Bernie Sanders Calls for Legalizing Marijuana and Curtailing Asset Forfeiture in Sprawling Criminal Justice Plan

Sanders' plan takes aim at every part of the justice system, including typical Sanders targets like private prisons and corporate "profiteers."

Democratic presidential candidate Sen. Bernie Sanders (D–Vt.) released a plan over the weekend to transform the U.S. criminal justice system, calling for federal marijuana legalization, a ban on private prisons, an end to cash bail, and curtailing civil asset forfeiture.

Sanders' 6,000-word plan, first reported by Politico, is filled with proposals that would target nearly every aspect of the criminal justice system, from policing to prosecutors to juvenile justice to pretrial detention to sentencing to the Sixth Amendment right to counsel.

The sprawling document calls for ending the federal death penalty and solitary confinement; pumping billions of dollars into state public defender systems and creating a new federal agency to oversee them; legalizing "safe injection sites" and needle exchanges; and creating a "prisoner bill of rights" that would restore inmate voting rights and lift the ban on federal Pell Grants to inmates.

It also contains typical Sanders' rhetoric about the dangers of privatization, such as the need to ban private prisons and eliminate "profiteering" in reentry and rehabilitation services for recently released inmates. (Private prisons hold less than 10 percent of inmates in the U.S. prison population.) 

Alex Vitale, a professor of sociology at Brooklyn College and the author of The End of Policing, advised the Sanders campaign on its criminal justice plan and said the document sets a "gold standard for looking comprehensively at our messed up criminal justice system."

"The most important thing for me is the framing language that says that we're over-relying on the criminal justice system to solve social problems," Vitale says. "We need to shift our emphasis from trying to engage in procedural reforms of policing and move to reduce the role of the police."

In the years since the Black Lives Matter movement rose to prominence, criminal justice reform has become a must-address issue for Democratic candidates. Sanders faced criticism in his 2016 campaign for focusing primarily on economic issues.

Other candidates in the crowded 2020 field have also released similar proposals, such as Sen. Cory Booker (D-N.J.), former Housing and Urban Development Secretary Julian Castro, and Sen. Elizabeth Warren (D-Mass.), the latter of which released her criminal justice plan today.

The leftward shift has left more centrist candidates, such as former Vice President Joe Biden, struggling to explain their tough-on-crime pasts. As Reason's Christian Britschgi wrote, Biden's criminal justice plan calls for rolling back many of the same laws that Biden himself spearheaded in the 1980s and '90s:

Biden has also endorsed a list of other, more substantive reforms, including the elimination of mandatory minimums, the abolition of private prisons, the expanded use of drug courts, and the end of the death penalty. He would also eliminate the sentencing disparity between crack and powder cocaine, and he thinks states should be allowed to pursue their own cannabis legalization policies without federal interference.

Many of Sanders' proposals, such as eliminating federal mandatory minimums and the federal death penalty, would presumably require congressional action for any long-term fix, which makes their likelihood extremely doubtful. It took a massive political lift by criminal justice advocates to pass the FIRST STEP Act last year, which merely reduced several of the harshest mandatory minimums on the books.

Other parts of Sanders' plan, such as reducing states' pretrial detention populations, would rely on federal grants (or the withholding of grants) to nudge states into compliance with federal standards. State prison systems and county jails hold the vast majority of inmates in the U.S., and under federalism this carrot-and-stick approach is the primary way in which the federal government tries to exert influence over the states, often with mixed results.

Nevertheless, Sanders' criminal justice plan is a Christmas list of things advocates have been agitating for and writing about for years.

Sanders would rescind former Attorney General Jeff Sessions' memo ordering federal prosecutors to seek the maximum sentences on the books, as well as a memo limiting the Justice Department's use of consent decrees to constrain police departments with a pattern of violating residents' constitutional rights.

The document says Sanders would "ban the practice of any law enforcement agency benefiting from civil asset forfeiture" and "limit or eliminate federal criminal justice funding for any state or locality that does not comply." Under typical asset forfeiture laws, the proceeds of property seizures often go into police and prosecutors' budgets, and civil liberties groups say this creates a perverse profit incentive.

The Justice Department's Equitable Sharing Fund currently funnels hundreds of millions of dollars a year in asset forfeiture proceeds to state and local police departments, and also allows the federal government to "adopt" local cases, letting local police to sidestep state laws that restrict their ability to retain forfeiture revenues.

Sander's plan would create a national database of fatal police encounters and require the attorney general to launch an investigation of every police-involved death. As Reason reported, the FBI collects data on fatal police shootings, but that information is voluntarily submitted by police departments, not all of which participate. As a result, the FBI reports consistently lowball the actual number of fatal police encounters in the U.S.

The plan also calls for limiting qualified immunity, a legal doctrine that shields public officials, like police, from civil lawsuits if they can prove the rights they're accused of violating were not "clearly established" at the time. Over the years, Reason has written at length about how qualified immunity's vague standard allows police to evade lawsuits if they happen to violate the Constitution in a novel way.

Sanders is one of several candidates to propose establishing an independent clemency board in the White House, separate from the Justice Department. Advocates working on Barack Obama's clemency initiative complained that one of the major roadblocks to the program was interference from the Justice Department, and they say having prosecutors involved in the vetting of clemency applications is a clear conflict of interest. Cory Booker has also proposed a similar clemency board.

Draconian "three strikes" laws would be on the chopping block under Sanders' plan as well. Reason reported last November on how a federal "three strikes" enhancement for drug offenses was used by prosecutors to hammer defendants who turned down plea deals with life sentences. The FIRST STEP Act reduced that penalty from mandatory life in prison to 25 years.

Sanders plan is long on ideas, bullish on the executive branch's power to overhaul a massive, largely independent patchwork of criminal justice systems, and somewhat short on details as to how exactly the president would do some of those things. It is also by far the most sweeping and ambitious criminal justice plan released by a Democratic candidate this cycle.