Biden Administration Should Grant Clemencies and Oppose Racist “Risk Assessment”

South African anti-apartheid revolutionary Nelson Mandela once said, “Fools multiply when wise men remain silent.” As the pandemic continues to ravage our country — in particular those within the prison system — the time to remain silent is no more.

As we have seen time and time again, across both the state and federal level, most institutions have contingency plans in place for emergencies. But the prison system is woefully negligent on this front, and we have seen countless people pay for it with their lives over the course of the last year and a half. The First Step Act, touted by both Republicans and Democrats as a bold solution to mass incarceration, has done little to protect them.

After the First Step Act was passed in 2018, the law has retroactively released over 3,000 of the more than 600,000 individuals incarcerated by the federal Bureau of Prisons (BOP) as of May 2020. Then, the law codified a directive from standard operating procedures mandating that pregnant people not be shackled during childbirth — but still left discretion up to officers. The law also removed the stacking clause that once added a 25-year penalty to cases involving violent and drug trafficking crimes that included the possession of a firearm. This mandate had already been enacted through former Attorney General Eric Holder’s “Smart on Crime” initiative during the Obama administration. Former President Donald Trump disbanded Holder’s program — only to circle back and falsely claim victory for the removal of the stacking provision under the First Step Act a few years later.

Moving forward, the Biden administration won’t be able to build on the First Step Act until it addresses the racist, oppressive clauses that worsened the lives of Black communities during the COVID-19 pandemic. You don’t build a house on an unstable foundation.

Black and Brown people were stuck in prison and left to die based on the racist risk assessment tool mandated by the First Step Act, known as the Prisoner Assessment Tool Targeting Estimated Risk and Needs. Advocates for the Act kept quiet, even as these risk assessment tools and initiatives have been found to be biased and create disparities because of static factors that disproportionately impact marginalized, primarily Black, communities. These factors include an individual’s number of arrests and violations, age of first police interaction or arrest, and highest education degree or grade level completed.

Because Black and Brown communities and schools are over-policed in this country, Black adults and children are more likely to have early and multiple interactions with the police over the course of their lifetime. Schools in marginalized and oppressed neighborhoods are more likely to be staffed with officers than social workers, leading to increased punishment of children by law enforcement for minor offenses and misbehavior, compared to children in communities with higher economic status.

These immense racial and socioeconomic disparities mean that many Black incarcerated individuals scored higher on the First Step Act’s risk assessment tools, while political cronies convicted of white-collar crimes, many of them friends of Trump’s, were released to home confinement or sent home without any conditions.

Through the CARES Act, the Trump administration released 4,400, mostly Black incarcerated individuals from BOP custody. The people who were released now have to comply with strict conditions such as home confinement and GPS monitoring, and could be sent back to prison once the federal government officially declares the pandemic “over.”

President Joe Biden and Vice President Harris are faced with granting those individuals clemency or overturning former Attorney General William Barr’s memo, which began the discretionary release of at-risk individuals to home confinement, in order to allow those living under this conditional release over the past year to remain home with their families. It’s time for Biden and Harris to live up to their campaign promises and begin to address past harm, including Biden’s co-sponsorship of the 1994 Violent Crime Control and Law Enforcement Act that enabled the harmful expansion of mass incarceration and policing in the U.S., and Harris’s record as a prosecutor.

The First Step Act was not enough and, with the threat of a resurgence in the COVID-19 pandemic, will continue to fall far short of what we truly need. Incarcerated people continue to suffer under the stress of strict home confinement that could send them back to prison any day, or remain stuck behind bars under constant threat of illness, all because a biased risk assessment tool decided their fate.

Let this be a reality check: If officials don’t grant these clemencies, the Biden administration and the Democratic Party are done for in the 2024 election. Trump and his advocates have already begun campaigning on a faux-progressive platform around the criminal legal system and continue to take credit for the First Step Act’s pre-existing reforms.

My organization, JustLeadershipUSA, is currently working to call out these injustices, regardless of party, and to demand that marginalized people — especially incarcerated people — are given a say in what comes next. That is why we have worked with Senators Tammy Duckworth and Cory Booker on the reintroduction of the Correctional Facility Disaster Preparedness Act, which aims to ensure prison emergency response and recovery plans protect the health, safety, and civil rights of incarcerated individuals during public health emergencies and natural disasters.

We must protect those who are often forgotten and amplify their voices. This administration must begin to uphold its commitment to all people in this country and work tirelessly to reconcile the past in order to not entrench further harm.