Biden/Sanders Unity Agenda: Fundamental Transformation of the Criminal Justice System

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This summary is the second in a series of deep dives into the Biden/Sanders Unity Platform. The policies advocated in this 110-page document certainly support the contention of MoveOn that Biden offers the most progressive policy agenda in history.

Criminal justice task force

My eye has finally stopped twitching after taking a deep dive into the platform for climate change. So now I will tackle the one for criminal justice so you don’t have to. The Unity Task Force team members on this topic are:

  1. Chiraag Bains, Director of Legal Strategies at Demos and Fellow at the Paul and Daisy Soros Fellowship for New Americans
  2. Co-chair Rep. Bobby Scott – Virginia District 3
  3. Co-chair TN State Sen. Raumesh Akbari
  4. SC State Rep. Justin Bamberg
  5. Vanita Gupta – President and CEO of the Leadership Conference on Civil & Human Rights
  6. Former Attorney General Eric Holder – AKA Barack Obama’s Wingman
  7. Symone Sanders – Activist and Senior Advisor to the Biden Campaign
  8. Stacey Walker – Iowa Campaign Director for Bernie Sanders

“Reimagining” Criminal Justice

In the summary, found on pages 7-10 on the Unity Platform, the team talks about mass incarceration as if the First Step Act never happened. Of course, they also note racial disparities in imprisonment and imply this is a function of racism. In the current environment, police brutality earned an entire paragraph:

Democrats believe we need to overhaul the criminal justice system from top to bottom. Police brutality is a stain on the soul of our nation. It is unacceptable that millions of people in our country have good reason to fear they may lose their lives in a routine traffic stop, or while standing on a street corner, or while playing with a toy in a public park. It is unacceptable that Black parents must have “the talk” with their children, to try to protect them from the very police officers who are supposed to be sworn to protect and serve them. It is unacceptable that more than 1,000 people, a quarter of them Black, are killed by police every year. Democrats also recognize that all too often, systematic cuts to public services have left police officers on the front lines of responding to social challenges for which they have not been trained, from homelessness to mental health crises to the opioid epidemic. We can and must do better for our communities.

So, a fundamental transformation in criminal justice is coming if the top-to-bottom overhaul is to be believed. “Reimagining” criminal justice to root out systemic racism is also a primary goal.

Restorative justice

To begin to address what the Task Force sees as systemic racism, the team recommends reissuing the Obama-era DOE guidelines that called for racially equitable discipline. This program monitored how many students are disciplined by race and explained differences as racial disparities. Differences in behavior were not accounted for.

The Rand Corporation studied these policies, often referred to as restorative justice. These studies demonstrated restorative justice programs harmed academic performance in predominantly black schools. They widened the academic achievement gap in the schools studied.

Overall, the negative impact on academic outcomes was not large. The average student in the study district scored at the 37th percentile of the state distribution; restorative practices would reduce this to the 35th percentile. However, the negative impact was almost completely experienced by students in schools with predominantly African-American students, increasing the district’s racial achievement gap from 15 to 18 percentile points.

These policies also impact school safety and leave teachers powerless to address bad behavior. It was a similar program that kept the school shooter in Parkland, Florida, out of the juvenile system. They essentially decriminalize criminal behavior in the name of equity.

Additionally, the team wants to incentivize states to eliminate juvenile detention and use youth centers, after school programs, and summer jobs instead. For non-violent crimes, states already have diversion programs for youthful offenders. The Unity Task Force makes no distinction for violent youth offenders.

Systemic narratives

The Task Force proudly announces this as if somewhere in America, these general guidelines are not already the case. Just how severe the restrictions on the use of force will become is a concern. Recall the Obama-era regulations for the military rules of engagement:

Democrats will establish strict national standards governing the use of force, including permitting deadly force only when necessary and a last resort to prevent an imminent threat to life. We will require immediate application of these standards to all federal law enforcement agencies and condition federal grants on their adoption at the state and local level. We will require officer training in effective nonviolent tactics, appropriate use of force, implicit bias, and peer intervention, both at the academy and on the job. And we will ban racial and religious profiling in law enforcement.

Many of their suggestions align with elements of the House of Representatives’ criminal justice reform bill that was DOA in the Senate. Some go further than that:

  • Prohibiting the transfer of surplus military equipment to law enforcement
  • Increasing pattern or practice investigations and increasing DOJ oversight of local departments
  • Lowering the prosecution standards for civil rights violations for law enforcement officers
  • Severely limiting qualified immunity
  • Mental health and substance abuse counselors to help respond to calls
  • Legalization of marijuana and expungement of convictions
  • Elimination of cash bail
  • Repeal of all mandatory minimums
  • Abolish the death penalty
  • Extensive use of clemency to address racial disparities
  • Eliminate private prisons and diversion programs
  • End solitary confinement
  • End reincarceration for technical parole and probation violations

The Unity Platform

In the Unity Task Force’s specific policy recommendations, on pages 57-61, it expands on some of the themes in the summary and adds some details to fill out the priorities. On policing, it adds a ban on chokeholds and carotid holds. The latter is one of the safest ways for an officer to get control of a suspect who is resisting. It is used in mixed martial arts routinely in practice and matches. Banning carotid holds is likely to increase the use of batons and tasers. The Task Force also wants to create a civilian corps of unarmed first responders.

Of course, the platform restores voting rights for all previously incarcerated individuals. It also calls for ensuring every former inmate has housing upon reentry to society. It would require HUD to contract only with entities open to housing former inmates.

It would also expand the “ban the box” policy. This policy would prevent employers from asking about criminal convictions on job applications. Doing so could be catastrophic if it does not exempt employers who deal with children, the elderly, and other vulnerable populations.

Overall, the policies proposed seem to assume recidivism does not exist. According to the Department of Justice, 83% of federal prisoners released in 2005 had been arrested again by 2014. Eliminating consequences for technical parole violations will not help reduce the recidivism rate. Parole conditions are often constructed to keep reentrants away from the people, places, and situations that will make reoffending more likely.

What is very interesting is there are no measures to reunite former inmates with their families upon release. An entire body of research shows that inmates who maintain family contact and have family support upon release are less likely to return to prison. Nothing in the platforms recognizes this or encourages changes to visitation and other policies to promote family involvement. Instead, there are a whole host of government programs.

Many of the items in the criminal justice platform have been tried in the states and some large cities. For example, a comprehensive ban on cash bail for all non-violent crimes was implemented in New York. It has already had to be rolled back. This platform does not even explicitly limit the elimination of bail to non-violent crime, which is a concern.

The plan is data- and evidence-free

The document frequently demands the use of evidence-based and data-driven methods for managing the criminal justice system. However, it seeks to destroy systems like the successful broken-window policing implemented under Mayor Guiliani in New York City.

The program put police resources where crimes were being reported. Despite the DOJ’s success defending the program under Janet Reno, programs like this lead to what reform advocates call over-policing and profiling. This platform uses this language and calls to abolish systems that divert law enforcement to particular areas, even when it is based on data.

The Task Force members also ignore evidence that the programs they advocate have unintended consequences and can actually cause harm. Restorative justice policies in schools are one example. Then the platform fails to include items where evidence exists that they are effective. Family reunification is one of the best predictors of successful reentry to society from prison. It is not mentioned once.

Unlike the climate platform, there are some elements in this platform where general agreement could be found. The use of body cameras for law enforcement is one. These exonerate police more often than assisting in conviction or discipline.

Another is fixing the sentencing disparity for crack and powder cocaine. This was a knee-jerk reaction to a new drug appearing on the streets decades ago. However, there are also clearly radical elements that will put communities at risk that need to be rejected.