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Enforcement Edge
March 3, 2021

Changes on the Horizon: Race in the Anticipated Garland DOJ

Enforcement Edge: Shining Light on Government Enforcement

During his testimony before the Senate Judiciary Committee, Judge Garland skillfully avoided taking firm positions on a variety of topics—which made his statements regarding criminal justice reform and the effect of systemic racism and implicit bias in the justice system particularly notable. Criminal justice reform came up several times, specifically in questions by Ranking Member Grassley (R-IA) and Senators Chris Coons (D-DE), Pat Leahy (D-VT), Cory Booker (D-NJ), Jon Ossoff (D-GA), Tom Cotton (R-AK), and John Kennedy (R-LA). In each instance, Judge Garland was unequivocal that the issue is a priority for him and the President.

First, Judge Garland endorsed body-worn cameras by law enforcement as "an important tool for accountability," and as a way to identify perpetrators. He also affirmed that he would direct the DEA to focus on drug cartels, who fill communities with "poison," and address the danger of fentanyl. He emphasized that the focus on drug cartels and fentanyl would be part of an effort to focus on violent crime, as opposed to nonviolent crimes such as marijuana possession.

Second, despite overseeing the DOJ's pursuit of the death penalty for Timothy McVeigh, Judge Garland admitted that he now has "great pause" over the use of that sanction. Specifically, Judge Garland expressed concern "about the large number of exonerations that have occurred through DNA evidence and otherwise," the apparently random or arbitrary application of the punishment, and its "enormous" disparate impact "on Black Americans and members of communities of color." In response to this testimony, Senator Cotton asked whether Judge Garland would support the death penalty in the case of a modern-day attack, similar to the Oklahoma City bombing, by a white supremacist domestic terrorist. Although Judge Garland would not comment on that hypothetical, he did say that he had "no regrets" about the McVeigh case. At the same time, he signaled that the President might well impose a moratorium on the Department's pursuit of death penalty, a decision that he described as well within the President's authority. Should President Biden do so, that decision would also raise questions about the treatment of those already sentenced to death in the federal system.

The application of the death penalty was not the only area in which Judge Garland expressly discussed race. In fact, Judge Garland explicitly acknowledged the "plain" systemic racism and implicit bias within the justice system writ large, which result in disparate and unequal treatment in investigations, charging, and sentencing. Judge Garland explained that addressing these race-related issues is a "substantial" reason why he is eager to leave the bench—a job he loves—to be Attorney General.

When the premise of racism and disparate impact was challenged directly in exchanges with Republican senators, Judge Garland patiently explained the difference between conscious racism and the implicit biases that are inherently human. These exchanges shed more heat than light, but his conversations with Senators Ossoff and Booker made clear that his tenure would be marked by significant efforts to use the moral authority and the power of DOJ to effect real change.

Although Judge Garland did not describe specifically what that would entail over the next four years, he clearly plans to adopt policies that do not require charging the "highest possible offense with the highest possible sentence"; to explore seeking lesser sentences for nonviolent crimes; to examine retrospective reduction in sentences and further reform "the crack-powder ratio"; and to reduce or eliminate reliance on mandatory minimum sentences. In addition, we can expect a return to implicit bias training of federal prosecutors and law enforcement agents.

The issue's significance for Judge Garland crystallized when Senator Booker asked him to recount their private conversation at their first meeting. Judge Garland emotionally recounted that that his focus on these and other issues, and the impetus for all of his public service, arise from his grandparents' experience being welcomed in America after fleeing anti-Semitism and persecution in Europe. As he explained, he feels compelled to "give back" to this country with "all of his skills."

On March 1, Judge Garland earned broad, bipartisan support, with Republicans Senators Grassley, Graham (SC), Cornyn (TX), and Tillis (NC) joining all Judiciary Committee Democrats to send his nomination to the Senate floor.

We fully expect that the full Senate will follow suit as early as this week or next. And we now know for certain that, for Judge Garland, the Department of Justice will be the voice of reform, and a major player in the Biden administration's efforts to address racial inequity. Realigned priorities are on the horizon.

© Arnold & Porter Kaye Scholer LLP 2021 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.