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Biden must not miss the urgency of the moment on criminal justice reform

The president must act quickly to overhaul a system rife with systemic racism, over-incarceration, arbitrary and disparate sentencing practices, and profiteering.

A group waited outside the Cimarron Correctional Facility in Cushing, Okla. in 2005.David McDaniel/Associated Press

President Biden was elected in a year marked by urgent demands for justice after the killings of George Floyd, Breonna Taylor, and so many other Black Americans at the hands, knees, and firearms of police officers. While Biden has a full plate of exigent policy priorities, including combatting a still-raging pandemic and the resulting economic crisis, he must not miss the urgency of the moment when it comes to overhauling a criminal justice system rife with systemic racism, over-incarceration, arbitrary and disparate sentencing practices, and profiteering.

This week Biden took what he called a “first step” on criminal justice reform, signing an executive order to begin phasing out the use of private prisons in the federal criminal system. Another order establishing a commission on policing will be announced in the coming days, domestic policy advisor Susan Rice said at a press briefing Tuesday.


Those moves are welcome, but the president must move faster and be bolder in his efforts to repair our broken criminal justice system — particularly considering some of the inequities that result from it are the fruit of policies Biden himself pushed as a senator and later came to regret.

The persistent problems are, in part, a legacy of the 1994 crime bill Biden coauthored, which he said at the time would target “predators” and “take them out of society,” but contributed to the very prison overpopulation, sentencing disparities, and profiteering he seeks to end now. Last year on the campaign trail, Biden acknowledged the law’s failings.

“I know we haven’t always gotten things right, but I’ve always tried,” he said.

Biden has outlined four pillars of his criminal justice platform: reducing the incarcerated population while simultaneously reducing crime; addressing systemic racism, gender bias and income disparities within the system; refocusing on rehabilitation; and ending criminal justice-related profiteering.


One of this week’s executive orders goes to that last point: reinstating an Obama-era ban on the Bureau of Prisons’ use of private facilities, which saw a boom under the Trump administration. Private prisons currently house more than 14,000 federal inmates, about 9 percent of all individuals in BOP custody, according to the agency.

“This is the first step to stop corporations from profiting off of incarceration that is less humane and less safe, as the studies show,” Biden said before signing the order at the White House Tuesday. “And it is just the beginning of my administration’s plan to address systemic problems in our criminal justice system.”

But the measure does not address private immigration detention centers contracted by the Department of Homeland Security, and that agency relies much more heavily on for-profit facilities. In 2019, more than half of the 55,000 people housed in Immigration and Customs Enforcement detention were in corporate-owned facilities.

Nor does Biden’s order put an immediate end to the use of private federal prisons. Biden’s order prohibits new contracts, allowing existing ones — some with terms as long as 10 years— to run out.

Biden must devote more of his political capital at the start of his administration not only to act more swiftly but also to urge and motivate state governments — which are responsible for the vast majority of prisoners in the United States — to do the same.


“We really think the time is right for this administration and this Congress to champion real transformative change,” said Lauren-Brooke Eisen, director of the Justice Program at the Brennan Center for Justice. “Ending mass incarceration could be a defining legacy of the Biden administration.”

That starts with swift reforms that create a uniform standard for how police interact with citizens, reduce the prison population, expand clemency, eliminate the federal death penalty, boost post-release resources and permanently end corporations’ ability to run prisons for profit. Biden has urged passage of the bipartisan SAFE Justice Act, which would, among other things, reduce some federal mandatory minimum sentences and expand early release. With a slim Democratic majority in the Senate, Biden can also push his former colleagues on Capitol Hill to send the George Floyd Justice in Policing Act to his desk, which among other things would end choke holds, no-knock warrants, and qualified immunity for police officers.

He can also end federal executions — a move that warranted increased urgency after a rush of executions in the last months of the Trump administration.

And rather than using pardons and commutations as a gift to cronies and those with political and celebrity connections, Biden can transform the clemency system as another safeguard against unjust and disproportionate sentencing by creating an independent commission to vet applications and make decisions based on data and evidence, not just the recommendation of Justice Department prosecutors.


Biden and lawmakers can also use the power of the federal purse to create incentives for local and municipal officials to implement similar policies on a local level — particularly on the issue of policing.

Nothing better exemplified Dr. Martin Luther King, Jr.’s “fierce urgency of now” than the demonstrators who marched and called for justice even during a pandemic. Biden must meet those calls with urgent action.

Editorials represent the views of the Boston Globe Editorial Board. Follow us on Twitter at @GlobeOpinion.