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Joe Biden and Criminal Law


Criminal Law Ramifications Under Biden

This is a free-flow thought piece meant to ponder how some federal criminal law situations may play out in the next four years.  Things might look differently with a new administration.

Federal Criminal Overview

The number of criminal cases in federal courts is a drop in the bucket compared to filings in state courts.  I lead with that to give you some perspective about federal law enforcement.  For most people, the local District Attorney is the most concrete symbol of prosecution.  Good reason exists for this thinking.  Most criminal prosecution is local.  Criminal cases filed in California alone dwarf the number of cases filed by the United States government

States don’t generally have the same priorities as the federal government.  Public order and safety are generally handled locally.  For instance, a rash of home burglaries rarely gets the attention of the feds.  Local police, prosecutors, and courts handle cases which may result in jail or prison sentences.  All those institutions are derived through the power of the state, not the federal government.

Department of Justice Prosecutors

Federal and state criminal laws often overlap, such as drug possession and trafficking laws.  Most frequently, though, prosecutions happen in either the state system or the federal system, not both.  Federal prosecution usually focuses on uniquely federal concerns.  The federal government prosecution team is the Department of Justice, or DOJ.  The number of federal law enforcement agencies is too long to list here, but many exist. 

The DOJ usually concerns itself with cases which can be prosecuted only in federal court, but it sometimes gets involved in cases which may be local in nature.  Local officials may not want to test political waters when local officials might be suspected of crimes, for instance. 

Over 60% of federal criminal cases are immigration and drug cases, according to the latest statistics.  That wasn’t always the case, however.  The Trump administration filings augmented the number and percentage of immigration cases. In South Texas, criminal cases involving non-citizens being present in the USA and how they got here take up a sizable portion of the trial courts’ dockets and have for decades. 

United States Attorney General

The head of the DOJ is the United States Attorney General, who is nominated by the President of the United States and confirmed by the United States Senate.  Currently, that person is William Barr.  One of the significant changes I expect is a different emphasis by whomever replaces Barr.  

I expect to see an Attorney General who is far less attuned to political considerations.  One consequence would be fewer headlines and stories about changes in longstanding principles and practices of the DOJ.  The tone and policies set by the person who holds that office affects prosecutors working under the direction of the Attorney General.  They are known as Assistant U.S. Attorneys.

I expect changes in Justice Department priorities regarding criminal-related immigration law to lead to a reduction of that docket.  It will remain a large portion of the docket in border states, though. Non-citizens won’t necessarily be charged before being removed (the legal word for being “deported”). Charging them criminally may wait until they make a second attempt to get across the border illegally.  I anticipate that a Biden administration will de-prioritize such cases in favor of using prosecution and law enforcement resources toward other priorities.

Marijuana Decriminalization?

The Trump administrations seems to have essentially continued the Department of Justice practices toward minor marijuana cases and non-interference with states which have legalized marijuana.  I anticipate a Biden administration will at least remain neutral. 

Kamala Harris, Biden’s pick for Vice President, has publicly declared a Biden-Harris administration would decriminalize marijuana. Harris even said their administration would expunge the records of those convicted of marijuana crimes. That’s a gigantic leap from all U.S. policy about marijuana. 

Marijuana has been long classified as a “Schedule 1” drug.  Schedule 1 includes heroin, cocaine, crack (a form of cocaine), and LSD.  Marijuana never belonged in Schedule 1.  Removing it from Schedule 1 would be a big step.  Decriminalizing it would be even bigger.  Expunging criminal records could be life-altering and life-improving for thousands of people.

Death Penalty

I fully expect executions to fall. After many years with no executions, the Trump administration re-started in earnest. Considering no executions happened during the Obama-Biden administration, I believe he will stay that course, instead of continuing the current path.

Forensic Science Reform

It may not be on many people’s radar, but I certainly hope the National Commission on Forensic Science is renewed.  The commission was addressing longstanding deficiencies, even outright lies and fraudulent testimony, of government “experts” in criminal cases nationwide. Attorney General Jeff Sessions was hostile to the ends of the commission and succeeded in ending it.  Letting the foxes guard the hen house is never a good idea, but that’s where we are.

It’s Not The Perfect Storm

The history of each candidate, now POTUS-elect and VPOTUS-elect, does not necessarily glow with the shine of progressive attitudes about criminal justice reform.  They’ve both reveled in “tough on crime” public pronouncements before now. 

They seem to acknowledge how both “tough on crime” policies unnecessarily hurt people and cause greater harm than anticipated.  This is especially true as to the impact such policies have had on black men and other people of color. 

Even with reservations, I have high hopes for more progressive policies to prevail in the next four years. I am in favor of focusing law enforcement resources on the most serious and violent crimes.  We should endeavor to find more compassionate resolutions to minor and non-violent crimes, and I’m hopeful the incoming administration will be open to such ideas.