Rebooting Federal Criminal Justice Policy
Crime has consistently ranked among the top issues for voters this election season. Once a bright spot of bipartisan cooperation, ideological division and polarizing rhetoric have seeped into the criminal justice debate. The breakdown of this consensus jeopardizes the safety and well-being of our communities.
Efforts like the First Step Act, signed by former President Donald J. Trump, demonstrated the ability of policymakers to cooperate on this issue. However, the First Step Act was always intended to be precisely that—a first step. The next president will have an opportunity to take a second, and perhaps even a third step. Both candidates agree that our current system is imperfect—overburdened, overused, and failing to tackle the root causes of crime. But they disagree on what to do, and even how serious the problem is.
A vibes-based approach to criminal justice has gotten both parties into trouble. After Democrats realized that literally defunding the police would be disastrous, they pivoted to mandating feel-good policies like diversity, equity, and inclusion training that do little to stop crime. Conversely, Republicans are susceptible to over-prioritizing ineffective punitive solutions, regardless of the cost.
Most Americans are no longer willing to allow ideologues to play political games with their safety. Here are three pragmatic ways in which either Trump or current Vice President Kamala Harris could return to bipartisan basics and improve the criminal justice system.
1. Back Federal Clean Slate
Over one-third of Americans have a criminal record. A criminal history—even an old arrest that never resulted in a conviction—can block access to employment, housing, and education long after a person has paid their debt to society. It is a life sentence that needlessly hinders reentry, incentivizing further criminal activity. This cycle makes us all less safe. The next president can help restore basic dignity to thousands of Americans by championing a federal Clean Slate initiative to seal or expunge records for certain low-level, non-violent offenses after a period of law-abiding behavior. Top prosecutors, law enforcement officials, and business leaders support Clean Slate because they realize public safety suffers when people are barred from obtaining the basic building blocks of a stable life.
2. Deschedule Cannabis
Even though most Americans now live in states that have legalized cannabis, the substance remains illegal under federal law. This absurd inversion of federalism obstructs interstate commerce, undermines police legitimacy, and criminalizes millions of law-abiding Americans. The next president has a responsibility to listen to the people and reschedule cannabis under the Controlled Substances Act. A coherent national cannabis policy will improve police-community relations and help minority communities who bear the brunt of prohibition’s many negative externalities. If the new president truly wants to be pro-business, they should allow entrepreneurs to operate without the looming threat of federal prosecution.
3. Direct Department of Justice Agencies to Adopt AI
Artificial intelligence (AI) has become increasingly common in every corner of society. Law enforcement agencies are already using it to improve predictive policing, expedite emergency response, and automate tasks that consume valuable officer time. Even though risks around surveillance and due process are real, the next president must not give in to alarmist dystopian narratives by overregulating a nascent industry. President Joe Biden’s executive order relied on a questionable interpretation of the Defense Production Act, compelling companies to share AI training data with the U.S. Department of Commerce. Using emergency powers to force private companies to hand over proprietary research and development data is a classic case of executive overreach. Instead, the next president should work with Congress to address the implications of these technologies while maintaining the permissionless innovation framework at the core of American technological dominance.
The new president can cross these items off their to-do list relatively quickly. Judging a new administration by their first 100 days is somewhat arbitrary, but it is a useful benchmark if the goal is to decisively change the tone in Washington. Whether it takes 100 or 200 days, the next president must act quickly. Otherwise, they risk becoming trapped in the partisan doom loop that threatens to put criminal justice reform on ice for the next four years, if not longer.