Even Joe Biden, one of the more moderate 2020 candidates, argued at the September Democratic presidential debate that “We should be talking about rehabilitation. Nobody should be in jail for a nonviolent crime” and that “Nobody should be in jail for a drug problem. We build more rehabilitation centers, not prisons.”

Once a strong supporter of the death penalty, Biden now calls for its elimination, noting on his website:

Over 160 individuals who’ve been sentenced to death in this country since 1973 have later been exonerated. Because we cannot ensure we get death penalty cases right every time, Biden will work to pass legislation to eliminate the death penalty at the federal level.

While many of the Democratic presidential candidates have effectively joined the decarceration movement, the same unity cannot be found among House and Senate Democrats. At this level, the movement is one more source of conflict between the Alexandria Ocasio-Cortez wing and the many members of the House and Senate who must fight for re-election in more moderate districts and states, including those that cast majorities for Trump in 2016.

Laurence Tribe, a professor of constitutional law at Harvard, described the thinking underpinning progressive Democratic policies broadening the rights of the homeless. In an email, Tribe wrote:

The supposed “rights” of those who are upset or psychologically threatened by the homeless, the deinstitutionalized, or others similarly situated are what I would call second-order rights, rights that a polity cannot fairly treat as having as strong a claim to protection, as trumps that override utilitarian claims as is true of genuine rights.

Put another way, Tribe continued,

my “right” not to be upset by your appearance or life choices cannot occupy the same plane as your right to live your life as you opt to, or are compelled to, live it if we are to have a viable social and legal system. One needn’t be a libertarian to recognize that there is a difference in kind between someone’s genuine right to be free of another’s physical intrusion or displacement and someone’s ersatz right to be free of another’s merely offending or upsetting behavior or circumstances.

In this view, according to Tribe, “rights of the first, or primary, sort can be universally recognized; rights of the second sort must be subordinated if social life is to be tolerable.”

Trump, for his part, clearly rejects Tribe’s distinction between first versus second order, or genuine versus ersatz, rights. For Trump, the people who come into contact with the homeless have first order rights. In a July 1, 2019, interview with Fox’s Tucker Carlson, Trump declared:

You can’t have what’s happening — where police officers are getting sick just by walking the beat. I mean, they’re getting actually very sick, where people are getting sick, where the people living there living in hell, too.

Trump went on:

We cannot ruin our cities. And you have people that work in those cities. They work in office buildings and to get into the building, they have to walk through a scene that nobody would have believed possible three years ago. And this is the liberal establishment. This is what I’m fighting.

Republicans are responding to the initiatives of progressive prosecutors with a vengeance.

In a fiery speech on Aug. 12 at the Grand Lodge Fraternal Order of Police’s conference in New Orleans, Barr warned that progressive prosecutors in cities across the nation are “demoralizing to law enforcement and dangerous to public safety.”

This threat, Barr continued, comes from

the emergence in some of our large cities of District Attorneys that style themselves as ‘social justice’ reformers, who spend their time undercutting the police, letting criminals off the hook, and refusing to enforce the law.

These prosecutors, Barr declared,

have been announcing their refusal to enforce broad swathes of the criminal law. Most disturbing is that some are refusing to prosecute cases of resisting police. Some are refusing to prosecute various theft cases or drug cases, even where the suspect is involved in distribution. And when they do deign to charge a criminal suspect, they are frequently seeking sentences that are pathetically lenient. So these cities are headed back to the days of revolving door justice. The results will be predictable. More crime; more victims.

Three days later, William M. McSwain, the Trump-appointed United States Attorney for the Eastern District of Pennsylvania, called a news conference to explicitly attack the Philadelphia district attorney, Larry Krasner. Krasner was elected in 2017 on a platform promising to

End mass incarceration; Stop prosecuting insufficient and insignificant cases; Review past convictions, free the wrongfully convicted; Stop cash bail imprisonment; Treat addiction as a medical problem, not a crime.

To McSwain these policies are heretical:

There is a new culture of disrespect for law enforcement in this city that is promoted and championed by District Attorney Larry Krasner — and I am fed up with it. It started with chants at the DA’s victory party — chants of “F*** the police” and “No good cops in a racist system.”

There are, McSwain argued,

plenty of criminal laws in this city — but what we don’t have is robust enforcement by the district attorney. Instead, we have diversionary programs for gun offenses, the routine downgrading of charges for violent crime, and entire sections of the criminal code that are ignored.

Most recently, President Trump, at a rally on Dec. 10 in Hershey, Pa., told the crowd “You have the worst district attorney,” referring to the Philadelphia D.A., roughly 95 miles east. “I’ve been hearing about this guy, he lets killers out almost immediately. You better get yourself a new prosecutor.”

Turning the decarceration movement into a 2020 campaign issue fits into Trump’s go-to strategy of inflaming divisive conflicts, especially those involving disputed rights — particularly those benefiting minorities — in order to activate racial resentment, to mobilize his core voters and to goad swing voters into lining up against the Democratic Party.

While Trump’s strategy was successful in 2016, it is by no means clear that this strategy will work as well in 2020.