Donald Trump and Joe Biden

Justice Reform / Decarceration

Biden vs. Trump: Who’s the Actual Criminal Justice Reformer?

Suddenly, both the Republican and Democrat promise big changes. We matched their policies head-to-head, and asked experts for a reality check.

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Criminal justice reform is finally having a moment in U.S. politics. Until recent years, candidates usually competed to look tough on crime and paint their opponents as soft. But 2020 is different.

Throughout the primary, Democratic candidates, including the nominee Joe Biden, devoted significant space on their platforms to their ideas for fixing the criminal justice system. And the Republican incumbent, Donald Trump, is running as a reformer too, touting a key legislative justice-reform achievement on his watch, the First Step Act. His first national television advertisement in the 2020 campaign, a 30-second spot?during the Super Bowl, featured the story of a federal prisoner, Alice Johnson, who was released after Trump commuted her sentence. “Politicians talk about criminal justice reform,” the ad reads amid a black-and-white montage of photos from the day of Johnson’s release. “President Trump got it done.”

In a world where the politics of criminal justice appear to have flipped upside down, who stands for what? POLITICO Magazine compiled a guide to the candidates’ positions on a number of criminal justice topics. And for a reality check on their rhetoric, we also asked some experts to tell us what leverage a president can really have on these issues.

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Mass Incarceration

Despite a bipartisan push to reduce the United States’ highest-in-the-world incarceration rate, the prison population decreased only slightly in 2018, the most recent year for which data is available. It was the last year in a slow but steady decade-long decline to the current population of 1.5 million.

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What He Has Proposed


Joe Biden
Joe Biden

Mandatory minimums.?Biden says?he will work with Congress to repeal federal mandatory minimum sentences, and will give states an incentive to repeal their mandatory minimum laws.

State funding. He also says his administration will create a competitive grant program to push states to invest in programs that prevent and reduce incarceration.

Commutations.?Biden says he will use the president’s clemency power to commute “unduly long” sentences for those convicted of non-violent federal crimes.

Decriminalization.?Many people are jailed simply for failing to pay municipal fees or fines. Biden pledges to use federal funds to incentivize states and local governments to end this practice.


What He Has Proposed


Donald Trump
Donald Trump

Mandatory minimums.?The First Step Act, which Trump signed into law, expanded judges’ discretion to ignore mandatory minimum sentences in some cases. The law also shortened some mandatory minimum sentences, such as from life to 25 years, or from 20 years to 15 years, for various offenses.

Commutations.?After the passage of the First Step Act, the Bureau of Prisons has increased its use?of compassionate release sentence reductions and home confinement.

So far, thousands of people have been released from prison due to the First Step Act, and the Trump Administration vows?to “build on [its] successes.”

Experts Say Biden’s promises may seem at odds with his record of championing tough-on-crime legislation in the ’80s and ’90s, which experts say contributed to the state of mass incarceration we have today. That said, Trump can’t rest on his laurels either. “Last year, Trump signed this major piece of legislation that’s already cut the federal prison by several thousand,” says Lauren-Brooke Eisen, director of the Brennan Center’s Justice Program. “That was a bipartisan effort and something that did get done under this administration.” But the First Step Act was aptly named, says David Sklansky, co-director of the Stanford Criminal Justice Center. “Nobody who thinks seriously about mass incarceration thinks that it comes close to what needs to be done.”


Prison Conditions

The United States has the most people behind bars of any country in the world, and many are subject to harsh prison conditions. A Justice Department report?last year on men’s prisons in Alabama, for instance, found systemic violations of the Eighth Amendment, which prohibits “cruel and unusual” punishment.

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What He Has Proposed


Joe Biden
Joe Biden

Death penalty.?Joe Biden has reversed?his support for capital punishment. He now says he wants to work with Congress to eliminate the death penalty at the federal level and incentivize states to follow suit.

Solitary confinement.?Joe Biden’s campaign website calls for “an overhaul of inhumane prison practices,” starting with solitary confinement, which it says should only be used in very limited cases, such as protecting the life of an imprisoned person.

Prison education.?While Biden has been blamed?for a lack of educational opportunities in prisons, he says all incarcerated people should have the opportunity to earn a GED. He’s also said on the campaign trail that he supports the extension of Pell Grants to people in prison, though his campaign would not say whether or not he supports preexisting legislation?to do just that.

Environmental health problems.?Biden’s campaign also says his administration will “require states to fix environmental health problems in prisons,” and it will make federal criminal justice grants contingent on the quality of care given to incarcerated pregnant women.


What He Has Proposed


Donald Trump
Donald Trump

Death penalty.?Trump, a longtime advocate of the death penalty, has praised leaders in China and the Philippines for executing drug dealers, and his administration says it is willing to go to the Supreme Court to restart federal executions, even though the United States hasn’t executed a prisoner on death row since 2003.

Solitary confinement.?Despite tweeting last year that solitary confinement is “something that not even mobster Al Capone had to endure,” in reference to his former campaign chair Paul Manafort being sentenced to solitary confinement, Trump is not publicly opposed to the practice, and his administration even removed an agency’s guidance?urging states to not put juvenile offenders in solitary confinement.

Incarcerated pregnant women. The First Step Act included measures to improve the conditions for incarcerated pregnant women. It bans the use of restraints on women during pregnancy, labor and postpartum recovery in federal prisons, and it requires the Federal Bureau of Prisons to keep data on the number of and outcomes of pregnancies. While this only applies to federal prisons, more than 20 states have similar laws regarding the use of restraints on pregnant inmates.

Experts Say: The Obama administration’s guidance against juvenile solitary confinement was mostly “a high-profile statement of values,” says Keramet Reiter, a professor of criminology, law and society at the University of California, Irvine, and so was its reversal by Trump. “The vast majority of juveniles in prison are in state and local facilities,” she says. “In terms of concrete reforms, it’s not actually changing that much on the ground for that many people.”


photo of a man with handcuffs and an image of needle layered over him

Drug Policy

In the United States, one in five people in prisons and jails are incarcerated for drug charges alone, but the politics of drugs have changed drastically in recent years. Attitudes toward marijuana, for instance, have relaxed as more states legalize it. On the other hand, the opioid epidemic is ravaging communities across America and prompting tougher approaches to combat its spread.

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What He Has Proposed


Joe Biden
Joe Biden

Marijuana. Biden co-sponsored legislation in the 1980s to give harsher sentences for drug crimes, but on the campaign trail this February, he said the country “is at the point where [marijuana] has to be, basically legalized.” His campaign quickly clarified, however, that he only hopes to decriminalize the use of cannabis and automatically expunge prior convictions of cannabis use. He supports the legalization of marijuana for medical purposes and wants to leave recreational marijuana legalization to the states.

Heroin.?Biden’s record may have made the opioid crisis today worse, but his stated plans to address the crisis diverge greatly from his “War on Drugs” past: He says his administration will invest $75 billion in “flexible grants” to states and localities for prevention, treatment and recovery efforts, such as syringe service programs or “safe station initiatives.” He’ll also make sure first responders are equipped with naloxone and also trained to give mental health and trauma support.

Cocaine.?Biden says his administration will work to end the federal sentencing disparity between crack and powder cocaine, and ensure it is applied retroactively.

Rehab instead of prison.?Perhaps his biggest promise, repeated on the trail and the debate stage, is that there should be no incarceration for drug use alone and individuals should instead be diverted to drug courts and treatment.


What He Has Proposed


Donald Trump
Donald Trump

Cocaine. As mentioned above, Trump has suggested that drug dealers should face the death penalty. Nevertheless, Trump has done some to help convicted drug users: The First Step Act made retroactive the Fair Sentencing Act of 2010, which narrowed though did not completely eliminate the disparity between crack and powder cocaine sentencing. Thousands of people who were incarcerated have seen their sentences commuted as a result.

Heroin. On opioids, the Trump administration has announced over $1.8 billion?in funding to states for treatment initiatives and data-collecting. The federal government under Trump has also set restrictions on opioid prescriptions and widened access to overdose drugs.

Marijuana.?The Trump administration has given mixed messages on marijuana legalization, repeatedly targeting state marijuana protections?in federal budget proposals despite advocating for medical-use legalization in his first presidential run and explicitly saying recreational policy should be left to the states.


Reentry into Society

Both the president and the candidate embrace policies to release more people from prison in America, paired with efforts to reduce recidivism so former inmates don’t end up back in the system.

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What He Has Proposed


Joe Biden
Joe Biden

Ban the box. Biden says that his administration would go further than Obama’s in encouraging not only companies to “ban the box,” or eliminate questions about criminal history in employment applications, but also state and local governments to do the same.

Eliminate barriers to public assistance.?Biden’s campaign also says his administration will eliminate barriers that keep formerly incarcerated people from receiving public assistance like SNAP, Pell grants and housing support, and his administration will “incentivize states” to restore voting rights automatically for those who were convicted of felonies and have served their sentences.

Experts Say: Reiter says the federal government is better positioned to provide social safety-net support than it is to make other reforms. “Whereas it has a hard time regulating, say, even a big jail like LA County Jail or Cook County Jail, the federal government can say: Anyone making less than X dollars can get a 1000 dollar check,” says Reiter. “So it’s a place where it makes a lot more sense to focus reform attention.”


What He Has Proposed


Donald Trump
Donald Trump

Getting people back to work.?The First Step Act dedicated a number of resources to reducing recidivism. The Trump administration assigned the U.S. Probation Office and the Department of Labor to help incarcerated people prepare to return home and find jobs, and the White House launched?a “Ready to Work Initiative” to connect formerly incarcerated individuals with non-profits and potential employers.


Image of a police officer overlaid by an image of money

Profiteering

There’s more national attention than ever before on the “prison-industrial complex,” the shorthand for private-sector players who make money off incarceration. This includes private prison operators and the bond industry that has arisen around cash bail.

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What He Has Proposed


Joe Biden
Joe Biden

End cash bail.?Biden pledges to “lead a national effort to end cash bail and reform our pretrial system by putting in place, instead, a system that is fair and does not inject further discrimination or bias into the process.”

End private prisons.?He also says he’ll end the use of private prisons and detention centers.

Eliminate profiteering altogether.?Biden says that he’ll make a requirement of his state and local grant program the elimination of “all other methods of profiteering off of incarceration—including diversion programs, commercial bail, and electronic monitoring,” and he says his administration will “support the passage of legislation?to crack down on the practice of private companies charging incarcerated individuals and their families outrageously high fees to make calls.”

Experts Say: The executive branch, Eisen explained, can try to do what former Deputy Attorney General Sally Yates did, which was direct the Bureau of Prisons to not renew contracts with private prison companies. “But any president will find it challenging to house these people,” she warns, and “it gets especially tricky with immigrant detainees,” who make up the vast majority of inmates in private detention facilities, and have since before the Trump administration. At a state level, Eisen says, if the federal government attached strings to federal funding that would penalize states that contract with private prisons, many states would not be able to comply, even if they wanted to. “A lot of directors of corrections don’t want to contract with private prison companies, but they just don’t have the facilities.”


What He Has Proposed


Donald Trump
Donald Trump

Do not eliminate cash bail.?Trump seems to be opposed?to the abolition of cash bail. After bail reform in New York, he tweeted that the state was letting out “hardened & bad” criminals, despite the fact that those being released were not yet convicted and despite his own administration touting its release of prisoners through the First Step Act.

Use private prisons.?The Trump administration has been a boon?to the private prison industry, largely thanks to immigrant detention facilities. And the Trump administration even sued California?over its state ban on private prisons.


Policing

The partisan divide on policing is the most stark: Trump has brandished a tough-on-crime support for the police, such as when he voiced his support for New York’s controversial “stop and frisk” policy. On the other side, Biden has made reining in, rather than boosting, police a priority.

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What He Has Proposed


Joe Biden
Joe Biden

More COPS. Biden says he will invest $300 million in the Community Oriented Policing Services (COPS) program, which has since 1994 invested in personnel, training and resources for local police forces, and as a condition of the grant, police departments must hire officers who on aggregate “mirror the racial diversity” of the communities they serve.

More data. Biden says his administration will “encourage” states to collect more data, so that it can make more-informed criminal justice policies to eliminate disparities.

Less misconduct. Furthermore, he says his Justice Department will prioritize prosecuting hate crimes and investigating misconduct in police departments and prosecutors’ offices.


What He Has Proposed


Donald Trump
Donald Trump

More cops. Trump has said “I love the cops” during campaign rallies; his administration slashed funding for the COPS program. The Trump administration revamped a different program, the Community Reform Initiative (CRI), with more of a focus on protecting officers, through efforts such as increased funding for bulletproof vests.


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