A survey of the candidates’ views on criminal justice
‘We need to rethink our approach to public safety,” proclaims Elizabeth Warren, “transitioning away from a punitive system.” Given that prisons and jails are nothing if not punitive, it is incumbent on Warren to tell us just how she plans to deal with murderers, rapists, robbers, and other major offenders without punishing them. While you won’t find a good answer to that question, even in Warren’s comprehensive plan for criminal justice, her statement gives us a sense of the position on that issue of the Democratic presidential candidates — or at least most of them.
Warren, Sanders, and Buttigieg are not terribly interested in the traditional concern with reducing crime rates and protecting the public from criminal assaults (with the exception of female victims of rape and domestic violence). Rather, they would take steps to “reform” the criminal justice system — making it less punitive.
In a sense, this is understandable. The United States is still in a crime trough, with violent crime rates down 51 percent since 1991. When crime is low, pressures mount to reduce especially punitive measures, such as long prison sentences or the death penalty. Meanwhile, progressives are also motivated by the belief that the criminal-justice system is biased against African Americans, as a disproportionate number of them are in prisons and jails. Though blacks are roughly 13 percent of the United States population, they are 31 percent (see table 3 of the BJS report) of state prison inmates. (No one has convincingly demonstrated that this gap is the result of anything other than a disparity in crime rates, so the racism allegation is unsupported.)
The truth is that we are already in a period of retrenchment in criminal justice, a cutting back on arrests, prosecutions and incarceration. Imprisonment rates have fallen steadily since 2007, dropping by 15 percent. For African Americans the decline was 31 percent. The Democratic candidates for president have latched on to the cutback trend, some a lot more aggressively than others, whereas President Trump, to the extent that he takes a stance at all, has chosen a more traditional road, aiming at crime control rather than system reform.
The risk in the Democrats’ leniency approach is that it may fuel another crime wave, a long-term crime boom, such as the terrible ordeal the country endured from the late 1960s to the early 1990s. The weakening of the system (fewer arrests and imprisonments, shorter sentences) was a major factor in the late 60s rise in crime. On the other hand, however, past crime booms have had multiple causes in addition to a weak criminal-justice system, such as a rise in the young male population. So far at least, these other crime correlates are not currently present.
I’ll examine the central criminal-justice positions of the candidates in more detail momentarily, but first a word on impact and feasibility. Some of the Democratic proposals are minimalist. Take Amy Klobuchar’s plan to give the White House more control over federal clemency decisions and reduce the role of the Department of Justice. This will have very little impact on the criminal justice system. The president already has final and virtually absolute authority to reduce sentences — but only for federal prisoners, who are 12 percent of the U.S. prison population. If a President Klobuchar wanted to reduce some of these sentences, or even if she were to reduce thousands of them, as President Obama did in his final year in office, it would have no impact on the other 88 percent of the prison population. Furthermore, if she didn’t want to heed the advice of the Justice Department but rather preferred a White House advisor to counsel her on clemencies, that would be her prerogative. This proposal is basically a yawner; no one should get exercised about it one way or the other.
At the other end of the spectrum are the maximalist proposals, which would have a major impact on the system – were they attainable. A good example is Pete Buttigieg’s and Bernie Sanders’ endorsement of a 50 percent reduction in the number of people incarcerated in the United States. Such proposals are highly unlikely to garner enough public support to be enacted or, as is the case with some of the gun-control plans, will rouse the NRA and its supporters who would mobilize to block them.
Now for the proposals themselves. I’ll begin by analyzing some proposals that are advanced by multiple candidates. Then, I’ll turn to proposals that are unique to the individual candidates.
Where the Candidates Agree
Reducing incarceration. Pete Buttigieg and Bernie Sanders propose to reduce by 50 percent the number of people incarcerated in the United States at both the federal and state level. This would be quite the lift. If by “incarcerated” they mean every prison (as opposed to jail) inmate, they would have to persuade the states (responsible for 88 percent of 1.5 million prisoners) to reduce the sentences for some very serious crimes, eliminate mandatory minimum sentences, and maybe even sharply curtail the use of recidivism as a sentencing criterion.
Since over half of all state prisoners are in for murder, rape, robbery or assault, and another 14 percent were sentenced for burglary, major theft or fraud, public enthusiasm for leniency would be limited. The public will be even less enthusiastic when they come to understand that three out of four prison inmates are repeat offenders. Of course, there’s always the old left-wing standby of eliminating imprisonment for drug offenses, but drug possession accounts for only 3.5 percent of state prison populations. We’d have to free drug traffickers to downsize imprisonment a meaningful 11 percent.
If Buttigieg and Sanders were to include the jail population in their 50 percent solution (about 745,000 nationwide at any given point in time, but with very rapid and high turnover), they would have to find a way to reduce the number of arrests, perhaps by shrinking the size of police forces or curtailing arrests for quality-of-life offenses, such as aggressive panhandling or defacing public property. The most tempting option is bail reform by compelling local judges to release more defendants.
Bail reform. Bail reform is often billed as the antidote to discrimination against the poor, and Warren, Biden, and Sanders favor ending cash bail. Of course, nearly all street criminals — the vast bulk of offenders – are poor, and anything with a price tag hurts them more than the affluent. But that doesn’t make bail discriminatory. Discrimination depends on intent, and defendants aren’t admitted to bail because they’re indigent, but rather because they’ve been arrested and are likely to abscond or commit additional crimes. Besides, we don’t know a better way to ensure justice and public safety. One-third of arrested defendants nationwide fail to show up for their court dates or do additional crimes once released (from 1990 through 2004, 33 percent of defendants were charged with committing one or more types of misconduct after being released, including failure-to-appear and rearrest). And that’s without bail reform.
It’s possible that governments can develop an algorithm to improve their release decisions, as New Jersey recently has attempted. But the final proof of effectiveness isn’t in yet. The wrong way to do bail reform is New York State’s rigid new law that rather arbitrarily declares broad segments of the penal law bail-ineligible. This law will release thousands of arrested suspects, including, as I analyze it, many serious, violent and high flight risk defendants. I found at least 25 violent felonies for which judges are forced to put the just-arrested defendant right back on the streets. And my analysis didn’t even include the many violent misdemeanors. This sort of bail reform will definitely reduce the population of New York’s jails – if it survives without amendment, which I don’t think likely. The results of the New York State bail reform — a slowly unfolding debacle — may well determine the future of this type of policy proposal.
Eliminating private prisons. Buttigieg, Biden, and Sanders want to eliminate or reduce privately run corrections, a proposal affecting only 8 percent of the prison population. Privatization seems to be a preoccupation among progressives, based on the specious claim that somehow, private prisons caused mass incarceration — a view pretty much demolished by law professor John Pfaff. There is modest evidence of cost savings with privatized prisons, a principal reason that governments rely on them. There is contradictory evidence regarding private corrections and recidivism. One study found somewhat longer prison stays before release from privately managed prisons as they have an incentive to keep cells occupied. But the study involved only one state (Mississippi), so it isn’t at all clear that eliminating private prisons will reduce incarceration.
Curtailing mandatory minimums. All of the Democratic candidates want to curtail mandatory minimum sentences. These are sentences for certain crimes — usually violent crimes or drug trafficking — that remove sentencing discretion from the judge in order to prevent overly lenient or inconsistent punishments. A case for eliminating mandatory minimums for simple low-level drug possessions certainly can be made. But what about the mandatory sentences for crimes committed with guns?
Reducing the minimums instead of eliminating them is a feasible alternative. But since these are established by state as well as federal law, this proposal would require state-by-state buy-in, something no president could achieve on her own authority. Congress would have to “bribe” the states with grant money to get them to change their policies.
Decriminalizing cannabis. Warren, Biden, and Sanders all propose to decriminalize it federally. There is a pressing need to harmonize federal and state law. Cannabis is currently a Schedule 1 substance under the federal Controlled Substances Act, along with such drugs as ecstasy, LSD and heroin. This makes possession and distribution a federal crime — even if state law permits it for medicinal use or recreational sale. The national trend is toward legalization, but not all states favor this, perhaps recognizing the risk of more crime, more addiction, more DUI cases and road accidents, more use by underage teens, and user escalation to other, more dangerous drugs (the “gateway theory” of addiction).
That said, the federal government probably needs to get out of the marijuana business, except for multistate and international enforcement, and leave it to the states to resolve the question on their own. It isn’t clear, however, that Sanders (or Biden or Warren) have this in mind.
Where the Candidates Differ
Joe Biden. Biden’s main emphasis is on gun control, though he also endorses policy changes to reduce incarceration, which I’ll get to shortly.
Biden favors a renewed ban on “assault weapons”: semi-automatic rifles and guns with high-caliber magazines. A ban was approved by Congress in 1994, but it expired ten years later. The 1994 ban did not reduce gun murders, which constitute over 70 percent of all homicides in the United States. The main reason for the lack of success is that the bulk of homicides occur in big cities and involve handguns which are easily concealed.
A second problem is that there are already thousands of these firearms in private hands, and a serious debate over a new ban would stimulate even more purchases. Biden’s answer to this is a buy-back policy, under which police would offer cash or other benefits to anyone who turns in a gun. However, such policies are unlikely to work so long as possessors are wary of identifying themselves to police or they can readily obtain replacements for the surrendered firearm. Australia adopted a gun buy-back along with other firearm measures in 1996, but gun assaults did not decline.
Biden, Warren, and Donald Trump favor enhanced background checks for gun buyers — a policy notably omitted from Klobuchar’s, Buttigieg’s and Sanders’s campaigns. Sanders was attacked by Hillary Clinton for voting against a 1993 background-check bill, and for opposing civil liability for gun manufacturers in 2003 and 2005. So he may be avoiding the subject of gun control.
The other big criminal-justice issue for Biden involves reducing incarceration. Among other things, he favors prohibiting jail as a punishment for those who fail to pay fines. The problem is that we cannot differentiate with certainty defendants who cannot pay from those who simply refuse to pay, and if there is no jail for refusal to pay then there will be no incentive to pay fines at all. If judges resort to jail instead of fines this proposal will not reduce incarceration, though it may instead result in more sentences to probation instead of fines or incarceration.
Elizabeth Warren. Warren offers a different approach to Biden’s proposal to prohibit jail as a punishment for the failure to pay fines: capping fines at a certain percentage of the defendant’s income. This is at odds with the standard criterion which ties the amount of the fine to the reprehensibility of the offense, not the means of the defendant (except for the relatively few affluent defendants, who get penalties at the high end of the scale). Many defendants have no regular jobs or verifiable income so it isn’t clear how this would work. If fines are impermissible in this circumstance, jail or probation will be the only alternatives.
In keeping with her “I’ve got a plan for that” candidacy, Elizabeth Warren also offers a long list of policy positions. Perhaps the most controversial are her ideas for restricting the police. She proposes the following:
- investigate police departments with high rates of police violence and whenever there is a death in custody
- incentivize state attorneys general to conduct police oversight; and create independent citizen review boards
- restrict police use of force
- end stop-and-frisk
- end availability of surplus military weapons for police departments
- expand funding for body cameras
Such rank-and-file police organizations as the PBA will strongly oppose most of these recommendations, especially citizen-review boards, which they once defeated after a bruising battle in New York City.
More generally, there is a risk of demoralization if elected officials try too aggressively to curtail the police. Officers may become reluctant to engage in proactive law enforcement for fear of charges or accusations against them. This could make big-city policing less effective and result in an increase in crime. It also could adversely impact the recruitment of new officers.
As for stop-and-frisk: While the New York City policy under Mayor Michael Bloomberg was overly aggressive, especially in black neighborhoods, police will continue to stop and question suspicious people, which they have the authority to do without probable cause to arrest. In fact, this is precisely the type of proactive policing that reduces crime. It isn’t clear whether Warren wants to eliminate all stop-and-frisk — probably impossible and certainly unwise — or just the excessive policy that was once adopted in New York.
Bernie Sanders. The Vermont senator offers the following proposals, aside from those identified above:
- eliminate solitary confinement
- end the death penalty
- increase funding for public defenders
With regard to solitary confinement: Long-term solitary confinement is used to isolate prison gangs or in some instances deal with obstreperous and violent inmates. A compelling case can be made that this is cruel and unusual punishment under the Eighth Amendment, especially if it goes on for years. On the other hand, used short-term as a way of managing especially disruptive prisoners, it is an appropriate tool that corrections personnel need in order to do a very difficult job.
Meanwhile, the death penalty, which the Supreme Court declared constitutional in Gregg v. Georgia, 428 U.S. 153 (1976), is currently a matter of state choice. Sanders would have to appoint two anti-death-penalty justices to the Court in order to overturn Gregg and compel the states to abolish capital punishment. If this happened, we can expect an effort to reverse the Court through constitutional amendment.
* * *
Several Democratic candidates, especially Warren, Sanders and Buttigieg, want to sharply reduce the punitive effects of the criminal justice system. But punishment is the system’s stock-in-trade. Whether we seek retribution, deterrence, or incapacitation, we don’t know of a better way to achieve our ends than locking up criminals.
The Democrats, however, are more focused on what they consider the system’s unfairness and injustices than on controlling crime. Some of their proposals are unrealistic, either because they are outside the authority of the federal government or are politically unattainable. Some of them risk increased threats to public safety. Nevertheless, even if they are only wish lists, these positions reveal the stark choices presented to the electorate — in criminal justice as in most other public-policy areas.