John Helms a Dallas Criminal Defense Lawyer and Former AUSA Explains How The Biden Administration Will Impact the 93 U.S. Attorneys
Former AUSA for the N. District of Texas and criminal defense lawyer in Dallas discusses the Biden Presidency and potential new policy initiatives would mean with drugs, immigration and civil rights.
WHAT WILL A BIDEN PRESIDENCY MEAN FOR THE FEDERAL CRIMINAL JUSTICE SYSTEM
Now that Joe Biden has won the Presidential election, it is important for all those interested in federal law enforcement and federal criminal justice to consider how a Biden presidency might affect the landscape. As a long-time former federal prosecutor for the Northern District of Texas and Dallas criminal defense lawyer for both federal and state crimes. I have seen many times how a change in the presidency can change federal law enforcement and criminal prosecution priorities. Below, I will outline the areas where changes are most likely and describe what I foresee.
How Presidents Shape Federal Criminal Justice Policies
First, it is important to remember how a new President can change federal criminal justice. Federal crimes are prosecuted under the authority of the United States Department of Justice. The head of the Justice Department is the United States Attorney General. Below the Attorney General are 93 United States Attorneys. Each United States Attorney is responsible for a regional district. For example, in Texas, there are four United States Attorneys—one each for the Northern, Southern, Eastern, and Western Districts of Texas. Each of these United States Attorneys leads an office of prosecutors, who are called Assistant United States Attorneys. These are the lawyers who usually represent the United States in court.
The President appoints the Attorney General and each of the United States Attorneys. The President will usually appoint people who have the same general philosophy as the President. President Biden will therefore appoint a new Attorney General and a new group of United States Attorneys who tend to share his views on federal criminal justice.
The Attorney General establishes federal law enforcement and criminal justice priorities for the entire country. The 93 U.S. Attorneys carry out those priorities by directing their offices on how to accomplish them. In addition, federal law enforcement agencies like the FBI and the DEA are part of the Justice Department. They follow the policies and priorities that the Attorney General establishes.
Different presidential administrations have different priorities. Here are the main areas in which I expect the Biden Administration’s priorities to change from the Trump Administration’s:
The Trump Administration made immigration enforcement one of its highest priorities. For example, as a matter of policy, the Justice Department directed federal prosecutors to prosecute criminally all federal immigration crimes—even misdemeanors, such as illegal entry into the United States, under 8 U.S.C. § 1326(a). In the past, administrations from both parties had tended not to prosecute these cases criminally. Instead, those caught illegally entering the United States were either deported immediately, or they were allowed to plead guilty the same day they were caught, receive a sentence of time served, and were then deported right away.
Under the Trump Administration, this changed. People caught illegally entering the United States were held in custody and processed through the judicial system. The judicial process alone includes docketing their cases, assigning a prosecutor and often appointing a defense lawyer, having court hearings, preparing presentence reports for the judges, and holding sentencing hearings. In districts near the United States/Mexico border, this put an enormous strain on the federal courts, federal law enforcement agencies, and federal detention facilities.
I expect the Biden Administration will go back to a policy of allowing persons caught illegally entering the United States for the first time to plead guilty immediately and be deported. This will more effectively utilize federal law enforcement and judicial resources.
It is important to understand that, although illegal entry into the United States is a federal misdemeanor, illegal reentry after a prior deportation, under 8 U.S.C. § 1326(b), is a federal felony. The difference is that a person can only be charged with the misdemeanor crime the first time they are caught illegally entering the United States, but if they are caught after they have been deported before, they can be charged with a felony.
Prior to the Trump Administration, the Justice Department under Presidents from both parties had generally prosecuted illegal reentry cases only when the person had committed a serious felony crime before being deported. The type of crime that would have normally triggered an illegal reentry prosecution was called an “aggravated felony.” Those who had not committed an aggravated felony were normally charged with the misdemeanor crime of illegal entry and deported.
As a matter of policy, the Trump Administration aggressively prosecuted illegal reentry cases, even if the accused had not committed an aggravated felony. I expect that Justice Department under the Biden Administration will change this and go back to something similar to the prior policies.
Finally, under the Obama Administration, those who qualified for DACA status (brought to the United States as young children, no significant criminal history), were not arrested and removed from the United States. President Trump threatened to end this policy and to begin actively attempting to deport those with DACA status.
In Department of Homeland Security v. Regents of the Univ. of California, No. 18-587 (U.S., June 18, 2020), however, the United States Supreme Court held that the Trump Administration had not followed proper legal procedures for ending DACA protections. The decision would have permitted the Trump Administration to end DACA protections, however, if all proper legal procedures were followed. I certainly expect that the Biden Administration will restore DACA protections and will push for legislation giving DACA recipients a path to citizenship.
2. Drug Crimes.
Another area in which the Trump Administration changed Justice Department policy is the enforcement of federal laws criminalizing marijuana distribution. The Justice Department under the Obama Administration essentially looked the other way at marijuana distribution in states that had legalized marijuana possession. Under the Trump Administration, the Justice Department officially ended this policy, although actual federal prosecutions for marijuana sales that were legal under state laws were rare.
I expect that the Justice Department under President Biden will revert back to the Obama Administration policy of not enforcing federal laws against marijuana distribution if the activity is legal under the law of the state where it takes place. Since such prosecutions were rare under the Trump Administration, the practical effect may be to open up investment and business activity involving marijuana distribution activities that are legal under a state’s laws, at least to a degree. This is because such a new policy would reduce uncertainty for those engaging in legal activity under relevant state laws. This does not mean, however, that large-scale marijuana distribution is likely to be permitted in states where marijuana is illegal.
3. Civil Rights Investigations of Law Enforcement.
In recent times, we have seen many instances of shootings of unarmed people—particularly black men--by law enforcement and those acting like law enforcement. Although the Justice Department under the Trump Administration has not had an official “hands off” policy on these incidents, it has not exactly investigated them aggressively or made them a law enforcement priority.
I expect this to change under the Biden Administration. First, I expect federal law enforcement to begin working more intensively with local law enforcement to try to prevent these types of incidents from occurring. Second, I expect to see more federal investigations of local police departments that appear to have a problem with systemic racism. Third, I expect more aggressive investigation and prosecution of local police officers who kill unarmed citizens in violation of their civil rights.
Hopefully, these measures will reduce the kind of incidents that have caused massive unrest and will help restore faith in local law enforcement.
Each new presidential administration has different law enforcement and criminal justice priorities. They are formulated through federal agencies like the Justice Department, under the direction of the Attorney General. They are implemented through the 93 United States Attorneys around the country and the Assistant United States Attorneys they oversee.
I expect the Biden Administration to make a number of changes from the Trump Administration, including those described above. Hopefully, these changes will meaningfully improve the administration of justice in this country.