Bad News, Criminal Justice Reformers: Biden Probably Wants Sally Yates for Attorney General
Joe Biden claims to strongly back criminal justice reform, but that’s hard to square with his record. In his time in the Senate, the Democratic presidential nominee helped write bills that flooded police departments with cash and cemented the harsh mandatory minimum sentences that filled America’s prisons. For decades, he tried to outflank Republicans on crime, adopting a bellicose stance rivaling Richard Nixon’s. Indeed, in a 1994 speech he directly likened himself to Nixon, bragging that he didn’t think, as some of his colleagues did, that the call for “law and order” should be accompanied by “justice.”
“Every time Richard Nixon, when he was running in 1972, would say ‘law and order,’ the Democratic match or response was ‘law and order with justice’—whatever that meant,” Biden said. “And I would say, ‘Lock the S.O.B.s up.'”
In the 2020 campaign, Biden has talked about curbing excessive sentences and promised to grant more clemencies, pointing to President Barack Obama’s record on the issue. “President Obama used his clemency power more than any of the 10 prior presidents,” a Biden policy paper reads. “Biden will continue this tradition and broadly use his clemency power for certain non-violent and drug crimes.”
But Biden’s post-election plans suggest that granting clemencies is not likely to be a priority. In addition to picking Kamala Harris, a former prosecutor with a controversial record, as his running mate, Biden is strongly considering former Deputy Attorney General Sally Yates for attorney general, people familiar with the process tell Reason.
Rachel Barkow, a professor at the New York University School of Law, thinks it’s telling that Biden is considering Yates over Varnita Gupta, another qualified candidate whose history is far more appealing to civil libertarians.
“Varnita Gupta seems like an obvious candidate to me,” Barkow says. “She ran the civil rights division addressing police abuses and other issues like the need for bail reform. Everything we’d want to see in a Biden-Harris administration that’s actually committed to criminal justice reform.”
It’s obvious why Yates is on the short list. She shot to national prominence after President Donald Trump fired her, making her one of the first heroes of the #Resistance. And criminal justice reformers generally agree that she would be competent at her job—and a big improvement over William Barr, the current attorney general.
But Yates’ Obama-era history at the Department of Justice (DOJ) is troubling, particularly where it comes to carrying out the former president’s clemency initiative. That 2014 order directed the DOJ’s Office of the Pardon Attorney to review long sentences for nonviolent drug crimes and make recommendations to the president.
In 2016—a year after Yates became deputy attorney general, two years after the launch of the clemency project—Pardon Attorney Deborah Leff sent Yates her letter of resignation.
“I have worked tirelessly since day one to do all I can to make the initiative a success,” she wrote. “But given that the Department has not fulfilled its commitment to provide the resources needed for my office to make timely and thoughtful recommendations on clemency to the President, given your statement that the needed staff will not be forthcoming, and gi
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