Bernie Plans Jailbreak

Sanders releases criminal justice plan to put pressure on cops, mass-release prisoners

Democratic presidential candidate Sen. Bernie Sanders (I-VT) / Getty Images
August 19, 2019

If elected president, Sen. Bernie Sanders (I., Vt.) plans to free more than a million people from America's prisons, according to a campaign plan released Sunday.

Sanders's new "Justice and Safety for All" proposal is far from the first criminal justice plan floated by 2020 Democrats. Among others, former vice president Joe Biden and Sen. Cory Booker (N.J.) have offered their own proposals. The socialist senator's plan is perhaps the field's most comprehensive, totaling more than 6,000 words.

It offers a smorgasbord of progressive policy designs, including increased scrutiny of police and canards about the role the "war on drugs" and private prisons have played in "mass incarceration." Most of the proposals, however, are in service of Sanders's plan "to cut the incarcerated population in half," meaning the release of some 1.1 to 1.2 million current prisoners.

While it promises sweeping reform, Sanders's plan is light on the details of how exactly it would get there. It is likely to be stymied both by the issues Sanders chooses to focus on and by the limited role the federal government plays in criminal justice.

America's prison system is a popular subject of criticism from both the left and libertarian right. Although the prison population is at its smallest in twenty years, the system still incarcerates a substantial number of people. State and federal prisons hold roughly 1.4 million people, according to the Prison Policy Initiative, with a further 660,000 held in jails and 143,000 held in other detention facilities.

As large as it is, the prison system is also highly fragmented, with criminal justice one of the few functions of government that remains primarily at the discretion of the states, and even counties, rather than the federal government. Federal prisoners comprise just 12 percent of the U.S. prison population. President Sanders could, in theory, pardon every single federal prisoner and only reduce total incarceration by about 200,000.

This fragmentary nature means that the impact a president can have on the size of the criminal justice system is fairly limited. The FIRST STEP Act, widely heralded as a major criminal justice reform achievement, has released just 5,000 people, under 3 percent of federal prisoners. Even that achievement was only possible through an uncharacteristic level of congressional bipartisanship. Many of Sanders's more radical proposals, like ending federal mandatory minimum sentences or three-strikes laws, would need to command a unified Congress unlikely to go so far.

Actually accomplishing goals when in power, however, may be less of a concern to the Sanders campaign than signaling its support for progressive priorities on criminal justice. Rafael Mangual, Deputy Director for Legal Policy at the Manhattan Institute, says the Sanders plan is based more in progressive bromides than facts.

"In general, the plan strikes me as unsurprising in that it reflects what I think is a false narrative about our criminal justice system—namely that it is fairly characterized on the whole as both overly punitive and irredeemably racist," Mangual told the Washington Free Beacon. "As such, I don’t think it's calculated to do us any good were policymakers to adopt its policy prescriptions."

Front and center in the Sanders plan is a call to "end profiteering in our criminal justice system." This covers a number of changes to reduce costs to prisoners, such as making prison phone calls free of charge—changes Sanders could not implement on the state level. It also includes a ban on for-profit prisons. Such facilities are a popular boogeyman in the story of mass incarceration, routinely blamed for the rise in incarceration rates despite detaining just 8 percent of all prisoners.

The biggest proposed change would be to end cash bail at the state and federal levels. Several states have already embraced replacements for cash bail, which leaves poor defendants languishing in jail despite a lack of conviction. Those states have replaced their bail systems with "risk assessment tools" designed to determine the danger of releasing an offender on his own recognizance. The Sanders plan would "place a moratorium on the use" of such tools, following progressive concerns about their racial impact. The result is an end to cash bail, with no clear replacement besides mass release.

This focus on "profit" is only a prelude to Sanders's plan to dramatically overhaul federal sentencing. That includes the aforementioned changes to federal mandatory minimum and three strike laws, as well as reinstating federal parole, and substantially expanding executive clemency. It also includes ending the "war on drugs" by legalizing marijuana federally and expanding access to treatment and harm reduction measures.

These changes would necessitate some uncomfortable trade-offs, however. Although the plurality of federal offenders are held on drug charges, essentially all of these are drug traffickers (just 75 federal inmates are held for marijuana possession). The remainder of the federal prison population are also in for serious offenses. Even if the president could affect the state system, only 15 percent of those offenders are in for any drug offense, including just 3.5 percent for possession. The majority are in for violent offenses. In other words, Sanders's proposal would mean early release for many serious, often violent offenders, a move unlikely to be politically popular or beneficial to public safety.

Mangual told the Free Beacon that such an approach would undermine the plan's stated goals of preserving fairness and public safety.

"For example, the plan calls for halving the incarcerated population, which I and others have argued would require putting or leaving scores of serial and violent offenders on the street, where you can be sure they will do harm," Mangual said. "The plan also calls for eliminating the use of solitary confinement, also known as 'punitive segregation.'

"This is a policy experiment that has already been done, albeit on a smaller scale, only as to inmates 21 and under, in New York City jails, and it has resulted in a huge spike in inmate violence."

While violent criminals would get a break under the Sanders plan, police would not. "Justice and Safety for All" calls for a score of new federal oversight measures on local police departments, including a return to the use of consent decrees curtailed by former attorney general Jeff Sessions. These are a response to the perception on the left that police misconduct is widespread—a belief, according to Mangual, that is widely misplaced.

"Police wield an awesome power that comes with great responsibility; and it is a proper function of the state to ensure that the police power is exercised morally and wisely," Mangual told the Free Beacon. "But here again, the plan's starting point is a series of false premises, namely that 'broken windows' policing is a 'harmful policing practice' on par with 'racial profiling,' and that the 'use of excessive force' by police 'including deadly shootings of unarmed civilians' is 'widespread.' In fact, police uses of force—both reasonable and excessive—are quite rare. Indeed, one study recently found that less than one percent of arrests involve the use of force by police."