by Christopher Zoukis and Charles Sloan-Hillier

“If we catch a drug dealer – death penalty.” – President Donald J. Trump, 2018

“Lock the S.O.B.s up.” – Former Senator Joe Biden, 1994

As protests and calls for police reforms continue in response to police shootings of unarmed suspects, both the Republican and Democratic parties seem to be on the same page: How do we maintain the status quo and strengthen the police state while pacifying the population. But even with these views in mind, the question of how each candidate, if elected, would deal with criminal justice reform needs to be examined. Since 1992 PLN has compared presidential candidates track records on criminal justice issues and the consistent result is two empty bottles with different labels. One reason the U.S. has a mass incarceration problem and an overwhelming police state is the bipartisan consensus in creating and sustaining it. This election is no different.

The problem starts for each candidate at different points in time, in different eras, and with divergent factors contributing to their positions. While it would be nice to say that one party is better for criminal justice reform, this isn’t possible. The only difference is asking whether it is better to be beaten to death with a 2 x 4 or a baseball bat. The result is the same.

Recently, the Democratic Party has talked a good game about supporting criminal justice reform, but for at least the last 35 years it has been the primary architect of the modern American police state. On the other hand, while Republicans have frequently based their politics on tough-on-crime policies, they have taken some positive steps on criminal justice but ones that are extremely minimal and tokenistic at best and that have done nothing to give prisoners enforceable rights or shrink the police state.

The Context of Speech and the Era of Crime

Part of the problem is that each candidate’s political speech has to be placed in context. For example, when President Trump suggested that we may learn a lesson from China and Singapore in executing drug dealers, was he really suggesting that we execute drug dealers? It’s more likely that he was arguing that drug dealers who sell drugs that subsequent users die from should be executed – which is still an alarming position.

Former Vice President Joe Biden has an equally sordid history with criminal justice reform, albeit from a different era. Elected to the Senate in 1973, Mr. Biden has significantly contributed to the current mass incarceration problem. The difference between the two is that for decades, before being elected President, Trump talked about criminal justice issues a lot. With 50 years in public office, during which time he became a multi-millionaire, Biden has acted on his talk. Trump talked about killing drug dealers. Biden authored the biggest expansion of the federal death penalty in American history in the 1994 crime bill and followed up by gutting all American prisoners’ access to federal habeas corpus review with the 1996 Antiterrorism and Effective Death Penalty Act (AEDPA). If there are federal prisoners for Trump to execute in 2020 it’s in large part because Biden helped create the legal framework to make it possible.

History of Biden’s Criminal Justice Reform

In a 1993 speech on the Senate floor, Mr. Biden exclaimed, “The truth is, every major crime bill since 1976 that’s come out of this Congress, every minor crime bill, has had the name of the Democratic senator from the State of Delaware: Joe Biden.” In support of this, and the then-Democratic party’s position on criminal justice, Mr. Biden rather unfortunately stated, “[President George H. W. Bush’s policies don’t] include enough police officers to catch the violent thugs, not enough prosecutors to convict them, not enough judges to sentence them, and not enough prison cells to put them away for a long time.” In a 1994 Senate floor debate about aggressive criminal justice policies and how to deal with convicted criminals, he remarked: “Lock the S.O.B.s up.”

For anyone who believes in a fair, even, and decent criminal justice system. Mr. Biden’s record is atrocious.

As early as 1977, Mr. Biden advanced mandatory minimum sentences. In 1989, in response to George H. W. Bush’s criminal justice policies, Mr. Biden advanced an approach to putting “violent thugs” in prison. In 1993, he warned about “predators on our streets.”

What can be said for Mr. Biden is that he followed his words with action. In 1984, he spearheaded the Comprehensive Crime Control Act, which expanded penalties for federal drug traffickers and supported civil asset forfeiture laws, allowing police departments to seize property used during the commission of a crime. In 1986, he sponsored and partially drafted the Anti-Drug Abuse Act, which increased the sentences for drug crimes, including instituting the now-infamous 100 to 1 powder cocaine to crack cocaine disparity for mandatory minimum sentencing. Then came the Anti-Drug Abuse Act of 1988, which further increased penalties for drug offenders. It also included the death penalty for drug dealers and life without parole sentences for minor drug offenders.

But Mr. Biden’s darkest criminal justice reform hour perhaps came in 1994, with his co-authorship of the Violent Crime Control and Law Enforcement Act followed, in 1996, by the Prison Litigation Reform Act and the Antiterrorism and Effective Death Penalty Act. These acts not only further created the perfect statutory scheme for today’s mass incarceration epidemic but also drastically restricted how prisoners could challenge their sentences and conditions of confinement. It also gave states billions of dollars to build new prisons and encouraged them to change their sentencing laws requiring prisoners to serve at least 85% of their sentences to get federal money.

While the above is a strong rebuke of Mr. Biden’s history of criminal justice policies, these must be viewed in the lens of the Tough on Crime and War on Drugs of the ’70s, ’80s, and ’90s. These do not necessarily indicate a modern-day Biden presidency, and probably do not indicate what we would receive if Mr. Biden were elected president. It just shows what Mr. Biden has done for the past 50 years he has been in elected office. Mr. Biden was vice president as recently as 4 years ago and progressive criminal justice reform was not on his agenda. (It should be noted that President Trump has done little to challenge the worst impacts of Biden’s record and his court appointments have vigorously supported, and worsened, the Prison Litigation Reform Act.)

Alas, Mr. Biden has shown nowhere near the resolve, vigor and decisive action to help undo the very laws he drafted, legislated, enacted and enforced. In 2008, he backed the Second Chance Act, legislation designed to help with prisoner reentry by giving $100 million a year to prisons and religious organizations. That pales with the tens of billions doled out to build prisons and lock people up. In 2010, he supported the Fair Sentencing Act, which reduced the crack-to-powder cocaine disparity from 100-to-1 to 18-to-1. While not equity, this was a substantial step in the right direction.

Trump’s Criminal Justice Policy History

While not nearly as long as Mr. Biden’s criminal justice reform history, President Trump also comes with several black marks. But one problem with evaluating Mr. Trump’s criminal justice reform history is that it is often punctuated with absurd off-the-cuff statements and tweets. It’s difficult at best to discern President Trump’s thinking 140 characters at a time.

This is one factor that must be considered when evaluating another four-year Trump presidency. While Trump says many things, and many of these off-the-cuff quips are ill-advised, his most decisive action in the criminal justice reform arena focuses on spontaneity. And basing a criminal justice platform on spontaneity is, well, ill-advised.

Before his 2016 election, Mr. Trump frequently espoused pro-police sentiments and voiced his ardent support for the death penalty. In recent years President Trump has continued his death penalty rhetoric, suggesting a lesson in the approach taken in China and Singapore where drug dealers are executed. And while not directly on-point with criminal justice policy analysis, President Trump’s continued racist colonialism approach does not bode well for minorities or other non-American criminal defendants. His most famous episode was calling for the death penalty for the Central Park Five in 1989. Five Black teens were convicted of assaulting and raping a white woman jogger in New York City. Later, the five men were released from prison having been wrongfully convicted. Trump does not appear to have apologized for seeking the death penalty against innocent defendants.

During the Trump presidency, the president has made modest strides in criminal justice reform that seem significant only in comparison to the past 50 years of police state expansion. While President Barack Obama was a more sympathetic voice, and many had greater hopes for what he would achieve, President Trump has surpassed President Obama in terms of achieving some tiny amount of criminal justice reform. Prison reform is a separate topic that no one in American politics is willing or able to address.

For example, he did sign the First Step Act of 2018. This bipartisan Act, which corrected an existing computation error with how good conduct time is awarded to federal prisoners, resulting in small reductions in sentences (i.e., seven additional days per year for good conduct). This Act also reformed several mandatory minimum sentencing laws, directed the federal prison system to house prisoners closer to home where practicable, expanded home confinement placement, significantly reformed compassionate release processes, and, most important, put in a new structure where low-risk federal prisoners can earn time off their sentence for recidivism reduction programming.

While the First Step Act is a good first step, it should be highlighted that this piece of legislation did not blow federal prisons’ doors open. Instead, while many federal prisoners benefited from some provisions, a significant number of federal prisoners are not eligible for the highly touted earning of additional good conduct time through recidivism reduction programming as many were excluded based on their conviction offenses. The First Step Act stands out as one of the very, very few federal laws that actually benefit prisoners in the past century.

President Trump also has to his credit the awarding of select clemency applications, most notably Alice Johnson, whose case was advanced by Kim Kardashian. He has also commuted other sentences. Unfortunately, it is difficult to anticipate what another four years under President Trump would look like given the stark contrast between the draconian views he has embraced and the policies he has passed while in office. He has also pardoned notorious criminals like Maricopa county sheriff Joe Arpaio and war criminals like Navy SEAL Eddie Gallagher.

Under Trump, the BOP’s response to the COVID-19 pandemic has been abysmal. Soon after it publicly erupted in March, the Justice Department announced that federal prisons would release medically vulnerable, nonviolent prisoners to home confinement to minimize deaths. Meanwhile, the BOP secretly drafted a policy document that made it harder for prisoners to qualify for release and only a tiny fraction have been freed. The BOP has also failed to take effective steps to protect those still behind bars, which has led to 122 deaths (as of mid-September) and several thousand cases of COVID-19 among federal prisoners, according to official statistics. We can note that none of the states have done any better and Biden has been silent on the issue of COVID-19 deaths in prisons and jails.

Trump and Biden’s Election Platforms

The real question for voters, and the millions of Americans who have lost their right to vote because of felon disenfranchisement, is what would each candidate bring to the table if elected or reelected president.

• Death Penalty. The death penalty is one area where there is a strong contrast between Mr. Biden and President Trump. While Mr. Biden says he will work to eliminate the federal death penalty and incentivize states to follow, President Trump is a staunch advocate of the death penalty and federal executions restarted this year. He has “already carried out more federal executions in 2020 than his predecessors had in the previous 57 years combined,” The Intercept reported, and more executions are scheduled this year. Biden has been silent as Trump carries out executions and of course, only two federal prisoners saw their death sentences commuted to life without parole under the 8 year Obama presidency.
• Mandatory Minimums. While Mr. Biden says he supports repealing federal mandatory minimums he helped pass and will incentivize states to do the same, Mr. Trump hasn’t made a clear position on this matter, instead, relying on the First Step Act’s shortening of some mandatory minimum sentences.
• Commutations. While Mr. Trump has granted a select few commutation petitions, and the administration has vowed to “build on [its] success,” Mr. Biden has vaguely stated that he will use the vehicle of commutations to commute “unduly long” sentences, but only for non-violent offenders.
• Solitary Confinement. The candidates also differ on their stance to solitary confinement. While Mr. Biden says that he is calling for “an overhaul of inhumane prison practices” and that it should be used only in highly limited situations, Mr. Trump does not have a stated policy position. It should be highlighted that the Trump administration did remove a policy provision on the Office of Juvenile Justice and Delinquency Prevention’s website stating that juveniles should not be placed in solitary confinement. Of course, neither has done anything about the BOP’s super max prison in Florence, Colorado or the BOP’s segregation units around the country, so we can likely expect no actual change there. It is also an open question as to whether anyone really controls or has oversight of the BOP.
• Drug Policy. The candidates’ policies on drug laws are also starkly different. Mr. Biden supports the decriminalization of marijuana and the retroactive application of expungements. His platform also supports rehabilitation instead of prisons, and incentivizes the states to treat, not incarcerate, drug offenders. (“End all incarceration for drug use alone and instead divert individuals to drug courts and treatment,” says his website.)This, after half a century of criminalizing drugs and the people who use them and caging millions of drug users. And, in a turn Biden has also pledged to correct the disparity between crack and powder cocaine. Biden remains opposed to legalizing marijuana.

President Trump has presented mixed messages with marijuana law reform. His administration has repeatedly targeted state marijuana protections through federal budget proposals. At least in his first presidential run, his administration suggested that recreational marijuana policy was an issue for the states to determine. President Trump’s policies on heroin are somewhat similar to Biden’s in that he has supported treatment. President Trump has also suggested that drug dealers should be executed if it is shown that a death resulted from the drugs sold.

• Prisoner Reentry. Both President Trump and Mr. Biden have supported prisoner reentry initiatives. For example, Mr. Biden has stated that he wants to expand “ban the box” initiatives, where companies are restricted from asking if an applicant has been convicted of a felony. He has also proposed eliminating restrictions on felons receiving federal assistance, such as Pell grants, food stamps, and federally subsidized housing.These restrictions were all put in place in laws he authored or sponsored as a Senator.

President Trump’s crowning achievement here is the First Step Act, which created additional recidivism reduction programs designed to help current federal prisoners. He also created the “Ready to Work Initiative,” designed to assist formerly incarcerated persons with potential employers, including nonprofits.

• Prison Profiteering. President Trump and Mr. Biden’s platform positions on prison profiteering directly conflict. Mr. Biden now supports ending cash bail, shutting down private prisons, and incentivizing the states to not participate in other privatizing criminal justice activities, such as commercial bail, electronic monitoring, and diversion programs. Mr. Biden and the Clinton administration helped bail out the private prison industry in 1999 with sweetheart immigration contracts. However, in 2016 the Obama administration announced it would phase out the use of some private prisons holding federal prisoners, which tanked the companies’ stock shares. Trump quickly reversed that after taking office.

President Trump is opposed to abolishing cash bail and strongly supports the private prison industry, which in turn strongly supports him with campaign donations and contributions.

Policing. While both Mr. Biden and President Trump support increasing the number of police, Biden’s platform focuses on collecting data to make more informed decisions, while Trump is more concerned with protecting police officers. Whereas Biden has supported investigating police and prosecutor misconduct, Trump has advanced the Community Reform Initiative, which supports funding for police departments to purchase bulletproof vests. Biden has long been supported by police and guard unions and has also long been a big supporter of giving police and prisons billions of dollars in federal money to hire more cops and guards.

However, this year most major police unions have backed Trump. In September, the Fraternal Order of Police, the country’s biggest police union with 355,000 members, endorsed Trump. “President Trump has shown time after time that he supports our law enforcement officers and understands the issues our members face every day,” said Patrick Yoes, the union’s president. “The FOP is proud to endorse a candidate who calls for law and order across our nation.” The endorsement came after Trump dispatched National Guard troops and federal units to crack down on protests that erupted following the police killing of George Floyd.

Prison Phone Rates: In 2012, the Human Rights Defense Center (HRDC), which publishes PLN, launched its Prison Phone Justice Campaign to reduce the rates prisoners and their families pay for phone calls. Working with Federal Communications Commissioner Mignon Clyburn, HRDC achieved significant regulation of prison phone rates nationally. Every one of these reforms was opposed by FCC Commissioner Ajit Pai and the prison telecom industry.

Securus and Global Tel Link filed suit challenging the order capping intrastate prison calls, which make up 85% of all prison calls. Shortly after the 2016 election, Trump appointed Pai as the commissioner of the FCC, which gave Republicans a 3-member majority. Two days before oral argument in the prison phone rate case, Chairman Pai ordered FCC lawyers not to defend the FCC’s order, a situation that is virtually unheard of in regulatory circles. The appeals court reversed the FCC.

Trump has remained silent about the issue of Prison Phone Justice as has Biden. The only potential difference between the two is that FCC commissioners appointed by a President Biden might be more receptive to the notion that prisoners and their families should not be viewed as profit centers for hedge-fund owned telecoms to gorge their coffers and give kickbacks to their government collaborators.

Politicians and Their Promises

The problem with politicians is that they will say just about anything to get elected. Just because presidential candidates say they will do something, it does not mean anything will come to fruition. Sometimes, this is more the result of the House and Senate’s political makeup than the president’s desires or objectives.

While it is easy to look to Mr. Biden’s history in the Senate and the majority of his political career and view him as an opponent of criminal justice reform, his more recent talk on the campaign trail shows he could seek it. And while President Trump did sign into law the First Step Act – a bipartisan effort, mind you – he has also suggested that we execute drug dealers and is presiding over more federal executions than any other president in the past 60 years.

The choice between these two candidates is hard, especially considering the Democratic Party’s dismal history on criminal justice reform and the Republican Party’s more recent successes in this arena. In the end, it comes down to a choice between a sporadic, reality TV president and one who calls for change but has a 50 year history of enacting policies that led to today’s mass incarceration problem. Two empty bottles with slightly different labels. Pick your poison. 

Sources: NYTimes.com, Reuters.com, Politico.com, Vox.com, Slate.com, NPR.org, NewsWeek.com, WashingtonPost.com, USNews.com, Reason.com, WhiteHouse.gov, BallotPedia.org, JoeBiden.com, Famm.org, PromisesKept.com.

About the Authors: Christopher Zoukis, MBA, is a law student at the University of California, Davis School of Law, where he is a member of the UC Davis Law Review and vice president of the Criminal Law Association and Students Against Mass Incarceration. He can be found online at https://www.prisonerresource.com.

Charles Sloan-Hillier is also a law student at the University of California Davis, and a member of the UC Davis Law Review and Students Against Mass Incarceration.

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