Below, Brennan Center leaders suggest actions that President Biden can take in the last weeks of his presidency to secure his legacy and insulate our democratic institutions.
Lauren-Brooke Eisen, Justice Program senior director
President Biden campaigned on a pledge to “strengthen America’s commitment to justice and reform our criminal justice system.” One way for him to ensure that his justice policies have a lasting legacy is by using the clemency power. This authority, broadly enumerated in the Constitution, allows presidents to pardon or commute sentences for federal offenses. During his term, Biden put a moratorium on federal executions, endorsed lower sentences for certain drug offenses, and allowed some medically vulnerable people to serve sentences at home rather than in prison.
These decisions make an important policy statement — the criminal justice system is too harsh, racially biased, and often doles out disproportionate justice.
Starting on January 20, however, Donald Trump will have the power to reverse many of the current administration’s policies — he has already pledged to reverse some of them. But he cannot reverse acts of clemency. That’s why we are urging Biden to use his clemency power before leaving office to protect people serving unjust sentences. Among them are more than 40 people on federal death row whose sentences can be commuted to life without parole, more than 6,000 serving racially disparate drug sentences, and more than 3,000 medically vulnerable people finishing their sentences at home and posing no threat to their communities.
When it comes to reducing our prison populations, the Brennan Center believes this power should be used more frequently as a vital mechanism of mercy, tempering the often harsh, racist, and inequitable effects of our criminal legal system. You can add your voice here.
Liza Goitein, Liberty and National Security Program senior director
One of the biggest risks of the incoming Trump administration is that the unthinkable will begin to seem normal. Trump has threatened to deploy a host of emergency powers — the National Emergencies Act, the Insurrection Act, the Alien Enemies Act — in unprecedented ways. To understand how radical these proposals are, the public must have access to the rules and principles that have steered administrations for decades when it comes to these emergency powers. There are several opinions by the Justice Department’s Office of Legal Counsel on these topics that haven’t been made public. The Biden administration should release them now so that we have a benchmark — one established by someone other than a Trump loyalist — to evaluate the incoming president’s actions.
Sean Morales-Doyle, Voting Rights Program director
Trump ran for office on his contempt for the “deep state” and has already proposed massive cuts to the government. The Biden administration must preserve what exists for posterity so that the important work of sustaining a functioning government is not lost to history. The current administration should make public whatever it can now and prepare other records to guarantee their accessibility. For instance, to ensure that the Freedom of Information Act can be used to achieve transparency, the administration should be finalizing draft documents and creating written summaries of data and processes.
Faiza Patel, Liberty and National Security Program senior director
The incoming administration’s plan to deport millions of people greatly heightens the risks of racial, religious, and other types of profiling. In the face of these threats, President Biden should ensure that the Department of Homeland Security issues its profiling guidance and discloses key documents to the public. DHS started developing guidance to clamp down on unfair and unlawful profiling in May 2023. It is past time for the agency to issue these rules, which should fully prohibit reliance on race, ethnicity, and religion and strictly limit reliance on national origin across the full range of its activities from the border to inside the United States.
And, to help the American people understand the legal and policy landscape within which DHS is operating, Biden should direct the department’s agencies to make public key policy documents, such as those on domestic intelligence activities and the collection of information from travelers’ laptops and cell phones, as well assessments of the programs’ effects.
