This is the stealing season of the presidential campaign.
The top tier of candidates is trying to maintain and expand their bases of support, and at least to some extent, that means fleshing out their policy proposals. Elizabeth Warren, notably, adopted both Bernie’s Medicare for All plan and Jay Inslee’s climate plan (before doing…something resembling backtracking on the former). This happens virtually every time there are several candidates vying for the nomination.
In this vein, Joe Biden released a criminal justice plan about two months ago. I read through it. It’s actually pretty good. Just on paper (that is, setting aside his role in the 1994 crime bill that contributed to our current predicament), I wanted to see how it would stack up to two other platforms: that of Bernie Sanders and that of Cory Booker, who’s running the closest thing in the field to a single-issue criminal justice campaign.
Booker doesn’t have his criminal justice platform in a single place, but I distilled his various pronouncements into 26 criminal justice planks. This includes broadly popular planks such as eliminating the crack/powder sentencing disparity and abolishing the death penalty, but it also includes less glamorous reforms such as ensuring that every person released from prison is ensured a photo ID and increasing spending on indigent defense.
Sanders explicitly agrees with 23 of these planks, going further on two, and adds three of his own (that I could not find Booker on the record on). Sanders’ framing of policing reforms in particular seems highly similar to Julián Castro’s (generally very good) statements on the topic…but like I said, it’s stealing season.
Of the 29 total policy positions discussed by either Booker or Sanders, Biden endorses 24 of them in his plan, including every position included in both Booker and Sanders’ platforms. Two of the remaining five are rather specific, and one of the other three is one I’m not even sure I agree with (Bernie’s proposal to bring back parole in the federal system, a mechanism that in my state experience, I’ve only understood as a massive dysfunctional implicit bias factory). He also talks specifically about a 30th position: ending incarceration for inability to pay civil fines, something that neither Booker or Sanders ties directly to criminal justice (at least, again, on the record).
Let formerly incarcerated individuals access Pell grants? All of them say yes. Use clemency power to release the vast majority of nonviolent drug offenders? Yup. End cash bail and long-term solitary confinement? Check and check. Trauma-informed care in prisons? Everybody’s on board.
In essence, while the differences between the stated plans do matter, everybody is preaching essentially the same overall philosophy.
Kamala’s platform is no different. It’s a little fuzzier on specific numbers, but it hits 27 of the 30 planks in some way, shape, or form. Her platform is in broad strokes indistinguishable from that of Booker, or Sanders, or Biden.
So what’s our big problem, right?
The district courts, like the circuit courts, are filling up with Trump appointees. But in truth, the party of the nominating president doesn’t matter as much as you might think in terms of whether federal defendants get a fair shake: in pretrial proceedings, at sentencing, etc. So many federal judges fall into one of two buckets: civil lawyers and prosecutors. As a whole, the former group is unpredictable, and the latter isn’t unpredictable enough.
Obama started as most presidents do: virtually all of the criminal lawyers he appointed during his first term were prosecutors (or private defense lawyers). But as he started to face pressure from activists about this bias, he did indeed appoint more former public defenders to the bench. The final numbers were still underwhelming (126 prosecutors vs. 45 public defenders), but he was one of the first presidents who seemed to actively try.
The judiciary, though, remains in even worse shape. Even counting private criminal defense attorneys, prosecutors outnumber criminal defense lawyers four to one among Article III judges.
Even for the presidential hopefuls who have been heralded as leaders of criminal justice reform, I suspect that this particular potential reform will require some education. But there is one person that I do not trust to listen when we advocate for more public defenders on the bench, regardless of the number of criminal justice platform planks she shares with Bernie Sanders: Kamala Harris.
Harris’ record, with the Brady violations, the continued criminalization of petty offenses, the egregious Orange County prosecutorial misconduct that she declined to act on, etc., has been written to death by people far more eloquent than me. I’ll just add that she tried to square the circle through “smart on crime rather than tough on crime” rhetoric, which mostly focused on her initiatives to try to curb recidivism and avoided the questions of what prosecutors do to secure convictions and lengthy sentences. Her current criminal justice platform, ironically, calls into question that very rhetoric by noting the squishiness (and potentially racial bias) in statistics that are currently used to measure recidivism.
In the later days of her campaign, Harris pushed back less against attacks on her record and tried to focus her prosecutorial rhetoric on the criminality of the president. Even so, it was clear that she was not ready or willing to reverse course entirely on her past.
And so while I’m worried about the proportion of prosecutors to public defenders that Harris would likely appoint, this also greatly concerns me because it indicates that the prosecutors she’d appoint might include prosecutors whose goal as a life-tenured judge would be to prop up the institution of mass incarceration. I could not trust Harris to be able to filter bad-faith actors out of her pool of nominees.
I ruled Harris out from my own personal pool of candidates I would vote for a while ago. I did the same with several other candidates. There is a reasonable argument, despite her flaws, that the world as a whole would be better in January 2025 after four years of a Harris presidency than many of those other candidates, including some who are still in the lead pack today. But it’s unclear to me, personally, whether that would bring me to vote for her in a primary. (The question is academic now, I suppose.) The symbolic value of voting for a candidate with a fundamental flaw is hard to overcome. It’s why, despite the nationalization of all party politics and the enthusiasm gap, the nominee in every race still matters.
It is impossible to talk about Harris’ exit from the race without talking about the prospect of an all-white debate stage in December. With two days left, the chances of Tulsi Gabbard or Andrew Yang making it seem slim (although certainly alive, since both are only one poll short). It goes without saying that this is a problem, and not just an optics problem. Candidates of color, unless they possess the skills of a once-in-a-generation orator, continue to have an impossible time breaking through on the presidential stage. Indeed, every candidate who made debate 4, is still in the race, and will not make debate 6 is nonwhite. Some of the problem is too fundamental to fix unilaterally, but some of the problem is rooted in flawed process and should be reassessed.
There are a million ways to frame the problem, though, as Harris embodies it. The campaign disarray is one angle; others are pointing fingers at the criminal-justice narrative that seemed to follow her at every opportunity. (It’s a narrative that will still readily apply to somebody on that December 19 stage, someone who has largely escaped the same scrutiny until now and also happens to be white.)
Here’s another framing: The report on Obama’s judicial appointments of prosecutors vs. public defenders was created to highlight a weakness in his slate of judges that occurred despite unprecedented diversity in race, gender, and even sexual orientation. It’s possible, or even perhaps easy, to capture substantial diversity along one axis while doing equally poorly along another axis. I’ve used this phrase as a disclaimer before, but it applies in full force here: Representation is not a panacea.
The same is true of presidential candidates: those who become credentialed enough to credibly declare, those who actually declare, and those who survive the initial rounds of cuts. Our individual preferences, and our donations accordingly, tend not to singlehandedly affect the makeup of the field.
From my perspective, regardless of how people want to frame the problem of diversity in the slate of candidates we have, there is therefore only one solution. While the bench of elected officials who identify consistently with left policy is growing, it has in the past not done well with prioritizing and centering diversity despite having that diversity within reach. Even though representation is not a panacea, a lack of representation is virtually always a weakness, especially when we’re talking about policymaking.
Progressive ideals are not (and have never been) the exclusive domain of either the white working class or leftist elites. Much of the most thankless work has been done by people of color (often women of color), and centering those voices in activism and organizing can only help: widening the tent to welcome disaffected and marginalized populations, dragging party elites toward the considerations of those marginalized populations, and ultimately building a diverse bench of representatives and officials who can truly reflect on that diversity and speak credibly about it onstage.
It may be too late to save the 2020 election, but building this bench isn’t just about a laser focus on future presidential elections. Criminal justice reform in particular is so dependent on state-level reforms that it is worth focusing on state legislative races on their own merit.
To paraphrase a famous problematic rapper, if you wanna get here, you gotta start from the bottom.