The candidates who vied with Joe Biden to challenge President Trump in November staked out positions on bail reform, marijuana, immigration and more. Here’s where they stood.
Bloomberg wanted to “issue an executive order banning solitary confinement” except in “extreme cases.”
Buttigieg wanted to “reduce the over-reliance on solitary confinement and abolish its prolonged use.”
Harris expressed support for ending solitary while “ensur[ing] alternative therapeutic and rehabilitative mechanisms are available.”
O’Rourke expressed support for ending solitary confinement, calling it “inhumane and unevenly applied.”
Steyer suggested “recommendations on national limits for solitary confinement.”
Biden said his administration would ban solitary, “with very limited exceptions.”
Booker called solitary “cruel and demeaning” and “a violation of one’s human dignity.”
Klobuchar “support[ed] reducing the use of solitary confinement.”
Sanders called solitary “a form of torture and unconstitutional, plain and simple.”
Castro supported “efforts to end our nation’s use of solitary confinement by banning its use for purposes of punishment.”
Warren said solitary “provides little carcerative benefit and has been demonstrated to harm prisoners.”
Yang did not publicly address solitary confinement.
Gabbard did not publicly address solitary confinement.
In 2016, a special report from the United Nations found that 80,000 to 100,000 people are held in solitary confinement in the U.S. on any given day, and that about 20 percent of prisoners and 18 percent of jail inmates spend time in solitary over the course of a year. In recent years, the psychiatric research community has reached a virtual consensus on the profound harm that long-term social isolation can cause for incarcerated people.
The president has a great deal of power over the use of solitary confinement in the federal system via the attorney general, who can direct the Bureau of Prisons to implement broad administrative reforms. The Obama administration did as much when it ordered a ban on juvenile solitary confinement in 2016.
Several experts said the most important thing a president can do, beyond policy, is to be a “moral leader” on the issue. Obama not only ordered a justice department review of the practice in 2015, but also spoke about the issue passionately in op-eds and speeches. A president could also encourage reforms at the state and local level by using federal funding as a lever. Experts said the federal government could pressure states to follow the example of Colorado, which is the only one to adopt the United Nations’ Nelson Mandela rule, which defines the holding of a prisoner in solitary confinement for over 15 days as torture.
One key distinction to look for among the candidates is phrasing that limits changes only to solitary confinement “as punishment”, rather than across the board. As early as 1974 (Wolff v. McDonald), the courts have generally held that if solitary confinement is being used as a punishment, it requires some form of due process, like a disciplinary hearing where the inmate can present evidence. As a result, prison officials frequently place inmates in segregation as an administrative matter instead. In Texas for example, solitary confinement as punishment was banned in 2017—affecting less than 2 percent of prisoners in isolation. The other 98 percent, held “administratively” were not covered by the legislation.
Biden said his administration would end the practice of solitary confinement “with very limited exceptions such as protecting the life of an imprisoned person.”
Bloomberg promised to “issue an executive order banning solitary confinement for all federally incarcerated people, other than in extreme cases,” as well as “pressure states to end solitary nationwide.”
Booker called solitary confinement “cruel and demeaning” and “a violation of one’s human dignity” while introducing a 2015 bill to ban its use on juveniles in the federal system, and expressed similar concerns the following year in an op-ed for the Guardian. He also called it torture in a 2019 letter to fellow Sen. Lindsey Graham regarding its use in immigration detention facilities. Booker did not address the issue with a policy proposal as a 2020 candidate.
Buttigieg outlined plans to “reduce the over-reliance on solitary confinement and abolish its prolonged use, bringing the United States in line with international human rights standards.” The proposal said he would also “incentivize states to follow the federal government’s lead in abolishing the use of solitary confinement for children.”
Calling long term isolation “one of the most harmful policies that remains sadly common” in correctional facilities, Castro vowed to “support efforts to end our nation’s use of solitary confinement by banning its use for purposes of punishment.”
Gabbard did not publicly address solitary confinement.
Harris promised to support ending the use of solitary confinement, but also to “ensure alternative therapeutic and rehabilitative mechanisms are available to protect the safety of individuals in prisons and of prison staff.”
In a statement to the Marshall Project, Klobuchar’s campaign said she “supports reducing the use of solitary confinement.”
O’Rourke supported “ending solitary confinement as a form of punishment.” His criminal justice policy proposal called the practice “inhumane and unevenly applied” as well as traumatizing and harmful to mental health. “It also is inappropriately imposed on sexual and gender nonconforming minorities,” the proposal said.
Sanders vowed to “end solitary confinement” as part of his proposal for a new “prisoner’s bill of rights.” His plan made no carve-outs for administrative segregation. “Solitary confinement is a form of torture and unconstitutional, plain and simple,” Sanders’s plan read.
Steyer’s platform argued that “solitary confinement has detrimental psychological impacts and its use is deeply racially biased,” and outlined plans to study and “make recommendations on national limits for solitary confinement.”
Warren’s criminal justice platform said that “we should eliminate solitary confinement, which provides little carcerative benefit and has been demonstrated to harm prisoners’ mental and physical health, in favor of safe alternatives.” Warren promised to also “direct the Bureau of Prisons to establish a set of standards and reforms to protect the most vulnerable in our prison system in a way that does not involve confining a person for more than 20 hours a day.”
Yang did not publicly address solitary confinement.
Castro wanted to set “national standards for the conduct of police officers and local departments.”
As senator, Booker introduced a bill that would mandate the reporting of police force resulting in serious injury or death.
Harris vowed to “support a national standard for use of deadly force.”
O’Rourke’s plan would have “demand[ed] police and prosecutorial accountability through federal civil rights enforcement.”
Yang’s sole policing policy proposal was to equip every police officer in the nation with a body camera.
Bloomberg planned to sign a bill “raising the standard for use of force by federal officers.”
Gabbard did not publicly address police accountability or use of force.
Klobuchar supported “recommending de-escalation techniques to reduce the use of force.”
Sanders proposed setting federal standards for police, but only for use of body cameras and storage of resulting footage.
Biden said his administration would “use its authority to root out unconstitutional or unlawful policing.”
Warren said her administration would “develop and apply evidence-based standards for the use of force for federal law enforcement.”
Steyer planned to “advocate for a federal standard for the use of force.”
Buttigieg supported laws to raise “the legal standard under which officers are justified to use lethal force.”
There are some 18,000 law enforcement agencies in the nation, and their use of force policies vary widely. Research shows that “more restrictive use of force policies predict lower rates of deadly and less lethal force” by officers, making it a logical starting point for trying to reduce the number of people killed each year by police.
The president lacks the power to directly regulate state, county and local departments, however. Several candidates proposed federal standards that would almost certainly come in the form of guidance from the U.S. Department of Justice or the FBI on best practices for use of force. This could push police departments to act in a few different ways, experts say. Some departments—likely a small minority—would proactively adopt these best practices on their own. Many more would be compelled by the threat of either civil lawsuits or of a federal “patterns and practices” investigation by the Department of Justice. In either case, claims that police are violating citizens’ civil rights could be bolstered if a department wasn’t following the federal recommendations.
Several candidates proposed tying federal funding for law enforcement to the adoption of such use of force standards, either as a promise for additional funding or as a threat to withhold existing dollars.
Bringing back “patterns and practices” investigations, a staple of the Obama administration, was also a popular proposal. Those inquiries, in departments like Newark, Chicago, Baltimore and Ferguson, Missouri, have led to consent decrees–or a series of policy changes agreed on by police departments and the Department of Justice, and enforced by federal judges.
Biden said under his administration, the Justice Department “will again use its authority to root out unconstitutional or unlawful policing,” by employing the “pattern and practice” investigations commonly conducted under Obama but virtually abandoned under Trump.
Bloomberg promised to “sign a bill raising the standard for use of force by federal officers—barring deadly force unless it’s necessary to prevent serious injury or death and barring other force unless it’s necessary to make an arrest,” and “press states to follow the federal lead with their own use of force statutes.”
Booker pledged to “improve the reporting of police use-of-force incidents” but did not address policing in a comprehensive way as a candidate. As a senator in 2015, he introduced a bill that would require states to report any police use of force resulting in serious injury or death to federal officials.
In a white paper, Buttigieg outlined plans to raise “the legal standard under which officers are justified to use lethal force,” noting that “many law enforcement agencies lack substantive guidance.” Buttigieg also proposed a federal review board “to help police agencies assess catastrophes, including violence and other misconduct, after they happen.”
Castro said his administration would have established “national standards for the conduct of police officers and local departments that receive federal funding.” Those standards would have “restrict[ed] the use of deadly force unless there is an imminent threat to the life of another person.”
Gabbard did not publicly address police accountability or use of force.
Harris vowed to “support a national standard for use of deadly force limited to only when ‘necessary’ and when no reasonable alternatives are available.” She was also the first candidate to propose a federal review board that would investigate police shootings similar to the way the government currently investigates air crashes.
Klobuchar’s campaign told the Marshall Project that the Senator “supports recommending de-escalation techniques to reduce the use of force” and promised to ensure departments properly investigate use of force,” but the response included no specific policy proposals.
O’Rourke proposed directing the Department of Justice to “demand police and prosecutorial accountability through federal civil rights enforcement, misconduct investigations, and support of community policing.”
Sanders wanted to “revitalize the use of Department of Justice investigations, consent decrees, and federal lawsuits to address systemic constitutional violations by police departments.” Sanders also vowed to mandate a federal investigation “whenever someone is killed in police custody”—or more than 1,000 investigations a year, which would have been unprecedented and, some experts told the Marshall Project, unrealistic. During the Obama administration such investigations numbered in the single digits annually. Sanders also proposed federal standards for police, but only for the use of body cameras and the storage of the resulting footage.
Steyer planned to “advocate for a federal standard for the use of force that requires alternative strategies such as de-escalation techniques, verbal warnings, and lower levels of force.” He said his administration “will encourage the creation of citizen review boards with subpoena powers to provide stakeholder oversight and improve community-police relations.”
Warren cited research that suggests “when cities employ more restrictive policies for police use of force, they improve both community trust and officer safety.” She vowed to “develop and apply evidence-based standards for the use of force for federal law enforcement, incorporating proven approaches and strategies like de-escalation, verbal warning requirements, and the use of non-lethal alternatives.”
Yang did not publicly address police accountability or use of force besides outlining a plan to equip every police officer in the nation with a body camera.
Harris called for ending private prisons, as well as private detention centers for undocumented immigrants.
Biden would “end the federal government’s use of private prisons.”
Castro wanted to eliminate “the for-profit immigration detention and prison industry.”
Warren sought to end federal contracts for private detention and withhold funding from states unless they do the same.
Booker said “attaching a profit motive to imprisonment undermines the cause of justice and fairness.”
Gabbard called private prisons “monuments to hypocrisy” and says they should be abolished.
Yang promised to “end the use of for-profit, private prisons” for federal inmates.
O’Rourke said “no one should get rich locking other people up.”
Bloomberg said the U.S. “should not have for-profit prisons.”
Klobuchar vowed to “phase out the use of private prisons” in her first 100 days.
Buttigieg wanted to “abolish private federal prisons.”
Sanders wanted to “ban for-profit prisons.”
Steyer vowed to end private prisons and apologized for his hedge fund having invested in them.
Every Democratic candidate expressed at least moral opposition to private prisons, if not a clear policy goal for their abolition.
Administratively, the president wields a fair amount of power on this issue. Private companies only hold 8 percent of people incarcerated in the U.S., but have 15 percent of federal prisoners and more than 70 percent of immigration detainees. An incoming president could direct the Department of Justice and Department of Homeland Security not to contract with private detention companies. The Obama administration did this (to limited effect) in 2016 for federal prisons, and a DHS advisory council recommended to do the same for immigration detention later that year. The election of Donald Trump rapidly reversed that momentum, in a massive financial boon for the industry.
As a practical matter though, phasing out private prisons is a lot harder than writing a memo to cabinet secretaries, if it isn’t accompanied by an aggressive plan for decarceration. The private prison industry began in the early 1980s amid a rapid rise in incarceration, because the government didn’t have enough space in public facilities. That remains the case, and experts say a multi-billion dollar government buy-out of private facilities is highly improbable. This is especially true for immigration detention, where the industry makes up most of the government’s capacity (local jails handle almost all of the rest).
Banning or abolishing private prisons doesn’t fully remove the profit motive from the business of incarceration, which most candidates described as morally wrong. Weeding private companies out from contracts in prison healthcare, food, transportation, financial services, messaging, phone and video calls, would be substantially more difficult. Private corrections companies are also diversifying with investments in reentry, electronic monitoring and drug treatment programs.
Biden said he would restore a 2016 Obama policy, since rescinded by Trump, aimed at phasing out the federal use of private prisons. Biden would also “make eliminating private prisons and all other methods of profiteering off of incarceration” a requirement for receiving funds from a proposed grant program for state and local jurisdictions.
Bloomberg said that “a profit motive can create perverse incentives to keep people in prisons—and that the U.S. should not have for-profit prisons.” He wanted to restore an Obama-era order to phase out private prisons at the federal level.
Booker, long a vocal critic of private prisons, did not express a policy goal as a presidential candidate. He did sharply criticize the Trump administration’s decision to undo an Obama directive reducing their use, calling it “a major setback to restoring justice to our criminal justice system.” The senator continued, “Attaching a profit motive to imprisonment undermines the cause of justice and fairness.”
Buttigieg promised to “abolish private federal prisons and significantly reduce the use of private contractors by incentivizing states to stop their services in areas such as health care, food services, communications, diversion, and supervision.”
Castro called for the end of private prisons on moral grounds, arguing “the commodification of people’s freedom encourages for-profit prisons to cut costs, leading to less pay and training for guards, and reduced safety and dignity for inmates.” He pledged to “close for-profit prisons and detention centers and end this exploitative system.”
Harris called it “inhumane to profit off of imprisonment and allow a system that continues to create incentives that are contrary to the goal of helping people rehabilitate themselves and return to the community.” She said in a tweet that one of her “first acts of business as president will be to begin phasing out detention centers and private prisons.”
Senator Klobuchar vowed to “phase out the use of private prisons” in her first 100 days as president “by directing the Department of Justice to decline to renew or reduce the scope of contracts when the contract reaches its end.”
O’Rourke pledged to eliminate “private, for-profit prisons,” in part because they have “been shown to produce disproportionately negative outcomes for people of color.” He wanted to also “eliminate all funding for private, for-profit immigration prison operators.”
The senator said “we must end the practice of corporations profiting off the suffering of incarcerated people and their families” and pledged to “ban” private prisons.
Steyer vowed to eliminate private prisons, an industry his hedge fund poured tens of millions into in 2005. He had since said he “deeply regret[s]” that investment and personally ordered that the stake be sold. “The private prison industry has been rife with abuse. It is time to shut it down,” Steyer’s plan argued.
Senator Warren argued there is “no place in America for profiting off putting more people behind bars or in detention.” She planned to end all federal contracts with private detention providers and vowed to “extend these bans to states and localities by conditioning their receipt of federal public safety funding on their use of public facilities.”
The tech entrepreneur planned to “end the use of for-profit, private prisons” for federal prisoners.
Yang called for only using cash bail “when necessary.”
O’Rourke pointed to his own experiences getting arrested and then bailed out of jail in the 1990s.
Booker tweeted: “Cash bail doesn't work, it never has & it's time to end it.”
Biden called cash bail the “modern-day debtors’ prison.”
In 2017, Harris co-sponsored a bill to incentivize states to end cash bail.
Castro said he would “pass legislation eliminating cash bail.”
Klobuchar indicated support for eliminating cash bail but has not detailed any plans.
Sanders pledged to withhold funding from states that use cash bail systems.
Gabbard cited the cash bail system’s disproportionate impact on people of color and people living in poverty.
Bloomberg called racial disparities in bail “the definition of injustice.”
Buttigieg believed it is important that pretrial defendants are released on the “least restrictive conditions necessary, and for many that is cash bail.”
Steyer pushed for reforms in his home state of California and supports the end of cash bail.
Warren supported ending cash bail but did not explain how she would have achieved it.
Nearly all the Democratic candidates favored limiting or eliminating money bail, but the president has little power to influence the practice directly because bail is set locally. While the federal judicial system has all but abandoned bail, most states allow cash bail as the primary instrument of pretrial release for criminal defendants.
The president has the bully pulpit and could issue statements, convene White House events or assemble a task force to issue a report on the use of money bail. Otherwise, a president would be mostly limited to working with Congress to pass legislation like Bernie Sanders’s proposed “No Money Bail Act of 2018,” which would have offered grants to states to adopt alternatives. The federal government could also withhold funding from jurisdictions that continue to use traditional cash bail.
Because commercial insurance companies underwrite the for-profit bail industry, some reformers believe the federal government could use its expansive powers over interstate commerce to essentially regulate the industry into extinction. No candidate proposed this action.
Calling cash bail the “modern-day debtors’ prison,” Biden has said he would “lead a national effort to end cash bail.”
The former New York mayor pledged to “sign a bill ending federal cash bail—except in cases of demonstrable flight risk such as white-collar crime,” and to press states to do the same. He said he would “incorporate experts to guard against racial bias” after calling racial disparities in bail “the definition of injustice.”
Buttigieg pledged to enact bail reform that would ensure “bail is never set beyond an individual’s ability to pay” and supports “eliminating the for-profit bail industry.” He did not support outright abolition of money bail, however, focusing on pretrial detention as the more immediate problem. “We have seen states like California eliminate cash bail but replace it with a system where even more people are detained outright, with no opportunity for release before trial,” his campaign told The Marshall Project.
“Pretrial detention should always be the very last resort,” Castro wrote in a policy proposal. “Following the example of multiple states and local jurisdictions, I will pass legislation eliminating cash bail and support compensation for individuals who are detained pretrial but are later released or acquitted.”
At a forum in New Hampshire Gabbard said, “We need to get rid of the cash bail system that is disproportionately impacting people of color and people living in poverty all across this country.”
Harris’ criminal justice platform said: “End money bail. Our bail system is unjust and broken.” The senator in 2017 co-sponsored a bill to incentivize a move away from cash bail in state and local jurisdictions.
“Ending the cash bail system makes sense,” O’Rourke said at a campaign stop, citing his own experiences being arrested and bailed out of jail twice in the 1990s. “You cannot be too poor to have your freedom, and that is exactly what happens in the United States of America right now," O’Rourke said, points he later echoed in his criminal justice platform.
Sanders called for an unqualified end to cash bail, pledging to withhold funding from states that continue to use cash bail systems. Sanders introduced the “No Money Bail Act of 2018” in the Senate—legislation that would have withheld funding for cash bail and provided funding for states to pursue alternatives.
Warren supported ending cash bail, arguing, “We should allow people to return to their jobs and families while they wait for trial, reserving preventive detention only for those cases that pose a true flight or safety risk.” The Massachusetts senator did not say in her criminal justice platform how she would have achieved this goal.
Yang shares most of his fellow candidates' reservations about cash bail but stopped short of advocating an end to it. “We should be much more judicious in the use of cash bail, only employing it when necessary,” a statement on Yang’s website said.
Bloomberg wanted to “set a broad pro-clemency policy for people who do not pose a public danger.”
Steyer wanted to “work to identify and commute the sentences of [the] wrongfully convicted.”
Biden plans to “broadly use his clemency power for certain nonviolent and drug crimes.”
O’Rourke wanted to “set the goal of reducing incarceration by at least 25,000.”
Booker proposed immediately considering clemency for more than 17,000 federal prisoners.
Yang promised to “pardon everyone who’s in jail for a low-level, nonviolent marijuana offense.”
Harris said she would “significantly increase use of clemency.”
Warren wanted to “use the pardon and clemency powers broadly to right systemic injustices.”
Sanders planned to “revitalize the executive clemency process.”
Klobuchar wanted to create a “diverse, bipartisan clemency advisory board.”
Buttigieg wanted to commute sentences of people “who are incarcerated… beyond what justice warrants.”
Gabbard did not publicly comment on clemency.
Castro said clemency is the single biggest step the U.S. can take to immediately reduce the size of its prison population.
Clemency, which includes reversing criminal convictions (pardons) and shortening sentences (commutations), is the president’s most direct means to reduce incarceration. The action requires no approval from Congress and as a matter of law, nothing could stop a president from releasing all of the approximately 216,000 federal prisoners on day one.
For this reason, some experts say candidates’ clemency plans are a good barometer for their true commitment to criminal justice reform.
Historically, presidents have used clemency in limited and sometimes self-serving ways, pardoning friends and political allies, usually as they leave office to avoid political blowback. President Obama broadened this somewhat, offering clemency at a record-setting pace at the end of his second term to nonviolent drug offenders, but still barely made a dent in the federal prison population.
Several candidates proposed reforming the capricious nature of clemency through a bipartisan commission that would identify prisoners for release, taking the screening process away from the Department of Justice. The thinking here is that the same department that prosecuted these cases should not determine if the sentences are too severe. Some candidates also proposed mass clemency, mainly for prisoners convicted of nonviolent drug crimes.
Clemency powers are limited to federal prisoners, and a president cannot free a single person convicted under state or local laws. But the president could set a strong example, providing some political cover for governors seeking to follow the administration’s lead.
Biden has highlighted that the use of clemency while he was vice president was greater than the prior 10 administrations and vowed to continue in that spirit. He’s promised to “broadly use his clemency power for certain non-violent and drug crimes.”
Bloomberg's criminal justice proposal argued that "clemency decisions should be independent of prosecutors responsible for securing convictions," and pledged to create a "special clemency office." Bloomberg promised to also use clemency to make the sentencing provisions of the First Step Act retroactive and then "set a broad pro-clemency policy for people who do not pose a public danger."
Booker outlined an ambitious clemency plan that would have considered some 17,000 to 20,000 federal prisoners for release in three categories: Those sentenced for marijuana possession, people with disproportionately long sentences for crack-cocaine and those who would have been released if reforms in the First Step Act had been retroactive. Release would not have been immediate or guaranteed, however. Clemency recipients would have been evaluated to determine if they might pose a public safety risk.
The South Bend, Indiana, mayor promised to “commute the sentences of people who are incarcerated in the federal system beyond what justice warrants.” Buttigieg pledged an “independent clemency commission” made up of people “with diverse professional backgrounds and lived experiences” that “will make the process more streamlined and comprehensive."
Castro pledged to “establish an independent commission to review the cases” of some 17,000 non-violent offenders, “and make continuing recommendations to the President on clemency.” He called such a use of clemency powers “the single biggest step we can take to immediately reduce the unacceptable size of our prison population.”
Gabbard did not publicly comment on the question of clemency.
The senator vowed to “significantly increase use of clemency” and that the Department of Justice should not make clemency decisions on cases it prosecuted. She proposed a “sentencing review unit” to consider early release for people who have served at least 10 years of sentences of 20 years or more.
In a CNN op-ed, Klobuchar promised to create a “diverse, bipartisan clemency advisory board, one that includes victim advocates as well as prison and sentencing reform advocates.” She vowed also to create a criminal justice advisor separate from the Justice Department, because “although the voices of our prosecutors and law enforcement officials are important… there are additional voices that a president needs to hear.”
O’Rourke wanted to “set the goal of reducing incarceration by at least 25,000” during his first term via clemency, and establish a streamlined, uniform application for inmates seeking release. It’s unclear how this would have differed from the current system. The former congressman promised to prioritize elderly people and those in poor health, people with disabilities and chronic illness, those in prison solely for drug possession, and people subject to extraordinarily long sentences.
The senator wanted to “revitalize the executive clemency process by creating an independent clemency board removed from the Department of Justice and placed in [the] White House.”
The California businessman promised to “work to identify and commute the sentences of wrongfully convicted men and women and ensure they have access to quality counsel to pursue financial restitution.” He would also have moved the Office of the Pardon Attorney into the White House “to improve oversight and coordination.”
Senator Warren wanted to “use the pardon and clemency powers broadly to right systemic injustices,” with a clemency board making recommendations directly to the White House. She vowed to “direct the board to identify broad classes of potentially deserving individuals for review, including those who would have benefited from retroactivity under the First Step Act, individuals who are jailed under outdated or discriminatory drug laws, or those serving mandatory minimums that should be abolished.”
Yang wanted to “pardon everyone who’s in jail for a low-level, nonviolent marijuana offense, and I would high five them on their way out of jail.”
Bloomberg supported restoring voting rights for formerly incarcerated people.
Sanders was the sole candidate arguing that all incarcerated people should be eligible to vote.
O’Rourke said violent criminals have “broken a bond and a compact” with their fellow Americans.
Booker supported the right to vote for inmates convicted of nonviolent drug offenses.
Yang said those convicted of murder should not be allowed to vote.
Steyer’s campaign said, “If you've done your time you should be able to vote.”
Harris said she was still making up her mind on whether the incarcerated should be able to vote.
Castro said prisoners should be able to vote unless they are “violent felons.”
Biden wants incentives for states to restore voting rights to people who complete felony sentences.
Klobuchar said people should have voting rights restored after they complete their sentences.
Warren called for “more conversation” on prisoners’ voting but was “not there yet.”
Gabbard expressed concern that corrections officers could influence prisoners’ voting decisions.
Buttigieg said losing the right to vote is “part of the punishment” of being incarcerated.
No candidates outlined in detail how they would restore voting rights for current inmates and the formerly incarcerated. Pete Buttigieg came the closest by proposing that felon enfranchisement be part of a “21st Century Voting Rights Act.” Many in the field expressed support for the “For The People Act,” which passed the House but not the Senate and would have restored voting access to all those who have been convicted of a crime but are not currently in prison for a felony. Such legislation would not change state laws, however, so states would be able to prevent those same citizens from voting in state and local elections.
A president could advocate for re-enfranchisement and commission studies or task forces to make recommendations to states. The president could also push Congress to use the budget to reward states for restoring voting rights to current and former prisoners or to withhold funds from jurisdictions that continue the practice.
The former vice president said his administration would “incentivize states to automatically restore voting rights for individuals convicted of felonies once they have served their sentences.”
Bloomberg’s campaign told The Marshall Project he supported restoring voting rights for formerly incarcerated people.
Booker said people in prison for “serious felonies” should “surrender their right to vote,” but that those convicted of nonviolent drug offenses should be granted the franchise. Booker is a co-sponsor of the pending “For the People Act,” which would guarantee the right of convicted people to vote in federal elections after their release.
"Part of the punishment when you're convicted of a crime and you're incarcerated is you lose certain rights, you lose your freedom,” Buttigieg said at a town hall. The South Bend mayor supported the full, immediate and free restoration of rights after prisoners are released.
Castro said that prisoners ought to have the right to vote, since they're counted in the Census, but he made a broad exception for “people who are violent felons." For the formerly incarcerated, Castro said, “as president, I will pass new voting rights legislation guaranteeing automatic restoration of voting rights.”
Gabbard told MSNBC that she opposed restoring voting rights to current inmates in part because she thought there would be a potential for corrections officers to exert influence over prisoners’ voting decisions. A Gabbard staffer told HuffPost that this included people on parole.
As of the end of her campaign in December 2019, Harris was still making up her mind on this question. "I'm going to think about it, and I'm going to talk to experts, and I'm gonna make a decision, and I'll let you know,” Harris had said last spring, adding that her primary concern was restoring the franchise for the formerly incarcerated. In the Senate, Harris joined with Kirsten Gillibrand and Sanders to introduce the Voter Empowerment Act, which would do exactly that.
The Minnesota senator told HuffPost that she supported “what they did in Florida, which is when [people] get out they get to vote.” Klobuchar is a co-sponsor of the “For the People Act.”
O’Rourke said that violent criminals have “broken a bond and a compact” with their fellow Americans and defended the loss of the franchise as a consequence, but said the country should “rethink” the question for nonviolent offenders “and allow everyone, or as many [as] possible, to participate in our democracy.” His criminal justice plan said that “restoration of voting rights will not be subject to additional requirements.”
Sanders was an outlier, arguing that all incarcerated people should be eligible to vote. He called it a “slippery slope” to try and distinguish among types of convictions regarding voting rights. “You’re paying a price, you committed a crime, you’re in jail. That’s bad. But you’re still living in American society, and you have a right to vote,” Sanders said. His state—Vermont—and Maine are the only ones where everyone in prison can vote.
Steyer’s campaign told The Marshall Project that he “supports restoring voting rights to former convicts” and believes “if you've done your time you should be able to vote.” His plan promised that “reinstatement of voting rights will not depend upon the completion of parole or payment of fees or fines.”
Warren said she supports a constitutional right to vote but was “not there yet” on giving the vote to prisoners, according to the Associated Press. She had said that there should be “more conversation” on the question.
Yang said he believes that “committing a crime should not mean you are a noncitizen and cannot vote.” His sole exception was for those convicted of murder. “The threshold I have come up with is that if you have deprived someone else of their right to vote, then you should not have the right to vote," Yang said during an INSIDER town hall.
Bloomberg supported decriminalizing marijuana and commuting all remaining sentences.
Yang proposed expunging convictions for marijuana use and possession.
As a senator, Booker pushed for legalization.
O’Rourke favored legalizing marijuana as early as 2009.
Castro expressed his support for legalization in a tweet.
Gabbard expressed her support for legalization on Facebook.
Harris proposed incentives for states to legalize marijuana.
Sanders said he would legalize marijuana by executive order.
Steyer told The Marshall Project he supported legalization.
Klobuchar supported states determining their own approach to marijuana.
Warren co-sponsored Booker’s bill to federally legalize marijuana.
Buttigieg planned to “legalize marijuana and expunge past convictions.”
Biden has called for decriminalizing marijuana and expunging prior records for possession of the drug.
More than half the U.S. population now lives in states where possession of marijuana has been decriminalized, meaning people won’t face criminal prosecution for simple possession of the drug. In addition, more than a quarter of Americans live in states where there is a legal recreational cannabis industry. The federal government does not strictly have the power to “legalize” cannabis, which is still subject to state criminal laws. But Congress and to a lesser degree the president can nudge states towards legalization by making it a condition for getting some federal funding.
A new president could move to downgrade cannabis’ designation as a Schedule One controlled substance, even without Congress. That would probably need to start with a Department of Justice request for a review of the scientific literature on the drug, involving agencies like Health and Human Services, the Food and Drug Administration and the Drug Enforcement Agency. A congressional bill, like the proposed MORE Act, could accomplish the feat much faster.
The attorney general could effectively decriminalize cannabis at a federal level by simply directing U.S. attorneys not to pursue some cases, as former Attorney General Eric Holder did in 2013 after some states passed legalization referendums. The DEA and FBI, at the president’s direction, could choose not to conduct cannabis-related investigations or arrests.
Biden has spoken in support of legal marijuana. He has called for decriminalizing marijuana and expunging prior records for possession of the drug, though in one debate he said that marijuana possession should be charged as a misdemeanor.
In his criminal justice platform, Bloomberg said he “believes that further scientific study is required to assess the health effects of marijuana,” but said he supports “decriminalizing possession of small amounts nationally and would commute all remaining sentences and expunge sentences from criminal records.” The proposal came about a year after Bloomberg called marijuana legalization “perhaps the stupidest thing anybody has ever done.”
Booker has pushed for marijuana legalization in the Senate since 2017. In 2019, he introduced a bill to legalize marijuana, expunge marijuana convictions and create a fund for communities most affected by the War on Drugs.
Buttigieg’s criminal justice plan called for legalizing marijuana on a federal level and expunging past convictions.
Castro tweeted in April 2019, “Legalize it. Then expunge the records of folks who are in prison for marijuana use.”
“As president I’ll end the failed war on drugs, legalize marijuana, end cash bail, and ban private prisons and bring about real criminal justice reform,” the Hawaii congresswoman said on Facebook in July 2019.
Harris’ plan called for legalizing marijuana at the federal level while also providing incentives for states to legalize the drug. The plan also called for expungement and resentencing of marijuana convictions. Harris co-sponsored Booker’s 2019 bill to federally legalize marijuana.
Although Klobuchar told The Washington Post she supported legalizing marijuana, she also said states should “determine the best approach to marijuana within their borders.” She was the only sitting senator among the Democratic candidates who had not signed on to Booker’s 2019 bill for federal legalization.
O’Rourke argued in favor of legalizing marijuana as early as 2009, when he was a member of the El Paso City Council. His criminal justice plan called for legalizing marijuana and expunging records for possession of the drug.
Sanders called for federal legalization of marijuana in his 2016 campaign for the Democratic nomination. In August 2019, he told Newsweek that he would legalize marijuana by executive order. He also called for the expungement of prior marijuana convictions.
Steyer endorsed the MORE Act—introduced into the Senate by Kamala Harris—which would decriminalize marijuana at the federal level and let states dictate their own policies. The bill would also expunge past records and let people with past marijuana convictions participate in the legal market. “A Steyer Administration will also open equitable pathways to banking for marijuana businesses,” Steyer’s campaign said.
Warren’s criminal justice plan called for legalizing marijuana and expunging prior convictions. She co-sponsored Booker’s 2019 bill to legalize marijuana federally.
Yang supported legalizing marijuana at the federal level and expunging convictions for both marijuana use and possession.
O’Rourke had proposed ending mandatory minimums for nonviolent drug offenses only.
Castro pledged to eliminate mandatory minimums.
Harris wanted to end federal mandatory minimums and “incentivize states to do the same.”
Steyer wanted to end mandatory minimums.
Bloomberg wanted to “press states to end three-strikes and mandatory minimums laws.”
Booker wanted to end mandatory minimums for nonviolent drug offenses.
Yang advocated mandatory minimums for white-collar crimes.
Gabbard supported the 2015 Sentencing Reform Act, which reduced mandatory minimums for some drug offenses.
Warren said Congress should “reduce or eliminate” mandatory minimums.
Klobuchar proposed “giving prosecutors and judges more discretion in sentencing,” but hasn’t specified how much.
Biden proposes grants for states that end mandatory minimums for nonviolent crimes.
Buttigieg proposed eliminating mandatory minimums.
Sanders supported ending three-strikes sentencing laws.
When he signed the 2018 First Step Act, Donald Trump made marginal reductions to federal mandatory minimums; a new president could become a vocal supporter of legislation to pare back draconian federal sentencing even further. Some advocates are pushing for “Second Look” legislation to give all prisoners the right to have their sentencing re-evaluated after a number of years, no matter their crime. Cory Booker introduced a Senate version of this legislation in 2019.
Most immediately, a new administration could, through its attorney general, reverse the 2017 Jeff Sessions memo that requires federal prosecutors to seek the most severe possible penalties. By contrast, under President Barack Obama, Attorney General Eric Holder ordered federal prosecutors in 2013 to exercise restraint in charging to limit the number of people facing harsh mandatory minimum sentences.
Outside of the federal criminal justice system, which accounts for about 10 percent of the nation’s incarcerated population, the president has far less authority. The most detailed plan for reducing the use of mandatory minimums in states came from Joe Biden, who has proposed a $20 billion grant program for states to pursue progressive reforms, contingent on the repeal of their own mandatory minimum statutes.
Biden champions the swift passage of the “SAFE Justice Act,” which would pare back federal mandatory minimums. He is also proposing a federal grant program that would only be available to states that eliminate mandatory minimums for nonviolent crimes.
Bloomberg said he would “press states to end three-strikes and mandatory minimums laws, and would sign a bill repealing those penalties federally and removing the disparity between crack and powder cocaine sentences,” which was reduced from 100-1 to 18-1 in 2010 under President Obama, and made retroactive in 2018 under Donald Trump.
Booker proposed ending “harsh mandatory minimums for nonviolent drug offenses.” In the Senate, Booker introduced “Second Look” legislation, which would allow anyone who has served at least 10 years in federal prison to request resentencing. That bill would also grant inmates 50 or older the “presumption of release” if they petition.
Buttigieg proposed the elimination of mandatory minimums in his Frederick Douglass plan—a collection of policy proposals aimed at black Americans. In a criminal justice proposal released several months later, the South Bend mayor said he would also “direct the U.S. sentencing commission to explore sentencing caps,” presumably to lower maximum allowable sentences.
Castro said “three strikes laws and mandatory minimums are a major driver of mass incarceration,” adding, “As president, I would repeal the 1994 Crime Bill’s mandatory minimums and three strikes laws, and encourage State efforts to do the same.”
At a forum in New Hampshire, Gabbard said, “The next step towards [criminal justice reform] is sentencing reform” and committed to reducing mass incarceration by 50 percent, but did not outline a policy proposal. In 2015, Gabbard supported the Sentencing Reform Act, which “reduces certain mandatory minimums for drug offenders and allows judges greater discretion in determining appropriate sentences.”
Harris, a former district attorney, said she wanted to end federal mandatory minimums and “incentivize states to do the same.” As a senator, Harris co-sponsored a bill that would allow federal judges to issue sentences below statutory minimums.
Klobuchar, a former district attorney, proposed “giving prosecutors and judges more discretion in sentencing,” but did not specify how much. She also championed her support as a senator for the First Step Act, which allows judges to impose sentences below mandatory minimums—but only for certain nonviolent, low-level drug offenders who cooperate with the government.
O’Rourke said he would “eliminate mandatory minimum sentencing.” Previously he had proposed ending the use of mandatory minimum sentencing for nonviolent drug offenses only.
Sanders pledged in his criminal justice platform to end mandatory sentencing minimums, along with truth-in-sentencing laws, which specify that a minimum percentage of an inmate’s sentence must be served before they become eligible for early release. Sanders also offered support for eliminating three-strikes laws, which impose mandatory life sentences on certain repeat offenders, and for “Second Look” legislation, which allows prisoners to petition federal courts for a review of lengthy sentences. Sanders’s plan did not outline a way to get states to reduce the use of mandatory minimums or related statutes.
Steyer’s campaign told The Marshall Project that he “wants to end mandatory minimum sentences, but does not support weaker penalties for criminals who have been convicted of sexual or violent offenses.” In a criminal justice platform released later, Steyer said he would “work to eliminate mandatory minimums for all federal non-violent crimes and allow judges more discretion for more serious crimes,” and incentivize states to do the same.
Warren said Congress should “reduce or eliminate” mandatory minimums. Warren, like several of the candidates, also said she would assemble a federal clemency board that would, among other things, recommend release for inmates serving time on “mandatory minimums that should be abolished.”
Yang described mandatory minimums as a “misguided policy decision” and said as president his administration would “review the current mandatory minimum laws to bring them in line with what data shows us is effective.” He did advocate mandatory minimums for white-collar crimes.
Castro called the death penalty “wrong” after the exoneration of an 81-year-old death row inmate.
O’Rourke once supported legislation “making it easier to execute a defendant if they attacked law enforcement.”
Booker said he’d opposed the death penalty since childhood.
Harris called the death penalty “immoral, discriminatory, ineffective, and a gross misuse of taxpayer dollars.”
Yang said the U.S. has made “tragic errors” in its use of the death penalty.
Biden’s recent opposition to the death penalty is a departure from his long history of support.
Klobuchar said her opposition to the death penalty dates back to her time as a prosecutor in Minnesota.
Gabbard tweeted, “Executing even one prisoner in error is too great a risk.”
Sanders opposed the death penalty throughout his political career.
Bloomberg opposed the death penalty throughout his political career.
Warren cited studies that indicate capital punishment can be biased against people of color and people with mental illness.
Steyer called the decision to resume federal executions a “huge misstep.”
Buttigieg said capital punishment in the U.S. “has always been a discriminatory practice.”
Democratic candidates appeared to be in lockstep, unequivocal opposition to the death penalty. A Democratic president would have at least one powerful tool available right away: rescinding Attorney General William Barr’s directive that the Bureau of Prisons schedule executions of federal prisoners after a 16-year virtual moratorium.
The president could also work with Congress to pass legislation to eliminate the death penalty at the federal level. After that, the president would have to rely on the power of the purse, prodding Congress to incentivize states to follow the federal government’s example.
Because the Supreme Court ruled capital punishment unconstitutional once before (in 1972, before reversing itself in 1976), it’s possible that a president could, through judicial nominations, set the stage for a future court to declare the practice unconstitutional once again.
Citing the more than 150 death row exonorees over the past 45 years, Biden said he will work to pass legislation to eliminate the death penalty at the federal level and incentivize states to follow the federal government’s example. It is a radical departure from a long history of explicit support.
Bloomberg said he would “set a Bureau of Prisons policy blocking all executions, commute all death row sentences to life without parole and sign a law abolishing capital punishment.”
“This is something I have been writing reports about since I was a kid in grade school,” Booker told The New York Times. “I just do not believe in the death penalty.”
“Capital punishment as seen in America has always been a discriminatory practice, and we would be a fairer and safer country when we join the ranks of modern nations who have abolished the death penalty,” Buttigieg said at a National Action Network event in spring 2019. He supported a constitutional amendment to abolish the death penalty.
“We should abolish the death penalty. It is wrong,” Castro tweeted in 2019, in response to the exoneration of an 81-year-old man on death row.
“Executing even one prisoner in error is too great a risk. We must end the death penalty now. As President I will work for comprehensive criminal justice reform including abolishing the federal death penalty,” Gabbard said on Twitter.
Harris “believes the death penalty is immoral, discriminatory, ineffective, and a gross misuse of taxpayer dollars,” according to her criminal justice platform.
“I oppose the death penalty, and I have long held that view. I held that view when I was the chief prosecutor for Minnesota’s largest county,” the senator told The New York Times. Minnesota abolished the death penalty in 1911.
“On moral grounds, I oppose the death penalty,” O’Rourke told an Iowa radio station. He said as president he would have abolished the federal death penalty “which in practice is discriminatory and cruel.” The former congressman had previously supported federal legislation “making it easier to execute a defendant if they attacked law enforcement.”
Had opposed the death penalty throughout his political career. From his criminal justice platform: “As president, Bernie will abolish the death penalty.”
Steyer called Attorney General William Barr’s decision to resume federal executions misguided and a “huge misstep.” In 2016, he threw his support behind a failed ballot measure that would have repealed the death penalty in his home state of California.
“I oppose the death penalty,” Yang told The New York Times. “We’ve made tragic errors in our past and likely will continue to do so.”
Bloomberg said “we need more immigrants and we should be in control of our borders.”
Harris said, “We’re not going to treat people who are undocumented [and] cross the borders as criminals.”
Castro was the first candidate to raise the issue of decriminalization on a national stage.
O’Rourke opposed decriminalization based on concerns about human trafficking and drug trafficking.
Steyer told The New York Times that he supported decriminalizing unauthorized border crossings.
Sanders sought to reserve “criminal prosecution only for security threats and extenuating circumstances.”
Warren called the criminal provision “totally unnecessary for border security.”
Booker described treating immigrants as criminals as inefficient and inhumane.
Yang supported criminal prosecution in cases involving human trafficking and repeat offenders.
Biden has said, “I think people should have to get in line.”
Buttigieg said cases involving fraud should be considered criminal offenses.
Klobuchar expressed concerns about “an open border policy.”
Gabbard did not take a public stance on decriminalization but expressed concerns about “open borders.”
Questions remain about just how much of a difference decriminalizing border crossings would make, because the vast majority of deportations happen as a matter of civil rather than criminal proceedings. Even under the Trump administration—the most punitive towards immigration violations in recent memory—less than one-third of border apprehensions led to criminal prosecutions.
But in the broad sense, immigration is one of the few law enforcement arenas that is almost totally a federal function and where a future presidential administration could act quickly and authoritatively. An incoming president could virtually remake the entire system by appointing leaders, specifically at the Department of Homeland Security, with a progressive mindset toward enforcing or not enforcing certain aspects of immigration law.
Truly decriminalizing unauthorized border crossings as a matter of federal law would require congressional action. But the president can always promise to use his or her influence to push Congress to pass certain bills. Decriminalization advocates believe that repealing the statutes is a priority, no matter how the next president executes immigration law, because as long as they are on the books a future administration could use them to supercharge family separation and other enforcement provisions.
Biden does not support decriminalization. “I think people should have to get in line, but if people are coming because they’re actually seeking asylum, they should have a chance to make their case,” he told CNN.
“There’s nothing criminal about seeking a better life for your family. I've said it before, and I'll say it again now—we have to do the right thing and decriminalize border crossing,” Booker said on Twitter in summer 2019. His immigration proposal said that treating immigrants as criminals is both inefficient and inhumane.
Buttigieg said unauthorized border crossing should be decriminalized in most cases. "If fraud is involved, then that's suitable for the criminal statute. If it's not, it should be handled under civil law," he said.
Castro was the first candidate to raise the issue of decriminalization on a national stage. His immigration platform called for repealing the law that criminalizes “improper entry,” noting that the provision allowed for “the large scale detention of tens of thousands of families, and has deterred migrants from turning themselves in to an immigration official within our borders.”
Gabbard said, "That's something that I'm looking at," during a visit to ABC's “The View,” but expressed concerns that "decriminalizing could lead to ‘open borders.’ We need safe, secure borders in this country.”
“I am in favor of saying that we’re not going to treat people who are undocumented [and] cross the borders as criminals, that is correct,” Harris said during an appearance on “The View.”
Klobuchar opposed decriminalizing unauthorized border crossing. “We don't want to have an open border policy and have no criminal penalties for crossing into the United States without proper documentation,” Klobuchar told MSNBC.
O’Rourke said he did not believe the criminal statute should be repealed, arguing during one debate: “If somebody is attempting to smuggle human beings… if they are attempting to cross illegal drugs into this country, I want to make sure that we have the legal mechanism necessary to… to detain them to make sure they do not pose a threat to this country or to our communities.”
Sanders suggested returning to a pre-2005 protocol where “improper crossing” was almost always handled in civil proceedings but did not support outright repeal of the criminal statutes. Instead he sought to reserve “criminal prosecution only for security threats and extenuating circumstances,” the senator told The Washington Post.
Steyer told The New York Times in an interview that he supported decriminalizing unauthorized border crossings.
According to her immigration plan: The criminal provision “is totally unnecessary for border security” and should be repealed. Warren said that “as president, I will immediately issue guidance to end criminal prosecutions for simple administrative immigration violations.”
“I would be for criminalizing those who make a business of trafficking people in, or repeat offenders or those who enter after deportation proceedings or conviction of a crime,” Yang told The Washington Post. “But individuals or families who cross the border should be treated as civil offenders.”
Development and graphics by Katie Park
Photos Darren Hauck, Ben Margot, Wilfredo Lee, Paul Sancya/Associated Press; Mike Segar/Reuters, via Newscom; Ron Sachs/Newscom
This piece was originally published on Oct. 10, 2019.