By: Miles DeCoster

It’s no secret that the U.S. criminal justice system has problems. For starters, the U.S. has the highest incarceration rate of any country in the world, outperforming even largely authoritarian governments like Rwanda, Turkmenistan, and Iran.  The situation looks even worse when compared to other democratic nations like the U.K., Canada, and Japan, where the U.S. locks up nearly 7x as many people per 100,000. The concern with prisons is not only about the number of people incarcerated, but also the treatment of those prisoners. The ACLU has consistently filed lawsuits against U.S. prisons claiming some sort of cruel, inhuman, or degrading conditions for prisoners since the mid-2000s. In 2012, the U.S. Supreme court lent support to the ACLU’s concerns in California when it described the situation in the state’s prisons as a “crisis” that “deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity.”

Outside the prisons, there are growing concerns surrounding the use of excessive force by police officers.  Reliable data is hard to come by for the number of incidents in which a person is killed or seriously injured by a police officer, but as recently as 2012, 426 felons were killed by police officers.  Recent high profile cases have also highlighted the fact that a disproportionate number of those killed by police officers are young black men.

Major contributions to the prison issues can be traced to the “tough on crime” laws that started in the late 1980s. The Anti-Drug Abuse Act of 1986 set lengthy mandatory minimums for a variety of drug offenses, including mere possession. Notably, the act created severe sentencing disparities between crack cocaine and powder cocaine offenses—as high as 100-to-1 for distribution. Eight years later, the Violent Crime Control and Enforcement Act of 1994 attempted to address some of the issues arising from the high mandatory minimums for drug offenses by providing more funding for drug treatment programs. However, the 1994 Act also provided lengthier sentences for certain types of violent felonies, authorized prosecuting offenders as young as thirteen as adults for committing certain violent felonies, and instituted a “three-strikes” law that mandated life imprisonment for federal offenders who committed three or more violent felonies or serious drug offenses. By 1995, 24 states had passed some variation of the “three-strikes” law.

It’s not all bad news, though. Politicians are reacting and have made criminal justice reform a central topic for the upcoming Presidential election. Senators Joe Biden, Kamala Harris, Bernie Sanders, and Elizabeth Warren have all released comprehensive criminal justice reform platforms that seek to build on the modest reforms begun under the Obama administration and culminating most recently with the passage of the First Step Act. With so many competing platforms it’s worth breaking down where the major candidates agree and where they differ.


Where Democratic Candidates Agree

All four of the candidates generally agree on the following:

  1. Reducing or eliminating federal reliance on private prisons due to concerns about relative operation costs compared to government-run prisons and the effectiveness of rehabilitation services.
  2. Abolishing the federal death penalty and urging states to abolish as well.
  3. Eliminating or reducing the sentencing disparity between crack cocaine and powder cocaine due to the disproportionate effect it has on black Americans.
  4. Reforming or eliminating the cash bail system due to its disproportionate impact on low-income defendants.
  5. Expanding the mandatory minimum sentencing reform enabled by the First Step Act.
  6. Decriminalizing marijuana.

Though the candidates agree that the U.S. criminal justice system is suffering from a variety of problems, each candidate has differing ideas about how best to fix those problems.


Where They Differ

Once a champion of “tough on crime,” Senator Biden appears to have softened his stance. Biden probably has the most modest reform plan, but there are some distinguishing features. Biden has specifically mentioned using the President’s clemency power to reduce unjustifiably long sentences and has pledged to provide substantial financial support to the Community Oriented Police Servicing program. That program, now decades old, was created to increase the number of police officers patrolling the streets and with foster relationships between law enforcement and community-based organizations.

Senator Harris has a similar complicated past with criminal justice reform. But, the “progressive prosecutor” has a clear focus on providing greater federal oversight and investigation of both prisons and law enforcement. Some highlights include: establishing a national standard for when deadly force may be used by police officers; creating a National Police Systems Review Board that would collect data on officer misconduct and issue recommendations on how to reduce misconduct; doubling the sizing the of Civil Rights division of the Department of Justice; providing more support to public defenders; and forming a National Criminal Justice Commission tasked with studying and improving the criminal justice system—especially with respect to preventing violent criminal from re-offending.

Elizabeth Warren has been a senator since 2012, but before her political career, she was a distinguished law professor at several prestigious institutions, including Harvard. It is therefore unsurprising that she has a comprehensive and nuanced plan for criminal justice reform. Her plan has lots of moving parts but what stands out is her specific emphasis on reducing homelessness, channeling offenders with mental health issues to treatment centers rather than prisons, reducing the number and cost of  pre-trial fees, restricting the qualified immunity exemption for law enforcement officers, providing better support to public defenders, and creating a federal gun licensing system.

Never one to shy away from pursuing progressive reforms, Bernie Sanders has also provided a comprehensive plan for addressing criminal justice issues.  Senator Sanders’ plan has much in common with the plans of Senators Harris and Warren, but is notable for requiring police officer training on various types of implicit bias, tripling congressional spending on indigent defense, setting a minimum starting salary for public defenders, treating drug addiction rather than criminalizing it, banning the prosecution of children under the age of 18 as adults, ending solitary confinement for adult and juvenile offenders, providing a living wage for incarcerated laborers, and re-enfranchising felons who have had the right to vote taken away.


Implementation and Effectiveness

A lot can change in a couple decades, including politics. Being “tough on crime” is no longer a prerequisite for running for President, but is significant reform really just around the corner? Or, are the Presidential hopefuls’ bold proposals little more than a temporary balm to appease America’s conscience?

While the United States has a prison population larger than most of the EU nations combined, it is less clear how much the federal government can do to reduce that population. Obviously, there are federal prisons that house criminals convicted of breaking federal law, but it is the states that have traditionally been responsible for defining and enforcing criminal law—just ask the U.S. Supreme Court. The states’ authority in the realm of criminal law is reflected in the prison population data. Of the approximately 2.3 million people imprisoned in the U.S., 83% are in state or local facilities. Thus, if the democratic candidates are to have any hope of successfully addressing all the issues related to the sheer number of people incarcerated, the states must be on board with their proposals. That will not be an easy task. The President’s direct power is largely limited to the federal system, and that power is further limited by Congress’s control of the federal purse. Despite how good some of the candidate’s ideas look on paper, those ideas won’t affect any real change if Congress cannot be convinced to adopt those ideas and provide financial incentives to the states to adopt them as well.

Granted, some issues can largely be addressed at the federal level, like creating a federal gun registry or establishing federal oversight commissions. However, the main issues with the U.S. criminal justice system are rooted in the states. To address police use of excessive force, mandatory training on bias and mental health issues has to happen in state and local police departments, not just the U.S. Marshals. The same need for state involvement applies to providing better support and pay to public defenders, decriminalizing marijuana use, reigning in or eliminating the cash bail system, ending solitary confinement, reducing reliance on private prisons, etc.  Clearly, the candidates touting criminal justice reform need to think long and hard about how they are going to implement their ideas at the state level, but they should also think about whether some ideas would be impactful even with state implementation.

Every candidate’s plan contains popular, and seemingly logical, reform ideas that would likely fail to produce meaningful change.  Consider the proposals for reducing reliance on private prisons and decreasing or eliminating mandatory minimum sentences for non-violent drug offenders. There is widespread support for reducing or eliminating private prisons, but private prisons hold only about 8% of incarcerated people. Reducing mandatory minimums for non-violent drug offenders is also a popular proposal, but before the candidates start patting themselves on the back too vigorously they ought to consider that non-violent drug offenders make up just 1/5 of the prison population. Releasing non-violent drug users out of prison seems like a good idea, but it still leaves 80% of the prison population untouched.  Effective reform proposals should have broad support, but they also have to actually address the issues they are aimed at.

So, what is the takeaway? Democratic Presidential candidates appear to be taking criminal justice reform seriously in light of growing public concern around multiple criminal justice issues. Those candidates have floated some laudable plans for how to address the issues, but those plans will probably prove ineffectual without state support and a more critical eye towards actual results. Achieving meaningful criminal justice reform will take more than parading big ideas on the campaign trail. Real change is built on knowledge and effort, not hype. As the candidates continue to debate and the election cycle kicks into gear, candidates and voters need a deeper understanding of what is required to balance the scales of justice, now and after November 2020. Only then will the candidates be able to achieve the kind of reform they claim to seek.