Merrick Garland Can Transform the Department of Justice. Will He?
When President Biden’s nominee for U.S. attorney general Merrick Garland begins his confirmation hearing before the Senate Judiciary Committee on Monday, the U.S. government will reach a critical inflection point. Following four years of failed policies at the Department of Justice under the leadership of Jeff Sessions and William Barr, Garland has the opportunity — and the mandate — to restore civil rights and civil liberties left in tatters by the Trump administration.
But reversing Trump’s policies is not enough. Garland must use the massive power of the Justice Department to show America that nobody is above the law, and take advantage of his department’s responsibility to enforce federal civil rights laws, advance racial equity, protect immigrants’ due process rights, and ensure justice and integrity in the federal criminal legal system. Centering racial justice is a key ACLU priority for the Biden administration and we urge the senators to press him on how he will advance racial justice principles at the DOJ.
Even getting to the starting line will require substantial work. Under the leadership of Sessions and Barr, the DOJ yielded to Trump’s worst impulses — gutting civil rights protections for LGBTQ people, attacking racial justice protesters, defending immoral policies like the Muslim ban and family separation, and rushing to carry out federal executions in the waning days of Trump’s presidency. To fix the damage and make progress on civil rights and civil liberties, Garland will need to act swiftly and boldly. He will need to stand strong for our best constitutional values, even as the Biden administration is already facing a vociferous backlash from those who supported his predecessors’ policies.
As he faces confirmation in the U.S. Senate, Garland must make clear if he intends to be an attorney general who is willing to make needed changes so that justice and equality are a lived reality for all of us, including marginalized communities who have historically borne the brunt of failed Justice Department policies. We urge the Senate to press Garland on the following:
CRIMINAL LEGAL SYSTEM
Americans almost universally agree: The criminal legal system needs a major overhaul. Beginning with his confirmation hearing, Garland should commit to the American people that he will work for genuine justice and not just prosecution wins.
As attorney general, Garland will have the power to set the stage for criminal legal reform over the next four years, both as our nation’s top federal prosecutor and, through his Civil Rights Division, by holding the police accountable around the country. It is time for critical reforms, including an enhanced use of force standard, charging and sentencing reform that includes an end to mandatory minimums, an end to the federal death penalty, continuing progress toward ending draconian and harmful drug enforcement policies, and working with President Biden to use his clemency power to achieve systemic justice and commute sentences of people on federal death row. Senators should press Garland on what steps he will take to ensure these reforms are prioritized and realized throughout the federal government.
One major step Garland can take is to get police out of schools. Data shows that police presence does not make schools safer; to the contrary, it can lead to disproportionate arrests of students of color and students with disabilities. Under the Justice Department’s Office of Community Oriented Policing Services, the federal government has distributed millions of dollars in grants that pay for law enforcement presence in schools, even while millions of students attend schools without counselors, psychologists, nurses, or social workers. If the Biden administration is serious about racial equity, it must shut off the school-to-prison pipeline. The federal government should instead provide equal educational opportunities for students in schools with the greatest need.
Additionally, we urge Garland to commit to ending the tragic use of police force on people with psychiatric disabilities. Nearly a quarter of the people killed by police nationwide are in a mental health crisis, and another 25 percent are people with other types of disabilities. This falls especially hard on communities of color, where the intersection of race and disabilities leads to even higher rates of killings at the hands of police. Many police chiefs agree — law enforcement officers are not the right people to respond to someone in a mental health crisis.
Yet, in every state in the country, if someone has a psychiatric emergency, police with guns respond, often escalating the situation instead of defusing it. American communities need mental health professionals to provide emergency response, stabilization, and referral for people in psychiatric crises, just as we have first responders to help people in medical crises. The data shows that police officers and the use of deadly force are not effective ways to respond to people in psychiatric crises Sending the right professionals will prevent unnecessary deaths at the hands of police. This is good for policing and good for communities.
We also urge Garland to commit to revising the DOJ Guidance on the Use of Race By Federal Law Enforcement Agencies to close loopholes exempting national security and the border from general prohibitions against bias-based profiling. While that guidance recognizes that biased policing is unacceptable, federal agencies within the DOJ and the Department of Homeland Security successfully lobbied for exemptions for law enforcement activity related to national security or border integrity. Those loopholes open the door for the FBI, TSA, Customs and Border Protection to profile members of racial, ethnic, religious, and other marginalized communities. They also permit the FBI to continue its well-documented practice of surveilling and targeting Muslims and people of color — including intelligence gathering nationwide on so-called “Black Identity Extremists,” a deeply flawed and inflammatory label that the FBI has used to scrutinize Black political activists. It is well past time to close these unfair and unjust loopholes.
These are just a few steps Garland can commit to in his confirmation hearing, and senators must press him on where he stands on these issues and what his priorities will be for the next four years.
FREEDOM OF THE PRESS
The free press faced unprecedented attacks under the Trump administration, from Trump calling the press the “enemy of the people” to federal officials targeting journalists at racial justice protests last year. The freedom of the press is fundamental to American democracy, and senators questioning Garland should ask if he will defend freedom of expression and freedom of the press. This includes asking whether he would support a federal journalists’ shield law and if he agrees with Attorney General Holder’s conclusion that whether or not one considers Julian Assange a “journalist,” there is no way to prosecute him for publishing classified information without opening the door to similar prosecutions of important investigative journalism.
The attorney general has the power to help carry out President Biden’s promised overhaul of the U.S. immigration system, and Garland will be a critical actor in restoring basic human rights and dignity in the enforcement of immigration laws. The attorney general oversees the immigration courts and the Board of Immigration Appeals, and the Justice Department lawyers responsible for litigating immigration cases in the federal courts. Even as Biden launches an immigration reform bill in a closely divided Congress, Garland could be an important advocate in the broad arena where the Executive Branch carries out immigraiton laws.
We need to know what Garland’s priorities will be for the Justice Department’s role in immigration reform in the first 100 days and beyond. His department will play a critical role, along with the Department of Homeland Security, in repairing the damage caused by the Trump administration. This includes, at a minimum, investigating the cruel Trump administration family separation policy that led to thousands of children being separated from their parents at the Southern border and the forced hysterectomies of immigrants detained in ICE detention. Garland should also commit to rescinding and replacing his predecessors’ opinions that attempted to rig the asylum rules against people fleeing persecution in Central America and elsewhere; providing appointed counsel to immigrants in immigration courts; drastically reducing federal prosecutions for illegal entry, which was a cornerstone of Trump’s family separation policy; and ending Trump’s crackdown on “sanctuary cities.”
Judge Garland’s record as a judge doesn’t include many cases related to LGBTQ rights, but the Justice Department will have an important role to play in reinstating civil rights protections for LGBTQ people and ensuring transgender people have equal access to health care, sports, and other accommodations.
With a more conservative Supreme Court and attacks on transgender rights in state legislatures, the Justice Department has the power to pursue lawsuits against states that violate civil rights protections and withhold federal funding from jurisdictions that threaten LGBTQ rights. Senators should press Garland on how and when he will pursue civil rights investigations to protect the rights of LGBTQ people and whether he will withdraw briefs filed by the Trump administration in lawsuits that aim to restrict LGBTQ rights.
PRIVACY AND TECHNOLOGY
The Justice Department has a duty to protect our privacy and civil rights in the digital age from flawed, dangerous surveillance technologies. Numerous states and localities have already taken a stand against dangerous facial recognition surveillance, which has proved to be biased against women and people of color, by passing moratoria on its use in schools and by law enforcement. The DOJ must follow their lead by instituting a moratorium on its use, barring state and local governments from using federal funds to purchase and use the technology, and support legislation that would codify restrictions on the technology.
Surveillance is an issue that extends far beyond facial recognition. The U.S. government under the last few administrations has attempted to create a backdoor to bypass encryption on devices, purchased cell phone location data from private companies without a warrant, and used Section 702 of the Foreign Intelligence Surveillance Act to collect vast amounts of data on Americans — often unfairly targeting people of minority faiths, communities of color, and those engaged in dissent.
The Justice Department has a history of doling out federal grants to municipalities for the purchase of surveillance equipment to be used against the communities they are sworn to serve. Garland has the power to condition the use of those federal monies on local public hearings for community input, and approval by the city council or other local legislative body.
Senators should push Garland to commit to opposing any bill that would permit a backdoor to encryption, transparently disclose when the government has used cell phone location data without a warrant and immediately cease the practice, and rein in the FBI’s expansive surveillance authority. Americans have a right to privacy, and the Justice Department needs to recognize this and work to undo decades of erosion to our Fourth Amendment rights.
Under the Trump administration, the Justice Department promoted a distorted view of religious freedom that was rooted in bigotry against minority faiths and atheists and embraced an official preference for Christianity. Former Attorney General Bill Barr proclaimed that free government is “only suitable and sustainable for a religious people,” and suggested that those who don’t subscribe to “Christian morality” are “foes” of democracy. He railed against non-theists, accusing them of being immoral and plotting the “organized destruction” of religion. The DOJ repeatedly staked out positions that treated religious freedom as a license to discriminate against and harm others, including in its 2017 religious-liberty guidance. No more.
As attorney general, Merrick Garland must emphatically recommit the Justice Department to advancing religious freedom for all people. That means not only protecting the religious liberty rights of majority and minority faiths alike, but also respecting and promoting the separation of government and religion at every turn, including in DOJ legal briefs, regulations, guidance, and other policies. Garland must further affirm that DOJ will reject efforts to use religion to discriminate and deny others their rights. And he should pledge to rescind harmful Trump-era DOJ policies that promote these ideologies, which run afoul of the Constitution and our nation’s historical commitment to religious liberty and equality.
The U.S. saw an explosion of voter turnout in the 2020 election, driven by expanded access to vote by mail, early in person voting, and same-day voter registration. Since then, however, states have taken steps to limit voting by mail and have implemented other onerous voting restrictions that disproportionately harm Black and Brown voters.
Garland’s record on voting rights shows he could be a leader within the Biden administration in enforcing the Voting Rights Act. In 2012, Garland joined a per curiam opinion holding that Florida’s attempt to reduce early voting and force Floridians who move counties to reregister to vote violated Section 5 of the act.
The Justice Department will also play a critical role in making sure that states do not impose restrictions that violate the Voting Rights Act. In light of the Supreme Court’s 2013 decision in Shelby County v. Holder, which gutted the Voting Rights Act, senators should press Garland on whether he supports legislative efforts to expand the right to vote such as the John Lewis Voting Rights Advancement Act.
Senators should also ask Garland whether the Justice Department will outline a clear plan to vigorously enforce federal voting rights laws and to combat the recent wave of state and local voter suppression efforts, especially those targeting racial and language minorities and voters with disabilities, and to ensure that new redistricting plans throughout the country comply with the Voting Rights Act. The voting rights enforcement plan should include action to enlist U.S. attorneys to assist in investigating voting rights violations and enforcing the law, and to ensure all eligible voters in U.S. Marshals Service and Bureau of Prisons custody are able to register and exercise their right to vote — and receive voter registration assistance as part of their exit from federal custody.
Garland’s voting record on the D.C. Circuit also suggests senators should press him on where he stands on issues of representation, including D.C. statehood. In 2000, Garland ruled in a landmark case that D.C. residents do not have a constitutional right to congressional voting representation because D.C. is not a state, a decision affirmed by the Supreme Court. This decision led D.C. congressional delegate and former ACLU assistant legal director Eleanor Holmes Norton to hold her applause when President Obama announced Garland as his nominee for the Supreme Court in 2016.
D.C. statehood is a racial justice issue, and we need to know if Garland will support or stand in the way of full congressional representation for the nearly 700,000 D.C. residents.
Merrick Garland must prove to the U.S. Senate and the American people that he takes civil rights and civil liberties seriously — and commit to protecting them. By the end of his confirmation hearing, we should understand his positions on these key issues.