Republican Candidates on Criminal Justice: A Primer

Race. Guns. The Death Penalty.

If these issues resounded anywhere in the past year, it was in Charleston, S.C., where Dylann Roof shot and killed nine parishioners in a Bible study class in one of the oldest black churches in the South. The June massacre, apparently propelled by the gunman’s white supremacist views and coming amid a spate of killings of blacks by the police around the country, underscored a plaintive question being asked more and more: Do black lives matter?

Thursday night, Republicans seeking the party’s nomination for president gather in Charleston for their sixth televised debate, less than three weeks before their first big contest, the Iowa caucuses. In the weeks after the killings at Emanuel A.M.E. Church, the South Carolina Legislature finally confronted the racially divisive symbol of secession, the Confederate battle flag, and ordered it removed from the state house grounds. But questions of race, guns and the death penalty have only intensified nationally since then. Here’s how the candidates (listed in alphabetical order) stand on some of those issues, as reviewed by The Marshall Project.

Jeb Bush • Ben Carson • Chris Christie • Ted Cruz • John Kasich • Marco Rubio • Donald Trump

Jeb Bush has an A-plus rating from the NRA, yet he is one of the few Republican candidates who does not own a gun. Bush has called the Second Amendment the “original Homeland Security Act.”

In 1998, as a candidate for governor, Bush backed a Florida law establishing background checks at gun shows, a type of purchase not covered under federal law.
More recently, after the deadly rampage at Umpqua Community College in Oregon that left nine dead, Bush said that “stuff happens,” and that more laws aren’t the answer.

In office, Bush expanded protections for those permitted to carry concealed guns and backed a measure that would allow out-of-state visitors who had concealed-carry permits to carry their guns in Florida, the state with the most concealed-weapons permits in the country. He also signed a law creating a $5 million fine for anybody who tried to create a registry of legal gun owners in Florida.

Bush also used his power as governor to enhance the criminal penalties for those who use firearms in the commission of a crime, including the "10-20-Life¹" law, which set mandatory minimums for the number of years in prison that a person convicted of a gun crime must be sentenced.

During his unsuccessful 1994 gubernatorial campaign, Bush was asked what he would do for black people in Florida. His response: “It's time to strive for a society where there's equality of opportunity, not equality of results. So I'm going to answer your question by saying: Probably nothing.”

As he sought election in 1998, then re-election four years later, in an increasingly black and Hispanic state, Bush worked to soften his tone. “Republicans have ignored the black vote…and I was part of that, and it was a mistake,” he said.

Bush signed the “Stand Your Ground” law, which allows people to use deadly force rather than retreat when they fear serious harm. The law proved crucial in the racially charged case of George Zimmerman, who was acquitted of murder in the killing of a black teenager, Trayvon Martin.

As he struggles in a cacophonous Republican primary race, Bush has tried to recapture his old rhetoric, dismissing Black Lives Matter and saying that Democrats win the black vote by offering “free stuff.”

Until recently, Bush has regularly come out in favor of the death penalty. During the 1994 gubernatorial campaign, he ran a controversial television advertisement that targeted his opponent, the incumbent Lawton Chiles, for failing to enforce the death penalty. The commercial featured a woman who blamed Chiles for not expediting the execution of her 10-year-old daughter’s murderer, who had spent 13 years on death row.

But Bush placed a moratorium on executions following the botched lethal injection of Angel Diaz in December 2006. He created a commission that ultimately suggested better training for executioners and an adjustment in lethal-injection chemicals, but legislation to enact these changes was later tabled. In November 2015, Bush backtracked on his prior statements, saying that his faith contributed to “conflicted” feelings about the death penalty and that “it's hard for me, as a human being, to sign the death warrant.”

Carson, the only black major presidential candidate, has distanced himself from the Black Lives Matter movement’s criticisms of police. But he has also suggested indirectly that he supports some reforms in the criminal justice system.

Though he has been vague on how to repair relations between police and black communities, last May he told a church audience in Baltimore, “We don’t have to be vic­tims. We don’t have to be some­body that some­body else has to do something for.” He has said he’s “still waiting for the evidence” that police disproportionately target blacks, and that he has “never had a negative encounter with a police officer.”

And yet Carson has also spoken broadly against mandatory minimums and in favor of more leniency for minor crimes. “Zero-tol­er­ance rules do not give us the flex­ib­il­ity that we need,” he recently told an audience of sheriffs. “To take those people and put them again in­to Crim­in­al Uni­versity, which is what a lot of the jails are, is not help­ing us as a so­ci­ety.” He has also saidthat ex-prisoners should have their voting rights restored when they return to society.

Carson has been far more strident on gun rights, arguing that any form of gun control is a step toward “tyrannical rule.” He instead supports “free, public gun-safety courses that educate the general populace.”

As for the death penalty, Carson has said he believes that its imposition should be decided on a state-by-state basis, “in a civil manner with the people in the area.”

In a Republican field split between the tough-on-crime talk of Donald Trump and the more reformist positions of John Kasich and Rand Paul, Carson has not taken strong enough positions on these issues to make him particularly vulnerable. In the past, however, he was criticized for a comment that cited the prevalence of homosexual activity in prison as proof that sexual orientation is a choice. He then apologized for those words, calling them “hurtful and divisive.”

Criminal justice is front and center on Chris Christie’s platform. On his campaign’s website, he focuses primarily on “right on crime”–style reform measures that are politically feasible during this election cycle but would have been unthinkable even four years ago: a focus on drug courts and successful re-entry. (He also touts his state’s bail reform measures, which, in a moment of rare bipartisanship, he developed in partnership with the ACLU.) Christie has made drug treatment a centerpiece of his efforts, producing a campaign ad about addiction that has garnered thousands of views on YouTube, and announcing a major new substance abuse policy in his State of the State Address on Tuesday.

On criminal justice, Christie’s biggest political liability is gun control. Since 2014, he has tacked sharply right on the issue, vetoing several high-profile gun control measures, and couching his opposition in Second Amendment terms. But he began his political career backing the same variety of “common sense” gun control measures as President Obama’s, and with much the same oratory. What Christie characterizes as an evolution in his position has become fodder for opponents, who often point out that “Chris Christie has supported gun control. Chris Christie supported an assault weapons ban,” as Marco Rubio did last week on Fox Business.

Rubio is right. “The issue which has energized me to get into this race is the recent attempt by certain Republican legislators to repeal New Jersey’s ban on assault weapons,” Christie said in a statement released in 1993, during his first unsuccessful bid for Senate. “In today’s society, no one needs a semi-automatic assault weapon.” When Christie ran for the state assembly two years later, he called his opponents’ proposal to overturn the ban on assault weapons “dangerous. It's crazy. It's radical. They must be stopped.”

Ted Cruz tends to be an uncompromising politician, particularly when it comes to violent crime.

David Panton, Cruz’s longtime friend and former debating partner at both Princeton University and Harvard Law School, says this view stems in part from formative experience in 1994, when Cruz was clerking for a federal judge, J. Michael Luttig, whom he considered a mentor. That year, Luttig’s father was ambushed and murdered in his driveway.

Ever since, Panton says, Cruz has been committed to “ensuring that those who have committed heinous crimes do not get off easy.”

At Harvard, Cruz famously defended capital punishment in front of his more liberal professor of criminal law, Alan Dershowitz. In 2008, as the solicitor general (head lawyer) for the state of Texas, Cruz also argued before the Supreme Court that defendants who have raped children, not only murderers, should be eligible for the death penalty.

Cruz’s primary opponents could point out that, as a private attorney, Cruz once aided someone who had been on death row. He helped represent John Thompson, a Louisiana man who had been wrongfully convicted of murder and was seeking restitution.

In private practice, Cruz helped represent the National Rifle Association. In D.C. v. Heller, a landmark case before the Supreme Court, he wrote a brief arguing that the District of Columbia’s ban on handguns should be struck down. And at a Tea Party rally in April of 2013, he chided his fellow Republicans for being “a bunch of squishes” on gun control.

But Cruz, despite his consistent opposition to gun control, also sponsored the Disarm Criminals and Protect Communities Act — legislation that would help the Obama administration block felons from buying a gun.

As the son of an immigrant who made it in America largely on his own, Cruz has been particularly tough on immigration-related crime.

He regularly boasts about Medellin v. Texas, a case in which he convinced the Supreme Court that Mexican nationals on death row do not have a right to counsel from their own government, and that their cases should therefore not be reopened.

And in 2015, after an undocumented immigrant murdered a young, white woman in San Francisco, he introduced Kate’s Law — a new mandatory sentence of five years in prison for any immigrant who is deported and attempts to return. On sentencing reform, Cruz (like other conservatives) has conflicting principles. He believes in law and order, but also that the government should not overreach.

In February of last year, alongside Democratic senators Cory Booker, Dick Durbin, and Patrick Leahy, he introduced the Smarter Sentencing Act. In April, he continued to advocate for relaxed sentencing, in an essay for the Brennan Center: “The power to define crimes and to prosecute and jail people for committing them,” he wrote, “must be exercised with the utmost care.”

But by November, as Donald Trump’s views on crime pushed the Republican primary field to the right, Cruz was denouncing the very sentencing reform he had introduced. Passing his own bill made no sense, he said, “when police officers are under assault right now, are being vilified right now, and when we’re seeing violent crime spiking in our major cities.”

Cruz has become more aggressive since then, remarking that “the overwhelming majority of violent criminals are Democrats” and Black Lives Matter protesters are “literally suggesting and embracing and celebrating the murder of police officers.”

The type of reform Cruz does continue to support is getting rid of criminal penalties for corporations that violate regulations. That’s the focus of the Mens Rea Reform Act, which he co-sponsored, and an issue that remains popular among even the most tough-on-crime conservatives.

Kasich supports using the death penalty “sparingly.” He has used his gubernatorial commutation power more than most governors, granting five death row clemencies for reasons including innocence claims, a history of child abuse, a low IQ and poor counsel. “In this debate sometimes, we forget the victims,” he told Meet the Press in May. “It’s about justice. It isn’t about revenge. I support the death penalty because families want closure.”

On gun control, Kasich once earned an “F” rating from the NRA for voting in favor of Bill Clinton’s 1994 assault weapons ban as a member of the House or Representatives. He has since called the law “superfluous,” and earned an “A” from the organization. As governor of Ohio, Kasich expanded concealed carry laws.

In response to mass shootings, Kasich, on the campaign trail, has argued that the solution is not to restrict access to guns but to look at the “underlying” issues of mental illness and “alienation.” “I don’t think any president can stop mass shootings,” he said in October.

Kasich has tried to position himself as “leading” on the issue of racial justice, and has been less quick than his counterparts to criticize movements like Black Lives Matter. “Black lives matter, especially now, because there’s a fear in these communities that, you know, justice isn’t working for them,” he told CNN in August. In the wake of the killing of 12-year-old Tamir Rice’s at the hands of a Cleveland police officer, Kasich created a task force to review police and community relations.

Rubio has long been an advocate of gun ownership, aligning himself with a majority of Floridians.

In March, Rubio introducedlegislation that would make it easier for District of Columbia residents to own a gun. After President Obama said last week that he would use his executive power to tighten background checks, Rubio vowed that he would repeal any of Obama’s orders to control the access to firearms. “On my first day in office, behind that desk, don’t worry, those orders are gone,” he proclaimed.

Although Rubio currently has an A rating from the National Rifle Association, the gun-control news site the Trace points out that Rubio had run-ins with the gun lobby in Florida and was once down to a B-plus score. His misstep? When he was speaker of the Florida House of Representatives, Rubio didn’t immediately support a state bill that allows gun owners to leave their weapons in cars while at work.

Rubio’s gun stance doesn’t separate him all that much from the pack of Republican presidential hopefuls. Rather, he stands out for his views on the black American experience with policing and prisons.

In the Florida legislature, Rubio championed the creation of a “children’s zone” in a low-income, high-crime black Miami neighborhood that now provides education and social services. Rubio told local lawmakers: “Today more young black men are headed to incarceration than to graduation...It is intolerable and unacceptable that an entire segment of our population has come to believe that the American Dream is not available to them.”

On the presidential campaign trail, Rubio has maintained his views on the need to break down racial disparities. When he was asked about the Black Lives Matter movement on Fox News last summer, he said: “It is a fact in the African-American community around this country there has been for a number of years now, a growing resentment towards the way law enforcement and its criminal justice system interacts with their community,” he said. “This is a problem our nation has to confront because it is real.”
While there is no extensive public record of Rubio’s position on the death penalty, he addressed the topic in his 2006 book, “Innovative Ideas for Florida’s Future.” He wrote that state lawmakers should limit death row inmates from filing too many appeals. “Delays of this nature hinder justice for the victims and erode public confidence in Florida’s criminal justice system.”

Donald Trump has established himself as an enthusiastic supporter of the Second Amendment, boasting about his concealed-carry permit and describing himself as a “life member” of the National Rife Association.

Yet his positions on guns have shifted since he first officially campaigned for president 15 years ago, when he sought nomination as the Reform Party candidate (he later withdrew). He laid out the approach of a theoretical Trump administration in his 2000 book, “The America We Deserve,” in which he wrote: “The Republicans walk the N.R.A. line and refuse even limited restrictions. I generally oppose gun control, but I support the ban on assault weapons and I also support a slightly longer waiting period to purchase a gun.”

He has since hardened his stance. He is now calling bans on gun and ammunition magazines “a total failure.” He opposes expanding the background-check system, and recently called the executive orders issued by President Obama “no good” and “no fair,” and promised to “unsign” the president’s action.

Trump has long supported the death penalty and emphatically. In 1989, shortly after the rape and savage beating of a white woman who became known as the Central Park jogger, Trump took out a full-page newspaper ads headed, “BRING BACK THE DEATH PENALTY! BRING BACK THE POLICE!” In 2000, he continued his defense of capital punishment: “My only complaint is that lethal injection is too comfortable a way to go,” he wrote in The America We Deserve. During his most recent campaign for the presidency, he said one of the first things he would do is put forth an executive order to make the death penalty automatic if a person is convicted of killing a police officer.

Trump says he is not a racist, but his words have led others to conclude otherwise: from calling Hispanics rapists to his proposed ban on Muslims entering the United States, to his claim about having a “great relationships with the blacks.” While Trump described the racially-motivated massacre in Charleston as “incomprehensible,” he’s been endorsed by the spokesman for the Council of Conservative Citizens, the same group cited as an inspiration in the manifesto of the accused killer, Dylann Roof. Trump has been accused of being a racist since he entered public life, but it’s those who are openly racist that are among his most enthusiastic supporters (white nationalists have referred to Trump as “The Great White Hope” for their cause). Meanwhile, Trump’s campaign recently unveiled its strategy to win “100 percent” of the black vote, which includes plans to “bring God back into the neighborhood.”

Photography: Marc Nozell, via Flickr, Gage Skidmore, via Flickr and Michael Vadon.