Criminal Justice

Democrats Have No Excuse Not to Reform the Criminal Justice System

Now is the time to act.


Democrats now have the luxury of a unified government. Controlling the House of Representatives, the Senate, and the White House gives them an opportunity to do many things they have claimed to care about but have complained about being blocked by Republicans. And so, this opportunity is also one for others to hold Democrats accountable if they don't actually do what they insist they wish to do.

Reforming our criminal justice system is a good place to start. During last summer's demonstrations to protest the deaths of George Floyd and Breonna Taylor, demands were voiced for racial equality and police reform. Democrats such as Speaker of the House Nancy Pelosi (D–Calif.) and then-Senate Minority Leader Chuck Schumer (D–N.Y.) never missed an opportunity to eagerly support the crowds demanding change.

Now that Democrats are in power, it's time to act. They could change some of the rules that lead to over-criminalization, excessive reliance on punitive enforcement, and mass incarceration. While most criminal justice policy is set at the state level, the federal government can play an important role in reform. Starting with this issue has the advantage of being an uncommon area where Republicans and Democrats have successfully worked together in the past. The bipartisan nature of this effort would also send a strong signal that this administration is serious about unity and that President Joe Biden's promises of reconciliation made during his inauguration speech weren't just political posturing.

If we want fewer people arrested and imprisoned, as a first step in such reform, Congress could make the use, cultivation, and sale of marijuana legal. Many states have already done so. It's time for our federal government to update its outdated and intrusive rules. While Congress has made clear that it doesn't want federal law enforcement to interfere with state-level medical marijuana programs, the Department of Justice continues to focus on the production and distribution of marijuana, regardless of state legalization. Besides, abstaining from prosecuting is quite different from decriminalizing or legalizing.

Marijuana businesses operating legally according to their state laws never know if the feds will knock on their door one day and put them out of business or send them to jail. If Congress and President Biden were to update these laws, it would go a long way toward arresting and imprisoning fewer people.

Democrats could also implement police reform to help root out the problem of abuse that was at the center of last summer's protests. They can start by scaling back qualified immunity, which would make it easier for plaintiffs to recover damages against officers who are sued and found guilty of abusing their authority (which is a whole can of worms in and of itself). Then, Democrats could end the use of no-knock warrants in drug cases at the federal level and end the transfer of military weapons and vehicles to local police departments to wage what is essentially warfare on American citizens—two factors at the heart of the police killing last March of 26-year-old Breonna Taylor. They could also ban chokeholds at the federal level, a tactic responsible for the deaths of both Eric Garner and George Floyd.

Pushing these reforms through Congress should be easy enough, since they were all part of the George Floyd Justice in Policing Act of 2020 bill that passed the House last summer. It never got through the Senate, as Republicans didn't want to take on a bill that was destined to receive then-President Donald Trump's veto. That was then. President Biden is in office now. Also, while Vice President Kamala Harris has spent most of a career eagerly enforcing the worst drug regulations, the campaign trail has given her a change of heart.

Finally, Democrats in Washington should abolish the federal death penalty. This would finally guarantee that a repeat of the recent spree in federal executions under Trump never happens again. (Sixteen people have been executed by the federal government since 1977, including 10 in 2020 and three in 2021.) At a time when people are demanding reform of government rules that disproportionally affect minorities, this change should be a no-brainer. A recent report by the Brennan Center for Justice notes, "There is substantial evidence that the death penalty is applied inequitably in the United States."

Democrats have the power to show that their statements about wanting to reform the system weren't just pandering and posturing. Now is the time to act.