Trump and Biden Both Have Complicated Records on Criminal Justice Reform

Despite billing themselves as the best bet voters have for criminal justice reform, neither former Vice President Joe Biden nor President Donald Trump has a strong record to fall back on.

The Republican National Convention kicked off on Monday with Senator Tim Scott and Georgia state Representative Vernon Jones, a Democrat, lauding Trump for the First Step Act, a criminal justice reform bill the president signed in 2018. Trump—who pardoned on Tuesday night Jon Ponder, a former bank robber who started a nonprofit in 2010 to help formerly incarcerated individuals—and other speakers contrasted that accomplishment with Biden's involvement in tough-on-crime legislation.

"Don't forget. It was us, us together, that got criminal justice reform done," Trump said on Monday. "The greatest thing for the Black community, [the] African American community. They came and they said, 'We can't believe it. Obama didn't even try.'"

A bipartisan bill, the First Step Act resulted in the release of 3,100 people from prison in July 2019 as part of the act's "good time credit fix," and an additional 3,000 people were resentenced to shorter prison terms, according to the Brennan Center for Justice. It's an aspect of the Trump administration's legacy that some experts say should be praised, but it's all Trump has to point to in terms of criminal justice reform legislation.

"Yes, he signed and supported an important piece of legislation, but that seems to be where the story ends," Kara Gotsch, director of strategic initiatives at the Sentencing Project, told Newsweek. "I think a lot of people in my community, after the commutation of Alice Johnson, hoped that it would lead to significant numbers of commutations."

Trump granted Johnson clemency in June 2018 after she served 21 years in prison for a first-time nonviolent drug offense. Two years later, he commuted the sentences of Crystal Munoz, Tynice Hall and Judith Negron, three women who served prison time with Johnson, and on Thursday, she's expected to speak at the GOP convention.

For all the lambasting of Biden's criminal justice record and praise of the First Step Act, Trump's also taken a hard stance in favor of law enforcement, labeled protesters "anarchists" and characterized himself as a "law and order" president. Trump also pushed for the death penalty for the Central Park Five, a group of young men wrongly convicted of a 1989 murder. He supported the same punishment for drug dealers just three months after signing the First Step Act, making it unclear where he truly stands on criminal justice reform.

"I'm not confident Trump will stay consistent," Ediberto Román, a law professor at Florida International University, said. "Time will only tell, but he seems to support it when it serves his interest."

joe biden donald trump criminal justice reform
Joe Biden delivers his presidential nomination acceptance speech on August 20, and President Donald Trump during the bill-signing ceremony for the CARES Act on March 27. Win McNamee/Erin Schnaff-Pool/Getty

Trump's sending "mixed signals" to different audiences with regard to criminal justice reform, according to Rachel Barkow, author of Prisoners of Politics: Breaking the Cycle of Mass Incarceration. While Biden isn't her "dream candidate," he's the "more promising" option, in her opinion, because both his and vice presidential nominee Kamala Harris' recent actions indicate they'll be supportive of such reform.

Harris' "trajectory is going in the right direction, and Biden at least is claiming that he is going to support more criminal justice reform efforts," Barkow said.

In the 1980s and 1990s, Biden sponsored and supported laws that created mandatory minimum sentences for certain drug-related crimes and increased funding for states to build prisons. Two laws, the 1986 Anti-Drug Abuse Act and the 1994 Violent Crime Control and Law Enforcement Act, have gotten the bulk of the attention for the disproportionate impacts on the African American community.

In June, he told Charlamagne Tha God, host of the Breakfast Club radio show, that the goal of legislation he sponsored was to ensure people wouldn't be given a harsher sentence because of the color of their skin. However, an "unintended consequence" of some of his legislation was that judges were bound by the punishment requirements for the crime and could not lower sentences.

Biden has called his role in passing tough-on-crime legislation a "big mistake," and in June he said concerns about the 1994 crime bill were "legitimate" during a virtual NAACP forum. But he said people should base their opinion on his current actions and comments. Biden's plan if elected includes increased rehabilitation for formerly incarcerated people, creating a $20 billion grant program for states that eliminate mandatory minimums for nonviolent crimes, decriminalizing the use of marijuana and eliminating sentencing disparities between crack and powder cocaine.

Whereas Biden said his changing stance was due to evolving ideas, Gotsch said the driving force behind criminal justice reform in the White House isn't the president but his son-in-law, senior adviser Jared Kushner. During the keynote address at the 20/20 Bipartisan Justice Center's Second Step Presidential Justice Forum last October, Trump said Kushner worked "tirelessly" to get the First Step Act passed. Kushner was so persistent that the president said he agreed to support the measure.

"I don't think Jared Kushner is enough to get done what needs to get done," Gotsch said. "If someone doesn't believe in it personally and understands why it's so important, I don't see how we get so much farther than where we are right now. Of course, I could be wrong; no one can read the future."

Newsweek reached out to the White House and Biden's campaign for comments but did not hear back in time for publication.

With two candidates who have records that have brought them both praise and criticism, all three experts said that when it comes to the election, it's important to consider what the future will hold. Even though Harris was criticized for actions she took as a prosecutor and California's attorney general, Gotsch said her record as a senator makes her one of criminal justice reforms "biggest champions." If she continues down that path, "it'll be a good thing for future reform."

Barkow said she hopes if Biden wins, he appoints a new crop of U.S. attorneys and that people who are appointed to sentencing commissions and federal judgeships are from the public defense and civil liberties sector, because bringing that side of the system into the fold is likely to result in better criminal justice reform.

Whether Trump and Biden will meet in a debate is still up in the air, but Román said that on the issue of criminal justice reform, the results would likely be a "wash" if based on the candidates' merits. Whom voters see as the better candidate will likely come down to how the messaging is packaged, he said. Biden could point to the Violence Against Women Act (legislation enacted as part of the overall 1994 crime bill) that classified domestic violence and sexual assault as crimes. But in a 30-second sound bite about the past, Román said, Trump might have an "easier time on this one."

Although she is confident Biden would be more in favor of criminal justice reform than Trump, Barkow said if Biden doesn't take responsibility for the mistakes he's made in the past and commit to using his clemency powers, it will show there were "no lessons learned."