However, as Garland becomes increasingly serious about it, some defense lawyers and advocates for criminal justice reform say they are concerned that Garland’s records on the bank show that he is too respectful of the government and law enforcement – and may not be as aggressive Implementing the kind of dramatic changes they were hoping for would be.
“It’s certainly a safe choice,” said Kevin Ring, the president of FAMM, a criminal justice advocacy group. “It’s not an inspired choice.”
Garland is one of three people, all former federal attorneys, who, according to those familiar with the discussions, will continue to be considered by Biden for the Attorney General’s office. The others are Senator Doug Jones (D-Ala.), Who lost his re-election bid, and former Assistant Attorney General Sally Yates.
People familiar with the matter said that Biden will not make a selection this week and that if he does reveal his decision, it is possible that he will also make recommendations to the Assistant Attorney General, Associate Attorney General, and Attorney General. These people discussed internal considerations on condition of anonymity.
A Biden spokesman declined to comment, as did anyone to be considered or their representatives.
Legal observers say all stakeholders are qualified for the position, although all have critics too. Civil rights activists had urged Biden to appoint a black attorney general. All considered are white.
Yates is a long-time Justice Department veteran with an extensive background in implementing criminal justice reform during the Obama administration. It has ordered the closure of private prisons by the Justice Department and has received praise from civil rights leaders. But she also played a role in the FBI’s investigation into President Trump’s campaign, and some Senate Republicans have already said they would likely speak out against her nomination – suggesting its endorsement could be a bloody battle.
As a US attorney in Alabama under President Bill Clinton, Jones is known to prosecute members of the Ku Klux Klan who bombed a black church in Birmingham in 1963 and killed four young girls. As a legislator, he co-sponsored the First Step Act to reform the non-partisan criminal justice system. However, some civil rights activists have privately voiced concerns to Biden’s inner circle that the Birmingham case, by itself, does not show the kind of civil rights and criminal justice reform track record that they would like to see.
Whoever chooses Biden will be faced with the task of restoring morale within the beleaguered federal agency as they attempt to initiate the left-wing reforms Biden promised in the campaign. Biden’s selection is likely to face significant pressure to reverse the aggressive indictment policies of Attorney General Jeff Sessions – which urged the prosecution to bring the most serious charges against defendants – and to restore Attorney General Eric H. Holder’s policy of indicting certain cases, that mandatory minimum penalties are avoided.
While the session policy has received significant external criticism, the ownership policy has not been welcomed by the federal prosecutor’s office and some would likely speak out against its return. Proponents of criminal justice reform also wanted more dramatic measures to end the mandatory minimum sentence.
“This is incredibly important, and they could go further than the Holder memo, but they should at least go that far,” said Ring, who himself sentenced to 20 months in prison in a public corruption case involving lobbyist Jack Abramoff and was convicted.
Garland’s court records were first examined in 2016 when Obama nominated him for the judicial office created by the death of Justice Antonin Scalia.
An analysis by the Congressional Research Service found that Garland “was more likely to respect the reactions of local law enforcement officers with a view to protecting the safety of officers” and maintained police searches of vehicles that were questioned. In a statement, Garland noted that “Appellate judges do not question a street official’s assessment of the order in which to secure potential threats.”
A DC criminal defense attorney, who spoke on condition of anonymity because he might have to appear before Garland or his colleagues, said Garland’s “integrity was undisputed” but he was on the “wrong side” of criminal justice reform.
“There’s never a word a police officer, FBI agent, or prosecutor ever says to ask questions,” said the attorney. “He’s pioneering the war on drugs and the dismantling of civil liberties in favor of police power, and that looks really bad right now.”
This view is not universal. The American Civil Liberties Union has a no-endorsement policy, but National Legal Director David Cole said of Garland, “I see no real basis for concern over his court rulings that he would not be an attorney general equal justice for all and criminal justice reform . “All judges in the federal appeals court, said Cole, are generally on the side of the government.
Justin Driver, a former Garland employee who is now a professor at Yale Law School, said Garland was not generally respectful of law enforcement or the government, adding, “His experience as a judge makes him well qualified, the face of conviction to be reform issues that are in the foreground for many people. “
DC attorney Greg Smith, who argued before Garland, said, “I think he’s not the most forgiving man on the bank. It’s not necessarily the easiest sale for my customers. But invariably, I felt that he shook me fairly and that he was exceedingly fair and a decent person. “
He has consistently sided with the majority when it comes to reviewing executive power. He was part of a 7-2 majority in two lawsuits between President Trump and Congress that summer. The Court of Justice upheld the oversight powers of Congress and the House’s longstanding right to compel government officials to testify and produce documents. In the second case, the majority said there was nothing to prevent lawmakers from going to court to ask the Trump administration to block billions of dollars being diverted to the construction of the southern border wall signed by the president.
Erin Murphy, another former Garland employee who is now a professor at New York University School of Law, said Garland likely wouldn’t support radical reform, but neither would she resist practical change.
“I don’t think he’s someone who’s going to just say, ‘Let’s take all the money out of our police budget and put it in social services,” Murphy said. “I think he’ll say,’ Hey, this program is working here, so let’s see if we can replicate it or scale it up. ‘ ”
The Congressional Research Service’s analysis found that Garland’s decisions on constitutional criminal proceedings tended to be narrow, and the vast majority of his opinions included “relatively simple motions from the Supreme Court or precedents or adherence to the uniform approaches of sister circles”.
“There isn’t really an opportunity for a judge to tell you how he feels about politics,” said Jamie Gorelick, a former assistant attorney general who worked with Garland in the Justice Department. “When we worked together, he understood the challenges of law enforcement, especially when it came to making decisions on the fly, but he was also a very aggressive civil rights enforcer.”
Rachel Barkow, a professor at NYU School of Law and author of Prisoners of Politics: Breaking the Cycle of Mass Incarceration, said that while Garland was “definitely smart and honorable and decent,” it was “difficult to identify with him as a way out.” to see. ” Front on Criminal Justice Reforms, ”based on his records.
“I’m not sure if that would be a top priority for someone like him, but you never know. I’m always ready for people to surprise me in a good way, ”said Barkow.
Barkow said she was also concerned about Garland being appointed attorney general for another reason: confirmation would vacate his seat on the important DC Circuit that may be asked to review legal challenges for Biden’s administrative policies. Many Democrats have feared that if Republicans retained the Senate majority, they would refuse Biden to occupy the seat, thereby tilting the court’s balance to the right.
“If you didn’t really think that Merrick Garland was the only person who could take this job, I don’t know why you even think about it and leave this place empty,” said Barkow.
Ring noted that all of the individuals considered are former federal prosecutors and that the shortlist was, “Nobody I think people interested in criminal justice reform are excited about.”
“Jones made a real breakthrough in criminal justice reform by telling a voice in law enforcement that we could have a system that doesn’t jail that many people,” Waldman said.
Barkow praised Yates’ record of civil rights cases and investigations into police work issues, though she said a grace initiative Yates led under Obama didn’t go far enough. Proponents of Yates argue that to the extent that the clemency initiative fell short, it was due to Obama’s preference to grant mercy after individual review of the cases rather than granting mercy to broad categories of offenders.
“We have done over 1,700 commutations of largely drug-addicted defendants, and I think – and the president thought – this is a criticism that is basically not really against Sally, but rather with the president’s program,” said the former White House attorney from Obama, W. Neil Eggleston.
Yates has also worked on criminal justice reform after leaving government and served on the advisory board of the Council on Criminal Justice, a think tank.
Adam Gelb, the group’s president, said that while prosecutors in general have been “among the loudest and most opposed to changes in condemnation and corrective policies,” this was not his experience with Yates. Yellow said she had urged one of the organization’s task forces to recommend the abolition of mandatory federal minimum sentences for drug crimes.
“Her experience made her deeply sensitive to the problems,” said Gelb.
Cole of the ACLU said that while anyone considered as attorney general is federal attorney, this is typical of attorneys general who command the country’s law enforcement apparatus.
“I think right now anyone who is attorney general in a Democratic government will be advocating criminal justice reform because this is such a central concern of the Democratic Party and the Biden government,” said Cole. “I don’t think there would be much of a difference in the reforms that would be made between Doug Jones, Merrick Garland or Sally Yates.”
Devlin Barrett and Matt Viser contributed to this report.