isn’t as prevalent today as it was in the 1990s. But the word’s negative effects carry on.

We’re still righting many of the wrongs enacted during the era of the mythical superpredator. The Biden Administration’s positions on juvenile justice reform would add momentum—and funding—to those efforts.

Invest $1 billion per year in juvenile justice reform.

The Biden Administration wants to increase the amount of grant money available for states to enact juvenile justice reform.

The states can use that money to do things like providing legal representation to juveniles and expunging juvenile records. In return, the states have to fulfill certain requirements like preventing children from being incarcerated with adults.

The Plan also states that Biden will push Congress to fully fund the Juvenile Justice and Delinquency Prevention Act (JJDPA).

The JJDPA was signed into law in 1974 and last reauthorized by Congress in 2018.

When the JJDPA was reauthorized, Congress set the funding level to $176 million per year. However, only $60 million was appropriated in FY 2019.

Full funding—plus the additional funding—would certainly help continue our progress in decarcerating the juvenile justice system.

Incentivize states to stop incarcerating kids.

There’s something like ~52,000 juveniles incarcerated at any point in time.

Many juveniles are incarcerated for a “most serious offense” like violating probation. A “most serious offense” is not a crime.

The Plan advocates for fewer incarcerated juveniles and more community-based alternatives. It also wants to find ways to decarcerate other than putting more kids on probation and in ankle monitors.

One interesting part of the administration’s plan is to give funding to communities looking to repurpose their empty juvenile facilities.

This has happened before. The goal of repurposing a prison is to ensure that it can’t be reopened as a correctional facility.

The administration wants to launch a $100 million pilot program in 15-30 states and counties to get this done.

Expand funding for after-school programs, community centers, and summer jobs to keep young people active, busy, learning, and having fun.

In addition to increasing available federal funds to after-school programs and community centers, the Biden Administration also wants to expand the federally funded national summer jobs program.

Summer jobs programs are often designed to address high unemployment rates among young black and hispanic adults.

These programs tend to run into trouble. Low-income neighborhoods are usually that way because there aren’t many gainful employment opportunities.

I think there are some smart ways to make a summer jobs program work better and become more meaningful for the young adult.

One way is to provide work that elevates their neighborhood in a way that working at McDonald’s just can’t.

Caring for blighted houses, assisting small businesses in maintaining their premises, distributing food from farmers markets and urban gardens, installing high-speed Internet, creating photos and films about their city, and making infrastructure more environmentally sustainable and regenerative.

End the use of detention as punishment for status offenses.

Status offenses aren’t crimes. They’re violations that only apply to people who are not yet legal adults.

When a juvenile skips school, runs away from home, or consumes alcohol underage, then they’ve committed a status offense.

Many systems respond to this behavior by apprehending the kid, sometimes incarcerating them.

The Biden Administration would rather send those kids to community service, workforce programs, or mentorship and therapy if it makes sense to do so.

End the school to prison pipeline by focusing on prevention.

Underfunded schools often become reliant on suspensions, expulsions, and law enforcement to discipline students. Black and brown kids are most effected by that approach.

Students as young as 6 years old have been arrested at school, like Kaia.

In-school arrests are obviously traumatic, but suspensions and expulsions can be acutely harmful, too.

Many schools adopted zero tolerance policies in the 1980s. These policies were supposed to make schools safer, free of drugs, and void of violence.

The punishment for that sort of behavior was suspension or expulsion.

Two decades later, the American Psychological Association formed a task force to examine if zero tolerance policies made schools safer without taking away students’ opportunities to learn.

The Zero Tolerance Task Force found that zero tolerance policies—coupled with the War on Drugs and the Just Say No campaign—all but eliminated drugs, violence, and bad behavior from high schools around the country.

Yeeeeeahhhh just kidding. They found the exact opposite.

“[D]espite a 20-year history of implementation,” they reported, “there are surprisingly few data that could directly test the assumptions of a zero tolerance approach to school discipline.”

We were enacting these policies despite having little proof that they worked.

“Moreover,” the report continues, “zero tolerance policies may negatively affect the relationship of education with juvenile justice and appear to conflict to some degree with current best knowledge concerning adolescent development.”

They found that mandatory discipline had an adverse effect. Instead of decreasing bad behavior, it increased bad behavior and dropout rates.

The Biden Administration wants to prevent suspensions and expulsions.

To do this, The Plan promises to double the number of mental health professionals in our nation’s schools. These professionals are more equipped to handle the emotional needs that can’t be met through suspension and expulsion.

So you may have noticed that I haven’t mentioned School Resource Officers (aka cops inside schools) yet.

That’s by design. The Plan doesn’t mention SROs either. I don’t know why.

Districts around the country reformed or straight up eliminated their SROs when our attention turned to George Floyd, Breonna Taylor, and too many more.

SROs are ostensibly meant to prevent school shootings and disarm other threats to the students. It’s unclear if they do, simply because it’s difficult to measure prevention.

What we do know is that SROs often get involved in many disciplinary situations best suited for counselors, therapists, and people without a gun in their holster. And when they get involved, more kids are saddled with a criminal record.

In a better world, SROs would serve more like counselors, guides, and service providers. This is what we wish of all police offers, don’t we?

In an even better world, schools would simply have more counselors, guides, and service providers.

Give children a true second chance by protecting juvenile records.

The Plan recognizes that the point of the juvenile justice system should be to put kids in better positions to become better adults.

Currently, juvenile records routinely affect kids after their 18th birthday.

Records can often be found online. A criminal record can lead to fewer job opportunities, higher insurance rates, and housing restrictions.

There are two basic principles of protecting juvenile records: confidentiality and expungement. The Biden Administration supports automatic sealing and expungement of juvenile records.

The Juvenile Law Center looked extensively at each state and ranked them based on confidentiality and expungement policies for juvenile records. Overall, no bueno.

I support the JLC’s outline for an ideal system. It would ensure that:

• Youths' law enforcement and court records are not widely available and never available online

• Sealed records are completely closed to the general public

• Expungement means that records are electronically deleted and physically destroyed

You can see the full description of the ideal system, as well as the interactive National Scorecard map—on their website.

Offering second chances.

This section of The Biden Plan For Strengthening America’s Commitment To Justice begins with a simple sentence: “Biden believes in redemption.”

“Redemption” is an interesting word.

And according to this actual, real life dictionary, it has several meanings.

Definition #1: a release from sin.

I’m pretty sure this is what The Plan means, especially considering Biden’s religious disposition. When it comes to mass incarceration—including slavery, our country’s original mass incarceration—redemption has almost exclusively meant “a release from sin.”

There’s a sense that these people need to be saved.

Definition #2: a buying back, regaining.

Ah, “regaining.” In this version, redemption doesn’t mean “to save.” Here it means “to give back to.” That’s an incredible difference, and one that the most empathetic reformists and decarcerators have adopted.

Let’s see if the Biden Administration’s positions on re-entry could help people regain the things taken from them.

Set a national goal of ensuring 100% of formerly incarcerated individuals have housing upon reentry.

It can be incredibly difficult to find a place to live with a felony on your record.

Private landlords can legally deny you housing for your criminal record. This is discrimination. However, people with criminal records aren’t considered a protected class. There’s little that can be done to battle that discrimination.

Where do people live when they leave prison?

• With friends or family.

• At their own property.

• On the streets.

• At properties that accept people with criminal records.

• In transitional housing (aka “halfway houses”).

The Department of Housing and Urban Development (HUD) is a federal agency that addresses America’s housing needs and enforces fair housing laws.

HUD oversees the Section 8 program. This program distributes housing vouchers to people who meet certain income, immigration status, and other criteria.

To apply, people have to share the criminal records of themselves and the people who they plan to live with.

People who are on parole or who have a felony record can usually apply to receive a Section 8 voucher. However, vouchers aren’t available for people who:

1. Are a registered sex offender,

2. Have been convicted of producing methamphetamine in federal housing, or

3. Have been evicted within the past three years for drug-related reasons.

Even if someone with a felony record is approved for the voucher, this doesn’t mean that they’ll be able to find housing. They can still be denied, even with voucher in hand.

The Biden Administration wants the nation to set a goal: to house 100% of people coming out of state and federal prisons.

This is going to be a difficult metric to track and a difficult goal to reach.

I’m all for it.

ProPublica put together a great guide about Section 8. Check it out here.

Expand access to mental health and substance use disorder treatment, as well as educational opportunities and job training for individuals during and after incarceration.

The Biden Administration intends to increase the number of programs and services available to currently and formerly incarcerated people. They want to do this by expanding the available funding.

Here’s something that we shouldn’t have to say, but we need to say anyways: prisons aren’t ideal locations for treatment and rehab.

Prisons don’t stabilize. They destabilize.

There’s something about being locked in a cage after your name has been replaced with a number that isn’t conducive to wellness.

The Biden Administration seems to understand that. Remember, part of The Plan is to require federal courts to divert individuals to treatment and other alternatives, then to encourage the states to do the same.

Our prison population is theoretically the only population in the US that is guaranteed healthcare. But in practice, the care they receive is scant and shitty.

Just today, a formerly incarcerated client called me.

He told me about how he could feel his mental breaking during his last prison stint. He wrote multiple letters to the prison therapist, nearly begging him for help. He still has the letters the therapist wrote back to him telling him, essentially, that he’d be fine.

“I wasn’t the first person they’ve done that to,” he told me. “They had just gotten good at rejection by the time they got to me.”

High-quality healthcare, education, upskilling, and job training should be more widely accessible in prisons. The reality, of course, is the opposite.

Same goes for outside prisons. Access to those things isn’t close to where it needs to be to prevent recidivism.

Regardless of how much funding the Biden Administration is able to allocate to these programs and services, they won’t decarcerate the system effectively unless organizations create a solid continuum of care.

The care has to be connected.

Eliminate existing barriers preventing formerly incarcerated individuals from fully participating in society.

This is the only section of The Plan that explicitly states that Biden would use executive powers to create changes.

Some of the changes he’d like to see:

• Opening access to SNAP.

• More access to Pell grants.

• Support with finding housing.

• Streamlining the process for giving people on probation or parole for nonviolent offenses access to Job Corps.

• Incentivizing states to automatically restore voting rights after completing their sentences.

• Expanding the “ban the box” policy.

Someone once described reentry as feeling like “he was coming back from the dead.” All of these stupid little barriers to access begins to hit people in the face once they’re out.

We know that most people are sent back to prison for violating probation or parole, not because they committed a new offense.

If the Biden Administration can eliminate some of the barriers—especially to housing, employment, and healthcare—then we can reasonably anticipate a drop in the recidivism rates for both new offenses and technical violations.

Reducing violence and supporting survivors of violence.

Nearly everyone impacted by the criminal justice system has experienced a trajectory of trauma.

I recently got to chat with the leader of a victim advocacy organization in Nashville that advocates for restorative justice practices.

“Victims don’t often feel like the justice system delivers justice,” she told me. “Victims of property crimes don’t get their stuff back. Victims of rape don’t get that back. And of course, homicide victims don’t get their life back.”

Her organization works closely with people who have committed crimes.

They’ve gone to prisons for the last decade to help incarcerated people empathize with the people they victimized.

“Perpetrators experience their crimes differently than their victims,” she said. When they begin to see things from their victim’s perspective, that’s when “they often begin to uncover their own relationship with trauma” that led them to the offense.

Let’s see how The Biden Plan For Strengthening America’s Commitment To Justice intends to interrupt trajectories of trauma.

Counter the rise in hate crimes.

Hate crimes in the US are the highest they’ve been since 2008, according to the FBI.

A hate crime is an offense that is motivated by someone’s bias against someone else’s race, color, religion, national origin, sexual orientation, gender, gender identity, or disability.

Hate crimes are often violent.

Acts of prejudice that aren’t crimes and don’t involve violence, threats, or property damage are considered a “bias or hate incident.”

The First Amendment allows us to believe what we want and to express those beliefs, no matter how offensive those beliefs may be. But there’s not constitutional protection for committing a crime based on those beliefs.

Many advocates warn that hate crime data is underreported or incomplete.

Many agencies don’t report their hate crimes to the FBI, and many people don’t report potential hate crimes to law enforcement.

The FBI relies on agencies at every level to report hate crimes back to the bureau. Reporting isn’t mandatory. Of the ~15,000 participating law enforcement agencies, only 2,172 reported hate crimes to the FBI in 2019.

Additionally, the people who are most likely to be victims of hate crimes are also people who aren’t as likely to seek help from law enforcement.

The Biden Administration looks to quell the rise in hate crimes through “moral leadership that makes clear such vitriol has no place in the United States.” The administration will also prioritize prosecution of hate crimes at the federal level.

No level of prosecution will drastically reduce hate crimes. Only greater education and greater empathy for each other will do that.

Reinvigorate community-oriented policing.

Community-oriented policing (aka “community policing”) is supposed to be a way to build trust between the police and the community.

Biden has been a vocal proponent of community policing since the 1990s.

He spearheaded a federal program called Community Oriented Policing Services (COPS). COPS was created by Title I of the Violent Crime Control and Law Enforcement Act of 1994 (more commonly known as The 1994 Crime Bill).

The mission of COPS was to “advance community policing in jurisdictions across the United States.” Law enforcement agencies could access federal grant money if they advanced the practice of community policing.

Grants could be used for:

1. Hiring new police officers or re-hiring officers who have been laid off,

2. Hiring former members of the armed services to serve as career law enforcement officers, and

3. Supporting non-hiring initiatives, like training law enforcement officers in crime prevention and community policing techniques or developing technologies that support crime prevention strategies.

The COPS program has never been fully funded.

Biden’s administration wants to “reinvigorate” the COPS program with a fresh $300 million investment.

If COPS is “reinvigorated,” lawmakers need to think about whether this program should provide funding to hiring more cops in a time when crime rates are generally decreasing.

The Plan also states that Biden “will establish a panel to scrutinize what equipment is used by law enforcement.”

I think that’s crucial. The weaponry that we see on police officers today makes them look more like an invading force, far from the community police that Biden hopes to see.

Defeat the National Rifle Association – again.

Joe Biden is not a friend of the National Rifle Association (NRA).

He’s been battling them at the highest level since the 1990s, and he promises in The Plan that he’ll go after them again…and win.

The Biden Administration wants to:

• Repeal the Protection of Lawful Commerce in Arms Act. This protects gun manufacturers from civil liability for their products.

• Get weapons of war off the street. This means banning the manufacture and sale of assault weapons and high-capacity magazines, regulate existing assault weapons, buy back assault weapons and high-capacity magazines, and passing legislation restricting the number of firearms someone can purchase each month.

• Keep guns out of dangerous hands. This would look like requiring background checks for all gun sales and closing other “loopholes” in the federal background check processes.

Those topics are just the tip of the iceberg. If you want to dive deeper, check out The Biden Plan To End Our Gun Violence Epidemic.

The fight over gun rights is a volatile topic. It’s clear where the Biden Administration stands.

Reduce violence against women.

Biden was the original author of the Violence Against Women Act (aka VAWA) that was included in The 1994 Crime Bill.

The program expired, but was reauthorized by a bipartisan coalition in the House of Representatives. The Violence Against Women Reauthorization Act of 2019 has stalled in the Senate. Mitch McConnell (Kentucky, R.) has refused to bring the bill to the floor.

Biden has made enacting the VAWA reauthorization one of his top priorities for his first 100 days.

I’d consider the original version of VAWA a landmark piece of legislation for women’s rights. It had two goals: make women safer, and protect women’s civil rights.

At the time, domestic violence was broadly considered a private matter. It wasn’t something for Congress to address. (That’s interesting, considering that things like recreational drug use and access to pregnancy services—two extremely hot topics at the time—also seem to me like private matters.)

VAWA contributed to a sharp decrease in serious victimization by an intimate partner. Renewed versions of VAWA also included LGBTQ people.

We will all be better off if VAWA is reauthorized.

Support survivors of violence, communities experiencing violence, and first responders by addressing the impacts of trauma.

Acts of violence aren’t isolated. They can affect entire communities, causing ripples of trauma.

The Biden Administration says it will take three steps to address this trauma:

1. First, he will fund a demonstration project to help schools pursue non-traditional approaches to healing trauma, such as art and sports.

2. Second, he will direct the U.S. Department of Health and Human Services to undertake a comprehensive review of all federal programs to identify how they can be more trauma-informed and support survivors of violence.

3. Third, Biden will work to raise the funding cap for the Victims of Crime Act programs and replace with direct funding any lost revenue for the program due to proposals in this package.

I support this, because trauma leads to trauma unless the trajectory is interrupted.

But violence isn’t the main thing that causes community trauma.

As the National Center for PTSD notes: “Severe day-to-day stressors that are demoralizing, but not life-threatening, appear to play a greater role — both in causing community violence in general and in leading individuals to act violently — than PTSD or even traumatic violence itself.”

The environment matters.

Living in communities with high unemployment rates, high rates of illegal drug use, high rates of school drop-outs, and chaotic, disorganized, or physically and emotionally abusive families or classrooms perpetuates trauma.

The Biden Administration’s plan holistically addresses all of these.

Now let’s see if they can execute.

Conclusion

After 4 years of not seeing a plan, it’s good to see one.

I don’t agree with every move that The Biden Administration claims that it wants to make. However, there’s nothing in here that I couldn’t work with.

Reformists and decarcerators like you and me should not wait around for these changes to happen.

Politicians lie. They over-promise. Mostly, they just get busy.

We have to consistently pursue the agenda of decarceration. Don’t let people forget what they promised to you.

It’s life or death. It’s incarceration or freedom.

Stay fierce and be relentless.

Good luck.

Now, get to work!!

Aye, I’m Jay. You’re on my personal site where I post things I make about interrupting mass incarceration, protecting migration, environmental justice & sustainability, language, communications, storytelling, creativity, and tech.

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