You could be forgiven if, like me, at the announcement of Kamala Harris as Joe Biden’s vice-presidential pick, you peered around the nearest corner to check if Rod Serling was standing there, surrounded by an elegant curlicue of smoke emanating from his cigarette and a look of knowing wisdom — and perhaps the slightest glint of pity — in his eye.
The 2016 presidential election was one conducted in the twilight zone. And 2020 seems on course to take place in the hinterlands of the twilight zone.
Joe Biden — author of the 1994 crime bill, which ushered in the era of mandatory minimum sentences at the feet of which many advocates of criminal justices reform lay our current mass incarceration crisis — is a particularly poor choice of candidate for the current political climate.
And, during Kamala Harris’ time as a prosecutor, she routinely took steps to protect cops and prosecutors against charges of misconduct. Cops who feel comfortable enough to abuse their power and mistreat those in their custody do so because their actions are protected by their higher ups: by police unions and the District Attorney’s office. Kamala Harris helped normalize police abuse.
On the whole, the Democratic ticket is uniquely unsuited to meet the current demands of criminal justice reform.
All of which should make this election a dream-come-true for President Trump. But here’s the kicker: Trump is uniquely unsuited to call out this most paramount of weaknesses.
The insane and regularly-scheduled screaming of “law and order” into the digital void aside, Trump’s record on criminal justice reform is actually better than Biden’s. But he can’t take advantage of that because he’s too busy screaming “law and order” into the digital void.
The president’s politics are entirely transactional. With perhaps the exception of his America-First trade protectionism, one doesn’t get the feeling that the president feels any passion about the policies he espouses. They are adopted and discarded as is politically expedient, like the skin of a snake.
Back in December 2018, Trump signed the First Step Act, a bipartisan criminal justice reform bill that looked to, among other things, reduce recidivism and pare back the federal prison population. In terms of the 2020 election, perhaps the most important provision of that appertained to mandatory minimum sentences. The bill, as Nathan James notes in a paper for the Congressional Research Service:
“modified mandatory minimum prison sentences for some drug traffickers with prior drug convictions by increasing the threshold for prior convictions that count toward triggering higher mandatory minimums for repeat offenders, reducing the 20-year mandatory minimum (applicable where the offender has one prior qualifying conviction) to a 15-year mandatory minimum, and reducing a life-in-prison mandatory minimum(applicable where the offender has two or more prior qualifying convictions) to a 25-year mandatory minimum.”
This part of the bill in particular is something that Trump ought to be able to lord over Biden: it exists to help answer a problem that Biden’s crime bill largely created.
Trump has also pardoned people like Alice Johnson, who received a sentence of life-in-prison without parole for a first time non-violent offense related to her involvement in a drug ring. The president even ran an ad during the 2019 Superbowl touting this:
Yet, at the same time, President Trump has been a fierce drug warrior. With his vocal support, Jeff Sessions during his time as Attorney General, issued guidance for federal prosecutors to seek the death penalty for drug dealers.
This attitude is not compatible with the clemency Trump has offered certain individuals convicted of drug crimes and his signing of the First Steps Act.
Nor has the reformer in Trump been seen since the murder of George Floyd sparked off a wave of protests against police abuse. Trump has unequivocally supported the “back the blue” camp. He’s made no attempt to reach out to protestors and find common cause, despite his past actions. Perhaps most egregious was his unconstitutional clearing of protestors responsibly exercising their First Amendment rights in Washington’s Lafayette Square in order to stage a photo shoot, an action which has since spurred several law suits.
This is hardly the action of a president interested in having an open dialogue with disparate factions of the American people. To call federal police in to clear protestors is an action fundamentally rooted in lack of respect. Again, this hardly squares with his support for the First Steps Act and the clemency he’s granted of those convicted of certain drug crimes.
Unless, of course, Trump’s politics are entirely utilitarian. Signing the First Steps Act won him support from demographics he was interested in at the time. But it’s now no longer expedient to appeal to those demographics. It better behooves him to “back the blue” and lock down the endorsement of police unions.
This transactional behavior — wherein politicians trade what they’ve claimed are their most deeply held beliefs for the power they need to enact the change they ostensibly believe in — is the kind most often criticized by the American electorate.
And Trump deserves to be pilloried for it. But so does Kamala Harris.
Harris’ appalling records as a prosecutor, we’ve been told, were something that had to be done in order to further her career. They were a response to political pressures. Had she not taken them, she wouldn’t be vice-president and wouldn’t have a public record to criticize.
This is a rationale that’s ripe for abuse, in no small part because this line of thinking gives over discretionary power to the person most beleaguered by the harshness of the system: it grants total moral oversight to Harris to make the choices she felt most appropriate and aligns her good with the good of political systems. Nevermind the good of those whose abuse at the hands of government received no redress thanks to Harris; that’s apparently not worth consideration.
And that, of course, is the fallibility of utilitarianism: if a political figure is made arbiter of the collective political good and that good is assumed to apply to all the members of the collective equitably, then how does one justify actions that are to the detriment of members of the collective? Logically, what damages the part does not benefit the whole. One has to either exorcise or dismiss those inconvenient parts.
In terms of electoral politics and demographics, this means simply dismissing the concerns of those whose disparate ideas of political good or whose inconvenient needs jeopardize success. In terms of applying political power, this looks like the callousness of Kamala Harris’ political record or the Trump’s refusal to concede on meaningless issues, like renaming military bases named after Confederate figures, because he fears how his base will interpret this in the context of the culture wars.
Politicians should not have power to determine whose plight is worthy of protection and whose is a necessary sacrifice to the greater good. Campaigns engage in utilitarianism routinely: telling people to squelch their concerns because they don’t matter if one can’t gain power and shape policy in a manner members of the party agree is for the best.
This is an approach to politics that, ultimately, is hollow and is ripe for abuse. Either an idea is good and is worthy of debate or support or it isn’t. The same holds true for actions. The expediencies of the political moment do nothing to change this.