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.

Dan Berger and Kay WhitlockAugust 23, 2019

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)

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. 

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.

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 régime. 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 con­trol30 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.

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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