Democratic presidential candidate Sen. Bernie Sanders (I-VT) (L) and Sen. Elizabeth Warren (D-MA) speak during the Democratic Presidential Debate at the Fox Theatre July 30, 2019 in Detroit, Michigan. (Photo by Justin Sullivan/Getty Images)

Sanders and Warren Released Criminal Justice Plans This Week. Here’s What’s Good, Bad and Missing.

The plans are a good starting point, but they are far from the finish line.

BY Dan Berger and Kay Whitlock

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Both plans are exciting steps forward—and both plans are limited. They give us some things to fight for, some things to push beyond, and some things to question.

As the Democratic primary heats up, the fight against mass incarceration has appropriately taken center stage. This week, Bernie Sanders and Elizabeth Warren—the two most progressive candidates in the race—both released plans outlining broad agendas that each candidate promises will reform the criminal justice system and propel an end to mass incarceration. Their plans provide an opportunity to see how Democrats can rectify the harms of both the Trump administration and 50 years of bipartisan support for expanded criminalization and carceral control.  

Neither of these plans would have been possible without years of grassroots organizing by currently and formerly incarcerated people and their loved ones. Each incorporates some of the wisdom born of this organizing, which is itself a victory. The plans themselves mirror the candidates: Sanders often uses bolder slogans, Warren often more precise language. Sanders features a category on “ending mass incarceration and excessive sentencing,” whereas Warren’s similar section, “Reforming Incarceration,” highlights the 1994 crime bill and related policy shifts. While both plans identify urgent areas of change, they also miss some opportunities to challenge the bipartisan consensus—and to lay out a plan to close prisons and jails. They come up against the technical limits of presidential power and—to a certain degree—are hampered by a reform framework that is still stuck in austerity logic. These plans are best seen as terrains of struggle, not finished blueprints. It’s the job of social movements to keep pushing the conversation.

First, it’s important to acknowledge the mammoth task facing a president who actually wants to end this country’s punishment problem. “Mass incarceration”—the interlocking institutions of police, prosecution, surveillance and incarceration—is not one thing. Rather, it is a series of institutions—governmental, corporate and nonprofit—that operate on the local, state, federal and international levels. A local police department, a state prison and ICE are governed by different institutions. While each one is engaged in the business of social control, the mechanisms differ. And the federal government’s role is mixed. The federal Bureau of Prisons accounts for 12 percent of the incarcerated population—but the Department of Homeland Security is the ultimate governing body for immigrant detention centers—many of which are privately run—and the growing legion of concentration camps on the border.

Because much of the carceral infrastructure is governed at the state and local levels, neither candidate could do all of what they say they want to do. It’s not clear, for instance, that a President Sanders or Warren could end zero-tolerance discipline practices in schools or transform the practices of metropolitan police departments, both of which are largely local and state considerations. Their respective promises to “incentivize” change lack clear mechanisms for implementation. Our excitement about the promising elements of both plans, therefore, needs to be tempered by the realization that we have a long, hard fight ahead to end the violence of police, prisons and deportations. Nevertheless, the federal government can set the priorities—and supply the funds—for states and cities to follow.

What’s good

As they have done with other issues throughout the primaries, both Sanders and Warren connect the problem of police and incarceration to other forms of economic precarity and social control. Both speak to the need for everyone to have quality education and stable housing. Such demands are not only basic human rights, but place the conversation about ending mass incarceration where it belongs—as a fundamental component of pursuing structural equity, democracy and justice.

This is the biggest victory. Mass incarceration thrives in part because elites treat the criminal legal system as separate from jobs, housing, education, healthcare and environment. Viewing the problem in isolation, without paying close attention to the broader racial capitalist context in which many reforms are crafted and unfold, produces reforms that expand rather than shrink methods of carceral control. Trying to solve the problems of police and prisons with more investment in police and prisons—including body cameras, expanded community corrections and gender-responsive prisons, instead of less police and fewer prisons—does not go to the heart of the problem. We must dismantle oppressive methods of social control, punishment and surveillance within an economic system that requires structural inequality—not produce reforms that try to manage that inequality better. Police violence and hyper-incarceration are not simply problems of bad officers and mean prosecutors. They are the inevitable result of a society that uses punishment to respond to social problems. Fixing them requires attending to the underlying problems.

In addressing root causes, both plans make great strides: They each support expanded funding for “indigent defense” (Sanders) and “access to counsel/public defenders” (Warren). Both support efforts to end the War on Drugs and the criminalization of addiction, poverty, homelessness and other social problems. Both want to end cash bail. Both want to end private prisons and at least some forms of profiteering in the system. And both condemn the onerous assessment of “fines and fees,” though neither fully addresses the ways so-called “offender-funded justice” is a major revenue source for many municipal budgets. It is great to see Sanders and Warren target the predatory expenses that incarcerated people and their loved ones pay, since both candidates had, before now, largely focused their comments about incarceration on the relatively small fact of private prisons, rather than the much larger problem of fines, fees and expenses.

Sanders and Warren tackle some of the cruelest aspects of the criminal legal system. Both call for an end to solitary confinement. Both favor access by incarcerated people to good legal counsel. Both favor strengthening re-entry services and supports. Both support reinstating and expanding federal use of consent decrees, which are binding agreements that authorized federal monitoring of state/local law enforcement agencies with documented patterns of abuse and civil rights violations. Both plans call for an end to the death penalty, recently reinstated at the federal level

Sanders proposes an “alternative response system” that includes creating a state/municipal corps of unarmed first responders—social workers, EMTS and mental health professionals—to respond to a variety of mental health emergency or low-level incidents where police intervention is unnecessary and likely counterproductive. This is a necessary intervention, for it identifies non-punitive responses to people in crisis, and community anti-police violence advocates have been calling for this for years. (Warren’s plan calls for a “co-responder” system that links law enforcement to mental health professionals, which still utilizes armed law enforcement, making it a weaker proposal.) And Sanders comes out swinging on the need to “reverse the criminalization of disability,” an especially necessary but often overlooked aspect of current policing and incarceration. Sanders also echoes several of the demands from recent prison strikes in calling for a “Prisoner Bill of Rights.” People in prisons have gone on strike to achieve demands specifically noted by Sanders, including “access to free educational and vocational training,” “the right to vote” for currently and formerly incarcerated people, “ending prison gerrymandering,” “living wages and safe working conditions” for labor by incarcerated people, and the creation of an “Office of Prisoner Civil Rights and Civil Liberties” within the Department of Justice, and more.

Some of these issues could not be meaningfully addressed at the federal level, given that almost 90 percent of incarcerated people are held in state prisons and local jails. For example, the federal government could not implement things like expanded visitation or wages for incarcerated people at the state level. Yet, Sanders' proposals nonetheless signal a major rhetorical win for incarcerated people and their advocates. If these proposals were adopted in the federal prison system, it might give activists more leeway to pressure their state governments to follow suit. And they may have greater significance if a president utilized their unique platform to help mobilize state and local office-holders and activists to demand change.

While Warren does not directly speak to the above, her plan addresses the need to expand justice for people wrongfully imprisoned, and calls to “repeal these overly restrictive habeas rules” that, since the heinous 1996 Antiterrorism and Effective Death Penalty Act, have limited people’s post-conviction appeal options. She also proposes using presidential authority much more actively to grant pardons and clemency as a tool to help remedy systemic injustices, countering the stingy record of both Obama and many Democratic governors on such executive authority. She pledges to establish an “advisory board comprised of survivors of violence, along with formerly incarcerated individuals,” seeming to recognize that both victims of violence and incarcerated people have perspectives that should be heard. But at the same time, she wrongly juxtaposes survivors of violence with formerly incarcerated people, who themselves have experienced violence. Warren highlights cross-community partnerships for preventing and addressing violent harm. Her proposal to end the militarization of police forces is more developed than Sanders’, as is her call to “separate law enforcement from immigration enforcement.”

What’s bad

Despite their strengths, both plans have sections that evoke the “bipartisan consensus” that has governed prison reform. The bipartisan agenda includes procedural policing tweaks, new “evidence-based” strategies, the expansion of surveillance and control via multiple forms of “e-incarceration,” fines and fees, and a host of reforms intended to make incarceration more humane. Such reforms expand the system rather than permanently shrink it. While Sanders and Warren do not endorse the most oppressive aspects of the bipartisan consensus, there are ways in which they seem to buy into it, at least in part.

For example, Sanders supports “sentencing alternatives,” and Warren supports “diversion programs,” but neither appears to have followed how these reforms are often implemented in ways that can expand carceral control while offloading costs onto individuals and their families. Instead of creating endless community-based extensions of incarceration, we need to release or decline to adjudicate many individuals who need not be in the carceral system at all—something Sanders, Warren and other major candidates are not explicitly calling for en masse.

While his “Reform Our Decrepit Prison System” section rightly names prisons as “hotbeds of human rights violations, torture, sexual assault and wrongful imprisonment,” Sanders’ plan repeats standard promises for reforms that have not created more safety for incarcerated people in the past. He opens the door to cosmetic changes and remodeling of facilities, such as making jails and prisons safe and accessible for people with disabilities in prisons and jails, and making sure trans people have access to good health care. Such demands have led some jurisdictions to propose building new prisons or expanding existing ones to accommodate “special populations,” such as transgender people or people with mental illness.

As the opposition to gender-responsive prisons in California has shown, expansion of an already-violent system through newer or more specific kinds of prisons creates more problems than it solves. Misty Rojo, an organizer with Justice Now who mobilized against new prisons and jails in California, argued in 2014 that gender responsive prisons “appropriated feminist discourse by using the language of ‘specific needs for women’ in order to manipulate the public into favoring prison and jail expansion as ‘progressive’ and necessary for the well-being of women prisoners.” As she argues, the real source of their problem is being in prison in the first place—and the most effective way to help them is to let them go. Demands to improve the care for incarcerated people need to be linked to concrete plans to close prisons, jails and detention centers.

Using the language of the bipartisan reform agenda, Warren places faith in “evidence-based programs and interventions,” such as expanded use of body cameras as a means for reducing police abuse and violence. While she promises strict accountability measures for use of new technologies—facial recognition and algorithm-based surveillance—the growing industry of e-carceration shows that technologically driven promises of accountability, however good on paper, typically don’t provide more justice. But they do sometimes provide cover for wider use of repressive practices and technologies. Though supporters hope body cameras increase police accountability, this has rarely proven true. Police departments typically control who has access to the camera footage, and prosecutors have used such footage to successfully prosecute victims of police abuse. Body camera footage did not stop officer Jeronimo Yanez from shooting Philando Castile, nor did it aid in holding him accountable for killing an innocent man. And to this day, the only person who has gone to jail for the death of Eric Garner is Ramsey Orta, the man who filmed officer Pantaleo choking him.

The candidates seem to assume that by reducing the number of incarcerated people, more money will be available to support the structural needs of communities in the areas of health care, public education and housing. Indeed, this is what many people believe. But for more than a decade, bipartisan prison reform institutionalized, in a majority of states, “justice reinvestment” mechanisms that calculate “savings” and distribute them, usually to pay for more in-jail and prison programs and the expansion of community corrections and post-release supervision. In some instances, “prison savings” are returned to general state or municipal budgets to cover revenue shortfalls, not for new investment in social supports and services for all. For example, in Mississippi, the governor simply transferred monies saved from incarcerating fewer people into the general budget to help cover the costs of corporate tax cuts (while prisoners there continue to be brutalized and killed at alarming rates). Institutionalized bipartisan consensus reinvestment mechanisms do not—at least currently—free up money for new investment in health care, housing, public education and other social goods.

Surprisingly for candidates known for their commitments to economic justice, neither plan acknowledges this austerity conundrum: that savings from reductions in incarceration and other jail/prison “cost efficiencies” are used to expand the carceral system, not to reduce it. At the same time, property tax cuts and tax breaks for corporations and the wealthy starve state and municipal budgets. The result: expansion of carceral control while state and municipal governments continue to claim that they can’t afford to increase spending for public health care, education, and the like.

We need to release savings from reducing mass incarceration to help fund health and community well-being for all—including those who are returning from prison—outside of the criminal justice system. We also need to  expand the revenue pool by progressive taxation policies for corporations and the wealthy, and for community resources to be provided outside the control or influence of the criminal justice system. Both Warren and Sanders acknowledge these realities, and have all the right beliefs and commitments, but they are hampered by their failure to recognize that making this shift will require dismantling many already-institutionalized state and local “reinvestment” mechanisms and adopting radically different budget priorities.

What’s missing

Surprisingly, neither Sanders nor Warren devote much attention to how they would reduce or eliminate “crimmigration,” the four-decade creep of the criminal-legal system into immigration policy. To be fair, both Sanders and Warren have released statements on immigration, and Warren’s criminal justice plan does call to “separate law enforcement from immigration enforcement” by eliminating 287(g) and the Secure Communities program. (Sanders has previously opposed Secure Communities, but his criminal justice plan does not address it.) Yet immigration enforcement is a domain that rests largely with the federal government and has been central to the current administration’s brutality. There will be no end to mass incarceration while concentration camps dot the borderlands, asylum protections are gutted, and nativist racism guides policymaking. Sanders and Warren know this, but their criminal justice plans do not discuss it. That is a missed opportunity to target the severe expansion of the country’s punishment apparatus at its most urgently gruesome point—something fully in the purview of presidential authority. And, as the journalist Andrea Pitzer has noted, the longer concentration camps exist, the harder they are to close.

Warren calls for repealing the 1994 Crime Bill, but the worst parts of it, federal grants to hire more police officers and build more prisons, have come and gone. Neither she nor Sanders have called to overturn the other still lingering policies of carceral expansion from that era. In particular, neither one calls to eradicate the Prison Litigation Reform Act, which vastly curtailed the ability of incarcerated people to file suit against the cruelty of their conditions, nor the Illegal Immigration Reform and Immigrant Responsibility Act, which enhanced the deportation regime. And neither one calls for the steady, incremental closure of  federal prisons, immigrant detention centers, state prisons and local jails, even though such closures are the surest and most lasting way to reduce the number of people incarcerated. To be sure, such closures would be wildly controversial, and federal closures would likely require congressional approval. To address the economic impacts of fewer carceral jobs as well as the negative environmental impacts of prisons and jails, these proposals should be joined with the Green New Deal, Medicare for All and other bold policy proposals that address the most urgent issues of our time.  

Neither plan names and opposes mens rea, or “guilty mind” reform, the much sought-after right-wing crown jewel of criminal justice reform. This proposed federal reform (it is also promoted in many states) would make it all but impossible to hold corporations, other private and public institutions, and white-collar actors legally liable for wrongdoing or infliction of harm, including harm to entire communities and ecologies. Liberal and Obama administration opposition in 2016 curtailed attempts by the Right to pass federal legislation, but it will return. Its passage would further undermine efforts to assert collective claims to justice. Both candidates object to the fact that the wealthy face more lenient justice standards than everyone else—their histories show that. But Warren’s proposal for holding corporations and their executives accountable falls short of the mark, and Sanders’ plan does not specifically address corporate accountability—even though both of them have frequently called for white-collar executives to face stiff, even criminal, penalties for their misdeeds.

Moving forward, both candidates should join their critiques of the criminal justice status quo to a dramatic reorganization of the economy. Their criminal justice plans need to be in greater conversation with their plans on tax reform, climate remediation and corporate accountability. Neither proposal makes clear that, in addition to different budget priorities, structural shifts from spending on carceral control to the collective well-being of entire communities requires significant changes in tax policy. It’s great and necessary to say “stop criminalizing poverty,” but it’s far stronger to say, “We’re going to give Department of Corrections funding to provide equitable public schools instead.”

What should the Left be doing? 

Today, every split state legislature in the country, except Minnesota, is dominated by one party. Republicans control 30 of them, Democrats 19. Many of them are gerrymandered. Yet this is the level at which much of the necessary changes to prisons and police can happen. The task of structural change, always daunting, is especially so now.

Progressive and Left movements must buttress vision with an accurate understanding of the institutions we propose to transform, and develop organizing strategies to match. And as always, the work of the left is to expand beyond what is on offer. For every bold stroke in the plans put forward by Sanders and Warren, there are absences or limitations that warrant attention. It is heartening, for instance, to see Warren call for greater involvement of formerly incarcerated people and survivors of violence (often the same population) and Sanders call for a Prisoners Bill of Rights. We also need to ensure that currently incarcerated people—and not only people convicted of low-level, nonviolent offenses—serve on advisory boards and shape policy. Families of incarcerated people should be represented as well. These additions would ensure a platform that not only protects criminalized people’s rights but maximizes their own power.

The attention to ending the war on drugs and expanding expungement is welcome. Both candidates call for expunging marijuana convictions and Warren suggests that the federal government provide a “certificate of recovery for nonviolent offenders who have served their time and maintained a clean record for a certain number of years.” But we need to extend that generosity to others targeted by the domestic wars that have fueled mass incarceration. Any serious plan to end mass incarceration also has to challenge harsh sentencing and long terms for people convicted of violent offenses. Even though most of that work will need to happen at the state level, where the majority of people are incarcerated, presidential candidates serious about addressing mass incarceration need to also address violent harm.

Supporters of either plan should recognize how difficult implementation will be. We should see these plans as developing rather than final, especially given that it is not at all clear that much of what these plans include could be implemented from the federal level. Sanders’ plan includes many exciting, necessary ideas—such as  “unlimited visits, phone calls, and video calls” for incarcerated people, and a promise to “stop excessive sentencing”—without discussing how they could be put into effect. (Are incarcerated people really going to be able to call their loved ones at 2:00 a.m. if they want? When does a sentence become “excessive”?) Warren offers a similar list for meeting basic human rights standards and protecting “special populations.” Yet implementation is where the rubber meets the road: The history of prison reform is replete with examples of wardens, sheriffs, police chiefs and associations of correctional officials rejecting progressive options—legally or otherwise—or co–opting demands to strengthen repressive measures.  

Both plans are exciting steps forward—and both plans are limited. They give us some things to fight for, some things to push beyond, and some things to question. Discussing their strengths and weaknesses can push the candidates to clarify some of what remains implicit while also strengthening efforts to build new justice paradigms, particularly at the state and local level. And, just as grassroots movements made those plans possible, it be movements that determine whether any of them get implemented. The fight against mass incarceration will require bold initiatives to shift the country away from its reliance on police and incarceration toward safe and thriving communities. A presidential election can’t inaugurate all the changes we need. But these plans should inspire organizers to do what they do best: Keep pushing, always within the framework of a more transformative vision.


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Dan Berger is a professor, the author or editor of six books, and a coordinator of the Washington Prison History Project.

 

Kay Whitlock, an abolitionist, is the co-author of two books on structural violence and a forthcoming book that interrogates contemporary criminal justice reform agendas.

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