President Biden's executive order canceling contracts with private prison operators was a nice gesture. Given the perverse incentives behind for-profit mass incarceration, this was welcome news for the 14,000 people in applicable prisons.
But what about the two million-plus Americans who remain in jail? What about the hundreds of thousands serving multi-year sentences for nonviolent offenses? And what about former inmates still handicapped by the myriad harmful effects of serving time?
These millions of Americans – and their millions of loved ones – are anxiously awaiting Biden's next move. To fulfill his campaign promise to fundamentally reform the criminal justice system, Biden must do a lot more than cancel a few contracts.
The Biden administration must first address the impact of the coronavirus on prisons. A prison these days is even more dangerous than normal: One in five prisoners has contracted the virus. Nearly 2,000 have died.
Nonviolent offenders should be released broadly and all prisoners should receive the vaccine on the same timeline as everyone else. Taking these steps would establish the basic premise on which meaningful criminal justice reform rests: that people who are in jail are just as important as people who are free.
Biden should then broaden his focus. Over two million people are imprisoned in this country – the highest incarceration rate in the world. America spends roughly $182 billion annually to lock up a tragic percentage of our adult population.
It is of course true that some people belong in prison, particularly chronically recidivist or violent offenders. But an enormous number of Americans are in prison who shouldn’t be. Biden should take three initial steps to address this problem.
First, Biden must lead a legislative effort to eliminate mandatory minimum sentences. Mandatory minimums require judges to sentence defendants convicted of certain crimes to minimum – and usually excessive – sentences. This system eliminates the essential discretion traditionally vested in judges to sentence people in careful proportion to their specific offenses.
Second, Biden and Congress must direct significant resources to enhance the representation of underprivileged defendants. America's overburdened public defenders cannot adequately navigate the complicated thicket of American justice. As civil rights attorney Bryan Stevenson put it: "Our criminal justice system treats you better if you are rich and guilty than if you are poor and innocent."
Third, Biden's Department of Justice must improve conditions in state-run jails. America does not just send too many people to jail. Once imprisoned, inmates are often subject to unthinkable abuse and neglect. The DOJ must aggressively use its statutory authority to supervise and investigate state-run jails and, when necessary, enforce meaningful changes.
Taking these steps would put a dent in America’s mass incarceration problem. But it would only be a start. Fundamentally improving the system is an uphill battle. People in jail can't vote, making them an easily dismissed political constituency. And a huge percentage of Americans harbor a reflexive law-and-order ideology resistant to reform.
Human beings in jail are just as important as those who are free. And battling the tens of millions of Americans who reject that view takes courage and hard work. Biden's order canceling private contracts was an incremental move in the right direction. It's now time to start the heavy lifting.
William Cooper is an attorney who has written for The Wall Street Journal, Baltimore Sun and USA Today, among others.