Few see Judge Merrick Garland, President Biden’s pick for attorney general, as a progressive who will reform the criminal legal system. But the Biden administration recently acknowledged that mass incarceration does not make us safer. And as the nation’s chief federal prosecutor, if confirmed, Judge Garland will have the power to prioritize federal bail reform and reduce sky-high rates of pretrial jailing. Doing so will decrease mass incarceration, advance racial justice and enable Mr. Garland to stake his claim as a progressive prosecutor. In fact, federal bail reform is an area where he may have already shown an appetite for change.
In November, voters across the nation overwhelmingly chose reform-oriented progressive prosecutors over “law and order” challengers. Red and blue districts elected prosecutors who ran on a promise to use their office to enact change. Some of these prosecutors promised to stop pursuing low-level drug crimes. And at least one has since ended the use of cash bail for certain crimes. But while the progressive-prosecutor movement has gained momentum at the state and county levels, it hasn’t gotten any traction in the federal system.
Mr. Garland will be able to change this by disrupting the culture of detention that pervades the ranks of federal prosecutors and, to some degree, the federal judiciary. During his time as chief judge of the U.S. Court of Appeals for the District of Columbia Circuit, Mr. Garland was a member of the Judicial Conference of the United States, the main policymaking organization for the federal bench. Since 2017, the Judicial Conference has repeatedly called on Congress to reform the federal bail law by eliminating what is known as the “presumption of detention” for many drug cases.
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