Why the 2020 Criminal Justice Debate Is Completely Different

Marijuana would be decriminalized, mass incarceration would be reversed and the death penalty would be eliminated as part of sweeping changes that leading Democratic presidential candidates have proposed to make to the criminal justice system, which has become a dependable political foil for its inefficiency and excesses but has also proved resistant to change.

Both liberal and centrist candidates are backing the overhauls, and some progressives are going further, pushing mainstream boundaries with proposals like ending solitary confinement in jails and prisons, paying inmates a living wage for work they do in prison and legalizing supervised injection sites for intravenous drug use.

Until recently, such ideas were considered so radical in the United States that they would have been immediately dismissed even among reform-minded lawmakers. But they are now being instituted or seriously considered in cities and states across the nation.

Experts say the changing debate reflects a seismic shift in how the American public views criminal justice issues.

“This is a conversation that is unrecognizable from 10 years ago — even five years ago — when these kinds of proposals wouldn’t have been floated in back rooms, let alone in public,” said Adam Gelb, president of the Council on Criminal Justice, a nonpartisan research organization.

This week, the leading progressives in the Democratic field elevated some of those ideas in the presidential race.

Senator Elizabeth Warren of Massachusetts became the latest Democratic contender to release a criminal justice plan on Tuesday, and like other candidates, she called for releasing more people from prison early, eliminating private prisons and strengthening oversight of the police.

Two days earlier, Senator Bernie Sanders of Vermont introduced his own plan, which in some respects went even further. He called for banning the use of facial recognition software by police departments, raising the age of adult criminal liability to 18 and allowing certain areas to be set aside where people could legally inject intravenous drugs.

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Criminal justice is just one of the areas in which the Democratic presidential candidates have moved leftward in the proposals they are advocating in the primary race. In the policy debate over subjects like immigration, health care and gun control, the shift has been unmistakable.

But the unapologetically progressive ideas being pushed by Democratic candidates are certain to be used by President Trump and his allies to tar whoever becomes the Democratic nominee. Mr. Trump has already accused Democrats of being the “party of crime” because of their views on illegal immigration.

“They don’t mind crime,” Mr. Trump said at a rally in New Hampshire last week. “We do mind crime.”

At the same time, Mr. Trump himself serves as an illustration of the bipartisan embrace of changing the country’s criminal justice system. Last year, he signed into law the First Step Act, a criminal justice overhaul that has been among the most prominent bipartisan legislative achievements to occur during his presidency. His re-election campaign has even paid for Facebook ads promoting the legislation.

Michael S. Dukakis, who was famously attacked over his record on crime when he was the Democratic presidential nominee in 1988, offered a warning to Democrats. Though violent crime has declined since then, he said the issue could still resonate with voters.

“The challenge for whoever the Democratic nominee is going to be is to do a much better job than I did of defending this,” he said.

Still, opinion polls have shown that there is wide support for various types of criminal justice reforms among both Democrats and Republicans. And the landscape is shifting quickly.

On Monday, for example, California’s governor signed landmark legislation that limits the use of deadly force by police officers to circumstances in which it is “necessary” to defend themselves or others against the threat of imminent death or serious injury.

Previously, officers were often able to avoid prosecution and keep their jobs after using lethal force if they said they felt “reasonable fear” for their safety — even if the person they confronted was unarmed.

Also on Monday, a New York police officer was fired five years after his chokehold led to the death of Eric Garner, who at the time was being questioned for illegally selling cigarettes.

Mr. Garner’s death, along with the 2014 fatal police shooting of Michael Brown Jr. in Missouri, galvanized the Black Lives Matter movement and focused public attention on how the police treated people — mostly black and Latino — suspected of low-level crimes.

Since then, dozens of police departments and prosecutors’ offices have announced that they will no longer make arrests for minor crimes such as possession of small amounts of marijuana. Police officials have also apologized for their aggressive strategies of the past.

As public attitudes have changed, some Democratic candidates have found their previous records on criminal justice thrown into question.

Former Vice President Joseph R. Biden Jr. has become a target of criticism by other Democrats for his outspoken support of the 1994 crime bill, which expanded the use of the death penalty and imposed a federal “three strikes” law, among its other provisions.

Many experts have said the bill laid the groundwork for an era of mass incarceration. Mr. Sanders has also taken criticism for voting for the bill as a congressman.

Senator Kamala Harris’s tenure as a law enforcement official has come under scrutiny in part because she supported a state law as San Francisco’s district attorney under which parents with habitually truant children could be prosecuted — despite worries that enforcement would disproportionately affect low-income people of color.

As California’s attorney general, Ms. Harris also opposed a bill requiring her office to investigate shootings involving police officers, and declined to support statewide standards regulating the use of body-worn cameras by police officers.

Senator Cory Booker of New Jersey has been criticized for his support of the Police Department’s widespread use of “stop and frisk” tactics while he was mayor of Newark. The Justice Department found that the stops, which targeted African-Americans, were unconstitutional.

And Mayor Pete Buttigieg of South Bend, Ind., has faced his own leadership test at home after a white police officer fatally shot a black man in June. That put a spotlight on Mr. Buttigieg’s already strained relations with his city’s black residents.

The plans by both Mr. Sanders and Ms. Warren call for spending what appears to be billions of dollars to remake the criminal justice system — from regulating the behavior of police officers and seeking to curb some of the discretionary authority of prosecutors to providing better mental health care inside prisons and jails.

Mr. Sanders said he would triple federal outlays, to $14 billion annually, to prop up the faltering public defender system, which provides aid for poor people accused of crimes. As part of his plan, Mr. Sanders said he would establish a minimum starting salary for public defenders and cancel their student debt.

“The criminal justice system is rigged,” Mr. Sanders wrote in his proposal. “The United States has a criminal justice system that is built to put the profit interests of billion-dollar industries like the bail bondsman over the interests of everyday, working people.”

Mr. Sanders also included a plan to spend more than $25 billion over a five-year period to end homelessness, including $500 million to help direct homeless people to various programs and services. The number of homeless people has been swelling in many cities, leading to crackdowns by the police.

In her policy plan, Ms. Warren used similar language to Mr. Sanders’s, writing that the criminal justice system “is the result of the dozens of choices we’ve made — choices that together stack the deck against the poor and the disadvantaged.”

She called for repealing nearly all of the 1994 crime bill, and like Mr. Sanders, she said she planned to provide more resources for public defenders, increase oversight of the police, and end cash bail and the death penalty.

But her plan spends more time addressing the justice system’s structural inequalities than Mr. Sanders’s does, and it points out that even when the crimes in question are the same, African-Americans are more likely than white people to be arrested, charged, wrongfully convicted and given harsh sentences.

The criminal justice proposals so far made public by Mr. Biden have been less extensive and more moderate than those released by Ms. Warren and Mr. Sanders. But they are still far removed from the tough-on-crime persona that Mr. Biden cultivated in the 1980s and 1990s.

Last month, Mr. Biden unveiled a plan that sought to undo some of the negative impacts of the 1994 crime bill, including eliminating discrepancies in sentencing between powder and crack cocaine and doing away with certain mandatory minimum sentences.

He had also backed decriminalizing marijuana and expunging prior convictions for cannabis use, ending cash bail and eliminating the death penalty, a punishment he had long embraced.

Asked about Ms. Warren’s proposal on Tuesday, Mr. Biden said she seemed to be backing elements of the 1994 crime bill, like the Violence Against Women Act.

“What is it she doesn’t like about it?” Mr. Biden said. “It looks like she’s endorsing my, my crime bill.”

Katie Glueck contributed reporting from Prole, Iowa.