Democratic program signals centrist change of course in criminal justice policy

As a presidential candidate in 2020, Kamala Harris cited her longstanding opposition to the death penalty, which she called “deeply immoral, irreversible and ineffective.” After his election, Joe Biden became the first U.S. president to publicly oppose the death penalty while reinstating a moratorium on federal executions that Donald Trump had lifted. And the Democratic Party’s platform for 2020 called for the abolition of the death penalty.

But the platform adopted at the Democratic Party convention last week, which nominated Vice President Harris as Biden’s successor, made no mention of the death penalty.

Nor did it call for an end to the “war on drugs” – unlike the 2020 platform – nor for the elimination of mandatory prison sentences for certain federal crimes, nor for the elimination of qualified immunity, the Supreme Court doctrine that can make it virtually impossible to sue police for civil rights violations.

The program also includes the statement that “we need to defund the police, not defund the police.”

There were still significant differences between Democrats and Republicans, whose agendas include mass executions, fewer restrictions on police searches, opposition to unidentified “Marxist prosecutors” and “the largest deportation program in American history.” But the Democratic platform on crime and punishment, which received little attention at the Chicago convention, suggests an ideological shift.

It seems “largely consistent with the approach Kamala Harris took when she was district attorney (in San Francisco) and later attorney general (in California), namely a centrist approach to criminal justice,” says David Sklansky, a law professor at Stanford and former federal prosecutor.

He cited then-District Attorney Harris’ 2009 book, “Smart on Crime,” in which she called for tougher policing and compassion for criminals. Sklansky said the Democrats’ 2024 platform contains elements of both. It calls for limits on solitary confinement in prisons and chokeholds by police, as well as more education and employment programs for released prisoners and bans on dangerous firearms.

The party’s stance is reminiscent of the policies of President Bill Clinton, said Robert Weisberg, also a law professor at Stanford University and co-director of the university’s Criminal Justice Center. He said Clinton took office in 1993, for the first of his two terms, as “a more centrist ‘New Democrat’ who wanted to immunize the party against attacks that did not tolerate crime.”

In 1994, Clinton – with the help of Senator Joe Biden (D-Delaware) – signed a sweeping crime bill that increased federal penalties, encouraged states to do the same, expanded the federal death penalty, and provided significant funding for additional police and prisons. The bill also included a nationwide ban on semi-automatic rifles, sponsored by Senator Dianne Feinstein (D-California), which Congress allowed to expire ten years later.

Weisberg pointed out that Harris, as a 2020 presidential candidate, faces resistance from some on the left because of her past as a prosecutor.

Like all San Francisco district attorneys since 1995, she refused to seek the death penalty in murder cases. But she was criticized by conservatives – and by Feinstein – for refusing to bring capital charges against the man who shot and killed police officer Isaac Espinoza in 2004. The defendant, David Hill, was found guilty of first-degree murder and sentenced to life in prison.

At the same time, as Attorney General, she was criticized by liberals for appealing a federal judge’s 2014 ruling that California’s death penalty law was unconstitutional and arbitrary because prisoners sentenced to death had to wait 20 years or more before they could receive legal representation and before their appeal was decided.

A federal appeals court overturned the ruling and kept the death penalty in place, even though California has not executed anyone since 2006, despite more than 630 inmates being sentenced to death there. As attorney general, Harris said she is legally obligated to defend state laws in court unless she believes they are unconstitutional – such as the ban on same-sex marriage, which was approved by California voters in 2008 and overturned by federal courts in 2013.

During her current election campaign, she has not publicly addressed the death penalty. Trump, on the other hand, is calling for some non-murder crimes, such as drug trafficking and human trafficking, to be punishable by death, even though the Supreme Court in 2008 declared the death penalty unconstitutional for non-murder crimes against civilians.

Project 2025, an ultra-conservative blueprint for a future Republican administration drafted by 140 former Trump administration officials, calls for the immediate execution of all 40 federal prisoners sentenced to death.

And Trump has also promised to pardon all those convicted of their involvement in the attack on the U.S. Capitol on January 6, 2021 – a promise that Laurie Levenson, a professor at Loyola Law School in Los Angeles, called “outrageous and destabilizing.”

Levenson is a former federal prosecutor and founding director of her school’s Project for the Innocent. She said the Democratic program “is silent because there is no benefit in getting too specific on criminal justice issues.”

The position that the organization apparently wants to convey to the public is: “We want to reduce crime, but we want to do so humanely.”

Reach Bob Egelko: [email protected]; Twitter: @BobEgelko