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On Criminal Justice, Bernie Is Best, but He and Warren Lead the Pack

Article published:
Left image: Bernie Sanders holding up his right hand; Right image: Liz Warren waving her left hand

Sanders’s criminal justice reform plan is stronger than Warren’s, but both beat Biden’s plan by a long shot—and still have room for growth.

In 2016, Hillary Clinton took heat from Black organizers as they shut down campaign events all across the country calling Clinton out for her role in passing the 1994 Crime Bill as First Lady and her 1996 comments where she referred to Black youth as “super-predators” with “no conscience, no empathy.” As a result of Clinton’s track record and a lack of enthusiasm around her candidacy, Black voter turnout fell in 2016 for the first time in 20 years.

It isn’t chance that in the 2020 democratic primary, we’ve seen a big shift when it comes to candidates talking about prison reform. As a result of decades of organizing by currently and formerly incarcerated people, Black people and the working class as a whole, you can’t run for president anymore and not take a stance on the cruel, racist systems of incarceration and policing in this country. We have shifted the political terrain and made tough on crime policies something that political candidates want to distance themselves from—a big leap from the Clinton-era, in which Democrats moved to the right on prison reform in response to racist dog whistles by Republicans aimed at criminalizing Black people in order to mobilize poor white people to the polls.

In their 2020 platforms, both Warren and Sanders have called for broad sweeping transformation of our criminal legal system. Their platforms have further shifted the Democratic Party’s political position on mass incarceration in a political environment where much of the federal reform conversation has been dominated by the right.

In 2017, President Trump passed the First Step Act, a bill that made modest reforms, but fell incredibly short in its claims to lower recidivism and make a dent in mass incarceration.The bill released a total of 3,000 imprisoned people. While anyone coming home should be honored and celebrated, we should acknowledge its impact in relation to the size of the problem. The First Step Act has done little to address the 2.3 million people trapped in our inhumane, unjust prison system. It also passed under an administration that has doubled the federal government’s spending on private prisons. In spite of this, as part of his re-election campaign, Trump has launched a series of efforts to reach Black voters, calling himself the “prison reform president.” In Florida, he has so far spent more money to reach Black voters this election cycle than the Democratic party. His goal is to win just 8 percent more of Black voters, a calculation he believes will win him a second term.

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If the Democratic Party stands any chance of winning the 2020 election, candidates need to get serious about representing the needs of working class people, and the Black working class in particular, especially when it comes to moving the policy dial on prison reform to the left. While the President has limited power over the crisis of mass incarceration because much of the carceral system – the interlocking institutions of police, prosecution, surveillance and incarceration – is run at the state and local level, they are a central voice in the conversation. The tone set by the president has sweeping implications for the overall landscape. In the years following the passing of the 1994 federal crime bill, shadow legislation was passed all across the country at the state and local level.

Neither Warren nor Sanders live up completely to our vision as abolitionists for a world without racist and violent police, prisons and surveillance systems. But Warren and Sanders move the conversation much further than we’ve ever seen on the federal level. The differences between their plans are incredibly small in comparison to the differences between their plans and that of Biden, the author of the 1994 crime bill and an advisor to Nixon’s War on Drugs. He offers little to ameliorate the disastrous impact he’s personally had on the millions of people whose lives have been destroyed by the criminal legal system. We certainly don’t want a repeat of the 2016 election with a Biden candidacy, which will only be amplified with Trump’s false claims to favor comprehensive prison reform.

There are important differences between Warren and Sanders, and, as I’ll show below, Bernie Sanders comes out ahead in more closely aligning with a vision of ending the prison industrial complex. However, while it’s important to debate the nuances between Warren and Sanders plans, we can’t get stuck there. Instead, we should use the primary to engage our families and communities about their visionary agendas for decarceration in opposition to both Biden and Trump’s track records and mobilize them to vote for one of them in the primary. We also must keep in mind that even in the ideal scenario that we elect Warren or Sanders for president, their plans won’t be implemented without an outside power base ready to hold congress and local electeds accountable to our demands.

Overview: What do Warren and Sanders both get right? Where do they both fall short?

Re-defining safety as divestment from incarceration and investment in social safety programs

Both Sanders and Warren seek to connect the prison industrial complex to poverty and wealth inequality as well as the lack of housing, healthcare and quality education in our communities. Over the past 40 years, while states have invested more and more money in prisons and policing, they’ve simultaneously divested from the social service systems that actually keep our communities safe. Two years after Clinton passed the 1994 crime bill, he passed the 1996 welfare reform act, gutting the welfare system and incarcerating the poor.

Both Sanders and Warren make a clear commitment to the need to invest in jobs programs, higher wages, fully funded education and housing, while divesting from prisons and policing. Sanders, in particular, talks about the ways in which corporations and cities alike extract millions from Black and working class people through racist policing, surveillance and incarceration practices with court fees, fines and commissaries. In the wake of corporations not paying their fair share of taxes and starving cities of resources, fines and fees imposed upon Black people through our policing and jail system fund local government. Meanwhile, taxes on the wealthy and divestment from prisons and police, would provide ample resources to fund free college, medicare for all, universal housing and green jobs programs our communities need.

This is carceral capitalism. It is the root – not tangential – to the rise of the policing and caging of Black people. It is important to note that Sanders is the only candidate calling for a total overhaul of our economic system. This is important because until we acknowledge the centrality of capitalism to the daily problems everyday people are facing in this country, we won’t ever be able to fully address these problems.

Policy highlights

Both Sanders’s and Warren’s plans paint a comprehensive picture of how they would attempt to end racist policing practices, decarcerate, and improve the treatment of people inside the criminal legal system.

Both plans include:

  • Ending the death penalty
  • Ending cash bail and fees and fines
  • Ending solitary confinement
  • Banning private prisons and other private contractors making money off of people under state surveillance
  • Legalizing marijuana and safe injection sites
  • Providing support for survivors of crime
  • A reinvestment in reentry services
  • Ending police use of excessive force and increasing officer training
  • Increased funding for public defenders
  • Ending charging children as adults or housing children in adult jails
  • Ending the school to prison pipeline by providing more counselors and ending federal incentives for zero tolerance discipline practices

Where do they fall short?

In an era of bi-partisan, Koch brothers-backed criminal legal system reform, many policies that seem good on the surface, such as increased access to parole, probation, rehabilitation and diversion, are leading to more surveillance and correctional control over our communities. As argued by the Prison Policy Initiative, programs often framed as alternatives to mass incarceration have actually led to the massive growth of for-profit policing and surveillance of Black and poor communities and a revolving door between communities and incarceration. Neither plan addresses this very scary trend in our criminal legal system. Both candidates could strengthen their plans by making it explicit that any reform related to mass incarceration should take people out from under state supervision completely.

What are the major political differences?

Abolitionist Alternatives to Policing – Sanders’ plan is stronger

Both Sanders and Warren acknowledge that police officers should not be our only first responders and that we should instead invest in alternative programs that address community harms and crises with social workers, mental health counselors, and other medical professionals.
The primary difference between their proposals is that Warren suggests a “co-responder initiative that connects law enforcement to mental health care providers and experts” while Sanders proposes the creation of a “civilian corps of unarmed first responders, such as social workers, EMTs, and trained mental health professionals, who can handle order maintenance violations, mental health emergencies, and low-level conflicts outside the criminal justice system.”

This means Warren’s proposal is connected to our policing system and Sanders isn’t. This is a big difference.

If connected to law enforcement, Warren’s plan still puts people under state surveillance and depending on how its implemented, will still land many people behind bars or in the hands of police. As abolitionists, when we talk about alternatives to policing, we believe wholly in the idea that police are not a permanent fixture in society and that they are not the only, nor the right people, to respond to crises in our communities. There are many examples of programs run by community members that don’t engage police at all. These programs have been developed and held by communities on shoestring budgets. Imagine if they were granted the resources by the federal government to truly move at scale.

Political and Economic Rights for Incarcerated People – Sanders’ plan is stronger

In the wake of 5 people killed last week during a riot (led by prison guards) in a Mississippi prison, the conditions facing incarcerated people should be a national crisis. Both Warren and Sanders address the inhumane conditions inside our prisons, from overcrowding to violence inflicted by prison staff to inadequate healthcare and mental health services.

Warren’s plan for addressing this includes: “practices” to reduce overcrowding, provide reasonable accommodations for prisoners with disabilities, limit solitary confinement, and ensure that trans people are assigned facilities that match with their gender identity and provided care that meets their specific needs.

Sanders plan is much more comprehensive in scope, focused on passing a prisoners bill of rights at the federal level, and establishing an office of prisoner civil rights and civil liberties aimed not only at improving conditions, but ensuring the economic and political power of people locked behind bars. He is the only candidate to support the right for currently incarcerated people to vote. His plan responds to many of the demands put forth by incarcerated leaders in prison strikes held throughout the country over the past few years. This plank in particular should be seen as a win led by incarcerated people.

Key components of Sanders Prisoner Bill of Rights include:

  • Ending solitary confinement.
  • Access to free medical care in prisons, including trans-specific care
  • Access to free educational and vocational training
  • Living wages and safe working conditions
  • The right to vote
  • Ending prison gerrymandering, ensuring incarcerated people are counted in their communities, not where they are incarcerated.
  • Protection from sexual abuse and harassment, including mandatory federal prosecution of prison staff who engage in such misconduct.
  • Access to their families — including unlimited visits, phone calls, and video calls.
  • A determination for the most appropriate setting for people with disabilities and safe, accessible conditions for people with disabilities in prisons and jails.
Decriminalization of Immigration – Sanders’ plan is stronger

The criminalization of immigration started inching up in the 1980s. Since the 1990s, under the Clinton Administration, convictions for such “crimes” have exploded beginning with the passing of NAFTA in 1994 which destroyed the Mexican economy forcing millions of people to migrate to the US and the 1996 immigration bill, which laid the groundwork for today’s system of mass deportation. Between 1992 and 2012, the number of offenders sentenced in federal courts more than doubled.

We cannot talk about criminalization in this country without talking about the criminalization of the basic right to move to find safety. This is important especially in a climate where President Trump, who celebrates himself for pardoning people and passing the First Step Act, is also leading a full scale attack against immigrants, expanding the power of ICE, separating families, creating unlivable conditions inside detention centers and further criminalizing the border. Under his administration, the private prison industry has expanded around immigrant detention, its profits booming. If we don’t make the connections between the criminalization of immigrants and the criminalization of Black people inside the prison system, we are inadvertently justifying the caging of some people. Solidarity between our movements is essential if we want to get closer to abolition.

Neither Warren nor Sanders make this connection clear in their justice reform packages nor in their broader rhetoric on the campaign trail, which is a huge failing.

When it comes to looking at their immigration platforms, however, Sanders plan is far more comprehensive. While both candidates call for a decriminalization of border crossings, and the ending of family separation, Sanders is the only candidate also calling for the break up of ICE and CPB and a repeal of the 1996 immigration ban, which forms the basis of our system of criminalizing border crossings. He is also calling for a moratorium on deportations, improved labor standards for immigrants, access to medicare and other social services for immigrants and a total overhaul of our immigration system, including the creation of new refugee statuses like climate crisis refugees. This plan serves as a road map for what a fair and just immigration policy can be. Most strikingly, both plans represent a challenge to the Democratic Party status quo that, just like Republicans, treats immigrants as criminals.

Ending the Prison Industrial Complex Requires Total Transformation of Our Economic System – Sanders’ plan is stronger

While the origins of the prison system should be traced back to slavery, the rise in mass incarceration that we have experienced over the last 40 years in which the US prison population has grown by 500 percent is direct backlash from the capitalist class in response to the Black power movement and the gains won by working class people during this period.

While both candidates speak to the greed of corporations and wall street, only Bernie is calling for a total transformation of our economic system. He is the only candidate pushing for a guaranteed jobs programs, universal housing, 100 percent elimination of debt and the only candidate who opposes the recently revamped NAFTA and the outsourcing of jobs. This matters and should be taken seriously in our analysis of his impact on Black people and the role of capitalism in the rise of our system of mass incarceration and control over Black communities. Without deep transformation of our economic system, it will be impossible to end our racist policing, prison and immigration systems.


Both Sanders and Warren’s platforms represent a big shift when it comes to reforming our society’s reliance on policing and prisons. These agendas should be celebrated by the movement as a win in how the issue is framed and what solutions are seen as necessary.

Given Trump’s strategy to win over Black voters for passing the First Step Act and highlighting the failures of the Democratic Party when it comes to addressing the needs of Black people, we need a candidate who is running on a visionary agenda for reform. Both Warren and Sanders would do just this. If Biden wins, Trump will be running against a key architect of mass incarceration, giving him lots of ammunition to win over some Black voters.

This is also why solidarity between Black Americans and immigrants around a shared vision for decriminalization of our communities is more essential than ever. We cannot allow Trump to pit us against one another and justify the caging of some people, while donning himself the champion of prison reform. It is a classic divide and conquer tactic and it shouldn’t have any standing.

We need to use the election to build a unified left around this shared vision, rather than spend our time arguing with each other about whether Warren or Sanders is the better choice – this is essential to defeating Trump and the corporate Democrats, and to advancing our abolitionist vision. Despite the differences between their platforms, if either Warren or Sanders are elected, our work won’t end in November, it will just be beginning. For Dream Defenders, who endorsed Sanders last week, we are using his candidacy to talk to thousands of voters in Florida about his agenda with the goal of not only mobilizing people to the polls around the presidential election but also around state attorneys, all of whom are up for re-election in 2020. Beyond this, we have set base building goals around the amount of people we want to stay engaged with us beyond the election and who will be able to call upon to mobilize with us to hold whoever gets elected accountable. Without a growing and mobilized movement, successful candidate elections may mean little.

Both a Sanders and Warren White House would generate a major opportunity for pushing a true reform agenda that gets millions of people out of prison and out from under state control. This is only possible if we are organized, build enough unity to get one of them elected and then show up in the millions to hold them accountable.