Back in his 2020 run for the White House, Joe Biden won over the skittish left in part because of his willingness to take big, bold stances on hot-button issues like criminal justice reform. From interrupting the so-called “school to prison pipeline” through boosts to mental health funding to ending all incarceration for simple possession of drugs, the former vice president imagined a ground-up reworking of the carceral state.
Biden’s vows of far-reaching reform were so numerous that Prison Policy Initiative’s Wanda Bertram limited herself to listing only his five biggest pledges in a post-election recap. The Marshall Project went even further, calling Biden’s criminal justice platform “the most progressive … of any major party candidate in generations.”
It’s unlikely the Marshall Project would offer such glowing praise today.
A lot has changed in four years. Biden’s old criminal justice pitch has since been scrubbed from his website. He now faces regular criticism not only from the progressive left but also from experts within the criminal justice system for his often contradictory approach to the issue.
Biden isn’t alone: across the party, one of Democrats’ biggest issues in 2020 is all but invisible this year. What happened?
In researching this column I reached out to two dozen House Democrats, including multiple progressive lawmakers who staked prominent criminal justice reform positions in 2020. Not a single office responded. The situation wasn’t much better among the criminal justice reform nonprofits that vaulted to national prominence during 2020’s heated national debate on race, policing and prison reform. Of the 10 organizations I reached out to, I received responses from only two.
From those willing to speak, the message was clear. “The only hesitancy we’re seeing is from inside-the-beltway politicians who aren’t in touch with what their voters want,” Justice Action Network Executive Director Jenna Bottler told me. “If the president wants to rejoin the criminal justice conversation, it’s simple: listen to the voters who are smarter than election-year soundbites.”
Democrats’ sudden silence on criminal justice reform has been driven in large part by a wildly successful Republican messaging campaign. GOP politicians, aided by a friendly network of right-wing media outlets, have spent much of their time since 2020 selling American voters on the fiction that crime is surging. They’ve also made sure those Americans know to lay the blame on so-called “soft on crime” Democrats, whom they universally portray as eager to release dangerous felons onto the street. That messaging helped Republicans rack up wins that cost Democrats control of the House — a fact party leadership has been keen to remind progressives of in private.
The chill from Washington isn’t lost on the criminal justice organizations often pursuing change on the state and local levels. In New York, where landmark state criminal justice reform legislation came under heavy fire from Republicans, some activists are still stinging from what they view as the party’s abandonment of a marginalized and overlooked demographic.
“The states are all still passing criminal justice reforms or fighting for them,” Lorenzo Jones, Katal Center for Equity, Health and Justice co-founder and co-executive director, told me. “The people doing that are all local, but those local people have been largely shut out of the national spotlight.”
Jones sees the problem not as Biden abandoning criminal justice reform but, rather, “walk[ing] away from local grassroots leadership, and formerly incarcerated leadership.”
That creates the bizarre circumstances for 2024, where Republican presidential front-runner Donald Trump can run to Biden’s left on criminal justice reform.
The former president’s First Step Act marked its fifth anniversary last month, with the Bureau of Prisons reporting that more than 26,000 incarcerated Americans have been released under First Step provisions. The First Step Act is even held in high regard by criminal justice leaders who share no other common ground with Trumpism.
“Trump has a strong and overwhelmingly popular track record on these issues. The first candidate that rejects the dated political rhetoric of the 70s and 80s …will be rewarded by voters,” Bottler said.
That isn’t to say Biden has been stuck entirely in neutral on justice issues. Last month, he pardoned thousands of Americans convicted of marijuana charges and granted clemency to 11 nonviolent drug offenders. But Biden’s piecemeal effort is far less than many criminal justice reformers expected — and less than Trump did during his tumultuous presidency.
Critically, Trump’s First Step Act also proved that federal criminal justice reform does work. Republicans who supported the bill now proudly share news stories about how incarcerated people released under the FSA are 37 percent less likely than their peers to reoffend. The success and broad national popularity of the First Step Act should open the door for even bolder action by Biden, including a follow-up bill that expands on what FSA began. Instead, Democrats have ceded that ground to Trump, who will certainly make political hay of Biden’s limited action during the exhausting campaign ahead.
It may seem crazy that Trump could score political points with voters by scolding Biden for failing to release enough incarcerated people. But polls have remained consistent since 2018, even if Democrats haven’t. Supermajorities of Americans still support a host of commonsense prison and criminal justice reforms.
Instead, a nervous Democratic Party has seemingly decided to dump the issue entirely.
In 2020, Biden campaigned with a refreshing and unapologetic vision for what a reformed criminal justice system could look like. There is still time for the president to rediscover his voice on an issue that was once a focal point of national Democratic politics. He can start by bringing together neglected criminal justice reform groups and doing some much-needed listening.
Max Burns is a veteran Democratic strategist and founder of Third Degree Strategies.