The Illusory Nature of Campaign Promises on Criminal Justice Reform

By Richard McDonald & Peter J. Tomasek

Like any other candidate, President Joe Biden swung a big bat during his campaign. When it comes to criminal justice reform, it’s hard to imagine a better example of big campaign promises than the one he made to Keith Alberts. “Would you commit to cutting incarceration by 50%?” Albert, a self-labeled “ACLU Voter,” asked then-candidate Biden along a rope line at a campaign event in South Carolina. “More than that. We can do more than that,” Biden answered.

As Buzzfeed News Reporter Katherine Miller wrote at the time, this commitment to a number was new for Biden. A month earlier, another self-labeled “ACLU Voter” asked Biden a similar question. He asked if Biden would “commit to cutting the prison population overall, and specifically the federal prison population, in half” at a campaign event in New Hampshire. In response, Biden said committing to a specific percentage was purposeless.

“Folks, there are some circumstances in which people should be behind bars, because, in fact, they have committed a heinous crime and they remain a threat to society,” he said during the New Hampshire event. “But to arbitrarily say, I’m just going to make a commitment I will cut arbitrarily in half or by a third or by 90%, is not a rational way of going about it.”

Instead, Biden. explained, “[t]he rational way of going about it is to make sure you’re not putting people in jail who have not committed violent crimes; you should put them in work programs.” “And secondly,” he continued, “what we should be doing is not putting people in jail for crimes that in fact are on the books that really shouldn’t be on the books in my view.”

It didn’t matter which campaign promise President Biden fulfilled because both had merit.

The reality is that either approach would have worked. Indeed, both have merit. The cut-it-by-50% approach has merit because the United States simply incarcerates too many people. The more pragmatic approach keeps the U.S. from incarcerating even more moving forward.

With the State of the Union, however, you can’t really say he took concrete steps down either path. In fact, as NPR Justice Correspondent Carrie Johnson has explained, the federal prison population has actually increased by more than 5,000 during Biden’s first year. This increase comes after the federal prison population steadily declined under President Barack Obama and President Donald Trump.

And it also comes at a time when Congress has specifically authorized the BOP to release federal prisoners to ease the crushing impact the spread of COVID-19 has had in its facilities. As Patrice Gaines wrote for NBC News, approximately 4,500 federal prisoners were released under the CARES Act’s home-confinement provisions. Yet even those who were deemed safe enough to be released during the COVID-19 pandemic may have to go back when the pandemic ends. And that’ll increase the the federal prison population even more.

And tens of thousands of COVID-19 cases and hundreds of COVID-19 deaths aren’t even the worst of the BOP controversies making headlines. Over the past few months, we’ve seen reports of prison employees being arrested. These arrests are for everything from sexually assaulting incarcerated people to committing fraud with taxpayer money. And there doesn’t seem to be a proverbial light at the end of the tunnel.

Some lawmakers have put in the work, but others seem content with campaign promises.

Some Democratic lawmakers haven’t been content to sit pat when it comes to campaign promises on criminal justice reform. U.S. Senator Dick Durbin (D-IL), the veteran lawmaker who spearheaded the First Step Act and is leading the push for its follow-up bill, the First Step Implementation Act, has continued his push for criminal justice reform in the Senate. His work in this regard has been especially effective. This is because he, unlike others, isn’t afraid to work across the aisle — as he often does with U.S. Senator Chuck Grassley (R-IA).

But Durbin hasn’t limited his efforts to legislation. He also called on Attorney General Merrick Garland to remove BOP Director Michael Carvajal several times prior to his resignation. Additionally, Durbin has pushed the Biden Administration to make a decision on CARES Act releases. And, perhaps more importantly he wants the administration to make that decision clear to those who have been released, which it did.

Unfortunately, Durbin has often seemed like a bit of a lone wolf. His efforts to continue making progress on criminal justice reform are often drowned out by the noise from other proposals. Examples include the Build Back Better Framework and the John R. Lewis Voting Rights Advancement Act. Make no mistake about it: These bills are extraordinarily important. But they don’t do anything to help Biden fulfill his campaign promises on criminal justice reform.

For those involved in criminal justice reform, it is those campaign promises that, if broken, will hurt the most. And Democratic lawmakers and the president probably don’t have much time left. This is because, projections show that the Democratic Party will lose control of the Senate and the House in 2022.

As promises for criminal justice reform go unfulfilled, more of the same feels inevitable.

Regardless of your political views, the likelihood of a Republican-controlled legislature and a Democratic president working together to pass criminal justice reform during today’s political climate seems … unlikely. Even proposals like the EQUAL Act that have overwhelming support from both political parties can’t gain traction in Congress. And such overwhelming bipartisan support is hard to find on many other proposals.

Instead of moving forward with criminal justice reform, the U.S. seems destined to repeat its mistakes from the past instead. There’s not a better example of this anti-progress that two recent proposals for new mandatory minimums in Pennsylvania. Even though polling shows that Americans overwhelmingly oppose mandatory minimums, and even with research showing that mandatory minimums aren’t effective, some Pennsylvania lawmakers want to go all in on one-size-fits-all sentencing again anyway.

First, with HB 1587, Pennsylvania lawmakers want to create mandatory-minimum sentences for people convicted of gun possession with a prior felony on their record. But Pennsylvania law already prohibits those with certain felonies on their record from possessing a gun. Someone who violates that law can be charged with a felony and face a sentencing enhancement already.

Similarly, with HB 1590, Pennsylvania lawmakers want to add “presumptive guidelines” to the state’s sentencing guidelines for crimes involving gun possession. Judges already have the authority to choose a top-of-the-guidelines sentence in cases that warrant such a sentence. Legislators adding the pressure of “presumptive guidelines” to influence that discretion makes things worse.

Politicians always break their campaign promises on criminal justice reform. Now what?

To be fair, there has been quite a bit of good news for criminal justice reform in recent weeks. As indicated above, for example, the Department of Justice reversed course on a prior opinion that those released under the CARES Act’s home-confinement expansion would have to return to prison after the COVID-19 pandemic ends. And then, in January, the DOJ exceeded expectations with its new rule interpreting and applying the First Step Act Time Credits Program.

Yet everyone from your conspiratorial uncle at your family’s holiday party to the most qualified expert in the world can tell you that expecting politicians to live up to their campaign promises is a mistake. Republicans, Democrats and just about anyone else has made campaign promises on criminal justice reform. And they’ve all broken those promises, too.

Ultimately, with the State of the Union later this evening, you’ll probably see article after article after article about how he hasn’t lived up to his campaign promises. That’s especially true when it comes to criminal justice reform. Criticism like this is as predictable as it is easy. Continuing to push for criminal justice reform despite the inevitability of broken promises, on the other hand, is hard. You can start by asking Pennsylvania’s legislature to oppose HB 1587 and HB 1590.