The democratic platform heads in right direction on criminal justice, but still misses the moment

The Democratic platform fails in some respects to meet the demands of the moment and misses the opportunity to provide a home for the millions of Americans looking for transformational change of a criminal legal system rooted in white supremacy and racism.

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SOURCEACLU

As Democrats gather this week to nominate their presidential candidate, they will also adopt the party’s proposed platform. On criminal justice reform, the platform continues to move the party away from its harmful tough-on-crime past. But it also misses an opportunity to respond to Americans’ desire to seek transformational changes in the criminal legal system.
 
For the past 60 years, presidential politics have played an outsized role in criminal justice policy-setting, despite this issue being largely the domain of states and localities. Of the 2.3 million people incarcerated in the United States, 90 percent are under state or local jurisdiction.
 
Barry Goldwater was the first national politician to focus on criminal justice issues as part of a presidential election, invoking tough-on-crime rhetoric and racist attacks on the civil rights movement. The five-term U.S. senator from Arizona was the 1964 Republican presidential nominee and ran on a law-and-order platform that denounced the civil rights movement as lawless and equated it with criminal behavior. He lost the 1964 presidential election, but his candidacy provided a boost for future law-and-order candidates.
 
In the 1968 elections, Richard Nixon made law-and-order a central theme of his winning campaign, dedicating 17 speeches to the topic. He deployed the “Southern strategy” to appeal directly to Southern white working-class voters who opposed racial desegregation and the advances being made by the civil rights movement.
 
It was during the Reagan administration that the full development of the law-and-order strategy began to take hold. While Nixon called for a war on drugs in 1971, President Ronald Reagan brought Frankenstein to life — dramatically increasing law enforcement budgets and slashing funding for drug treatment, prevention, and education.
 
By the early 1990s, Democratic politicians wanted to wrest control of criminal justice issues and began a bidding war with Republicans on who could impose harsher penalties. In 1992, presidential candidate Bill Clinton vowed that he would never permit any Republican to be perceived as tougher on crime. Weeks before the New Hampshire primary, he flew home to Arkansas to oversee the execution of Ricky Ray Rector, who was mentally incapacitated. During Clinton’s tenure, he slashed funding for public housing by 61 percent while boosting corrections funding by 171 percent, made it easier for public housing to exclude anyone with a criminal history, and signed into law the infamous 1994 Crime Bill.
 
By 1996, the Democratic Party platform invoked law-and-order rhetoric that differed little from what Republicans expressed two decades earlier:

“The Democratic Party under President Clinton is putting more police on the streets and tougher penalties on the books … President Clinton made three-strikes-you’re-out the law of the land, to ensure that the most dangerous criminals go to jail for life, with no chance of parole. We established the death penalty for nearly 60 violent crimes … We provided almost $8 billion in new funding to help states build new prison cells … [W]hen young people commit serious violent crimes, they should be prosecuted like adults. We established boot camps for young non-violent offenders.”

It wasn’t until 2008 that the tone of the Democratic Party platform began to change, and by 2016, in response to the killing of Freddie Grey at the hands of Baltimore police and other high profile instances of police violence, Democrats called for “reforming our criminal justice system and ending mass incarceration.”

Which brings us to this year’s proposed platform. It blasts police violence and private prisons and calls for a reduction in the nation’s incarceration rate. It supports front-end reforms like tackling the school-to-prison pipeline, fighting mandatory minimum laws and ending cash bail, as well as back-end reforms, such as reentry services for people leaving prison and increasing the use of presidential clemency powers to release people serving long sentences.
 
Compared to past DNC platforms, this year’s proposed platform represents a dramatic shift from the 1990s. The Democratic Party has reversed course on certain positions, now saying it is “unjust — and unjustifiable — to punish children and teenagers as harshly as adults,” the opposite of the party’s 1996 platform. This year’s proposed platform also responds to the Black Lives Matter movement by recognizing systemic racism and calling for a dramatic change in the legal standard for police use of deadly force. And it has reversed course on the death penalty, now opposing it.
 
But even while recognizing this evolution of the platform and the challenges of finding consensus among a party with diverse viewpoints, it is still disappointing to see the platform fail in some respects to meet the demands of the moment.
 
For example, the proposed Democratic platform calls for an end to the “failed war on drugs, which has imprisoned millions of Americans,” yet fails to support policies that would actually end this failed war that has disproportionately harmed Black and Brown communities. Not only does the platform neglect to call for the decriminalization of all drug possession, which would strike a genuine blow to the war on drugs, it fails to even support marijuana legalization, which is supported by a large majority of Americans. The call to end the war on drugs is meaningless without these basic proposals.
 
Moreover, on policing, the platform is silent on the call to slash police budgets and redirect those resources into alternatives to policing, and to reinvest in communities historically targeted by the police. Instead, the platform mostly continues to tout procedural reforms and calls for greater transparency and accountability. These are important reforms, but they miss the mark on what millions of people are marching on the streets to demand — a fundamental reorientation of public safety, divesting resources away from police and into alternatives to police and towards resources that will build long-term safety and stability.
 
Finally, even though during the campaign trail candidate Joe Biden and a dozen other candidates committed to the ACLU to cut incarceration rates by 50 percent if they were to become president, the Democratic Party platform is now silent on setting this or any other concrete reduction goal.
 
The Democratic Party has a terrible track record on criminal justice issues. It has now clearly broken away from this tarnished past, and the party platform recognizes the destructive crisis of mass incarceration. Yet the party still fails to recognize the need for transformational change, and until it does so, it will miss providing a home for the millions of Americans who are tired of tinkering around the edges and are looking for transformational change of a criminal legal system rooted in white supremacy and racism.

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Udi Ofer is the Deputy National Political Director of the ACLU and Director of the ACLU’s Justice Division, which leads the ACLU’s advocacy on criminal justice reform, policing, drug law reform and ending the death penalty. It also includes the Campaign for Smart Justice, which is dedicated to cutting the nation’s incarcerated population by 50% and challenging racism in the criminal legal system. Ofer is also a visiting lecturer at Princeton University’s School of Public and International Affairs. During his tenure at the ACLU, Ofer has overseen the passage of more than 200 criminal justice reform laws that will lead to tens of thousands of fewer people incarcerated. He has overseen the launch of new and innovative electoral, legislative, public education, and litigation strategies, including the ACLU’s first-ever voter mobilization campaign in a district attorney race as part of a broader initiative to hold prosecutors accountable for fueling mass incarceration. Ofer brings more than 15 years of experience as a civil rights lawyer to the ACLU. From 2013-2016, he served as Executive Director of the ACLU of New Jersey. Under his leadership, the organization achieved historic victories on a variety of issues, including overhauling New Jersey’s broken bail system, creating one of the nation’s strongest police civilian review boards in Newark, banning the use of solitary confinement as a punishment for juveniles, and launching a bipartisan campaign to tax and regulate marijuana. From 2003-2013, he worked at the New York Civil Liberties Union, where he founded the Advocacy Department. There he challenged the NYPD’s stop-and-frisk practices and spearheaded the successful effort to pass legislation banning racial profiling by the NYPD and creating an NYPD Inspector General’s office. Ofer was also a co-founder of Communities United for Police Reform in New York City. Ofer began his legal career in 2001 as a Skadden Fellow at My Sisters’ Place, a domestic violence organization. He was an adjunct professor at New York Law School from 2009-2012 and has published widely, including in the Seton Hall Law Review, Columbia Law School Journal of Race and Law, and New York Law School Law Review. Ofer’s work and commentary have been featured in the New York Times, Washington Post, Wall Street Journal, The New Yorker, and hundreds of news outlets. He has testified before numerous legislatures, including the United States Senate, and is frequently cited as an expert on criminal justice matters. Ofer is the recipient of numerous awards, including the Distinguished Graduate Award from Fordham Law School, a presidential new executive award from the Open Society Foundations, and a 2004 proclamation from the New York City Council for his outstanding service to the city and state. He is a graduate of Fordham University School of Law and the State University of New York at Buffalo.

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