EDITOR’S NOTE: This blog was updated on January 15, 2021 to add commutations for people on death row. The ACLU made this addition once the Trump administration could no longer execute these individuals in response to a commutation request. 

Millions of people took to the streets this year demanding racial justice and an end to racism in policing and the criminal legal system more broadly. On Election Day, voters provided their own stamp of approval by passing ballot measures in red and blue states alike to reform drug policy and other laws that have led to our mass incarceration crisis. Prosecutors and sheriffs committed to tackling mass incarceration won elections from Florida and Michigan to Texas and California.

In fact, it is fair to say that a future Biden-Harris administration has a mandate to fight against mass incarceration. An Associated Press poll from June found that 94 percent of Americans believe that the criminal justice system needs to change — including a large majority of Republicans — and 69 percent of Americans support major changes or a complete overhaul of the system.  

President-elect Biden and Vice President-elect Harris have already indicated that they will make racial justice a priority in their administration, including by reforming the criminal legal system. This is welcomed. The ACLU believes that now is the moment for bold action to tackle this crisis. The U.S. leads the world in incarceration and in police violence. Now is the time for visionary steps to end mass incarceration. 

Here is our top to-do list for the first 100 days:

End the War on Drugs

A Biden-Harris administration should issue an executive order declaring an end to the war on drugs, directing federal prosecutors to no longer pursue drug cases, commuting the sentences of people serving time for drug-related cases, and pardoning people with past criminal convictions for drug-related offenses. Moreover, the administration should support reform bills like the MORE Act, which would remove marijuana from the list of scheduled substances, expunge many past convictions and arrests, and support racial justice efforts.

Grant Mass Clemency
 
The Executive has complete authority to grant clemency or demand the initiation of a mass clemency process, either of which President-elect Joe Biden could do in his first 100 days in office. Doing so would show he is serious about ending this country’s mass incarceration crisis and addressing the harms caused — disproportionately against Black and Brown people — by the 1994 crime bill and other failed “tough on crime” policies. There are tens of thousands of people who could be released within the first 100 days, by granting categorical clemency to the following groups: 

1. People who would serve a lesser sentence than they are currently serving if convicted under current laws;
2. People convicted of drug offenses;
3. People incarcerated for technical probation or parole violations; and
4. Older incarcerated people.

And for everyone who is granted clemency, it is incumbent on leaders across the federal government and in local communities to thoughtfully and holistically support people leaving prison. 

Embrace Use of Force Standard

An important first step in reining in police use of force is to set clear national standards, requiring all police departments to adhere to common-sense limitations and best practices based on principles of necessity, proportionality, and de-escalation. Notably, research has found that when police departments adopt such policies, they not only kill fewer people, but also suffer fewer officer deaths in the line of duty.

President-elect Biden has already identified the creation of a national, model use-of-force standard as one of his racial equity priorities. It’s important that this use-of-force standard truly conforms to the best practices in the field by embracing the principles set forth in the PEACE Act, which permit officers to use force only when necessary, proportional, and less extreme alternatives are exhausted.

Dramatically Reduce Pretrial Detention

The federal system, which rarely uses cash bail, should be a model for states and localities. But the federal pretrial detention rate is an appalling 75 percent. The Biden-Harris DOJ must seek detention for only the most extreme cases and aim for a pretrial detention rate no higher than 5 percent, instruct prosecutors to make charging decisions that avoid presumptions of detention, and invest in supportive services — such as transportation and child care assistance to make it easier for people to attend their court dates — instead of bias-enforcing risk assessment tools that do not address the underlying problems. The administration should also support legislation to eliminate presumptions of detention, which violate the basic tenant that people are innocent until proven guilty.

In encouraging local reform, the administration should align with these same principles and focus on funding evidence-based support rather than discriminatory algorithms or onerous conditions.

End Private Prisons
 
Criminal justice policy should be driven by public safety needs, not by the greed of private corporations. But more than 100,000 people in the United States are incarcerated in private prisons, where profit-seeking takes priority over safety, security, and rehabilitation. In 2016, the Obama administration announced that it would end the use of private prisons by the federal Bureau of Prisons, but that order was reversed in the early days of the Trump administration.  The Biden administration should end the use of private prisons by the Bureau of Prisons, the U.S. Marshals Service, and all other federal agencies.   

End the Federal Death Penalty

The federal death penalty is plagued by racial bias, geographic arbitrariness, and unfairness — just like the death penalty in the states. The Biden-Harris administration must honor its pledge to work toward federal legislation to end the federal death penalty. The Trump administration recklessly carried out an unprecedented number of federal executions, all during the pandemic, leading to spikes in COVID-19 cases and subjecting staff, witnesses, loved ones of the victims, and people incarcerated in federal prisons alike to escalated risk of the disease. The Biden-Harris administration should immediately suspend all federal executions while it works to end the federal death penalty once and for all. As they work towards that end, they must commute all federal death sentences and drop the death penalty in all pending trial cases. 
 
End Solitary Confinement
 
The United States is the world’s leader in solitary confinement, with tens of thousands of men, women, and children locked in isolation on any given day. Although international human rights standards require that solitary confinement be used only as a last resort and for no more than 15 days, it’s common for people in U.S. prisons to be isolated for months, years, and even decades. The Obama administration enacted limited reforms at the federal level, but much more needs to be done. The Biden administration should ban solitary confinement lasting longer than 15 days for people in federal custody, and create incentives for states and localities to do the same.  

I was in the middle of reciting Ya Seen, the 36th chapter of the Quran, when the executioner signaled to me that was enough. It was time to kill Orlando Hall. Across a strip of tape dividing us, Orlando received a shot of lethal injection before I could finish the verse’s final, essential line. “So glory be to Him in whose hand is the dominion of everything, and to Him you will be returned.”

Orlando lost consciousness while reciting the Shahada, as I, his spiritual advisor, had instructed him.

The execution of Orlando Hall on Nov. 19 was the first I had ever witnessed. As a business professor at Indiana University, I never thought I’d ever be in that position, nor did I expect to become a spiritual advisor to a man on death row. What struck me in the execution chamber was how surreal it felt. It almost looked like a hospital. Orlando lay on the gurney as if awaiting surgery, with tubes attached to his arm like an IV. A blanket lay over him, concealing the straps that held him down. The facade seemed deliberate. But unlike doctors in an operating room, the executioners — standing just four feet away from me — wore no masks.

The Bureau of Prisons had posted signs throughout the facility advising COVID-19 safety measures such as wearing masks, washing hands, and keeping six feet apart. They had also suspended visitation since March in an effort to curb the spread of the virus. But executions, despite being potential super-spreader events, continue.

Shortly after the execution, I tested positive for COVID-19. I was not surprised. I knew when I went to Orlando’s execution that I was stepping into a high-risk environment. Prisons are petri dishes for COVID-19, and executions only add to the risk because they draw hundreds of people who travel from across the country, including correctional and Department of Justice staff, family members of the victim and the accused, lawyers, and press. The prison where all federal executions take place, FCC Terre Haute, was already experiencing an outbreak when the Justice Department resumed federal executions last summer, and there was a spike in cases in the surrounding community of Terre Haute, Indiana, after the first executions in July.

The decision of whether to attend an execution isn’t always simple. Some attendees are correctional staff just doing their jobs. Others may feel obligated if they are friends or family members of the victim or the accused. Spiritual advisors like myself attend at the request of the person being executed, to perform rituals and bring comfort as they leave this world. When Orlando asked me to stand at his deathbed at his moment of death, conduct the rites of passage and bring him comfort through our faith, I could not deny him; I could not say no to a man who would soon be killed. The tenants of my faith demanded as much. Helping him was more important than the risk to myself

I certainly never expected to find myself in the position I was in. In Islam we have no clergy, so I don’t hold an official position or title that would justify such a heavy task. I learned about Orlando when a local Unitarian minister reached out to our community’s listserv, in search of somebody to fill the role of spiritual advisor at Orlando’s request. I agreed to meet with him to give some spiritual guidance in his final days. Together we discussed Islamic funeral rites, and I translated verses from the Quran to make sure he understood the words he would recite at the moment of his death. It was information I already knew from years of study. But there was no way to prepare for what I actually experienced on the day of the execution.

On the morning of Nov. 19, hours before his execution, I met with Orlando one last time. The next time I saw him, he was strapped to a gurney. The many hours in between were spent going through the prison’s cumbersome standard processes for executions, most of which did not seem to take the virus into account. First, I was transported to the execution chamber in a packed van, along with Orlando’s family members. We were not even permitted to open the windows. When we reached the death row unit, we were seated in a small waiting area while officers processed us one by one, using body scanners, metal detectors, and hand wands.

Once the security screening was over, they put us back in the van and drove us to another building, where we waited in another small, crowded, windowless room until about 10:30 p.m., when they took me to the execution chamber. There, I was shuffled from room to room by staff, including some who wore their masks below their noses. There were signs throughout the prison that masks were mandatory, but I did not see anyone enforcing this rule.

The execution itself took only a matter of minutes. I stood in the chamber — a tiny 10 by 12-foot space — with Orlando, an official, and two unmasked executioners. A strip of tape on the floor marked the line I could not cross, two feet away from Orlando’s gurney. When it was time, I began to recite the customary verse we had discussed that morning, meant to bring comfort to the dying. But the executioner cut me off. They administered the shot of pentobarbital, and I watched Orlando recite the Shahada and tell his family that he loved them, and that it would be OK, until he lost consciousness.

After Orlando was pronounced dead, I started to pray over his body, as I had been given permission to do, but almost immediately the unmasked executioner interrupted me and told me to stop praying.

It was difficult to grasp the reality of what had just happened. On the gurney just a few feet away from me, a man I had spoken to that morning was suddenly gone. The execution process was so ritualistic and medicalized, full of rules and protocol. And worst of all, I didn’t feel like I was just a witness — I felt like an accomplice. I was one part of an elaborate machine designed to take a life.

That I contracted COVID-19 in the process was collateral damage. I tested positive on Nov. 27, and I am certain that I contracted it during the execution. I closely followed social distancing guidelines in my day to day life. I even drove back and forth from Bloomington to Terre Haute by myself to and from the execution and the funeral home, instead of staying at a hotel or with friends and risking exposure. My only risk of exposure was the day of the execution, when I was shuffled back and forth from packed vans to crowded rooms, and stood in the death chamber only feet away from unmasked executioners. Thankfully, I am mostly asymptomatic so far. Not everybody will be so lucky.

To date, more than 274,000 Americans have died due to COVID-19. There is no reason to put more people in danger just to kill one person. But the government is still scheduling more executions for December and January — during our second wave of the virus. These executions are a sad reminder of how the criminal legal system dehumanizes the people it touches, especially during a pandemic. So many people are dying already. Why add more death?

Over the past four years, the Trump administration has gone out of its way to launch attacks on women — including in housing, the workplace, and schools. When President-elect Biden and Vice President-elect Harris take office, their administration and Congress must make it a top priority to not just undo the damage, but to push forward an agenda that will ensure everyone has the freedom to live, work, learn, and serve free from discrimination based on sex.

Here are just a few of the many items that should top the Biden administration’s to-do list: 

Assure safe and stable housing for women and families.

The COVID-19 pandemic has put as many as 40 million people in this country at risk of eviction. This is both a racial justice and gender justice issue: Black women face eviction at twice the rate of white renters. And, once a family has been evicted, the devastating harms can follow them for years, exacerbating and reproducing conditions of economic inequality and preventing families from securing stable housing anywhere else. 

Thankfully, the next administration can take concrete steps to ensure all people have access to safe and stable housing during the pandemic and beyond: 

• The Centers for Disease Control and Prevention should extend and expand its eviction moratorium — currently set to expire on Dec. 31 — until Congress passes comprehensive relief. That must include measures such as rent relief that will allow families to remain stably housed, avoid debilitating amounts of back rent, and prevent the long-lasting harms of eviction. The Biden administration also can take action to address how prior eviction filings stop applicants from obtaining new housing, often for years, and advocate for the right to counsel for tenants, who usually are unrepresented in eviction cases.
• With reports that landlords are subjecting tenants to sexual harassment at alarming rates during the pandemic, the administration should require housing providers that receive federal funds take steps to stop this abuse by adopting policies to inform tenants of their rights. It should also support reauthorization of the Violence Against Women Act, which — among other protections — would block local governments from adopting measures that allow eviction of  residents simply because they call 911, allowing survivors of gender-based violence to remain in their homes.
• The incoming administration must also restore tools needed to dismantle residential segregation that lock out women, people of color and children from housing opportunities. The 2015 Affirmatively Furthering Fair Housing (AFFH) rule was one important step in this direction, but the Trump administration gutted the rule before it could be effectively implemented. Similarly, the Trump-led Department of Housing and Urban Development rolled back a 2013 Disparate Impact rule protecting people harmed by policies that disproportionately injure women, people of color, and other marginalized groups who have historically faced barriers to housing. Reinstating both rules will lay a legal foundation for fair housing for all.

Remove barriers to workplace equality for women.

The COVID-19 pandemic has put women at the center of the most unequal recession in modern American history; more than 2 million women have left the workforce since January 2020, with Black women and other women of color hit the hardest. As we plan a path toward recovery, it’s more critical than ever to ensure women have equal access to opportunities on the job. In addition to any pandemic recovery plans, the next administration must prioritize and call on Congress to pass these critical measures:

• Pregnant Workers Fairness Act, to protect workers who need temporary job modifications during their pregnancies, so that they won’t have to choose between their paycheck and having a healthy pregnancy. 
• BE HEARD in the Workplace Act, to make the promise of the #MeToo revolution a reality, and create workplaces free of harassment in all its forms.
• PUMP (Proving Urgent Maternal Protections) for Nursing Mothers Act, to make sure workers who need to pump on the job can do so safely, and without penalty.

In addition to fighting for these new protections, the Biden-Harris administration can help make existing protections a reality, through robust enforcement of civil rights and labor laws by government agencies. That includes holding corporations accountable for sexual harassment and other forms of discrimination and unfair labor practices by franchises, contractors, and others.

Eliminate sexual harassment and assault in our nation’s schools.

Sexual harassment and assault have no place in our schools, yet over a quarter of women endure sexual assault during their college years and more than half face harassment in junior high or high school. Instead of strengthening protections for these students, whose education can be derailed as a result, Education Secretary Betsy DeVos dramatically reduced schools’ obligations to respond to sexual harassment and assault at all. Thankfully, President-elect Joe Biden has already said his administration will withdraw DeVos’s damaging double standard, which allows schools to ignore reports of harassment based on sex where similar reports based on race, national origin, or religion would require an appropriate response. The Education Department must not only rescind the DeVos double standard, but replace it with strong protections against sexual harassment and fair processes for all students.

Ensure military opportunities are open to all regardless of sex.

The Biden administration should end the Department of Defense’s biased policies that harm women who want to serve in combat, including sex-segregated Marine Corps boot camp and refusing to assign junior female Army soldiers and Marines to combat units unless and until senior women officers are installed there, too.