Quandary for 2020 Democrats: Which Criminal Justice Changes Get Priority?

The very premise of the questionnaire would have been nonsensical a few years ago: that a presidential candidate might propose criminal justice overhauls so sweeping that it would become reasonable to ask them to prioritize.

Welcome to 2020, featuring an entire Democratic field that wants to reduce or eliminate mandatory minimum sentences, divert low-level offenders from jail, end or at least modify the cash bail system, change drug laws and remove an array of legal barriers that restrict people’s lives after they have served their time.

It is, of course, possible to include all of these measures in a single, comprehensive piece of criminal justice legislation, but huge bills are difficult to pass. And if there is a need to compromise to get a bill across the finish line, priorities will come into play.

This was the reality the Justice Action Network — a bipartisan coalition of bedfellows as strange as the Center for American Progress, a liberal think tank, and Grover Norquist’s Americans for Tax Reform, a conservative group — had in mind when it asked the Democratic candidates to identify, for instance, the first criminal justice legislation they would propose, the first executive action they would take, and their top priority among several bills pending in Congress.

Five of the six remaining candidates — all but Representative Tulsi Gabbard of Hawaii — completed the questionnaire, and the Justice Action Network shared their responses with The New York Times.

The survey shows a wholesale shift from previous election cycles, in terms of both specific policies and the lens through which the candidates discuss the issue. It also provides an unusually clear picture of how they would go about accomplishing what they say they want to accomplish.

The candidates all spoke about criminal justice as a matter of racial justice, and most said that was the primary reason they supported an overhaul. They argued unanimously for aggressive new policies, not small steps.

“Our current system is a result of dozens of choices that we’ve made,” Senator Elizabeth Warren of Massachusetts wrote. “Simply put, we have criminalized too many things. We send too many people to jail. We keep them there for too long. We do little to rehabilitate them. And we do all of this despite little evidence that our harshly punitive system makes our communities any safer.”

“We cannot rectify this,” she said, “by nibbling around the edges.”

The candidates focused heavily on changes to sentencing, such as reversing harsh mandatory minimums and expanding diversion programs to keep low-level offenders out of jail. Most indicated that a top priority would be to give states financial incentives to reduce incarceration: a direct repudiation of the 1994 crime bill, which gave incentives to increase incarceration.

In fact, former Vice President Joseph R. Biden Jr., who played a key role in passing the 1994 legislation, said a bill to create the opposing incentives would be his first proposal to Congress related to criminal justice, as did former Mayor Michael R. Bloomberg of New York.

They chose that measure from a list of nine, including a bill to remove or reduce mandatory minimums, a bill to overhaul the bail system and a bill to close private prisons.

Mr. Bloomberg wrote, “This option may have the most far-reaching impact, since 90 percent of the criminal justice system is controlled by state and local governments.” He pledged to establish a “reform hub” in the Justice Department that would push states through “funding incentives, the specter of civil rights investigations and the power of the presidential pulpit to expose injustice around the country.”

Mr. Bloomberg has faced criticism in the 2020 campaign for the stop-and-frisk policing tactics he oversaw in New York, a policy he apologized for just before beginning his presidential run.

Senator Amy Klobuchar of Minnesota also pledged to introduce state-focused legislation in her first 100 days. She, too, has faced questions about her tenure as the Hennepin County attorney, including her record of seeking stiff sentences while declining to prosecute police shootings.

Senator Bernie Sanders of Vermont highlighted measures like withholding federal funding if states continue to use cash bail, and authorizing the Justice Department to take legal action against jurisdictions that it believes are violating the Sixth Amendment, which guarantees defendants’ rights in criminal trials.

Criminal justice has become a rare point of bipartisan consensus in recent years, leading to the passage in 2018 of the First Step Act, which expanded early-release programs, increased job training and changed mandatory minimums for nonviolent drug offenses. And that bill, a breakthrough at the time, has now become a floor.

The First Step Act “is now the marker of what a conservative reform is,” said Inimai M. Chettiar, legislative and policy director at the Justice Action Network. “So you see all of these candidates going way beyond that.”

Because most of the candidates support similarly expansive suites of policies, the survey pushed them to do something few politicians want to do: to grapple with the reality that presidents rarely pass an entire agenda in one fell swoop, and to identify the specific components of their plans that they believe will make the biggest difference.

Mr. Sanders and Ms. Warren said their first executive actions on criminal justice would be to end the federal use of private prisons, while Mr. Biden and Mr. Bloomberg said theirs would be to repeal directives from former Attorney General Jeff Sessions that require federal prosecutors to seek the harshest possible penalties.

Asked for their top priority among several bipartisan bills now in Congress, Mr. Biden and Mr. Bloomberg chose the REAL Act, which would let prisoners receive Pell grants for higher education. Ms. Warren’s priority was the Smarter Sentencing Act, which would reduce mandatory minimums for drug possession, while Ms. Klobuchar chose the For the People Act, which would restore voting rights for former prisoners.

But some candidates declined to identify priorities.

Asked about her first executive action, Ms. Klobuchar named several. In response to the question, “What is the first criminal justice reform bill that you would put before Congress as president,” Mr. Sanders listed 17 proposals that he said he would include in a comprehensive bill.

If elected, he wrote, he would “work with states to enact comprehensive criminal justice reform at all levels to cut the national prison population in half and end mass incarceration by abolishing three-strikes laws and mandatory minimum sentences, as well as expanding the use of alternatives to detention, reinstating a federal parole system and ending truth-in-sentencing.” (Truth in sentencing is a policy that limits parole, meaning more people are incarcerated for their full sentences.)

Ms. Chettiar noted that in reading the responses from Mr. Sanders and Ms. Klobuchar, both of whom declined to identify single priorities, it was still possible to discern some patterns. Ms. Klobuchar, for instance, mentioned sentencing changes repeatedly, while Mr. Sanders spoke often of closing private prisons and ending the “war on drugs.”

Mr. Sanders also distinguished himself on the question of voting rights: He was the only candidate to say voting rights should never be revoked as a result of a criminal conviction, a position he has expressed before. The other five candidates said that voting rights should be automatically restored when a person was released from prison.

“In 2016, people were talking about things like drug courts and treatment for nonviolent offenders and very small-potatoes things,” Ms. Chettiar said. “The energy and the boldness of these reforms is very exciting. It was almost unthinkable four years ago that this would be the case now.”

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