The US locks up more of its citizens than any other country, so it’s no surprise that mass incarceration and criminal-justice reform have become prominent issues on the presidential campaign trail.
Democratic presidential nominee Hillary Clinton has treaded carefully on this front, denouncing some of the tough-on-crime laws from the 1980s and 1990s that contributed to mass incarceration and walking back her decades-old remark calling young offenders “super predators.”
It has been difficult territory to navigate; both Clinton and her husband, former President Bill Clinton, advocated harsh sentencing during his administration, particularly when the two were drumming up support for the 1994 crime bill.
The changes introduced by the law — which called for severe sentences, strict gun laws, and more police officers and prisons — have been widely derided in recent years as a key cause of mass incarceration. The data shows the law, in fact, has had minimal influence in reforming or influencing state policies.
Clinton has now proposed numerous policy changes geared at reducing the number of incarcerated people and facilitating prisoners’ reentry into society. At the same time, her Republican opponent, Donald Trump, has ramped up his rhetoric on cracking down on violent crime and cast himself as the “law and order” candidate.
It’s worth noting that the federal government, headed by the president, has jurisdiction only over federal laws and prisons, which hold just 211,000 of the US’s estimated 2.2 million incarcerated people. The White House can try to influence state and local laws by offering or retracting funding, but the effects are often limited.
Regardless, both major-party nominees have asserted their positions on crime, prisons, and mass incarceration. Here’s how Clinton and Trump say they will handle criminal-justice issues.
Even on this basic statistic that underlies most criminal-justice issues, Republicans and Democrats remain split on the data. The FBI has recorded a steady downward trend in violent crime rates over the past decade, and Democrats have used this to bolster their arguments to reduce incarceration.
Clinton told a Columbia University audience in July that crime was at “historic lows.”
Republicans, however, have seized on the rising murder rate in cities such as Chicago and asserted that President Barack Obama’s policies have allowed criminals to run amok.
“Decades of progress made in bringing down crime are now being reversed by this administration’s rollback of criminal enforcement,” Trump said at his speech to the Republican National Convention.
Trump has loudly spoke of “out of control” crime rates and asserted that inner cities have reached “record levels” of crime. But according to projections for 2016 crime rates, violent crime across the country remains near the bottom of a 30-year downward trend, even with a projected 5.5% increase for 2016.
The Department of Justice appeased prison-reform advocates in August when it announced it would phase out the use of private prisons for federal inmates. An Inspector General’s report one week earlier had declared the facilities were less effective and more dangerous than their government-run counterparts.
Private prisons have received renewed scrutiny in recent years after reports revealed consistent problems with violence, squalid conditions, neglectful medical care, and overcrowding. The Department of Homeland Security has also said it will review its use of private facilities for immigrant detainees.
Clinton has pledged to “end” for-profit detention facilities, and she no longer accepts donations from private-prison lobbyists.
Trump has expressed support for private prisons but hasn’t discussed the issue at length.
“I do think we can do a lot of privatizations and private prisons. It seems to work a lot better,” he said at a town hall in March.
Presidential clemency has received more attention than usual this year after Obama began to make unprecedented use of the power. As of September, he has commuted the sentences of 673 inmates, more than the previous 10 presidents combined, and pardoned 70.
Clemency can be used to pardon federal inmates or commute their sentences. It’s one of the few direct, relatively unchecked actions a president can take in the criminal-justice system, as it bypasses both Congress and the courts.
Clinton has not explicitly said whether she would continue Obama’s trend of granting commutations to hundreds of prisoners at a time. Her platform does include “allowing current nonviolent prisoners to seek fairer sentences,” but she typically discusses the need to overhaul federal mandatory-minimum laws in place of granting clemency.
Trump has criticised commutations and called the nonviolent drug offenders who have been released under Obama’s clemency project “bad dudes.”
“These are people who are out, they’re walking the streets,” he said at a rally in August. “Sleep tight, folks.”
Obama has concentrated his clemency efforts on inmates who were harshly sentenced for nonviolent drug offenses during the tough-on-crime era of the late 1980s and early 1990s. Were they convicted today, many of those inmates would have received substantially less severe sentences.
Sentencing and drug-law reforms
Clinton’s main focus in reducing mass incarceration has been to overhaul sentencing for drug offenders — even though as president she would have the power to influence only federal laws, not state ones.
She supports halving current mandatory minimum sentences for nonviolent drug offenders, retroactively applying equal sentencing to crack and powder cocaine offenses, and eliminating nonviolent drug offenses from the “strike” system.
Beyond criminal sentencing, drug-policy reform advocates have also looked to Clinton with the hope that she would adopt a progressive stance on federal marijuana laws and decriminalize the drug.
Clinton is in favour of reclassifying marijuana to a Schedule II substance under the Controlled Substances Act, which would acknowledge its medical use. It is currently classified as a Schedule I elicit substance, putting it alongside drugs including heroin.
Clinton has been more wary, however, on the issue of recreational marijuana and opted to review how the policies have fared in states that have already legalised, such as Colorado.
In a similar vein, Trump has said he is “100%” in favour of legalizing medical marijuana but has been shakier on the drug’s recreational use. He has said such policies should be “up to the states,” but his close relationship with Gov. Chris Christie of New Jersey — a vocal opponent of marijuana — has left marijuana advocates uneasy over whether Trump would be lenient with the drug.
Trump also hasn’t spoken at length on his position on sentencing reform, but his tough-on-crime rhetoric suggests he might favour harsher sentences and oppose efforts to revisit mandatory minimums.
Reentry and integration
With the national conversation focused largely on preventive measures to mass incarceration, some advocates of criminal-justice reform have called on lawmakers to help lower recidivism rates and ease ex-felons’ transitions back into society.
Clinton believes ex-felons should be allowed to vote and has promised executive action to “ban the box,” which would prevent questions about criminal history being asked during the hiring of federal government employees and contractors. Clinton has also proposed a $5 billion investment in reentry jobs programs for ex-felons.
It’s unclear where Trump stands on a “ban the box” initiative, but he has come out strongly against lawmakers who restore voting rights to ex-felons, whom he suspects will vote Democrat.
“You know what they just did in the state of Virginia — 200,000 people that were in prison for horrible crimes are being given the right to vote,” he told a Rhode Island audience in April, lambasting Virginia’s Democratic governor, Terry McAuliffe. “That’s crooked politics. Because Virginia’s a very close state.”
The federal use of the death penalty dramatically expanded in the 1990s, and its modern use has grown increasingly at odds with its dwindling use in the state systems. Recent reports show that states’ use of the death penalty is declining each year — in part because of widespread shortages of lethal-injection drugs — yet is propped up by a handful of counties that often demonstrate systemic failings, such as overzealous prosecutors, inadequate defence lawyers, and racial bias and exclusion.
These concerns have been projected onto the federal system as well, particularly in cases such as Dzhokhar Tsarnaev’s, when the convicted Boston Marathon bomber was sentenced to death by a federal jury in Massachusetts, a state that devoutly opposes capital punishment.
Both Clinton and Trump support the death penalty — Clinton even splits with her party on this issue, favouring a limited-use policy while the Democratic platform endorses its abolishment. In a memorable exchange with a death-row exoneree in March, Clinton was asked how she could justify her stance on the death penalty given mounting awareness of wrongful convictions.
Clinton gave a meandering response, saying she would “breathe a sigh of relief” if the Supreme Court or the states eliminated the death penalty, but she believed it should still be used for those who commit “really heinous crimes.”
“Where I end up is this — and maybe it’s a distinction that is hard to support — but at this point, given the challenges we face from terrorist activities, primarily in our country, that end up under federal jurisdiction, for very limited purposes I think it can still be held in reserve for those.”
Trump appears to have fewer qualms about using the death penalty and said last year he would sign an executive order to mandate the death penalty for anyone convicted of killing police officers.
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