Joe Biden’s long history of promoting draconian sentences, hard-line anti-drug policies, and proliferating death penalties is an easy target for any politician who is serious about criminal justice reform. But there is little evidence that description applies to President Donald Trump, who has repeatedly slammed Biden as “the chief architect of mass incarceration and the War on Drugs“ while presenting himself as an opponent of excessively punitive policies—a major theme of this week’s Republican National Convention.
Trump’s bona fides as a reformer consist of two accomplishments. First, he supported the FIRST STEP Act, a 2018 law that included some modest but significant drug sentence reductions. Second, he has issued 25 pardons and 11 commutations, some of which seem to reflect a sincere belief in rehabilitation and a genuine concern about unjust penalties. Most famously, Trump freed Alice Marie Johnson, a nonviolent, first-time offender who received a life sentence for her role in a Memphis-based cocaine distribution ring. Johnson, whom the president introduced during his State of the Union speech last year, was featured in a Trump campaign ad during this year’s Super Bowl and is scheduled to speak at the Republican convention on Thursday night.
Although it did not go as far as many reformers would have liked, the FIRST STEP Act, which passed with overwhelming support in the House and Senate, was a clear improvement that freed thousands of drug war prisoners, and Trump deserves credit for backing it. The fact that he has used his clemency powers not only to help his cronies but to ameliorate some real injustices is also laudable. Barack Obama, who eventually commuted a record 1,715 sentences, approved just one petition during his first term. But when it comes to his plans for a second term, Trump has said little about criminal justice, and what he has said is inconsistent with the image he is trying to project.
The second-term agenda that Trump unveiled this week, like the “Law and Justice” section of his campaign website, does not mention criminal justice reform. But it does list five points under the heading “Defend the Police,” a rejoinder to the “Defund the Police” movement. Trump’s wish list does not inspire confidence in his commitment to reversing Biden’s mistakes.
Trump wants to “fully fund and hire more police and law enforcement officers,” which sounds an awful lot like a central element of the “1994 Biden Crime Bill” (as the former vice president proudly calls it). Yet Trump says that law epitomizes the Democratic nominees’s role in promoting mass incarceration and should make African Americans think twice about voting for Biden. “Anyone associated with the 1994 Crime Bill will not have a chance of being elected,” Trump tweeted last year. “In particular, African Americans will not be able to vote for you. I, on the other hand, was responsible for Criminal Justice Reform, which had tremendous support, & helped fix the bad 1994 Bill!”
Trump wants to “increase criminal penalties for assaults on law enforcement officers.” He does not explain why current penalties are inadequate or how he would change the state laws that prescribe them. Perhaps Trump has in mind laws that treat assaults on police as hate crimes, which result in arbitrary sentence enhancements that are predictably deployed against members of the same minority group that Trump says has disproportionately suffered from the policies Biden championed. Here, too, Trump sounds like the Biden of the 1980s and ’90s, who was keen to show that Democrats could be just as mindlessly “tough on crime” as Republicans.
Trump wants to “prosecute drive-by shootings as acts of domestic terrorism.” That would be inconsistent with the current federal definition of terrorism as “the unlawful use of force and violence against persons or property to intimidate or coerce a government, the civilian population, or any segment thereof, in furtherance of political or social objectives.” It does not make much sense to put violence between urban gangs in the same category as the ideologically motivated 9/11 attacks or 1995 Oklahoma City bombing. But again, the point is emotional rather than logical, reflecting the same mentality that gave us the ever-escalating criminal penalties Trump faults Biden for supporting.
Trump wants to “bring violent extremist groups like ANTIFA to justice,” which seems unobjectionable until you contemplate how members of that ad hoc, decentralized, and vaguely defined movement are to be identified. Punishing people for their alleged membership in a group rather than their individual actions is a recipe for indiscriminate penalties of the sort that Trump intermittently condemns.
Trump wants to “end cashless bail and keep dangerous criminals locked up until trial.” That proposal is a direct swipe at a reform widely supported by critics of the criminal justice system, who say people should not be imprisoned prior to trial simply because they cannot afford bail, which punishes them without a conviction, impairs their ability to mount a defense, and pressures them into plea deals that otherwise would be less appealing. By describing defendants as “dangerous criminals,” Trump erases the presumption of innocence and ignores all the defendants, including alleged drug offenders, who are “locked up until trial” even though they do not plausibly pose a threat to the general public.
Unlike Trump, whose campaign website does not address criminal justice reform in any substantive way, Biden has a lot to say on the subject. He has repudiated the mandatory minimums and death penalties he once supported, saying they should be abolished. He also wants to eliminate the irrational sentencing disparity between the smoked and snorted forms of cocaine, which was created by a 1986 law that Biden wrote and resulted in strikingly unequal treatment of black defendants. That gap was reduced by the Fair Sentencing Act of 2010, a law signed by Obama and supported by Biden that casts doubt on Trump’s claim that only he can deliver “real criminal justice reform.”
While continuing to resist the repeal of federal marijuana prohibition, Biden now calls for decriminalizing cannabis consumption and automatically expunging “all prior cannabis use convictions” (neither of which would have much of an impact at the federal level, since the Justice Department rarely prosecutes low-level marijuana cases). He also says states should be free to legalize marijuana, which is similar to the position Trump has implied he supports and has taken in practice.
One need not believe that Biden’s conversion is completely sincere to recognize that the current climate of opinion within the Democratic Party would make reverting to his old drug-warrior instincts politically difficult. Trump, by contrast, is trying to have it both ways, assuring unreconstructed conservatives that he will be tougher on crime than Biden while telling moderates he understands that criminal penalties are frequently arbitrary and disproportionate. Reconciling those seemingly contradictory messages may not be possible, and it surely would require more thoughtfulness than Trump has demonstrated so far.
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