Biden faces pressure to take action on racial justice issues

President-elect Joe Biden will be under tremendous pressure to take action toward greater racial justice throughout the country on Day 1 of his presidency, following massive nationwide protests sparked by the police killings of George Floyd and Breonna Taylor along with other incidents of violence against Black Americans.

It will be a difficult juggling act for the new commander-in-chief, who is likely to be primarily focused on handling the worsening coronavirus pandemic when he moves into the White House.

Biden has signaled that in his first 100 days he will devote time to passing more stimulus legislation, articulating an immigration proposal and rolling back some of the Trump administration’s environmental executive orders. 

The federal government has a limited authority with police. There are 18,000 police agencies across the country and most of them are controlled at the local level.

That said, Biden has made it clear that racial equity is a Day 1 priority for him and his administration, a decidedly different approach than that of President Trump, who leaned into support for police.

Civil rights groups, several of which met with Biden and Vice President-elect Kamala Harris on Tuesday, have called for a complete overhaul.

“The idea of the meeting was for them to hear from us, and we wanted to put on the record from seven leading civil rights groups our concerns,” the Rev. Al Sharpton told The Hill in an interview Friday.

“You don’t put concerns down thinking that they’re going to do everything, but you want them to do most of the things,” he added. “President Obama didn’t do everything we met with him to deal with. But you always have concerns and you always have to hold them accountable.”

The reverend listed several rollbacks at Justice put in place during Trump’s presidency that need to be “immediately” reversed “in the first 100 days” of Biden’s term.

“I’d like to see the Justice Department go after voting suppression methods again,” Sharpton said, noting voter ID laws in Texas and North Carolina that have been green-lighted by federal courts. “I’d like them to go after the consent decrees in Chicago, Baltimore and other places that the Trump administration’s Justice Department rescinded or weakened, once they came in, around policing.”

The Justice Department under Trump all but abandoned the undertaking of so-called “pattern or practice” investigations into state and local police departments.

Attorney General Jeff Sessions, just before his ouster in November 2018, signed a memo significantly limiting the federal use of consent decrees — a legally-binding court approved agreement between two sides, commonly used to better law enforcement policy — to help reform local police departments accused of civil rights violations. 

Some advocates say that Biden should immediately reverse this directive and begin using pattern-or-practice investigations and consent decrees in order to hold police departments accountable.

“This is something that the Trump administration really almost completely ignored,” said Lauren-Brooke Eisen, director of the Brennan Center’s Justice Program. “The Justice Department should resume these pattern-or-practice investigations because they are a really important way for the federal government to try to reign in some of these police departments where there is just inherent racial bias, where civil rights are being violated.” 

But Alexis Hoag, lecturer at Columbia Law School and former senior counsel at the NAACP Legal Defense and Education Fund, said that while resuming the use of consent decrees would be a start, it would not be enough to address deep-seated problems with law enforcement treatment of minorities. 

“It’s a much larger issue than a single police department to be solved by a consent decree. It’s a start. It allows for the beginning of accountability, monitoring, but in terms of overhauling the way that police operate, that is, I believe, outside what a consent decree can offer,” Hoag said.

Hoag also expressed concerns that Biden’s administration had “siloed” racial justice in setting its agenda. She argued that the issue of racial justice runs through each of the policy areas Biden has identified — including climate change, the coronavirus, and economic recovery — and that it should not be looked at as a standalone issue. 

“My concern is that Biden’s team won’t view racial inequality as part and parcel of all of these other issues they have identified as addressing,” Hoag said.

Some have advocated for Biden to use federal dollars to incentivize change.

For instance, Eisen recommended that Biden use federal grants and technical assistance in order to promote co-responder programs, which bring together mental health professionals with police officers in responding to some emergencies. 

Biden’s selection of his senior team and Cabinet is providing an early test. Biden is being pressed to select someone with a civil rights background for his attorney general, and some would prefer that his nominee be Black. 

Former Massachusetts Gov. Deval Patrick (D), who is Black, has been floated for AG, given his experience heading the Civil Rights Division during the Clinton Administration. Outgoing Alabama Sen. Doug Jones (D), federal appeals court judge Merrick Garland, and former deputy attorney general Sally Yates are all seen as candidates for the role as well. 

Jones, like Yates and Garland, is White, but checks some of the boxes that Sharpton and others outlined. During his tenure as U.S. attorney for the Northern District of Alabama, Jones successfully prosecuted the two members of the Klu Klux Klan that were responsible for the 1963 16th Street Baptist Church bombing in Birmingham.

Sharpton on Friday said several of the potential nominees had civil rights experience, including Patrick, Yates, Jones, former associate attorney general Tony West and current chairman of the Democratic National Committee Tom Perez. 

Sharpton didn’t provide a preference beyond that, but acknowledged “some have a more extensive background that gives me more comfort than others.”

Outside of the Justice Department, Biden could accomplish some of his agenda items through executive action — an option that has increasingly been used by presidents to carry out their agenda amid Washington gridlock — but the former vice president has appeared apprehensive to the idea of implementing policies that have been marked as legislative priorities. 

If Democrats don’t win both Senate seats in Georgia’s runoff elections, however, Republicans will retain a slim majority in the upper chamber, lowering the chances any of Biden’s proposed reforms will pass. Efforts in Congress to pass a police reform measure after Floyd’s death quickly fizzled over the summer. 

Carrie Glenn, communications director for the Justice Action Network, predicted that bipartisan momentum could build behind a police reform measure that enables police departments to invest in training and lays down best practices after Biden takes office, given that there was overlap in past competing legislation.

“This actually is something that has the potential to get done,” Glenn said. 

No matter who the new head of DOJ is, they will take over a department where morale among career staff dropped under Trump, who regularly castigated individuals at the FBI and publicly weighed in on active cases in an unprecedented way.

Having the right people at the top of DOJ is the first step to institute change and restore morale, said David Alan Skansky, a Stanford University law professor and faculty co-director of the university’s criminal justice center. 

“Step two is making sure that those people communicate to all of the attorneys and employees of the Department of Justice that the new administration wants to restore the professionalism and integrity of the department. And the third thing will be for the White House to respect the independence of the Department of Justice in a way the Trump administration never did,” Skansky said.