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Election 2020 • Filed 6:00 A.M. 10.10.2019 • Updated 10.15.2019

The Democrats on criminal justice

O’Rourke points to his own experiences getting arrested and then bailed out of jail in the 1990s.

Booker supports the right to vote for inmates convicted of nonviolent drug offenses.

Biden is alone among the candidates in opposing marijuana legalization.

Gabbard expressed concern that corrections officers could influence prisoners’ voting decisions.

Yang advocates mandatory minimums for white-collar crimes.

Sanders is the sole candidate arguing that all incarcerated people should be eligible to vote.

Klobuchar expresses concerns about “an open border policy.”

Steyer called the decision to resume federal executions a “huge misstep.”

In 2017, Harris co-sponsored a bill to incentivize states to end cash bail.

Castro was the first candidate to raise the issue of decriminalizing border crossings on a national stage.

Warren says Congress should “reduce or eliminate” mandatory minimums.

Buttigieg says losing the right to vote is “part of the punishment” of being incarcerated.

The candidates vying to challenge President Trump next November want to move their party left on bail reform, marijuana, immigration and more. Here’s where they stand.

How would you reform the bail system?

Eliminate cash bail
Reduce use of cash bail
Position unclear

O’Rourke points 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.

Warren supports ending cash bail but hasn’t explained how she would achieve it.

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.

Yang calls for only using cash bail “when necessary.”

Buttigieg has pledged to support states working to curtail the for-profit bail industry.

Steyer pushed for reforms in his home state of California and supports the end of cash bail.

Castro expressed support for bail reform but has not detailed his proposals.

Nearly all the Democratic candidates favor 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’ proposed “No Money Bail Act of 2018,” which would offer 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 has proposed this action so far.

See what each candidate has said about bail reform

Joe Biden

Calling cash bail the “modern-day debtors’ prison,” Biden has said he would “lead a national effort to end cash bail.”

Cory Booker

The senator tweeted, “Cash bail doesn't work, it never has & it's time to end it.” In a questionnaire returned to FiveThirtyEight, Booker’s campaign said he supported the end of cash ball at all levels of government.

Pete Buttigieg

Buttigieg has pledged to support states working to curtail the for-profit bail industry and to ensure "bail is never set beyond an individual’s ability to pay."

Julián Castro

Castro expressed support for bail reform during his campaign launch speech, arguing that “for far too many people, they can’t afford bail and an accusation alone can turn into a jail sentence… Innocent until proven guilty should apply to every single American in this country.” Castro has not detailed his proposals, however.

Tulsi Gabbard

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.”

Kamala Harris

Harris’ criminal justice platform says: “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.

Amy Klobuchar

Klobuchar has only publicly offered general support for reform of the cash bail system, without specifics. Klobuchar’s campaign indicated in a questionnaire returned to FiveThirtyEight that she supports the “end of cash bail at all levels of government.”

Beto O'Rourke

“Ending the cash bail system makes sense,” said O’Rourke 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.

Bernie Sanders

Sanders is calling 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.

Tom Steyer

The billionaire Californian railed aggressively for reforms in his home state and recently, in a tweet, called cash bail an “injustice perpetuated by greed and motivated by oppression.” His campaign said he supports “the end of cash bail.”

Elizabeth Warren

Warren supports 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 does not say in her criminal justice platform how she would achieve this goal.

Andrew Yang

Yang shares most of his fellow candidates' reservations about cash bail but stops 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.

How would you use your clemency powers as president?

Mass clemency for federal drug sentences
Create independent clemency screening
Offer clemency, where appropriate
Position unclear

Steyer said he would “exercise his clemency powers where appropriate.”

Biden plans to “broadly use his clemency power for certain nonviolent and drug crimes.”

O’Rourke said he would release people sentenced for marijuana possession.

Booker would immediately consider clemency for more than 17,000 federal prisoners.

Yang would “pardon everyone who’s in jail for a low-level, nonviolent marijuana offense.”

Sanders said he plans to “revitalize the executive clemency process.”

Warren would “use the pardon and clemency powers broadly to right systemic injustices.”

Harris said she would “significantly increase use of clemency.”

Klobuchar wants to create a “diverse, bipartisan clemency advisory board.”

Buttigieg would commute sentences of people “who are incarcerated… beyond what justice warrants.”

Gabbard has not publicly commented on clemency.

Castro has not publicly commented on clemency.

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 propose reforming the capricious nature of clemency through a bipartisan commission that would identify candidates 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 have also proposed mass clemency, mainly for inmates 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.

See what each candidate has said about clemency

Joe Biden

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.”

Cory Booker

Booker outlined an ambitious clemency plan that would consider 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 be immediate or guaranteed, however. Clemency recipients would first be evaluated to determine if they might pose a public safety risk.

Pete Buttigieg

The South Bend, Indiana, mayor said his administration would “commute the sentences of people who are incarcerated in the federal system beyond what justice warrants.” Buttigieg has 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."

Julián Castro

Castro has not publicly commented on the question of clemency.

Tulsi Gabbard

Gabbard has not publicly commented on the question of clemency.

Kamala Harris

The senator said she would “significantly increase use of clemency” and that the Department of Justice should not make clemency decisions on cases it prosecuted. She’s proposing a “sentencing review unit” to consider early release for people who have served at least 10 years of sentences of 20 years or more.

Amy Klobuchar

In a CNN op-ed, Klobuchar said she would create a “diverse, bipartisan clemency advisory board, one that includes victim advocates as well as prison and sentencing reform advocates.” She would also 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.”

Beto O'Rourke

O’Rourke said he plans to “use clemency power to release those currently serving sentences for marijuana possession and establish a review board to determine whether others currently serving sentences related to marijuana should be released.”

Bernie Sanders

The senator said he would “revitalize the executive clemency process by creating an independent clemency board removed from the Department of Justice and placed in [the] White House.”

Tom Steyer

The California businessman said as president he would “exercise his clemency powers where appropriate.”

Elizabeth Warren

Senator Warren said that she would “use the pardon and clemency powers broadly to right systemic injustices,” with a clemency board making recommendations directly to the White House. She would “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.”

Andrew Yang

Yang said that he would “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.”

Should people in prison have the right to vote while they are incarcerated?

Yes
Only nonviolent offenders
No, only once they have left prison
Position unclear

Sanders is 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 supports the right to vote for inmates convicted of nonviolent drug offenses.

Yang says 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’s still making up her mind on whether the incarcerated should be able to vote.

Castro says 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 is “not there yet.”

Gabbard expressed concern that corrections officers could influence prisoners’ voting decisions.

Buttigieg says losing the right to vote is “part of the punishment” of being incarcerated.

No candidates have outlined in detail how they would restore voting rights for current inmates and the formerly incarcerated. Pete Buttigieg has come the closest by proposing that felon enfranchisement be part of a “21st Century Voting Rights Act.” Many in the field have expressed support for the “For The People Act,” which passed the House but not the Senate and would restore voting access to all those who have been convicted of a crime but are not currently in prison for a felony. The 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 prisoners and the formerly incarcerated or to withhold funds from jurisdictions that continue the practice.

See what each candidate has said about voting rights for the incarcerated

Joe Biden

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.”

Cory Booker

Booker has said he believes 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.

Pete Buttigieg

"Part of the punishment when you're convicted of a crime and you're incarcerated is you lose certain rights, you lose your freedom,” said Buttigieg at a town hall. The South Bend mayor supports the full, immediate and free restoration of rights after prisoners are released.

Julián Castro

Castro has said that he thinks 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." His campaign told The Washington Post he supports the restoration of rights for the formerly incarcerated.

Tulsi Gabbard

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 includes those who are on parole.

Kamala Harris

As of late May 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 said, 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. Her campaign did not respond to a request for clarification on her position.

Amy Klobuchar

The Minnesota senator told HuffPost that she supports “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.”

Beto O'Rourke

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.”

Bernie Sanders

Sanders is an outlier, arguing that all incarcerated people should be eligible to vote. He calls 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.

Tom Steyer

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.” He does not support providing the vote to those currently incarcerated.

Elizabeth Warren

Warren said she supports a constitutional right to vote but is “not there yet” on giving the vote to prisoners, according to the Associated Press. She has said that there should be “more conversation” on the question.

Andrew Yang

Yang has said he believes that “committing a crime should not mean you are a noncitizen and cannot vote.” His sole exception is 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.

Should marijuana be legalized nationwide?

Legalize marijuana
Decriminalize marijuana

Yang proposes 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 proposes incentives for states to legalize marijuana.

Sanders says he would legalize marijuana by executive order.

Steyer told The Marshall Project he supports legalization.

Klobuchar supports states determining their own approach to marijuana.

Warren co-sponsored Booker’s bill to federally legalize marijuana.

Buttigieg included legalization as part of his policy proposals aimed at black Americans.

Biden is alone among the candidates in opposing legalization.

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’s 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 recently 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.

See what each candidate has said about marijuana

Joe Biden

Biden is the lone Democratic candidate who has not 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.

Cory Booker

Booker has pushed for marijuana legalization in the Senate since 2017. Most recently, he introduced a bill to legalize marijuana, expunge marijuana convictions and create a fund for communities most affected by the War on Drugs.

Pete Buttigieg

Buttigieg’s criminal justice plan calls for legalizing marijuana on a federal level and expunging past convictions.

Julián Castro

Castro tweeted in April, “Legalize it. Then expunge the records of folks who are in prison for marijuana use.”

Tulsi Gabbard

“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.

Kamala Harris

Harris’ plan calls for legalizing marijuana at the federal level while also providing incentives for states to legalize the drug. The plan also calls for expungement and resentencing of marijuana convictions. Harris co-sponsored Booker’s 2019 bill to federally legalize marijuana.

Amy Klobuchar

Although Klobuchar told The Washington Post she supports legalizing marijuana, she also said states should “determine the best approach to marijuana within their borders.” She’s the only sitting senator among the Democratic candidates who has not signed on to Booker’s 2019 bill for federal legalization.

Beto O'Rourke

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 calls for legalizing marijuana and expunging records for possession of the drug.

Bernie Sanders

Sanders called for federal legalization of marijuana in his 2016 campaign for the Democratic nomination. In August, he told Newsweek that he would legalize marijuana by executive order. He also calls for the expungement of prior marijuana convictions.

Tom Steyer

Steyer told The Marshall Project he supports legalization.

Elizabeth Warren

Warren’s criminal justice plan calls for legalizing marijuana and expunging prior convictions. She co-sponsored Booker’s 2019 bill to legalize marijuana federally.

Andrew Yang

Yang supports legalizing marijuana at the federal level and expunging convictions for both marijuana use and possession.

Should sentencing include mandatory minimums?

Eliminate mandatory minimums
Reduce mandatory minimums
Position unclear

Sanders also supports ending three-strikes sentencing laws.

Harris wants to end federal mandatory minimums and “incentivize states to do the same.”

Steyer wants to end mandatory minimums.

O’Rourke proposes ending mandatory minimums for nonviolent drug offenses only.

Booker wants to end mandatory minimums for nonviolent drug offenses.

Yang advocates mandatory minimums for white-collar crimes.

Gabbard supported the 2015 Sentencing Reform Act, which reduced mandatory minimums for some drug offenses.

Warren says Congress should “reduce or eliminate” mandatory minimums.

Klobuchar proposes “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.

Castro has not publicly addressed mandatory minimums.

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 earlier this year.

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 comes 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.

See what each candidate has said about mandatory minimums

Joe Biden

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.

Cory Booker

Booker has 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.

Pete Buttigieg

Buttigieg proposed the elimination of mandatory minimums in his Frederick Douglass plan—a collection of policy proposals aimed at black Americans.

Julián Castro

Castro has not publicly addressed the question of mandatory minimums.

Tulsi Gabbard

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 has not outlined 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.”

Kamala Harris

Harris, a former district attorney, said she wants 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.

Amy Klobuchar

Klobuchar, a former district attorney, has proposed “giving prosecutors and judges more discretion in sentencing,” but has not specified how much. She has 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.

Beto O'Rourke

O’Rourke has proposed ending the use of mandatory minimum sentencing for nonviolent drug offenses only.

Bernie Sanders

Sanders pledges 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 has 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’ plan does not outline a way to get states to reduce the use of mandatory minimums or related statutes.

Tom Steyer

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.”

Elizabeth Warren

Warren says 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.”

Andrew Yang

Yang has 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 does advocate mandatory minimums for white-collar crimes.

Do you support the death penalty?

Eliminate the death penalty

O’Rourke once supported legislation “making it easier to execute a defendant if they attacked law enforcement.”

Booker says he’s opposed the death penalty since childhood.

Biden’s recent opposition to the death penalty is a departure from his long history of support.

Harris called the death penalty “immoral, discriminatory, ineffective, and a gross misuse of taxpayer dollars.”

Klobuchar says 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.”

Castro called the death penalty “wrong” after the exoneration of an 81-year-old death row inmate.

Sanders has opposed the death penalty throughout his political career.

Yang says the U.S. has made “tragic errors” in its use of the death penalty.

Warren cites 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 says capital punishment in the U.S. “has always been a discriminatory practice.”

Democratic candidates appear to be in lockstep, unequivocal opposition to the death penalty. If any of them become president, they would have at least one powerful tool available right away: rescinding Attorney General William Barr’s recent directive that the Bureau of Prisons begin scheduling 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.

Since 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.

See what each candidate has said about the death penalty

Joe Biden

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.

Cory Booker

“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.”

Pete Buttigieg

“It is time to face the simple fact that 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 during an appearance at a National Action Network event this spring.

Julián Castro

“We should abolish the death penalty. It is wrong,” Castro tweeted this summer, in response to the exoneration of an 81-year-old man on death row.

Tulsi Gabbard

“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.

Kamala Harris

Harris “believes the death penalty is immoral, discriminatory, ineffective, and a gross misuse of taxpayer dollars,” according to her criminal justice platform.

Amy Klobuchar

“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.

Beto O'Rourke

“It’s not an equitable, fair, just system right now―the guarantees and safeguards against wrongful prosecution, the disproportionate number of people of color who comprise our criminal justice system,” O’Rourke told an Iowa radio station. “And on moral grounds, I oppose the death penalty.” The former congressman had previously supported federal legislation “making it easier to execute a defendant if they attacked law enforcement.”

Bernie Sanders

Has opposed the death penalty throughout his political career. From his criminal justice platform: “As president, Bernie will abolish the death penalty.”

Tom Steyer

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.

Elizabeth Warren

From her criminal justice platform: “Studies show that capital punishment is often applied in a manner biased against people of color and those with a mental illness. I oppose the death penalty.”

Andrew Yang

“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.”

Do you support decriminalizing illegal border crossings?

Decriminalize all border crossings
Decriminalize, with exceptions
Do not decriminalize border crossings
Position unclear

Sanders supports the abolition of criminal "improper entry," saying other laws address potential security threats.

Castro was the first candidate to raise the issue of decriminalization on a national stage.

O’Rourke opposes decriminalization based on concerns about human trafficking and drug trafficking.

Steyer told The New York Times that he supports decriminalizing unauthorized border crossings.

Harris said, “We’re not going to treat people who are undocumented [and] cross the borders as criminals.”

Warren calls the criminal provision “totally unnecessary for border security.”

Booker describes treating immigrants as criminals as inefficient and inhumane.

Yang supports criminal prosecution in cases involving human trafficking and repeat offenders.

Buttigieg believes cases involving fraud should be considered criminal offenses.

Biden has said, “I think people should have to get in line.”

Klobuchar expresses concerns about “an open border policy.”

Gabbard has not publicly taken a stance on decriminalization but has 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.

See what each candidate has said about immigration

Joe Biden

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.

Cory Booker

“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 this summer. His immigration proposal says that treating immigrants as criminals is both inefficient and inhumane.

Pete Buttigieg

Buttigieg believes 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.

Julián Castro

Castro was the first candidate to raise the issue of decriminalization on a national stage. His immigration platform calls for repealing the law that criminalizes “improper entry,” noting that the provision has 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.”

Tulsi Gabbard

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.”

Kamala Harris

“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.”

Amy Klobuchar

Klobuchar has 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.

Beto O'Rourke

O’Rourke does 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.”

Bernie Sanders

Sanders' campaign told The Marshall Project on Oct. 15 that he believes in a full dismantling of the improper entry statutes because "no human being is illegal, and we should not treat families who travel thousands of miles to escape violence and misery as criminals." Sanders has said that he would want to reserve criminal prosecution for "security threats and extenuating circumstances," but that any such prosecutions would occur "under other applicable criminal charges."

Tom Steyer

Steyer told The New York Times in an interview that he supports decriminalizing unauthorized border crossings.

Elizabeth Warren

According to her immigration plan: The criminal provision “is totally unnecessary for border security” and should be repealed. Warren says that “as president, I will immediately issue guidance to end criminal prosecutions for simple administrative immigration violations.”

Andrew Yang

“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.”

Reporting by Katie Park and Jamiles Lartey

Additional reporting by Mia Armstrong, Jack Brook, Chiara Eisner, Weihua Li and Margo Snipe

Development and graphics by Katie Park

Design by Katie Park and Alex Tatusian

Photo editing by Katie Park and Celina Fang

Photos Darren Hauck, Ben Margot, Wilfredo Lee, Paul Sancya/Associated Press; Mike Segar/Reuters, via Newscom