Criminal justice in America is at a crossroads. The ongoing debate about racial justice in policing, incarceration, and prosecution became a national fixation following the May 2020 death of George Floyd in police custody in Minneapolis. Since then, it has remained a flash point in our politics.
The election of Democrat Joe Biden, whose party is aligned with Black Lives Matter, who called Antifa “an idea,” and who cites “systemic racism” as the major problem facing black Americans, will make the next four years challenging for proponents of effective policing. This challenge will be felt not only by those on the thinning blue line but also by those living in deteriorating urban enclaves that saw homicides and shootings spike in the second half of last year.
Most law-enforcement policies are a function of decisions made by state and local governments, many of which have acted in recent months to hamstring cops and hack away at policing budgets. But the incoming Biden administration will have significant influence over how the debate plays out on the ground. The next attorney general will set the agenda at the Department of Justice, and there is every reason to expect the agenda to go backward, reverting to Obama-era practices. The Obama DOJ, for instance, initiated numerous “pattern-and-practice” investigations of police departments based on racial disparities in various enforcement outcomes.
Should a Biden administration reinstate this model, cities could see crime continue to rise. A troubling study, coauthored by Harvard economists Roland Fryer and Tanaya Devi, assessed the impact of pattern-and-practice investigations under President Obama and found a strong causal connection between some of those investigations—the ones that followed viral incidents of police use of force—and spikes in serious crime. In Baltimore, Chicago, Cincinnati, Ferguson, and Riverside (California), investigations led police to scale back proactive policing. Each of these jurisdictions saw sharp drops in police-initiated interactions, such as pedestrian stops; as a result, “almost 900 excess homicides and almost 34,000 excess felonies” occurred over a two-year period.
The last national “reckoning” on race and policing didn’t just broaden the influence of Black Lives Matter; it also gave birth to the “progressive-prosecutor” movement. In urban jurisdictions around the country, defense attorneys and self-styled criminal-justice reformers began targeting district, state, and county attorney races. That bid has proved extremely successful, thanks in part to the financial resources poured into those races by George Soros. The movement has helped install Larry Krasner in Philadelphia, Kim Foxx in Chicago, Rachel Rollins in Boston, Marilyn Mosby in Baltimore, Chesa Boudin in San Francisco, George Gascon in Los Angeles, John Creuzot in Dallas, Wesley Bell in St. Louis County, Kim Gardner in the City of St. Louis, and Eric Gonzalez in Brooklyn. Local prosecutors have upended the system by dropping or diverting more cases, requesting bail and pretrial detention less often, supporting more parole bids, and adopting policies of non-prosecution for whole categories of crimes.
In some of these cities, U.S. attorneys have sought to mitigate the harms of these policies by stepping up to prosecute cases in which the federal government has concurrent jurisdiction. If the progressive-prosecutor movement expands into the federal government with the appointment of soft-on-crime U.S. attorneys, we could see a decline in the number of cases brought against violent criminals and drug dealers, as well as more leniency when it comes to charging decisions and plea bargaining. We have every reason to expect such a shift to affect crime rates in those jurisdictions.
A Biden administration could also decide to reduce or eliminate federal aid to local police departments already under new financial pressures as cities around the country (including Los Angeles, New York, and Minneapolis) move to cut funding to law-enforcement agencies. One program that could be on the chopping block is the 1033 program, which provides surplus military equipment (rifles, body armor, armored personnel carriers, and so on) to local departments. Progressive critics say that the 1033 program represents the “militarization” of local police and leads to a perception of cops as an occupying force in communities. But denying local police equipment will only make it harder for them to do their jobs during a time of increasing violent crime.
The Joe Biden of 1994 is gone. Before announcing his presidential candidacy, he repudiated his role in passing the then-popular-but-now-infamous crime bill. His campaign website featured all the race-focused rhetoric that one would expect to see from far-left police critics. Incoming vice president Kamala Harris has worked to rehabilitate her public image, recasting herself as a “progressive” prosecutor. These shifts in tone and approach reflect the real pressure that advocacy groups like Black Lives Matter, their financial backers, and their allies in the Democratic Party have exerted. The only question is whether, and to what degree, those shifts will manifest themselves in more consequential policy decisions. Public safety hangs on the answer.
Photo by Scott Olson/Getty Images