Politics

How Elizabeth Warren’s new criminal justice plan quietly calls out 2 top Democratic primary rivals

"That punitive 'tough on crime' approach was wrong, it was a mistake, and it needs to be repealed."

Sen. Elizabeth Warren during a rally Monday at Macalaster College in St. Paul, Minnesota.

Last week, Sen. Elizabeth Warren called for repealing “huge parts” of the 1994 crime bill.

Now, the Massachusetts senator is outlining how she would do it — along with a host of other items on her criminal justice agenda — and drawing a distinction with several of her fellow contenders in the Democratic presidential primary race.

Warren’s campaign released a sweeping plan Tuesday to reduce mass incarceration and racial inequalities in the criminal justice system, calling for the government to rethink its punitive approach to public safety by instead focusing on the root causes of crime, such as poverty, mental health, and early childhood development.

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“It is a false choice to suggest a tradeoff between safety and mass incarceration,” Warren wrote in a Medium post, noting the United States imprisons a disproportionate number of the world’s inmates.

“By spending our budgets not on imprisonment but on community services that lift people up, we’ll decarcerate and make our communities safer,” she said.

Warren’s plan would also look to redress structural problems within the criminal justice system that “stack the deck against the poor and the disadvantaged.” Among other reforms, she calls for abolishing the death penalty, cash bail, and private prisons; legalizing marijuana; strengthening public defenders and reentry programs; and increasing support, training, and accountability standards for members of law enforcement.

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The 6,500-word plan — characteristic of Warren’s policy-focused campaign — comes just a few days after fellow 2020 contender Sen. Bernie Sanders released his criminal justice plan and broadly aligns with many of the reforms supported by the other Democratic presidential candidates.

However, it also draws a contrast on issues that have dogged two of the other top contenders in the race.

First, the crime bill

Experts debate how much the 1994 law contributed to the decline in crime in the 1990s, but the vast majority agree that it did perpetuate a huge increase in the incarceration rate that decade. What is not debated is the fact that former Vice President Joe Biden, now the frontrunner in the 2020 primary, had a central role in drafting the legislation and getting it to President Bill Clinton’s desk as the Senate judiciary chairman.

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The wide-ranging law instituted a number of “tough-on-crime” measures, including the expansion of the death penalty, stricter sentencing rules, and a “three strikes” rule for repeat offenders, which experts view as a mistake two decades later.

While it did include since-expired aspects that Warren supports, like a federal assault weapons ban and the Violence Against Women Act, she says the “the bulk of the law must go.”

“That punitive ‘tough on crime’ approach was wrong, it was a mistake, and it needs to be repealed,” Warren wrote Tuesday, adding that “some sections of law, like those relating to domestic violence,” should be kept.

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Later in her Medium post, Warren pointed to research that found the 1994 law’s mandatory minimums and “truth-in-sentencing” provisions —incentivizing states to pass laws requiring  inmates to serve at least 85 percent of their sentences — “have not proven effective.” She said Congress should pass new laws to “reduce or eliminate these provisions” and give judges more flexibility in sentencing decisions (a criminal justice reform law signed by President Donald Trump last year did ease some of those sentencing restrictions, though Warren says she would overturn a Trump administration policy instructing prosecutors to seek the most serious charges and penalties).

Amid renewed scrutiny of the 1994 law this year, Biden has argued that his legislation was not the sole cause of the spike in the incarceration rate. However, the Delaware Democrat’s own criminal justice plan, which he released last month, would reverse some parts of the 25-year-old law, such as getting rid of the federal death penalty and incentivizing states to eliminate mandatory minimums for nonviolent crimes.

What to do about truancy

Warren’s home state of Massachusetts was the first in the country to make school compulsory back in 1852, but the Bay State senator thinks that truancy laws have gone too far.

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Parents in most states face steep fines and potential imprisonment if their child is found to have too many unexcused absences. California Sen. Kamala Harris, now also running for president, championed a tough-on-truancy campaign as a prosecutor and state attorney general, arguing that “a child going without an education is tantamount to a crime” and prosecuting parents who allowed their children to miss school.

Warren says that’s the wrong approach. While her plan emphasizes the value of an education, she calls for decriminalizing truancy (which research shows is unevenly enforced) and addressing the underlying reasons some students miss school.

“I will equip schools with resources to meet their students’ needs by providing access to health care to support the physical, mental, and social development of children, improve their overall school readiness and providing early intervention services,” Warren wrote. “We should decriminalize truancy and instead increase the number of school mental health personnel and provide schools with resources to train teachers and administrators in positive behavioral interventions, trauma-informed alternative discipline practices, and implicit bias to limit suspensions, expulsions, and minor-infraction arrests.”

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Like Biden, Harris has faced criticism during the 2020 campaign for her past stance — and has since walked it back.

In a “Pod Save America” podcast interview in April, she said she would no longer support the same kind of anti-truancy laws as president. While it did reduce truancy rates and no parents in San Francisco went to jail when Harris was the city’s district attorney, other districts sentenced parents to as many as 180 days in prison when she was pushing the policy as California attorney general.

“My regret is that I have now heard stories that where in some jurisdictions D.A.’s have criminalized the parents,” Harris said. “And I regret that that has happened and that the thought that anything that I did could have led to that because that certainly was not the intention.”