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The 2020 Presidential Election and Crime Control: A No-Win Scenario?

In late March of 2020, my father asked me a question that seems strangely relevant even months later. Discussing the approaching Democratic National Convention, my father asked me: “since it’s your academic area of interest, which Democratic candidate do you agree with on crime policy?” Between the increasingly stressful COVID-19 pandemic, my unclear employment status, and the chaotic transition to online graduate classes, I hadn’t been paying enough attention to the election to come up with an informed answer, but I settled on a comment that at the time had relatively little thought put into it: “I’m not sure who I agree with, but I know I don’t approve of Joe Biden and Kamala Harris’s track record.”

I dropped off my mail-in ballot just two days ago, which had those same names listed as the Democratic ticket. Before getting into the dissonance created by this, I feel that I must speak to my position on the Trump administration, including its criminal justice positions and more importantly its efforts to suppress the voting rights of American citizens.

Although I believe a fair election would not come out in his favor, the Trump administration’s and Republican Party’s at times explicit efforts to suppress the right to vote in the 2020 election have forced me to consider the grim reality that Donald Trump may be reelected. Buzzfeed lays out how, in addition to voter suppression tactics Republicans have used for years, like denying prisoners and former prisoners the right to vote, enacting voter ID laws that disproportionately affect minority voters, the use of fewer polling places, and the purging of voter registries, the conditions imposed by the COVID-19 Pandemic have offered even more avenues for depriving marginalized Americans of both their right and ability to vote.

Both the Republican Party and Trump have identified mail-in voting as a new means of suppression and, as a more sinister twist, a means of shaking the American people’s faith in their democratic process. Earlier in the year many Republicans, including the President, began voicing their concerns with making voting more accessible through the use of mail-in voting, with a common through line being that it would mean Republican defeat in the election. Since then many states have recognized that in-person voting will represent a serious threat to public safety, however many states the various efforts to address this crisis-in-waiting have been met by lawsuits filed by conservative groups. BusinessInsider reports that as of September 27th the Trump Administration is involved in these types of lawsuits in seven states. The Trump administration’s perfidy with regards to its interactions with its supporters, beyond its activities of continuously and hyperbolically decrying the possibility of voter fraud should states allow mail-in voting and absentee voting (which many sources explain to be overstating the danger), extends to an even more sinister development in this election cycle: the President’s repeated indication that he will not accept the results of the election if he loses.

This last trend in Trump’s rhetoric over the past several months and the explicit admission amongst many Republican officials that they oppose mail-in voting because it would make the election fair introduces or rather exacerbates a third (though always present) possibility regarding the outcome of the 2020 election: the possibility that one side, whether Republican or Democrat, will not accept the winner when it is announced. I am clearly not the only American grappling with this possibility, seeing as Congress needed top military officials to explicitly confirm that they will not interfere with the election in any way (something that should be so obvious that the fact that we are even discussing it is disturbing), and the aftermath of such a scenario does not bode well for the future of American criminal justice policy. As is mentioned later, American law enforcement has continued to become increasingly militarized and regardless of which candidate wins and who refuses to accept the outcome, the President has made it pretty clear how any form of protest would be met. I do not see any possible version of events consistent with this third outcome that would result in American law enforcement, and by extension the criminal justice system as a whole, being catapulted towards the dark extreme that this type of crime control mentality inevitable ends with.

I do not believe this third outcome is worth serious consideration, especially before the election. It is, however, worth considering the first two possibilities and my thoughts on how this election could impact crime control policy. Despite the White House’s claims that President Trump has been “ACHIEVING LANDMARK JUSTICE REFORMS”, I disagree with the Trump administration on many issues relating to crime control. I do not approve of Trump’s support of the death penalty, his relationship with the private prison industry, or the removal of guidance against the use of solitary confinement with juveniles. The issues I disagree with the President most are his positions on drug related crime (especially that America should “get tough on drug dealers… [including] the death penalty”) and his refusal to acknowledge the race problem within American society. This is to say nothing of Trump’s role in the continued militarization of American law enforcement or the treatment marginalized populations by federal law enforcement under his administration’s watch, particularly the human rights abuses committed by ICE.

Yet I can’t stop myself from thinking back to my opening anecdote. It’s no secret that Joe Biden doesn’t have a stellar reputation when it comes to progressive criminal justice policy. According to the New York Times, “Biden apologized in January for portions of his anti-crime legislation, but he has largely tried to play down his involvement”. For example, Biden boasted in 1994 at the signing of the Violent Crime Control and Law Enforcement Act that he had supported every major tough on crime bill since 1976. Although most known for opposing busing, Biden co-authored numerous pieces of ‘tough on crime’ legislation that, according to the New York Times, laid “the groundwork for three of the most significant pieces of crime legislation of the 20th century”: the Comprehensive Crime Control Act of 1984 (establishing federal mandatory minimum sentences for drug offenses), the Anti-Drug Abuse Act of 1986 (introducing more severe sentences for possession of crack cocaine) and the Violent Crime Control and Law Enforcement Act of 1994 (introducing the federal ‘three strikes, you’re out’ system, which would be emulated in many states). These laws were strongly supported by Biden, and each contributed to the mass incarceration of Black Americans and other marginalized groups in a system that author Michelle Alexander convincing argues to be The New Jim Crow.

To his credit, Biden has publicly apologized for his anti-crime efforts, particularly for the harm it caused for the Black community and has promised that he will work to dismantle the institutional framework contributing to mass incarceration. Regarding current positions, I support Biden’s idea to establish federal grants encouraging states to adopt policies reducing incarceration levels, decriminalizing certain minor offenses, his opposition to the death penalty and solitary confinement, and his positions on reentry (including “ban the box” efforts, which would counter certain voter suppression tactics). I approve of the moderate steps of decriminalization and legalization of marijuana for medical uses, and with making the legal distinctions between crack and powder cocaine less severe. I also approve of his plan to encourage the establishment of drug rehabilitation programs within prisons. I am not enthusiastic, however, about Biden’s continued support for the Violent Crime Control and Law Enforcement Act, which I feel needs to be reevaluated.

Despite her less than ideal criminal justice background, during the primaries Harris released a plan for criminal justice reform, just as Biden has, that I generally agree with, however I am fully aware that campaign promises don’t always manifest in practice. While I agree with the vision that the Democratic ticket describes, I remain skeptical regarding what is to come. Looking at the histories of both Democrats and comparing it to their proposed reforms, I suspect that a version of Lopez’s balancing act is to come. While I believe Biden and Harris’s commitment to reforming the criminal justice system, I also suspect that little will actually come of the Biden campaign’s promises. Such reform will be fervently opposed by Republicans, and I question whether the Democrats will have the political will to follow through with reform. But what’s the alternative? Trump’s crime control positions are, from my moral and academic perspectives, far worse than anything I could expect from a Biden presidency.

Going back to my father’s question of which candidate I felt has the best criminal justice policy, despite having already cast a vote I still do not have an answer that leaves me feeling satisfied. I do not believe either candidate will be able to truly address the issues in the American criminal justice system, whether through lack of interest or lack of ability. How am I to expect that mass incarceration, racially biased policing, the prison industrial complex, and all the other structural problems within this system will be fixed four years from now?

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