Explore Harvard's Nieman network Nieman Fellowships Nieman Lab Nieman Reports Nieman Storyboard

The candidates on the legal justice system

COMMENTARY | April 03, 2008

Where McCain, Clinton, Obama stand on the death penalty, crack cocaine sentencing, minimum sentencing and other issues.

By Nonna Gorilovskaya

Some 2.3 million Americans—more than one in every hundred adults—are in prison or in jail this election year. This unflattering record hasn’t prompted much debate between the presidential candidates on the criminal justice system, or many questions from reporters, either. The Washington-based Sentencing Project, a nonprofit organization that urges reform, charts out the positions of John McCain, Hillary Clinton and Barack Obama on issues such as the death penalty and mandatory minimum sentences in a report issued in March. McCain is the most status quo of the three, while Clinton and Obama have come out for and helped pass some legislative reforms.

All three candidates support the death penalty. Obama’s views on the subject have shifted in a more conservative direction over the years. “When Barack Obama first ran for the Illinois state Senate in 1996, he said in a campaign questionnaire that he opposed capital punishment…By the time Obama ran for the U.S. Senate in 2004, he was not advocating abolition of the death penalty, but was saying the system of investigating and prosecuting crimes was so flawed that the nation should declare a moratorium on executions,” according to a San Francisco Chronicle  article quoted in the report. That position has shifted, so that today Obama supports the death penalty for the most heinous crimes.

As a state senator, Obama passed a landmark Illinois law that required the videotaping of police interrogations and confessions in capital cases. The report notes Clinton’s support as first lady for her husband’s 1994 crime bill that expanded the number of crimes covered by the federal death penalty and her advocacy for DNA testing. McCain was against the Racial Justice Act that would have allowed minority defendants sentenced to death to use statistics showing a pattern of discrimination in death penalty sentencing in their jurisdictions in their appeals. Although the Act was passed by the House, Senate opposition meant that it never made it into that same 1994 crime bill signed into law by President Bill Clinton.

The Democrats’ focus on the fair implementation of the death penalty was indicative of their concern about the disproportionate representation of minorities in the criminal justice system. Clinton and Obama want to eliminate the 100-1 disparity between powder and crack cocaine penalties and are co-sponsors of a bill that would equalize them. This constitutes a more liberal move for Clinton, who told the Boston Globe last year that “as a matter of practical politics” equalization may not be yet achievable “but we…ought to be able to get 10-to-1 or something that would move us in the right direction.” Obama supports the retroactive application of such sentencing changes, but Clinton has stated that she had “problems with retroactivity.” McCain’s views on the subject are not given.

Clinton and Obama prefer that nonviolent drug offenders be handled by the drug courts that order defendants to undergo treatment in lieu of jail time. In a 2007 town hall meeting, McCain also said that “we have too many first time drug offenders in prison” and pointed to an Arizona rehabilitation program that had “very significant testing procedures.”

Programs that give ex-offenders the job skills needed for a more successful reintegration into their communities have support across party lines. Obama and Clinton are cosponsors of the 2007 Second Chance Act that would provide for more substance abuse counseling and job training to former offenders. The bill was passed in the Senate on March 11th by unanimous consent and is awaiting the President George Bush’s signature.

Obama has also addressed the larger socio-economic problems that fuel the drug trade. “For many inner-city men, what prevents gainful employment is not simply the absence of motivation to get off the streets but the absence of a job history or any marketable skills—and, increasingly, the stigma of a prison record. We can assume that with lawful work available for young men now in the drug trade, crime in any community would drop,” Obama writes in his second book, The Audacity of Hope.

Federal mandatory minimum sentences garnered some attention this year when the Clinton campaign attacked Obama for previously stating that he would have voted against them. The report doesn’t offer much clarification on the differences between Clinton’s and Obama’s or, for that matter, McCain’s positions. McCain is listed as supporting mandatory minimum sentences for sellers of illegal drugs, Clinton as supporting them for some violent crimes while Obama as once urging to abolish them and promising to “review all minimum sentences and eliminate those that are too harsh.”

The Sentencing Project cites a Washington Times article arguing that Obama has shifted on this as well as other issues. “In an October 2003 NAACP debate, Mr. Obama said he would ‘vote to abolish’ mandatory minimum sentences. ‘The mandatory minimums take too much discretion away from judges,’ he said. Mr. Obama now says on his Web site, www.barackobama.com, that he would “immediately review sentences to see where we can be smarter on crime and reduce the ineffective warehousing of nonviolent drug offenders,” the paper states. But an analysis of the article by Media Matters for America, not cited in this report, points out that on the same site the senator commits to abolishing mandatory minimums for first-time possession of crack cocaine. Whether this saves Obama from the flip-flopping charge is another matter. More importantly for those trying to differentiate the candidates’ positions, how all three would address penalties for crack cocaine possession—or any other crime—is unclear from the report.

Clinton and Obama favor extending the right to vote to former felons who have served out their time but are still disenfranchised in some states. This was one of the provisions of the 2005 Count Every Vote Act that Clinton wrote and Obama co-sponsored. The bill never came up for debate in the Senate and is now dead. McCain’s position on the issue is not given.

The 12-page report begins with a table of the candidates’ stances and is followed by 10 pages of quotes, mostly from the candidates themselves.

The NiemanWatchdog.org website is no longer being updated. Watchdog stories have a new home in Nieman Reports.