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It is not an understatement to say that Black Lives Matter and criminal justice issues are dominating the national conversation. Over the past year, police killings like those of Michael Brown, Freddie Gray, and Eric Garner have gotten a lot of attention from the media and the public, while criminal justice reform looks like one of the few issues that could actually make it through a dysfunctional Congress.
But in the Democratic and Republican debates, issues like police brutality and prison reform have gotten barely any attention from the moderators or candidates. For example, the big question in the first Democratic debate was about slogans ("black lives matter" versus "all lives matter"). And the Republican debates have seldom brought up the issue at all — usually tossing a question to one or two candidates, while other issues are put to the entire field and have room to flourish into an actual discussion.
As a result, when these issues do get attention, the answers are typically vague and insubstantial. Never do we get specifics about how candidates plan to reduce racial disparities in policing and prisons, or how they plan to cut back on mass incarceration so America is no longer the world's leader in imprisoning people.
Maybe part of the problem is the questions are generally very vague, and rarely hit on any issues of substance. With that in mind, here are some of the important questions that moderators could ask the candidates about criminal justice issues.
Experts say undoing mass incarceration would likely require imprisoning fewer violent offenders and even releasing some of them. Is that something you'd be willing to consider?
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It's an uncomfortable fact of mass incarceration that a plurality of people in prison are in for violent crimes: About 46 percent of US inmates were in prison for violent crimes in 2013, while about 19 percent were in for drug offenses, according to the Bureau of Justice Statistics. This is particularly true at the state level, where most US prisoners are held and more than 53 percent are violent offenders.
But candidates tend to pay attention to the low-hanging fruit — the nonviolent drug offenders — since it's potentially less risky to let those prisoners out. But if candidates want to truly end mass incarceration and bring US incarceration rates significantly closer to other countries' numbers, they're going to have to figure out a way to cut down on the number of violent offenders in prison as well.
Has the Obama administration done enough to prevent aggressive prosecutions by US attorneys? What would you do differently?
Prosecutors are arguably the most powerful actors in the American criminal justice system: While police make the initial arrest, it's prosecutors who ultimately decide who actually faces charges and goes to trial. They literally decide which law actually has teeth.
The Obama administration has made some efforts to reel in prosecutors as part of its plan to reduce incarceration and let states experiment with marijuana legalization. But some US attorneys seem to have quite literally not gotten the memo and continued cracking down on marijuana businesses. US Attorney Melinda Haag, for example, has gone after medical marijuana dispensaries in northern California — even when they don't appear to violate the terms set out by the federal memo discouraging prosecutors from cracking down on marijuana in states where it's legal for medical or recreational purposes.
So if candidates want to allow states to experiment with marijuana policy — as all the Democrats and a few Republicans have suggested — and want to cut down on mass incarceration, finding a way to stop overzealous prosecutors may be one of the most important issues.
More than 86 percent of prisoners are in state facilities. What can the federal government do to encourage decarceration in the states?
The overwhelming majority of prisoners — nearly 87 percent, according to BJS — are in state facilities. The federal government obviously has less power over incarceration in the states than it does in federal prisons, but that doesn't mean it's powerless. For example, a federal law passed in 1994 encouraged states to lock up more people by providing financial incentives for states to build more prisons and impose longer prison sentences. The Brennan Center for Justice, a reform-minded group, put out a plan that is essentially the reverse of this: The proposal provides financial incentives for states to incarcerate fewer people without increasing levels of crime.
Particularly for Democrats like Bernie Sanders and Hillary Clinton who supported the 1994 law, asking them whether they would support this "Reverse Mass Incarceration Act" or any other measure that would encourage decarceration in the states could gauge how serious they are about cutting back on mass incarceration.
There's a lot of support for body cameras to hold police accountable and reduce use of force. But given the limits of body cameras, what else can be done?
Police-worn body cameras have been very popular on the campaign trail, with all the Democrats and many Republicans voicing support for them. But while some studies show they can reduce use of force incidents and improve accountability, these devices have limits — most notably, it can fall on self-interested law enforcement to decide who gets to see the video, and the footage may not always give a clear view of what happened.
Given these limits, Campaign Zero, started by Black Lives Matter activists, suggested a few ideas that go beyond body cameras: ending the policing of petty crimes, allowing more community oversight through civilian review boards that watch over police, and limiting the legal standards for police use of force. A candidate's argument for or against these types of measures could show where he or she stands on the central issue of the Black Lives Matter movement.
Experts say implicit bias plays a role in racial disparities in policing. What do you think can be done to address this type of subconscious prejudice?
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Black Americans are disproportionately likely to be shot by police and arrested. One explanation for that is what's known as implicit bias: subconscious prejudices against certain groups of people. Studies show, for example, that officers are quicker to shoot black suspects in video game simulations. Josh Correll, a University of Colorado Boulder psychology professor who conducted the research, said it's possible the bias could lead to even more skewed outcomes in the field. "In the very situation in which [officers] most need their training," he previously told me, "we have some reason to believe that their training will be most likely to fail them."
Experts who have studied this issue have proposed all sorts of ideas for helping reduce this bias, including simply making cops aware of it, hiring more minority police officers, and forcing cops to interact with black residents more often in a less antagonistic way. And the federal COPS Office supports some programs that combat implicit bias.
Given the interest in racial disparities in police use of force, the candidates could show how seriously they take the issue by at least discussing substantial solutions to one of the big reasons behind it.
Should drug courts mandate rehabilitation and treatment with the threat of incarceration?
Many candidates on the left and right have come out in favor of drug courts, which attempt to push drug users into rehabilitation programs instead of jail and prison.
But some reform-minded groups have criticized drug courts. The Global Commission on Drug Policy argues that drug courts can end up nearly as punitive as the full criminalization of drugs, because the courts often enforce total drug abstinence with the threat of incarceration. Since relapse is a normal part of rehabilitation, the threat of incarceration means a lot of nonviolent drug offenders can end up back in jail or prison through drug courts.
For the candidates who don't want to incarcerate drug users but also support drug courts, it could be revealing to see whether they have any other ideas for how to push drug users into rehab instead of prison — perhaps by not getting the criminal justice system involved at all.
