Presidential Debate: Agreements Call for Deeper Probing on Crime and Punishment

The Presidential Debate between Vice President Kamala Harris and former President Donald Trump is scheduled for Tuesday, September 10, 2024.  All the creators of the Sentencing Matters Substack are eager for issues relating to crime and punishment to be some part of the discussion.  After all, it has been nearly a quarter century since the presidential candidates of the two major parties were asked a significant sentencing question in a presidential debate.  In October 2000, Governor George W. Bush and Vice President Al Gore were asked about capital punishment, and both stated, notably, that they believed that the death penalty deters crime.  

Broader issues of crime and policing practices have come up on occasion in recent presidential debates.  But thoughtful and pointed questions on crime and punishment issues have been too few and too far between in modern debates, especially given the importance of a range of crime and punishment issues to the American people.

We hope that this week’s debate may prove to be different.  Of course, political rhetoric around crime has been heating up in this election season, and former President Trump has been seeking to make much of the issue he describes as “migrant crime.”  Meanwhile, Vice President Harris has made her professional experience as a local district attorney and as California’s Attorney General a focal point of her campaign.  Against that background, and even with many other critical issues facing our country and the world, we expect (and hope) this week’s debate may at least touch on some topics of crime and punishment.

Interestingly, despite deep divisions and divisiveness between the candidates on many issues, former President Trump and Vice President Harris are on the same page on a few notable crime and punishment topics.  Trump, in 2018, played a critical role in advancing and then signing into law the most significant federal criminal justice reform in a generation, the First Step Act.  Harris, then serving as a Senator, voted for the Act and stated she was “proud to support” it.  More recently, Harris has called for a "change to our nation's approach to marijuana" while stressing "nobody should have to go to jail for smoking weed."  Trump has likewise expressed concern about persons being sent to jail for marijuana activity; he has even suggested support for Florida’s marijuana legalization initiative because, as he put it, “we do not need to ruin lives and waste taxpayer dollars arresting adults with personal amounts” of marijuana.

In addition, Presidents have special perspectives and prerogatives concerning the work of federal prosecutors, and both Trump and Harris have distinctive records of experience and commentary regarding prosecutorial practices.  And Presidents also have the unique and unfettered power, in the words of the Constitution, “to grant reprieves and pardons for offenses against the United States.”   Notably, back in 2019 when first campaigning for President, then Senator Harris advocated proposals to “significantly increase use of clemency.”   Coincidentally, then-President Trump started increasing his use of the clemency power not long thereafter, and he ended up granting more clemencies during his initial four years in office than any President since Ronald Reagan.

We thought it would be valuable to imagine possible questions on these topics for the Presidential debate.   We believe it could be useful and instructive to have the debate moderators first note that, on significant criminal justice issues, there is notable agreement between two candidates who seem to disagree (and be disagreeable) on so much else, including other criminal justice policies.  But after doing so, the moderators could and should follow up with challenging “next issue” queries.  To that end, we suggest these possibilities.

-     -    -

On the First Step Act

Question:  Vice President Harris, you voted for, and stated you were “proud to support,” the federal First Step Act that former President Trump championed and signed into law.  At that time, you issued a statement describing the Act as “a compromise of a compromise” and said, “We ultimately need to make far greater reforms if we are to right the wrongs that exist in our criminal justice system.”  Perhaps informed by six years of experience with the First Step Act, can you speak to what you consider to be the existing wrongs of our criminal justice system, and can you outline what additional reforms you would be eager to advance in a “Next Step Act”?

Follow-up Questions:  Former President Trump, are you still proud of the critical role you played in advancing the First Step Act?   Do you share the view that there are additional reforms needed to right wrongs in our criminal justice system? If so, what are they?

On Marijuana Reform

Question:  Former President Trump, you have recently detailed concerns about marijuana’s criminalization, especially given how many states have now legalized adult use of cannabis.  Discussing Florida 2024 ballot initiative on marijuana legalization, you posted on social media that “we do not need to ruin lives and waste taxpayer dollars arresting adults with personal amounts” of marijuana.   In light of these sentiments, would you encourage Congress to fully decriminalize marijuana use by adults at the federal level, and do you think the federal government should be actively involved in helping states develop responsible regulations regarding how marijuana is to be processed, packaged, and sold to consumers?

Follow-up Question:  Vice President Harris, you have expressed support for an ongoing administrative process for rescheduling marijuana under the Controlled Substances Act from Schedule I to Schedule III.  But under Schedule III, it would still be federally unlawful for adults to purchase or possess marijuana even if complying with state laws that create regulated marijuana markets.  Do you consider rescheduling a sufficient reform of federal marijuana laws, or would you urge Congress, as have many marijuana reform advocates, to deschedule marijuana so that it is treated under federal law in the same way as alcohol and tobacco?   

On Clemency Process

Question:  Vice President Harris, when you ran for President back in 2019, you released a plan to “transform the criminal justice system” that called for reform of the clemency process to “significantly increase use of clemency.”  Your plan asserted that the “clemency process needs to be removed from the Department of Justice where there are inherent conflicts of interest [because] DOJ should not determine whether individuals convicted by their own colleagues should be shortened or commuted.”  Interestingly, former President Trump seemed to take your advocacy to heart: he granted more clemencies during his initial four years in office than any President since Ronald Reagan, and he seemingly did not use a clemency decision-making process that relied significantly on the Department of Justice.  Without addressing any specific individuals who received clemency from President Trump, would you at least praise him for making greater use of clemency and for seemingly taking DOJ out of the process?

Follow-up Question:  Former President Trump, will you formally remove DOJ from the clemency process?  You have already pledged to pardon those who stormed the Capitol on January 6, 2021, and you have also stated that you will commute the sentence of Ross Ulbricht, who was sentenced in 2015 to life in prison for his role in online drug dealing that resulted in at least six deaths.  Are you concerned that these clemency promises could undermine your assertion that you will be the “most respected law and order President”?

On Prosecutorial Accountability

Question:  Vice President Harris, your criminal justice reform plan from 2019 also included several proposals to ensure prosecutorial accountability and to address abuse by prosecutors.  Those proposals included providing explicit authority to the U.S Department of Justice to conduct pattern and practice investigations of prosecutorial offices that commit systematic misconduct; investing federal funds in data collection and data analysis for greater transparency and accountability for prosecutors; requiring federal prosecutors to provide data on their charging, plea bargaining, and sentencing decisions; and providing funding to incentivize state prosecutors to participate in a national reporting program. Are you still committed to pursuing those changes legislatively and even to taking unilateral actions through executive orders to advance these goals if elected President?

Follow-up Questions:  Former President Trump, you have many times criticized prosecutors for what you think is their misconduct.  Do you agree with the proposals that Vice President Harris laid out in her 2019 platform to address prosecutorial abuse?  Are there other steps you might take?