Politics

Warren/Sanders On Criminal Justice Reform Is The Antidote To Joe Biden's Weaksauce

They're also a pretty good tonic to all the white tears coming out of NYPD this week.

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(image via Getty)

I understand that Joe Biden’s magic whiteness has a grip on older black voters. Black folks know exactly how dangerous Donald Trump is, AND exactly how racist America is. Biden’s support among older black voters is their indictment of white folks.

But if these older voters could just see that ANY Democrat is likely to defeat the unpopular, corrupt, unstable narcissist in the White House, then maybe they would bother to vote for who they want to win, as opposed to who Joe Biden’s wife says people should hold their noses and vote for.

If you care about criminal justice reform, if you care about how the cops hunt and murder young black people, if you care about the fact that an NYPD officer choked a man to death in broad daylight and it took them five years to merely fire him, then you should care that Joe Biden’s criminal justice reform proposal is weak and basic. Bernie Sanders and Elizabeth Warren (as well as Cory Booker and Julian Castro) have come out with proposals that are detailed and strong. If you care about blunting the street-level enforcement of white supremacy as practiced by this nation’s police officers, then you should really vote for someone who is willing to address the problem.

I’m going to talk about the Warren plan and the Sanders plan as if they are the same plan. I know this pisses off some in the media who just want to see Sanders and Warren fight for their amusement. But their plans are broadly similar. Even though some people are trying to make hay out of the fact that Warren calls for the “repeal” of the 1994 Crime Bill, while Bernie Sanders voted for it, those people miss the point. Both Warren and Sanders oppose the results of the bill, while Joe Biden, the bill’s author, offers little to ameliorate the bill’s disastrous effects.

The Sanders/Warren plan includes all of the obvious reforms any modern Democrat needs to support: legalizing marijuana at the federal level, ending cash bail, ending private prisons, yada yada. These reforms should be viewed as the price of admission in a Democratic administration, and really they are things Democrats should have been advocating for back when they actually had political power.

But, as a person raising two black boys, “cash bail” is not really my primary concern about justice reform. I can afford bail; I’m primarily concerned that my children survive their encounter with police long enough to make it to a bail hearing. Here’s the paragraph that can enhance the survivability outcomes of black youth, from Sanders’s version:

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Establish national standards for use of force by police that emphasize de-escalation.

Require and fund police officer training on implicit bias (to include biases based on race, gender, sexual orientation and identity, religion, ethnicity and class), cultural competency, de-escalation, crisis intervention, adolescent development, and how to interact with people with mental and physical disabilities. We will ensure that training is conducted in a meaningful way with strict independent oversight and enforceable guidelines.

If you are not talking about changing use of force protocols, then you are not talking to me about the things I need to feel safe in my life. Use of force is everything. Establishing federal guidelines is how you make the chokehold used by Daniel Pantaleo to murder Eric Garner a federal crime, as opposed to the unfortunate mishap that cops would have you believe. We know, we have all SEEN that the police are entirely able to capture and arrest white domestic terrorists without violence. But we’re supposed to believe that the police cannot safely arrest an unarmed black man without drawing their weapon and shooting? Warren’s plan specifically talks about ending “pursuit” protocols that allow cops to do disastrous things like shoot at moving vehicles like they’re in some kind of action movie, or shoot fleeing suspects in the back like they did to Walter Scott.

However, if you’re going to make use-of-force changes stick, you are going to have to strip police officers of their qualified immunity. Qualified immunity is what allows police to commit crimes “in the line of duty,” and face no personal, civil punishment for those actions. It needs to end. Here’s Warren’s version:

Restrict qualified immunity to hold police officers accountable. When an officer abuses the law, that’s bad for law enforcement, bad for victims, and bad for communities. Without access to justice and accountability for those abuses, we cannot make constitutional due process protections real. But today, police officers who violate someone’s constitutional rights are typically shielded from civil rights lawsuits by qualified immunity — a legal rule invented by the courts that blocks lawsuits against government officials for misconduct unless a court has previously decided that the same conduct in the same context was unconstitutional. Qualified immunity has shielded egregious police misconduct from accountability and drawn criticism from across the political spectrum. Last month, for example, a federal appeals court in Atlanta granted qualified immunity to a police officer who, while aiming at a family’s dog, shot a 10-year-old boy while the child was lying on the ground 18 inches away from the officer. Just two weeks ago, another federal court used qualified immunity to dismiss a lawsuit against a school police officer who handcuffed a sobbing seven-year-old boy for refusing to go to the principal’s office. This makes no sense. I support limiting qualified immunity for law enforcement officials who are found to have violated the Constitution, and allowing victims to sue police departments directly for negligently hiring officers despite prior misconduct.

This is key. Warren’s intention to allow people to sue police departments directly for negligent hiring practices IS HOW YOU START to break the “blue wall of silence.” The police need to be told that their protection racket for murderous and brutal cops will result in costly civil penalties. Police commissioners need to know. Mayors need to know. The saying is “one bad apple SPOILS the bunch,” not “one bad apple should be shined up and given to black people and if they don’t like it they can go choke to death.”

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Of course, cops are only the street-level participants in the terror the criminal justice system authorizes towards black and brown communities. They’ve got friends in suits, and you know them as prosecutors. Warren and Sanders have something for them too. From Warren:

Rein in prosecutorial abuses. Prosecutors are enormously powerful and often not subject to scrutiny or accountability. I will support a set of reforms that would rein in the most egregious prosecutorial abuses and make the system fairer, including reducing the use of coercive plea bargaining by DOJ prosecutors at the federal level, establishing open-file discovery, and putting in place responsible standards for evidence gathering. I’ll establish a Commission on Prosecutorial Conduct to make additional recommendations for best practices and monitor adoption of those recommendations. And I’ll create an independent prosecutorial integrity unit to hold accountable prosecutors who abuse their power.

Expand access to justice for people wrongfully imprisoned. Defendants who are wrongfully imprisoned have the right to challenge their detention in court through a procedure known as habeas corpus. The Framers believed this right was so important to achieving justice that they guaranteed it specifically in the Constitution. It’s particularly important for minority defendants — Black Americans, for example, make up only 13% of the population but a plurality of wrongful convictions. In 1996, at the height of harsh federal policies that drove mass incarceration, Congress made it absurdly difficult for wrongfully imprisoned individuals to bring these cases in federal court. Since then, conservative Supreme Court Justices have built on those restrictions — making it nearly impossible for defendants to receive habeas relief even when they have actual proof of innocence. We should repeal these overly restrictive habeas rules, make it harder for courts to dismiss these claims on procedural technicalities, and make it easier to apply new rules that emerge from these cases to people who were wrongfully imprisoned before those rules came into effect.

In our system, prosecutors have entirely too much power that they wield with entirely too little accountability. Any serious criminal justice reform package needs to address this.

But even if we right-size prosecutorial power, prosecutors will still make mistakes, sometimes even in good faith. Right now, our legal system favors finality. We put most of our systemic protections on the side of pre-trial process. But once a conviction (or plea) has been secured, the system does everything it can to make that verdict the end of the process.

Instead, we need a federal government and legal system committed to innocence. Your rights to process and fairness should not end with a judgment against you. We have seen too many examples where that judgment is wrong to ignore.

It all works together: Less powerful prosecutors will convict fewer innocent people and be held more accountable for the innocent people they do convict, which will make prosecutors less willing to abuse the processes that allow them to convict innocent people.

Those are the parts of their plans that are most important to me, but Warren and Sanders most likely have a solution for whichever part of the criminal justice system offends you most. They’re both talking about ending the death penalty; they’re both talking about raising the age of “adult” criminal liability; and they’re both talking about ending solitary confinement.

These are the issues that will make a difference in our criminal justice system. These are the policies that will make a difference for black and brown people who are just trying to go about their lives without being harassed and threatened by law enforcement. This are the issues that will earn my vote. Beating Trump also must mean defeating the policies of white supremacy he has put in place.

Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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