Sen. Elizabeth Warren on Tuesday outlined a stem-to-stern criminal justice overhaul that would abolish the death penalty and end cash bail, while unwinding most of the 1994 crime bill and investing heavily in diversion programs.
The Democratic presidential candidates have largely agreed on the broad strokes – and necessity – of reimagining the US’ approach to criminal justice, which has led to a crisis of mass incarceration that disproportionately affects minorities and the poor.
Warren’s plan, which she spelled out in a new Medium post, would decriminalize marijuana and repeal large swaths of the 1994 crime bill, the most enduring product of the “tough on crime” era. Democrats and some Republicans have been critical of the bill, which has become a point of contention for former Vice President Joe Biden, who took ownership of the legislation while he was Senate Judiciary chairman. Biden on the trail has routinely defended his role in its crafting.
Warren also spells out specific breaks with the Trump administration, including a promise to end the Justice Department directive requiring federal prosecutors to seek maximum prison terms.
Despite her rise in the polls, Warren has struggled in most surveys to make comparable inroads with African American voters. Her criminal justice proposal, echoing earlier plans, highlights the disproportionate rates that minority communities have suffered under the current system. Warren also seeks to merge the policy proposals with her economic populist message, stating near the top of her post: “It’s not equal justice when a kid with an ounce of pot can get thrown in jail, while a bank executive who launders money for a drug cartel can get a bonus.”
“It is a false choice to suggest a tradeoff between safety and mass incarceration,” the Massachusetts senator writes. “By spending our budgets not on imprisonment but on community services that lift people up, we’ll decarcerate and make our communities safer.”
The plan includes a series of steps that would shift the balance of power on the streets, at trial and among those in prison seeking a new day in court. Significant parts of the proposal would require legislative action, but Warren also talks about using her Justice Department to influence policing tactics and reduce prison terms.
“Policies like stop-and-frisk and ‘broken windows’ policing have trampled the constitutional rights of countless Americans – particularly those from Black and Brown communities – without any measurable impact on violent crime,” Warren writes, saying she will end “stop-and-frisk” by refusing federal funds to police departments still using it.
The language echoes what Warren has preached on the campaign trail and during a CNN town hall back in April, when she said, “Our criminal justice system is broken, and right at the heart of that problem is race, and we have to address this head-on.”
More money would instead be invested in beefing up public defenders’ offices and expanding or reviving programs dedicated to strengthening those offices, she writes. Warren would also stand up a pair of new initiatives – a commission to recommend new steps for reining in prosecutorial abuse and another dedicated to identifying misconduct.
The proposal calls back on a number of past policy planks. In her push to “decriminalize mental health crises,” Warren points to “Medicare for All” and its promise of “continuous access” to care for the mentally ill. The goal, she writes, is to reduce potentially dangerous interactions between the police and those in need of medical assistance.
Warren also highlights her affordable housing plan, which she says would – at a cost of $500 billion over a decade – create more than 3 million new units and drive down costs by 10%. By keeping families in their homes and reducing childhood homelessness, Warren argues, future generations would have a clearer path to avoiding run-ins with the criminal justice system.
In another departure from the current administration’s policies, Warren’s proposal would triple funding for the Office of Civil Rights and, in a reversal from the current Justice Department guidance, seek to reestablish the use of consent decree investigations – which the Department of Justice under former President Barack Obama often used to assert federal influence on police departments acting in violation of constitutional standards.
In her call to end capital punishment, Warren notes her personal opposition and cites statistics showing it is “often applied in a manner biased against people of color and those with a mental illness.”
“A Warren administration would reverse Attorney General Barr’s decision to move forward with federal executions,” she writes, calling on Congress to legally ban them.
The plan would pull back some power from the Justice Department, effectively removing it from the process guiding presidential pardons and offers of clemency. Warren argues that the “hierarchical process at DOJ results in relatively few and conservative clemency recommendations,” and proposes creating an independent board with direct access to the White House.
That board, according to the proposal, would be ordered to prioritize people who might have benefited from the First Step Act, a bipartisan criminal justice reform bill passed in late 2018; those currently imprisoned “under outdated or discriminatory drug laws”; and others currently serving mandatory minimum sentences that might be reduced going forward.
Warren’s proposal would take additional steps to provide “special protections” for certain prisoners, like the at-risk transgender population, and guarantee what she describes as “basic human rights standards” – most notably by ending the use of solitary confinement.