How Super Tuesday Has Been Shaped By Criminal Justice Issues

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.

Today, voters in 14 states and one territory will have the option of selecting a candidate to be the Democratic presidential nominee. They will choose among four major candidates: two moderates and two leftists. Among the more remarkable aspects of how the race has developed is the extent to which it has been shaped by criminal justice issues.

As Jelani Cobb wrote for The New Yorker, before Pete Buttigieg and Amy Klobuchar dropped out of the race: “A crude way of summarizing the remaining viable contenders in the Democratic field is to note that voters have a choice of: a former mayor who championed stop-and-frisk practices that targeted African-American and Latino men; another former mayor, who fired a black police chief after he recorded phone calls in which senior white officers made racist comments; a former prosecutor who may have helped send a wrongfully accused black teen-ager to prison; a former Vice-President who co-wrote the 1994 crime bill; a democratic socialist who voted for and defended that bill; or Senator Elizabeth Warren, who has held office only since 2013, and has no comparable stain on her record.”

“Individual politicians often face liabilities with particular segments of the electorate,” he continued. “It’s unusual, though, for so many in one field to be susceptible on such a similar theme; a now entirely white Democratic slate is being asked to explain past positions on criminal-justice issues, and, specifically, the effects of those positions on people of color.”

And just as remarkable as who is on the ballot is who is not. Kamala Harris, an early favorite among many pundits, became an early dropout, in part because of her past as a prosecutor, which led to the meme, “Kamala is a cop.” Harris’s past was troubling not merely because she chose to rise to prominence by contributing to mass incarceration, but because, as I wrote last year for the Daily Appeal, she was a “tough-on-crime prosecutor in a Black Lives Matter era.” “Black communities, in particular Black women … radically re-evaluat[ed] Harris’ record and rhetoric on criminal justice,” wrote Camille Squires for Mother Jones. “On Black Twitter, calling out aspects of Harris’s record as a prosecutor wasn’t just about getting one over on a candidate. It was about holding her accountable for her past actions, which include an anti-truancy law that threatened the parents of students who skipped school with criminal charges, and various failures to hold police and prosecutors accountable for misconduct.”

Harris also opposed a motion for DNA testing that could exonerate a possibly innocent man, changing her stance only after she was shamed for it in the New York Times. In The Atlantic, Conor Friedersdorf wrote that Harris’s “record casts significant doubts about whether she can be trusted to oversee federal law enforcement, the military, intelligence agencies, the detention of foreign prisoners, and more.” Doubt about whether she could win over progressives given this record may have contributed to her downfall.

The more recent dropouts were also dogged by failures in the criminal system. Policing problems in South Bend, Indiana, came to national attention last summer, when a white sergeant fatally shot a 54-year-old Black resident named Eric Logan. The officer’s body camera was not turned on, and Buttigieg had to leave the campaign trail to fly back and face the fury of many residents, especially the Black community. And his decision to fire the city’s first Black police chief “shadowed his presidential campaign, giving rise to complaints he has a blind spot on race and raising questions about whether he can attract the support of African Americans who are crucial to earning the Democratic nomination,” according to the Associated Press.

During the campaign, Amy Klobuchar took some criticism for her role in ramping up mass incarceration, especially for property crimes and quality-of-life violations, as top prosecutor in Hennepin County, Minnesota. But during the last few weeks, she has been slammed for overseeing a deeply flawed prosecution in a high-profile case that sent a possibly innocent teenager, Myon Burell, to prison for life. The vitriol culminated when Klobuchar canceled a rally she had planned in her home state on Sunday night after protesters took the stage and chanted “Klobuchar has got to go” and “Free Myon.” She dropped out of the race yesterday.

Of the remaining candidates, former Vice President Joe Biden has been taken to task repeatedly for his role in crafting the infamous 1994 crime bill, which he used to take credit for and now tries to disavow. And of all the many, many problems that progressives, and even moderates, have with latecomer Michael Bloomberg, the one that has dogged him the most is his role in enthusiastically ramping up the NYPD’s stop-and-frisk program, which he defended even after a federal judge ruled that it violated the constitutional rights of people of color. Not only was it discriminatory, but its effects are still being felt today, in higher school dropout rates and lower trust of police among those who were stopped. Bloomberg clearly embraced the tactic at the time, but he apologized for it just as he joined the presidential race. The apology was rejected by many who found it opportunistic and disingenuous.

All of this ironically leaves President Trump with an opening to run to the left of the Democratic nominee on criminal justice. He has already started. During the Super Bowl this year, it was no secret that Trump was planning to run an ad; the question was only what the particular message would be. Would it peddle lies about the strength of the economy? Would it fearmonger about the dangers of immigrants? Would it just show his favorite image, the map of his 2016 win in the Electoral College? Many were surprised when the ad highlighted a different achievement: criminal justice reform. The ad featured Alice Johnson, who was serving a life sentence on drug charges until Trump granted her clemency at the request of Kim Kardashian West. It said that although other politicians “talk about criminal justice reform, President Trump got it done,” and it said “thousands of families are being reunited.”

“Freeing Black women from unjust prison sentences has never been a focal point of Trump’s agenda before, so the ad was jarring,” Nathan J. Robinson wrote for Current Affairs. “With Trump’s history of calling for black teens to be executed and encouraging police to rough people up during arrests, why was he suddenly sounding like [Equal Justice Initiative founder] Bryan Stevenson?” Because he is “unprincipled,” Robinson posits, “he’s happy to try to steal issues from Democrats and show that he’s actually the one who cares about them. In 2016 he ran as an anti-war, anti-Wall Street candidate. In May of 2019, he used the injustice of American criminal punishment to attack Joe Biden as too harsh!”

It is clear that Trump does not care about “reuniting families,” not after he separated thousands of children from their parents at the U.S.-Mexico border. He certainly does not care about treating people fairly in the criminal system: Trump pardoned Joe Arpaio, the Arizona sheriff responsible for widespread abuse of power and the deaths of inmates. He has also enacted a federal policy allowing civil asset forfeiture, and threatened to “destroy” a legislator who opposed it. He cut federal support for halfway houses, thus keeping people incarcerated for longer, rescinded a rule that discouraged debtor’s prison practices among states, ended federal oversight of abusive police forces, and helped substantially grow the private prison industry.

“Welcome to 2020,” wrote Maggie Astor for the New York Times yesterday, “featuring an entire Democratic field that wants to reduce or eliminate mandatory minimum sentences, divert low-level offenders from jail, end or at least modify the cash bail system, change drug laws and remove an array of legal barriers that restrict people’s lives after they have served their time.” This was unimaginable even four years ago.

And while it is undoubtedly a good thing to see criminal justice issues get long-overdue attention, it’s important to keep in mind that candidates’ plans for the future are as important as their actions in the past, and there is no Democrat––not even Bloomberg––who would be worse than Trump.