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| Derick Dailey |
For example, the DOJ is prosecuting over 700 individuals involved in the Jan. 6 insurrection; investigating several major local police departments[2] and state prison systems[3] for possible civil rights violations; and has secured billions of dollars[4] for victims due to health care fraud.
But Biden is falling short in an area of critical import: confirming top federal prosecutors across the country.
Indeed, as of this writing, Biden has nominated less than half of the 93 U.S. attorneys across the country. And of Biden's nominations, only 31 have been confirmed.
In other words, two-thirds of the U.S. attorneys currently serving in jurisdictions across the country are either serving in an acting or interim capacity, and in many cases, are prosecutors appointed by former President Donald Trump.
This is especially worrisome in Black communities, where reform is desperately needed, because Trump appointees are largely from a homogenous pool of racial and professional backgrounds that historically comprise the status quo in U.S. attorney's offices. And the status quo has produced a criminal legal regime that disproportionately affects the Black community.
It must be said that, despite Biden's slow-moving nomination and confirmation process, he has made historic U.S. attorney picks that reflect his administration's commitment to equity and diversity, including Rachael Rollins, the first Black female U.S. attorney in Boston,[5] and Damian Williams, the first Black U.S. attorney in Manhattan,[6] among others.
Nevertheless, given the stakes for Black communities, it is imperative that Biden accelerate his selections.
While there are likely multiple reasons for the delay in nominations and confirmations, such as layers of government bureaucracy that govern the process, lengthy background checks, political gridlock and arcane U.S. Senate rules that permit one senator to single-handedly delay a nominee's confirmation hearing, the delay is partly a result of a lack of public awareness about the vital role that U.S. attorneys play in the criminal legal system.
As a result, there is a lack of public pressure on the president and Congress to move quickly in filling these roles.
Unlike judicial nominations, where conservative and progressive groups like the Federalist Society[7] and Demand Justice[8] spend millions of dollars to influence lawmakers to appoint certain judges, there are few organizations that do the same for U.S. attorneys.
Raising awareness and applying public pressure can make the difference.
In nominating and working to confirm U.S. attorneys, Biden must act with alacrity for several principal reasons.
First, U.S. attorneys are vital to fulfilling Biden's commitment to restoring honor, integrity and independence to the DOJ.
With broad legal authority in their respective jurisdictions, U.S. attorneys open criminal and civil rights investigations, seek felony indictments, make plea offers, issue subpoenas and recommend prison time in criminal matters.
While Attorney General Merrick Garland and senior DOJ leadership set the DOJ's priorities, functionally, it falls to U.S. attorneys to operationalize those priorities.
To be clear, although U.S. attorney's offices continue to function on a daily basis with acting and interim U.S. attorneys, it is critical that U.S. attorneys be confirmed to garner increased buy-in from the community they serve and the courts.
Additionally, confirmed U.S. attorneys are vital to ensure that the president's policy priorities are advanced.
For Biden, this means U.S. attorneys who will actively pursue civil rights investigations, increased police accountability and transparency; prosecute human traffickers and white collar fraudsters; and support reentry efforts, to name just a few.
Second, with their broad authority, prosecutors have the potential to transform the criminal legal system into a more just system — answering a decadeslong cry for reform from activists, scholars and the Black community.
As argued by professor John Pfaff in his 2017 book "Locked In,"[9] a prosecutor's behavior is one of the most significant contributors to mass incarceration in the U.S.
U.S. attorneys who are committed to decarceration and reform can alter their offices' charging processes and make different charging and plea decisions that will not result in jail time for certain low-level infractions.
Doing so would aid the DOJ in reducing the number of people held in the federal criminal system.
Third, and relatedly, U.S. attorneys — in contrast to officials like Garland and other top DOJ leaders — are more proximate to the communities they serve.
That is to say, U.S. attorneys are the face of the DOJ in their communities, and shape how the community perceives the DOJ and its work.
Indeed, U.S. attorneys work daily with local law enforcement and public defenders, attend community events, and work directly with local nonprofit organizations to ensure successful reentry and combat recidivism.
Thus, no matter how forward-thinking or reform-minded top DOJ officials are, it falls to the day-to-day work of U.S. attorneys and their offices to ensure that the DOJ operates with honor, integrity and independence.
Finally, U.S. attorneys have unfettered discretion in hiring assistant U.S. attorneys — a role in which I once served. Assistant U.S. attorneys do the heavy lifting in U.S. attorney's offices and execute the day-to-day work.
Hiring assistant U.S. attorneys from diverse backgrounds can play an important role in addressing issues of bias that affect charging decisions within the DOJ, and the long-standing mistrust between communities of color and the DOJ.
Critically, assistant U.S. attorneys that come from the communities they serve, look like the communities they serve, and share similar lived experiences with those they serve will prove invaluable to how assistant U.S. attorneys perform their job.
In addition, assistant U.S. attorneys from diverse backgrounds may be perceived by the community as trustworthy, legitimate and relatable.
These perceptions are extremely important to working with community members to address community challenges.
As a Black prosecutor, I saw firsthand how a prosecutor's identity can be an asset.
U.S. attorneys play an important role in transforming the criminal legal system. They execute the DOJ's policy agenda, are most proximate to the communities they serve, and singularly hire assistant U.S. attorneys who carry out the DOJ's priorities.
For these reasons, Biden must move more quickly to nominate federal prosecutors. In so doing, the president must continue to prioritize diverse nominees with a record of service in their communities.
Derick D. Dailey is an associate at Davis + Gilbert LLP and a former assistant U.S. attorney in the District of Delaware.
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] https://www.c-span.org/video/?507789-1/biden-justice-department-nominees.
[2] https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2021/05/03/the-feds-are-investigating-local-police-departments-again-heres-what-to-expect.
[3] https://www.justice.gov/opa/pr/justice-department-announces-investigation-conditions-georgia-prisons.
[4] https://www.justice.gov/opa/pr/justice-department-s-false-claims-act-settlements-and-judgments-exceed-56-billion-fiscal-year.
[5] https://www.justice.gov/usao-ma/pr/rachael-s-rollins-confirmed-united-states-attorney-district-massachusetts.
[6] https://www.justice.gov/usao-sdny/meet-us-attorney#:~:text=Damian%20Williams%20is%20the%20United,enforcement%20officer%20for%20the%20District.
[7] https://fedsoc.org/.
[8] https://demandjustice.org/.
[9] https://www.basicbooks.com/titles/john-pfaff/locked-in/9780465096916/.