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Beto O’Rourke’s Criminal Justice Plan Reflects Pressure On Democrats To Tackle Mass Incarceration

O’Rourke’s marijuana legalization plan includes expungement and clemency, and for communities hit hardest by the War on Drugs to reap the economic benefits of legalization.

Potential voters watch the fourth Democratic presidential debateMario Tama / Getty Images

Spotlights like this one provide original commentary and analysis on pressing criminal justice issues of the day. You can read them each day in our newsletter, The Daily Appeal.

This week, Beto O’Rourke, a former U.S. representative and former City Council member in El Paso, Texas, released his campaign’s criminal justice plan. Its title, “Beto’s Comprehensive Plan to End Mass Incarceration and Reform Our Criminal Justice System to Prioritize Rehabilitation,” reflects a public consensus among the field of Democratic presidential candidates that the scourge of mass incarceration must end and the pressure to announce ambitious plans in response. What remains to be seen is how much of a priority criminal justice will be for the candidates beyond the primary.

O’Rourke’s criminal justice reform plan was released within days of Julián Castro’s and Pete Buttigieg’s, and comes after the detailed plans from other candidates, including Joe BidenKamala HarrisElizabeth Warren, and Bernie Sanders.

O’Rourke’s criminal justice plan also comes after his plans on numerous other issues, including climate change, immigration, LGBTQ rights, and ending the war on drugs. There is, understandably, overlap between the ideas contained in O’Rourke’s criminal justice plan and the ones that preceded it, particularly with respect to drug policy.

Because of the competing priorities facing a president and the fact that criminal justice—largely a state and local issue—is rarely at the top of the list, it is worth noticing the issues that presidential candidates have been attuned to long before their campaigns and where they connect the dots between related issues. For O’Rourke, marijuana legalization has been a signature issue for a decade. As a new City Council member in El Paso in 2009, he sponsored a resolution calling for a national debate on ending the prohibition on narcotics and later challenged the incumbent Congressman who threatened federal funding for El Paso if the city adopted the measure.

O’Rourke’s criminal justice plan includes a promise to legalize marijuana (which would require congressional action). In his stand-alone plan on the issue, there is greater detail, emphasizing measures to undo the harm of the war on drugs, and particularly marijuana policies, on individuals and communities.

This includes expungement of the records of those convicted of marijuana possession and a commitment to grant clemency for people serving federal sentences for marijuana possession and also set up a review board to consider clemency for people serving sentences “related to marijuana.” (In June, the Washington Post noted that the number of people sentenced to federal prison in 2017 for marijuana possession alone was 92.) O’Rourke also promises sweeping action on clemency overall—25,000 grants to people in federal prison in his first year.

The plan includes monthly Drug War Justice Grants for people who were formerly incarcerated in state or federal prison for nonviolent marijuana offenses. The marijuana legalization plan promises to give communities most affected by the war on drugs the chance to benefit from legalization policies, by tying federal funding for states and localities to policies that ensure that “those most impacted by the War on Drugs are the ones benefiting from the economic activity related to marijuana.”

On other issues, O’Rourke’s plan reflects less of a distinctive commitment. Like other candidates, he pledges to end the federal government’s use of private prisons, which would have the most far-reaching consequences with respect to immigration detention. (O’Rourke has also pledged, in his immigration plan, to use executive orders to substantially end the use of immigration detention and order the federal government not to enter into any new contracts with private prison companies for immigration detention. Unlike mass incarceration as a whole, which is largely fueled by incarceration at the state and local level, immigration and the use of private prisons at the federal level are policy issues over which the executive branch directly wields a great deal of power.)

The plan includes a laudable focus on the disparate rates of school discipline and arrests that funnel Black and Latinx children, as well as children with disabilities, into the criminal legal system. O’Rourke’s plan also deserves attention for its repeated mention of the criminalization of people with disabilities.

There are also commitments to enhance the quality of public defense, through directions to the Department of Justice to “sue jurisdictions that fail to meet their Sixth Amendment obligations,” tying federal grants to “competitive pay” for public defenders, establishing a federal Center for Defense Services for technical assistance and support, and a promise to wipe out, or substantially forgive, the student loan debt of public defenders, based on their years of service.

On voting rights, O’Rourke promises less than Sanders who would guarantee voting rights for all. O’Rourke supports the restoration of voting rights for people who have been released from prison.

With respect to policing, police brutality, and police shootings, O’Rourke (who attracted national attention as a Senate candidate last year for his praise of former NFL player Colin Kaepernick’s protest of police violence against Black men and women) writes: “Time and again, communities are left without justice.” But in Congress, O’Rourke was one of 48 Democrats who voted for a 2012 bill that would add the “killing or attempted killing” of a law enforcement officer to the list of aggravating factors in federal death penalty cases, a measure seen as a Republican response to the Black Lives Matter movement. He later said he regretted the vote and has said he does not support the death penalty. The most significant commitment among the current policing proposals, which resembles that of other candidates, is the support of federal legislation that would limit qualified immunity, a doctrine that courts have interpreted as a shield from accountability for police officers.

At this point in the primary season, and in the country’s history, there is widespread recognition that mass incarceration is a moral outrage and an expression of systemic racism. O’Rourke’s commitment to marijuana legalization predates this race and reflects his investment in the issue. On the many other issues in his plan, what we see is a reflection of the work of activists, survivors, and Democratic voters thus far and the work still to be done: A recent town hall organized by formerly incarcerated people attracted only three Democratic presidential candidates.