Looks like you’re using a browser we don’t support.

To improve your visit to our site, take a minute and upgrade your browser.

Biden’s Big, Obvious Ideas for Criminal-Justice Reform

He and several other candidates have issued plans that appear ambitious only because America's system is so broken.

Justin Sullivan / Getty Images

Joe Biden, ahead of two major speeches before black civil-rights groups later this week, unveiled his plan on Tuesday for reforming America’s broken criminal-justice system. “Equality, equity, justice—these ideas form the American creed,” the plan begins. “We have never lived up to it and we haven’t always gotten it right, but we’ve never stopped trying.”

Those words could just as easily refer to Biden’s own record on the matter. Because when it comes to criminal justice, he has more experience reshaping the system than any other Democratic presidential candidate—reshaping it toward hyper-punitiveness, that is. The system is broken partly thanks to Biden, so any reform plan from the Democratic frontrunner must be met with healthy skepticism. But Biden’s plan is radical in several respects.

Taken as a whole, the plan is a tacit acknowledgement that the former vice president got it mostly wrong on criminal justice throughout his four-decade Senate career. Some of its positions, such decriminalizing marijuana and abolishing the death penalty, are specifically at odds with much of his legislative work in the 1980s and 1990s. But it’s also among the most comprehensive packages proposed by any of the Democratic contenders. Many of his rivals offer similar stances on sentencing reform and mass incarceration, but only South Bend Mayor Pete Buttigieg has articulated a more sweeping vision for reform.

It would be tempting to call these proposals radical, given that they would have a transformative effect on the American criminal-justice system. But they’re only radical when viewed through the prism of establishment politics. Considered from a moral and policy perspective, they’re downright obvious.

Take solitary confinement. Buttigieg says he would “abolish its prolonged use, bringing the United States in line with international human rights standards, which view the use of solitary confinement in excess of 15 days as per se torture.” Biden says that he would also largely end the practice, “with very limited exceptions such as protecting the life of an imprisoned person.” Booker, Harris, Warren, and four other Democratic senators co-sponsored a bill that would limit it to “the briefest term and under the least restrictive conditions possible.”

This would be a sharp break from the status quo in America, where tens of thousands of people are put in solitary confinement each year. It would also bring national policy in line with the academic consensus that prolonged isolation can cause serious psychological damage. As Buttigieg noted, the United Nations’ special rapporteur on torture recommends no more than 15 days in solitary and an absolute ban on its use for juveniles and people with mental illnesses. The Supreme Court first acknowledged the immense toll of solitary confinement in an 1890 case, and Justice Anthony Kennedy warned in 2015 that the practice “literally drives men mad.”

The candidates also seek to decriminalize poverty, and they share a common target. Criminal defendants who can’t afford bail are either stuck behind bars while they await trial, or turn to a bondsman to loan them the money—at an exorbitant rate that may come to haunt them. Biden says he would end cash bail, which he compares to a “modern-day debtors’ prison,” and use federal grants to “incentivize the end of policies that incarcerate people for failing to pay fines and fees.” Booker, Sanders, and Warren have also called for abolishing cash bail, while Harris wants to reform it. Buttigieg connects both issues to the larger fight against the “profit motive” in federal prisons, noting that he would push to abolish private prisons and pressure states to “significantly reduce” the use of private contractors.

If fully implemented, these plans would be a boon to low-income Americans for whom even a brush with the criminal-justice system can result in unemployment and financial ruin. They would also bring the U.S. closer in line with other industrialized democracies. The American bail-bond industry’s dominance is an outlier on an international level; while some other countries use cash bail to a certain degree, only the Philippines has a comparable system. And no liberal democratic peer nation has anything resembling the system of plunder described in the Justice Department’s Ferguson report.

Another common theme is the intersection of mental illness and law enforcement. Biden says he would “fund initiatives to partner mental health and substance use disorder experts, social workers, and disability advocates with police departments,” so that these people get the help they need rather than being locked up (or worse, shot dead). Buttigieg’s plan, by comparison, aims to remove police from the equation as much as possible. He instead proposes investments in “community-based care [and] front-end social supports” that would “minimize the need for police officers to serve as de facto social workers and allow them to resume their primary role as guardians of public safety.”

Ensuring that people with mental illnesses get treated by health-care professionals instead of police officers seems like a no-brainer. But in the U.S., the criminal-justice system doubles as the nation’s mental health-care provider of last resort. Those without the ability or resources to obtain treatment instead find themselves funneled into jails and prisons, perhaps the least therapeutic environments imaginable. The interactions can even be deadly: A Washington Post compilation of police shootings found that at least one in five people shot by them in 2018 had a mental illness.

There’s still room for improvement in the Democrats’ plans. None of the major candidates discuss qualified-immunity reform in their plans. A Reconstruction-era law known as Section 1983 generally gives Americans the ability to sue state and local officials for violating their constitutional rights. Over the years, however, federal judges have crafted a series of judicial exceptions that defang lawsuits against police officers, prison officials, and other government officials accused of wrongdoing. There’s a growing backlash in the legal community to the doctrine, with justices Clarence Thomas and Sonia Sotomayor among its critics. In theory, Congress could try to curb qualified immunity’s scope or even scrap it altogether.

Habeas corpus is another complicated but important area in need of reform. In 1996, Congress passed the Antiterrorism and Effective Death Penalty Act, more commonly known as AEDPA, to limit defendants’ access to the Great Writ. The law, a response to the Oklahoma City bombing, made it harder for defendants convicted in state courts to challenge constitutional errors in their cases in the federal courts. AEDPA’s impact could be felt most strongly in death-penalty cases and prisoner-rights disputes, often leaving Americans at the mercy of shoddy state-level systems without meaningful judicial recourse.

It’s no critique of Biden, Buttigieg, or their rivals to note that they’re pushing for major changes to the way American criminal justice currently operates. At the same time, it’s worth taking stock of how self-evident their solutions are. Not throwing people in jail because they can’t pay court fees, and not condemning people to years or even decades of isolation, sound like baseline rules for a civilized society. What’s truly radical is the harshness of the system that Biden and other politicians of his generation built, not the means by which it’s undone.