Wednesday night’s debate saw the first extended discussion of criminal justice issues as the Democratic presidential candidates jockey in a crowded and competitive field. Several candidates teed off those issues to score political points and jab at opponents. While their exchanges covered a wide range of topics, there were also critical issues that no one even mentioned. Here’s a guide, curated by our experts here at The Marshall Project, to what’s behind the one-liners and talking points—and what was left out. We include suggestions for further reading for those who want to delve deeper.
Racial Disparities
As the candidates emphasized Wednesday night, racial disparities in the U.S. criminal justice system are vast. One reason (though only one of many) is the difference in how crack and powder cocaine possession are punished at the federal level, which the recently enacted First Step Act partially addressed. Due also to overpolicing in black neighborhoods and implicit bias among judges and prosecutors, one in 10 black children in this country has a parent behind bars, compared with about one in 60 white kids.
Yet in a little-noted development, these disparities have actually been on the decline for nearly two decades. Between 2000 and 2015, the rate at which black men were imprisoned dropped by more than 24 percent. Among women, the trend was even more dramatic: a drop of 50 percent.
The racial disparity in women’s incarceration was once 6-to-1, but now it has dropped to 2-to-1.
No candidate pointed this out last night. But understanding why it is happening is key to accelerating and protecting the progress that’s been made, experts say. One theory is that most criminal justice reform has been taking place in cities, where more black people live, while rural areas have fewer reform-minded prosecutors and nonprofits working on these problems. Another is that the War on Drugs has shifted its focus from crack and marijuana to meth and opioids, which more white people use.
Even at the current rate, though, racial divides would not disappear for many, many decades. And importantly, disparities in juvenile justice are getting much worse. This may be because that system has over the same two decades begun to offer youth who pass “risk-assessment” tests more alternatives to incarceration—but mostly white kids have reaped the benefits.
Read more about racial disparities:
— The Victims Who Don’t Count
— Subway Policing in New York City Still Has a Race Problem
— Are Traffic Stops Prone to Racial Bias?
Origins of Mass Incarceration
Former Vice President Joe Biden has taken a lot of heat from the other candidates for helping to pass the 1994 Violent Crime Control and Law Enforcement Act. Many have argued the legislation provided a framework for today’s mass incarceration crisis. Yet while the 1994 bill did include provisions such as “three-strikes-you’re-out,” which punished repeat offenders with lengthy sentences, there is actually much more to the story.
For one, prison populations started to rise in 1973 and reached record highs in the 1980s, before the law ever came into being.
“This was a national phenomenon, largely taking place at the state level, where more than 85 percent of prisoners are housed,” wrote Marc Mauer, executive director of the Sentencing Project, in a commentary for The Marshall Project.
State legislators were already implementing laws that sent people to prison for decades. Here is where the crime bill did have an effect: The law provided states with funding to build new prisons. It also incentivized states to pass truth-in-sentencing laws, which required prisoners to serve the majority of their sentences before becoming eligible for parole.
State and local prosecutors, too, bear much of the blame of the incarceration explosion of the past four decades, as Fordham law professor John Pfaff has argued. And they were elected on tough-on-crime platforms—endorsed by American voters.
Read more on mass incarceration:
— Bill Clinton, Black Lives, and The Myths of the 1994 Crime Bill
— Everything You Think You Know About Mass Incarceration Is Wrong
Death Penalty
Most candidates on the debate stage Wednesday night united in denouncing the death penalty, a reflection of new political realities. Public support has ebbed for capital punishment as cases of people on death row being exonerated by DNA evidence have come to light. And there is ample evidence of racial bias—the majority of those sentenced to death in the last decade have been people of color.
According to a Gallup poll, support for the death penalty in murder cases dropped from 80 percent in 1994—when the crime bill passed—to 56 percent last year.
More states are also declaring moratoriums on executions, as California’s governor did earlier this year. While 29 states still allow capital punishment, only 13 have actually executed anyone in the last six years. California, which leads the nation with over 700 death row inmates, has not executed anyone since 2006. Just 2 percent of counties in the U.S. have been responsible for the majority of executions since 1976.
Meanwhile, only three people have ever been executed by the federal government since 1988, and the last federal execution occurred in 2003. But this is about to change—Attorney General William Bar recently announced the federal government would resume carrying out the death penalty, setting five dates for executions in December and January. No candidate brought this up in the debates, though the move drew criticism from some quarters on both the left and the right.
Read more about the death penalty:
— The Slow Death of the Death Penalty
— What to Know about the Death Penalty in 2018
— The Next to Die
Cash Bail
Julián Castro, the former housing secretary, and Rep. Tulsi Gabbard touched briefly on the topic, yet the consequences of the monetary bail system, within a national jail system of more than 12 million admissions per year, are profound. Two-thirds of individuals currently being held in local jails across the country have yet to be convicted of a crime, and many are there because they could not afford to pay bail. That disproportionately affects the poor, women and people of color.
Although presumed innocent under the law, people who spend time in jail before trial may have their basic rights—such as the right to vote—taken from them. They may also lose their jobs and housing, on top of being pummeled with court fees.
Studies show that the inability to pay bail also affects trial outcomes. Because being behind bars limits people’s ability to access legal aid and enroll in treatment programs, when their trial arrives, their arguments for lesser sentences are weakened compared to those released on bail.
Read more on cash bail reform:
— Senators Take Aim at Bail Industry Backers
— New York City’s Bail Success Story
— Bail Reformers Aren’t Waiting for Bail Reform
— When Freedom Isn’t Free
Consent Decrees
Debate viewers could be forgiven if they were left disoriented by multiple references to Department of Justice-authored “consent decrees” on Wednesday night.
These agreements—typically between troubled police departments and the civil rights arm of the DOJ—were a hallmark of the Obama administration’s second term, but have all but gone extinct under the Trump administration. These agreements typically followed an investigation into a “pattern or practice” of unconstitutional conduct by a police department and took the shape of a joint reform agreement that was made enforceable by a federal judge. Departments in Chicago, New Orleans and, perhaps most famously, Ferguson, Missouri, have all entered into consent decrees in recent years.
California Sen. Kamala Harris raised the issue of consent decrees while answering a question about the chokehold death of Eric Garner in Staten Island in 2014—one of the many black men who have died at the hands of police—and the recent DOJ decision, handed down directly from Attorney General William Barr, that no federal charges ought to be brought in that case. Many other candidates also weighed in on the question of how to hold police accountable.
Trump, Barr and prior Attorney General Jeff Sessions have denounced all such consent agreements as undermining the credibility of law enforcement. Under Sessions, the Justice Department not only halted entering into any new agreements with departments for changes, in several cases, it attempted to pull out of agreements already made by predecessors. Sometimes, as in Baltimore, it did so even as the department in question requested that it be held to the standards previously agreed upon.
Read more about police accountability:
— Policing the Police
— How to Fix American Policing
— What Trump's Win Means for Chicago and Baltimore's Cops
— Sessions May Resist Federal Oversight of Police But There's Another Option
Qualified Immunity
If you were left scratching your head when Julián Castro declared “we need to ensure we have a national use of force standard and that we end qualified immunity for police officers so that we can hold them accountable for using excessive force,” you are not alone. The phrase refers to the legal doctrine that protects police officers and certain other public officials from being sued for wrongdoing on the job. It dates back to a 1967 Supreme Court case in which the high court found that police officers might be reluctant to do their jobs if they feared getting sued all the time.
But over time, as police killings of unarmed African-Americans surface on video again and again, with few, if any, consequences for the shooters, critics on both ends of the ideological spectrum have begun to argue that “qualified immunity smacks of unqualified impunity,” as one conservative judge wrote in a dissent last year.
Yet courts are bound by precedent, and precedent says that unless there’s a specific case giving officers fair warning that a particular behavior is unconstitutional, any other behavior is protected. Just last month, the U.S. Court of Appeals for the 11th Circuit took up the case of a police officer who shot a 10-year-old boy lying 18 inches away from him, face down on the ground. He was aiming at the family dog and missed. Because no court has ever ruled that shooting at a dog, missing and shooting a nearby child in the process was unconstitutional, they found his actions were protected, and he didn’t have to pay the child’s family damages.
Read more on “qualified immunity”:
— Should Cops be Immune from Lawsuits?
— Advocates From Left and Right Ask Supreme Court to Revisit Immunity Defense
Payments Before Prison
Andrew Yang, the businessman whose hallmark policy is to give all U.S. citizens over 18 years old $1,000 dollars a month, proposed addressing criminal justice by “put[ting] money directly into people’s hands, certainly when they come out of prison, but before they go into prison.”
Many states do provide money to people getting out of prison—known as “gate money,” it is typically a very modest amount. Sometimes this is funded by taxpayer dollars; other times it’s money that inmates have been forced to save from their prison accounts.
It’s rare to pay people as a crime-prevention tool, though. A program in Richmond, California, dubbed “paying kids not to kill,” has generated both admiration and controversy. The basic idea is that teens identified as potential drivers of crime participate in a fellowship program, which includes a stipend along with mentorship and employment and academic support.
More broadly, we know that poverty and criminal justice are linked in complex but direct ways—and that economic challenges often loom before, during and after Americans’ experiences in the criminal justice system.
Read more about cash assistance and criminal justice:
— Training the Brain to Stay out of Jail
— One City Tried Something Radical to Stop Gun Violence. This Report Suggests It’s Working.
— Building Trust Cuts Violence. Cash Also Helps.
— D.C. Abandons Plan to Pay Criminals to Stay Out of Trouble
Education for Prisoners
During last night’s debate, Colorado Sen. Michael Bennet dropped a staggering statistic: 80 percent of people in prison dropped out of high school.
Some advocates for ending mass incarceration say that education is the best way to keep people out of prison. Study after study shows that the majority of people behind bars struggle with basic literacy, and have higher rates of learning disabilities than the general population.
But good data on prisoners’ education is actually hard to come by. The last time the Bureau of Justice Statistics compiled education-level data from all 50 corrections departments was in 2003. Researchers estimated that roughly 68 percent of state prisoners did not have a high school diploma. The 80 percent figure Bennet cited shows up in several articles including a piece in the Huffington Post and one at the National Education Association, but neither provides a source.
The overwhelming majority of people in prison will return home one day, and many argue they need to be prepared to reenter the workforce. For example, a survey of 2,000 federal inmates revealed that few were learning skills for life on the outside. And while most prisons offer prisoners a chance to earn their GED, few states offer college-level classes. (The Vera Institute of Justice found that only 35 percent of state prisons have some college-level programming, which covers only 6 percent of the nation’s prisoners.)
In 2015, President Barack Obama reinstated Pell Grants for some people in prison with the Second Chance Pell Program. These grants provide funding for eligible inmates to take college classes.
Read more on education in prison:
— The Uncertain Fate of College in Prison
— The Hardest Lesson on Tier 2C
— What Are Inmates Learning in Prison? Not Much.
Prison Labor
Rep. Tulsi Gabbard went on the attack against Sen. Kamala Harris’s record as California’s attorney general on Wednesday night, zeroing in on marijuana prosecutions, innocence claims from death row and the state’s prison labor program. The image of California prisoners risking their lives for just dollars a day to fight the state’s deadly wildfires captured the nation’s imagination—and ire—especially when it was revealed that a felony record excluded many of them from using their job training to become firefighters after their release. But specialized jobs like firefighting are only a small slice of the prison workforce.
About half of prisoners have some kind of job, according to an American Prospect analysis of 2004 Bureau of Justice Statistics data (the last time BJS asked detailed questions about prison work). More than 80 percent of these workers, almost 700,000, do “institutional maintenance” like mowing lawns, preparing and serving food and mopping floors. The remainder do more specialized work, like firefighting, woodworking and textile manufacturing. Compensation varies from state to state and facility to facility, but the analysis found that the median wage in state and federal prisons is 20 and 31 cents an hour, respectively.
Most prisoners say they want to work. They argue that a job—especially a meaningful one—adds structure to their days, puts money in their commissary account and provides job training for life outside. But prisoners and their advocates also point out that the employer-employee relationship is inherently coercive, the pay extremely low and the safety protections minimal. This has led to several high-profile prison strikes, which used the 13th Amendment—which outlaws slavery except as punishment for a crime—as a rallying cry.
Read more about prison labor:
— Student Journalists Expose High School’s Use of Prison Labor
— The California Inmates Fighting The Wine Country Wildfires
What they didn't talk about
Violence
While there is largely agreement among the 2020 Democratic hopefuls that low-level, nonviolent drug sentences should be reduced, the majority of Americans currently behind bars have actually committed violent offenses. Experts say that plans to decriminalize marijuana, for example, address only the low-hanging fruit of the U.S. prison population.
Truly ending mass incarceration, they say, would require a more honest conversation about the severe punishments—and second chances—for violent offenders as well.
On the debate stage, talk of high rates of incarceration due to drug charges referred mainly to federally-run prisons, where nearly half of the population (approximately 78,800 inmates) is serving time for drug convictions. However, federal facilities hold only about 10 percent of the entire American prison population, according to the Bureau of Justice Statistics. In state-run prisons, just 190,100 people are serving time for drug offenses, compared to the 710,900 inmates who have been convicted of a violent offense.
Yet further questions arise when considering what is classed as a “violent” crime. On the federal level, murder, manslaughter, rape and sexual assault are considered violent offenses, but that categorization is far less uniform between states—and includes crimes that some may not consider inherently violent. For example, drug dealing and trafficking a stolen identity are both considered violent crimes in North Carolina.
Read more about violent and nonviolent offenses:
— When “Violent Offenders” Commit Nonviolent Crimes
— How to Cut the Prison Population by 50 Percent
Probation and Parole
Those who advocate shrinking the footprint of the criminal justice system have identified another target: “mass supervision.” Originally intended as a way to shrink the prison and jail population, probation and parole have morphed into “a significant contributor to mass incarceration,” according to a statement issued by 35 probation and parole officials.
About 4.5 million people are under “community supervision,” as probation and parole are collectively known. (Generally, probation is used instead of prison, and parole is used as a way to supervise people after prison.) That’s twice as many people as are locked up in prison or jail on any given day. And they struggle under onerously long lists of rules and conditions. A single slip can send them back, sometimes for years, with little attention to their Constitutional rights. A recent analysis of community supervision data by the Council on State Governments Justice Center found that almost half of all prison admissions nationwide are for probation and parole violations. Half of those—more than 130,000 people each year—are locked up for technical violations: behaviors, like failing a drug test or missing an appointment, which break the rules but are not crimes.
Some states have experimented with ways to cut down on jailing people for technical violations. These include “graduated sanctions,” which allow probation or parole officers to start with small punishments or interventions in response to small violations, increasing the severity of the interventions gradually, and save jail for only violations that are repeated or serious.
Read more about probation and parole:
— Life Without Parole
— How to Fight Modern-Day Debtors’ Prisons? Sue the Courts.
— Probation-for-Profit Just Got Less Profitable
Indigent Defense
It’s a hallmark of the American criminal justice system: “If you cannot afford an attorney, one will be provided for you.” While the Constitution guarantees the right to counsel for defendants too poor to hire a private lawyer, in practice, public defense is more complicated—and thanks to a host of fees, usually not free.
The types and amounts of fees vary widely among states, counties, municipalities and often courtrooms. Two common categories of fees are application fees, which are assessed upfront for a defendant to get access to a public defender, and recoupment fees, which charge defendants for their attorney’s work on the case.
Courts are supposed to determine whether defendants actually have the means to pay a fee before it’s assessed and shouldn’t charge fees that defendants truly can’t afford. But in practice, that doesn’t often happen. The result? Many point to a “chilling effect”: Intimidated by the price tag, defendants shy away from asking for a public defender in the first place.
Of course, fees are only one part of the assembly-line justice that so many low-income people in the U.S. court system experience—driven by the motor of underfunded state court and public defense systems. And public defense fees are just one of the many fees people are charged for their “use” of the criminal justice system.
Read more about indigent defense:
— One Lawyer. Five Years. 3,802 Cases.
— How Conservatives Learned to Love Free Lawyers for the Poor
— When There’s Only One Public Defender in Town
— Do Public Defenders Spend Less Time on Black Clients?
Juvenile Justice
The candidates onstage Wednesday night also didn’t mention juvenile justice, though the criminal justice reform proposals that former vice president Joe Biden recently unveiled include many aimed at helping teens.
Yet those with an interest in reducing mass incarceration could do well to look at what reformers of the juvenile system have accomplished. Since 2000, the youth incarceration rate has been cut in half—and the number of children held in adult prisons has plummeted more than 80 percent, to fewer than 1,000 kids nationally.
Much of this is attributable to a significant shift in how the public views young people accused of crimes. Once labeled “super-predators,” they are now widely understood to be less culpable than adults because their brains are still developing—highly impulsive and susceptible to peer pressure, but also uniquely capable of growth and rehabilitation.
Working from this consensus, youth advocates have convinced state lawmakers across the country to shutter dozens of youth prisons (though some remain) and place kids in programs closer to home where their efforts at rehabilitation can be better nurtured.
Given that we know most people “age out” of crime, meaning they are unlikely to reoffend once they’re beyond their mid-20s, criminal justice reform advocates urge the same principle of second chances be applied to adult crime. Juvenile justice reform has not only saved many states millions of dollars of prison upkeep costs, it has also redeemed and restored lives.
Read more about juvenile justice:
— This Agency Tried to Fix the Race Gap in Juvenile Justice. Then Came Trump.
— The Hardest Lesson on Tier TC
— Your Kid Goes to Jail, You Get the Bill
Voting Rights
None of the nominees mentioned their stance on voting rights for people with felony convictions during the second round of the debates. But this is an issue that’s gaining ground at the state level.
In June, six of the 13 councilmembers in Washington, D.C. endorsed legislation that would let the city’s prisoners vote. Legislators in Massachusetts, Hawaii, New Mexico and Virginia introduced measures to allow prisoners to vote earlier this year. None succeeded, but several other states are making it easier for people to vote once they leave prison. In May, Nevada’s governor signed a bill that automatically restores voting rights for parolees. And, last year, voters in Florida re-enfranchised nearly 1.5 million residents with felony convictions while Louisiana restored voting rights for roughly 37,000 people convicted of felonies. Lawmakers are still considering similar proposals in Connecticut, New Jersey and Nebraska.
Currently, all those incarcerated in Maine and Vermont can vote from prison. In several other states, such as Alabama, Alaska and Mississippi some prisoners can vote while incarcerated, depending on their convictions. Still, many face barriers to exercising their rights. In Maine and Vermont few prisoners vote, due to limited access to information, low literacy rates and a sense that voting won’t improve their circumstances. And many states don’t automatically inform people whose rights are restored once they leave prison. As a result, many eligible voters don’t know they can actually vote.
Read more about voting rights for prisoners:
— In Just Two States All Prisoners Can Vote. Here’s Why So Few Do.
— More Ex-Prisoners Can Vote — They Just Don’t Know It
Prison Conditions
For hundreds of thousands of U.S. inmates subject to daily episodes of extreme violence and neglect behind bars, the debates offered nothing in the way of relevant conversation. Neither the current state of U.S. jails and prisons, nor any plans for reform received examination from the candidates.
That may be in part because the issue of prison reform enjoys such broad support, at least in theory, both within the Democratic party and across partisan lines. It’s possible none of the debate participants saw it is a particularly fertile ground for scoring points on one another or the current administration. Indeed as the “First Step Act” criminal justice reform bill snaked its way through Congress to Donald Trump’s desk last year, prison reform was the easy part, while lawmakers rankled over the much more partisan issue of sentencing reform.
“First Step” was by most accounts, even from its most ardent supporters, just that. A first step that tackled some of the low-hanging fruit of prison conditions while leaving many of the more systemic and deeply rooted issues for another legislature or administration to tackle.
The bill expanded compassionate release of elderly and terminally-ill inmates, invested tens of millions in re-entry programs, kind of, and addressed some of the most egregious womens’ rights issues in prisons by formally banning the shackling of women giving birth behind bars and providing them with necessary hygiene items at no charge.
But what the bill did not do, and no candidate raised plans for on the debate stage, is contend with some of the most objectively cruel conditions that U.S. inmates face, like dramatic climate extremes that have led to fatal heat stroke and cases of frostbite after inmates were made to cling to metal fences in 10 degree weather. Nor did the debate touch on the level of mismanagement that allowed gangs to effectively take over this Mississippi prison or the chronic violence suffered by inmates in jails like New York’s fetid Rikers Island.
Read more about prison conditions:
— “Cooking Them to Death”: The Lethal Toll of Hot Prisons
— A New York Prison-Yard Search and 10 Cases of Frostbite
— This is Rikers
