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Biden was pilloried for his criminal justice record. During his presidency, advocates expect change.

NBC News logo NBC News 11/28/2020 Dartunorro Clark
Joe Biden wearing a suit and tie © Provided by NBC News

As President-elect Joe Biden prepares his transition into the White House, he is facing mounting expectations to bring about sweeping change on criminal justice reform.

As the author of the 1994 crime bill, which was credited in part as ushering in a wave of mass incarceration of mostly Black men, and a vocal proponent of harsh policies during the "war on drugs" era, Biden has a long and often-criticized record on the issue.

He is also coming into power after his predecessor President Donald Trump signed into law one of the most significant changes to the federal criminal justice system in the 21st century. The First Step Act was the result of a bipartisan coalition of lawmakers, civil rights groups, and grassroots activists. Experts said it was a monumental step forward after years of criminal justice reform and "tough on crime" policies being used as a political cudgel in Washington.

But the legislationhas flaws, as some activists have noted, and Biden will be expected to continue moving the needle. Experts told NBC News that now as both political parties appear to have common ground on the issue and significant steps have been made over the past decade, a Biden administration needs to make criminal justice reform more than a talking point.

“The chief cornerstone has already been laid, the groundwork has already been done, the foundation has already been built. The only thing that he has to go in and do is continue to capitalize off of the momentum,” said Louis L. Reed, the director of organizing and partnerships at #Cut50, a bipartisan criminal justice reform nonprofit. “Biden needs to hit the ground running on legislation and executive action.”

The Biden transition team did not respond to a request for comment on their plans. But as a presidential candidate, he proposed sweeping reforms, including ending private prisons, cash bail, and mandatory-minimum sentencing. He has also been a vocal opponent of the death penalty and police reform. He has floated, for example, tying federal funds given to police departments to diversity initiatives and community policing, among other areas — rebuffing calls from progressive activists to defund police departments.

The president-elect also recently told NBC News' Lester Holt in an interview that once he is in the White House he wants to convene a meeting with activists, police chiefs, civil rights advocates “to determine how we move forward.”

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Reed, who was also a former federal inmate, said that thinking is the right way forward.

“Those closest to the problem are also closest to the solution, but often furthest from resources and power. And we think that this administration can think beyond the box, we can re-imagine justice with this current administration,” he said. “They need to essentially have a very tangible say over policy."

Biden’s legislative hopes also hinge on the Democrats winning the majority in the Senate in January.

He has promised a flurry of executive orders on Day 1 in the White House to unwind a number of Trump administration policies and may opt to continue doing so if Republicans obstruct his legislative efforts. But the effectiveness of executive orders can be limited when it comes tocriminal justice reform, which would not affect state and local prisons.

Tackling police reform will be an especially delicate issue after a year in which the deaths of Black Americans at the hands of law enforcement prompted worldwide protests and national reckoning.

Balancing the concerns of police officers and progressive activists looking to slash their budgets and re-imagining policing is one illustration experts say will be one of the hurdles he could face. Biden during the campaign rejected calls to defund the police, angering some progressive activists. At the same time, he also lost support from police unions, who largely supported Trump.

Adam Gelb, the founder of the Council on Criminal Justice, a bipartisan criminal justice nonprofit, is a former Senate Judiciary staffer who worked with Biden on the 1994 crime bill. He said that he believes Biden’s promise to be a coalition builder is genuine but that he may not be fully prepared to restructure the nation’s sprawling criminal justice system.

“I don't think he sees crime control and justice as a zero-sum game, but will focus on policies that can produce win-wins,” he said, adding that Biden and Vice President-elect Kamala Harris recognize that "many of the policies of the 80s and 90s overshot the mark, and are now way out of step with public sentiment, as well as research about what actually works."

In a sweeping Thanksgiving address on Wednesday, Biden said he believed America would "find the root of systemic racism in this country."

Gelb said he believes Biden understands that there are social inequalities but does not fully grasp the extent to which the system itself is the root of the problem.

"My sense is that he understands that the criminal justice system is deeply flawed and needs to be fixed, but that he sees the system as a source of solutions, not a fundamental cause of the problems,” he said. “And that means a balanced strengthening of the systems of enforcement, and prevention, and treatment, and corrections, and the courts."

Reed, however, said that from a grassroots organizing standpoint, the political winds have shifted and organizations like his and others will hold Biden accountable, particularly over restructuring policing practices, sentencing, and the prison system, among other issues.

“I'm not anticipating that crime is going to go up, I'm not anticipating that unemployment is going to be at record highs," he said. "But what I am saying is that, if those things do happen, then we have to have an administration that is not going to balk in the face of that level of adversity."

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