The 2020 campaign will likely present voters with the sharpest contrast on criminal-justice and civil-liberties policy in recent memory. Most of the announced candidates for the Democratic nomination are pro-immigration and gun regulation and anti-death penalty and mass incarceration — all stances that put them at odds with President Trump. Many also have said they believe there is racial bias in the criminal-justice system and have expressed sympathy for police critics such as Black Lives Matter, again in sharp contrast to Trump.
So here’s a list of the questions I would pose to the Democratic field as a whole. (I’ll posit individualized questions based on the candidates’ records at a later date, when the field narrows down a bit.) Feel free to leave your own questions in the comments.
1. Traditionally, criminal-justice policy has been a state and local issue. Over the years, some presidential administrations have tried to influence local policy with grants and other funding, or have made Justice Department resources available for training and assistance to nudge local police officials in one direction or another. What role will your administration take in influencing or promoting policies on crime, policing and other criminal-justice issues at the local level? What issues do you feel merit federal intervention or influence? What areas will you leave to local authorities?
2. Under federal statute, as interpreted by a number of Supreme Court rulings, police officers accused of violating someone’s constitutional rights are protected by the doctrine of qualified immunity, which requires the victim to show not only that his rights were violated but also that at the time of the violation, it was well-established in law that the officer’s actions were unconstitutional. Some say this sets the bar too high or even encourages police officials to keep officers in the dark about the latest court rulings related to policing. Would you support amending the doctrine of qualified immunity? What about the absolute immunity given to prosecutors?
3. Former attorney general Jeff Sessions ended the Justice Department practice of investigating individual police departments for systemic abuse and civil rights violations, and suing the departments where investigators found abuse. As president, would you direct the Justice Department to resume these investigations?
4. One of Sessions’s first acts as attorney general was to allow the charter for the National Commission on Forensic Science (NCFS) to expire. This was a panel set up by the Obama administration to investigate the use of forensics in the courtroom and to make recommendations to ensure that expert witnesses are giving testimony based on sound science. Would you consider commissioning a similar panel or reinstating the old one?
5. Almost all of you favor the legalization of marijuana. Would you consider pardoning everyone who has been convicted in federal court on charges exclusively related to possession, sale or transport of marijuana? What is your more general opinion of the pardon power? Should it be used more often, less often? Should it be used to grant mercy and redemption on guilty people, or as a check against injustices against potentially innocent people?
6. One of the more destructive crime bills of the past 50 years is the Antiterrorism and Effective Death Penalty Act, or AEDPA. The bill is incredibly complex, but one key provision has made it much more difficult for inmates to ask federal courts to review decisions by state courts for constitutional violations. The bill was passed in the mid-1990s, before the onslaught of DNA exonerations revealed some of the serious flaws in our justice system. Reform advocates say the law makes it extremely difficult for people with innocence claims to get their cases heard in federal court. Would you support a review and modification of AEDPA?
7. Both Texas and California have passed what’s been called a “junk science writ.” This is a law that allows people convicted with expert testimony that has since been called into question by the scientific community a way to petition for a new trial, even if they have exhausted their appeals. Would you support a similar law for people convicted in federal court?
8. Because of AEDPA, people convicted in state court because of bad science have a very difficult time getting federal courts to review their cases. They must show that the trial judge abused his discretion in allowing the expert testimony — an extremely high bar. Even then, they face strict deadlines and restrictions that generally prevent them from getting relief. Would you support a similar “junk science writ” that would make an exception to AEDPA that would allow people convicted with dubious expert testimony in state court to petition the federal courts to review their cases?
9. Even when the President’s Council of Advisors on Science and Technology released a report and the NCFS issued recommendations critical of forensic science, President Barack Obama’s own attorney general Loretta E. Lynch rejected them out of hand. The Trump administration has since said the Justice Department will evaluate its use of forensics internally, and appointed a former prosecutor (and a defender of forensics) to oversee its use of expert testimony. The FBI has a dubious history in this area. Will you promise to appoint an attorney general who will open up the Justice Department’s use of forensics to review and scrutiny by outside scientists?
10. Numerous surveys and studies have shown that for much of the country, public defenders are underfunded, understaffed and overworked. Some would argue that this imperils the Sixth Amendment rights of criminal defendants, and that under the Fourteenth Amendment, the federal government is obligated to step in to protect those rights. Do you agree? If so, what should the federal government do to guarantee an adequate defense for indigent defendants?
11. Several states have now passed laws requiring a criminal conviction before police departments can seize and keep property that they allege is connected to criminal activity. These laws have effectively ended the unpopular practice of civil asset forfeiture in those states, a policy that allows law enforcement to seize property without even charging a crime. Would you support such a law for federal law enforcement?
12. As those states pass laws putting restrictions on or eliminating civil asset forfeiture, the Justice Department has had a policy that allows a federal police agency to “partner” with police agencies in those states — usually on a superficial level. This partnership makes the investigation “federal,” and therefore governed by laxer federal forfeiture laws. The local agencies then get a cut of any property seized. It’s essentially an end-around the protections state legislatures put in place. Former attorney general Eric Holder put a halt to this practice, but Sessions resumed it. Which policy will your administration take?
13. Do you support the use of Title IX to require colleges and universities to adjudicate allegations of rape and sexual assault? Should the people accused in such hearings be afforded the same protections as someone accused of those crimes in a criminal court, such as the presumption of innocence and the right to confront one’s accuser? If not, what rights should they retain?
14. Most of you say you are against the death penalty. As president, you will have the power to commute sentences. For those of you who are against the death penalty, will you commit to commuting the sentences of everyone on federal death row? Will you vow that your administration will not seek any new death sentences?
15. Should people with terminal illnesses be permitted to try experimental drugs that may (or may not) save their lives, even if those drugs have yet to be approved by the Food and Drug Administration?
16. Allegations of misconduct by federal prosecutors are currently handled by the Justice Department’s Office of Professional Responsibility. This is one of the most secretive offices in the agency. Not only are complaints not disclosed to the public, but the office also doesn’t inform the public when a prosecutor has been found to have committed misconduct. Even the Justice Department’s Inspector General isn’t privy to the results of these investigations. Do you think the public has the right to know when a federal prosecutor has cheated, violated someone’s rights or been found to have violated professional ethics?
17. Nearly all of you support new laws regulating the purchase and possession of guns. Are you aware that the racial discrepancy in enforcement of federal gun laws is even greater than it is for federal drug crimes? Would you acknowledge that almost any additional criminalization of guns — whether by defining new crimes or by lengthening sentences — will almost certainly mean more black people in prison and increasing the racial disparity of the federal prison population?
18. Nearly all of you say you support reforming the criminal-justice system and ending mass incarceration. The criminologist John Pfaff, among others, has shown that to truly end mass incarceration, we’ll need to not just release nonviolent offenders but also rethink how we treat violent offenders. We now know that from about the age of 25 on, the probability of recidivism among violent offenders drops significantly. Would you support a policy that allows for the release of or shorter sentences for some violent offenders?
19. There hasn’t been a justice on the Supreme Court with criminal defense experience since Thurgood Marshall retired. Only a few justices since Marshall have had any criminal law experience at all. Do you think this is a problem? Would you consider appointing someone to the court with a significant criminal defense background?
20. Since the 1990s, the Pentagon has given away millions of pieces of surplus military equipment to police departments throughout the country. Critics say some of these items — M16s, MRAPs, bayonets, grenade launchers — are inappropriate for domestic policing and contribute to a militaristic mind-set in law enforcement. The Obama administration instituted some modest reforms, which were promptly withdrawn by the Trump administration. What will your administration’s policy be on this program?