Joe Biden’s Role in Mass Incarceration Was No ‘Mistake’: It Was Politics

This is the seventh installment in a series, The Contenders 2020: Criminal Justice in the Race for President. It was published as part of the April 25 Daily Appeal newsletter.

Of all the candidates vying for the Democratic nomination who have helped to make mass incarceration the monstrosity it is today, Joe Biden has come the closest to apologizing. “You know I’ve been in this fight for a long time. It goes not just to voting rights. It goes to the criminal justice system,” Biden said at a breakfast honoring Martin Luther King Jr. earlier this year. “I haven’t always been right. I know we haven’t always gotten things right, but I’ve always tried.” He did not mention his role in crafting the infamous 1994 crime bill, but he did highlight his work with President Barack Obama to address the sentencing disparity for crack versus powder cocaine. “It was a big mistake when it was made,” he said. “We thought, we were told by the experts, that crack you never go back, it was somehow fundamentally different. It’s not different, but it’s trapped an entire generation.”

The apology wasn’t exactly “mistakes were made,” but it was not particularly satisfying. It comes from a man who, defending the 1994 crime bill, said, “The liberal wing of the Democratic Party is now for 60 new death penalties. … The liberal wing of the Democratic Party has 70 enhanced penalties. … The liberal wing of the Democratic Party is for 100,000 cops. The liberal wing of the Democratic Party is for 125,000 new state prison cells.” When Bill Kristol told the GOP leadership to keep attacking Democrats on the crime bill, Biden responded: “I would like to be running and have someone ‘use the crime bill’ against me.” [Branko Marcetic / Jacobin]

Biden’s apology does not satisfy because it is a lie: He recasts decades of work ramping up mass incarceration—stripping underserved communities of rights, opportunities, freedom, and dignity—as a “big mistake,” a good-faith attempt gone wrong. It was, first and foremost, politics.

Biden’s real aim in escalating mass incarceration was to beat the GOP in elections, writes Branko Marcetic for Jacobin. “I hope to God that Bush attacks us on crime,” Biden said on the eve of the 2000 election. “I think we would eat them alive.” Speaking five years later at the National Sheriffs’ Association, Biden told the audience that the 1994 bill had been “written by cops and sheriffs,” and that “there is never a time, absent a decrease in population, where you can justify spending less money on crime than you spent the year before.” While running for President in 2007, he told the group, “my greatest accomplishment is the 1994 Crime Bill.” [Branko Marcetic / Jacobin]

In 1989, then-President George H.W. Bush delivered a speech outlining his National Drug Control Strategy, in which he called for harsher punishments for drug dealers, nearly $1.5 billion toward drug-related law enforcement, and “more prisons, more jails, more courts, more prosecutors” at every level throughout the country. Biden was determined to look tougher. “Quite frankly, the president’s plan is not tough enough, bold enough, or imaginative enough to meet the crisis at hand,” Biden said in a televised response to Bush’s speech. “In a nutshell, the president’s plan does not include enough police officers to catch the violent thugs, enough prosecutors to convict them, enough judges to sentence them, or enough prison cells to put them away for a long time.” Throughout the 1990s, Republicans would put forward a measure that escalated the carceral state, and Biden would look to one-up it. [Branko Marcetic / Jacobin]

In a 2015 Slate article titled, “Don’t Run, Uncle Joe,” Jamelle Bouie wrote that in 1984, Biden worked with Republican Senator Strom Thurmond and the Reagan administration “to craft and pass the Comprehensive Control Act, which enhanced and expanded civil asset forfeiture, and entitled local police departments to a share of captured assets,” Two years later, Biden co-sponsored the Anti-Drug Abuse Act, which “created new mandatory minimum sentences for drugs, including the infamous crack-versus-cocaine sentencing disparity,” which was 100:1. Biden help craft the 1988 Anti-Drug Abuse Act, which “strengthened mandatory minimums for drug possession, enhanced penalties for people who transport drugs, and established the Office of National Drug Control Policy, whose director was christened ‘drug czar’ by Biden.” [Jamelle Bouie / Slate]

Biden left his biggest mark on crime policy in the Violent Crime Control and Law Enforcement Act, commonly called the 1994 Crime Bill. “Written by Biden and signed by President Clinton, it increased funds for police and prisons, fueling a huge expansion of the federal prison population.” It also spurred rapid militarization of police forces. [Jamelle Bouie / Slate] It was also, in many ways, cruel. As Nicholas Fandos writes, the bill eliminated Pell Grants for people in prison, “criminalized gang membership, contained $9.7 billion in funding for new prisons, established a three-strikes provision that mandated life sentences for people with two or more prior convictions found to have committed a violent felony, and gave states incentives to lengthen sentences. These measures, many experts now say, helped give the United States the highest incarceration rate in the world.” [Nicholas Fandos / New York Times]

“It’s true that much of this—especially the most egregious and ill-conceived measures—was a response to extraordinarily high crime rates that devastated urban communities,” Bouie writes. “Many of Biden’s allies, in fact, were Black Democrats from communities where violence was common and pervasive. But Biden would keep this approach, even as violent crime declined through the 1990s and into the 2000s. He would continue to vote for strong anti-drug efforts, going as far as to push for a federal crackdown on raves, citing Ecstasy distribution.” [Jamelle Bouie / Slate]

And it’s not as if there weren’t voices speaking out, including the NAACP and other groups. In 1991, a few days before a vote on a crime bill Biden helped craft, ACLU lawyers called the bill “far worse from a civil liberties perspective than any that has ever been considered by the Senate.” Lawyers and federal judges warned it would overwhelm the judicial system and worsen inequality. The Washington Post condemned the proposals as “rotten” and an exercise “not so much to combat crime as to convince the public that legislators are tough on criminals.” [Branko Marcetic / Jacobin]

“To Biden’s credit, he has eased his tough-on-crime stance over the past 30 years,” German Lopez wrote for Vox in 2015. “In 2008, he backed the Second Chance Act, which provides monitoring and counseling services to former [prisoners]. And in his last few years in the Senate, Biden began supporting the full elimination of the sentencing disparity between crack and powder cocaine.” Biden said during a 2008 Senate hearing, “Many have argued that this 100-to-1 disparity is arbitrary, unnecessary, and unjust, and I agree. And I might say at the outset in full disclosure, I am the guy that drafted this legislation years ago with a guy named Daniel Patrick Moynihan. … I am part of the problem that I have been trying to solve since then, because I think the disparity is way out of line.” [German Lopez / Vox]

Biden wasn’t fully on board with some of the harsher measures in the 1994 law. In 1993, Biden argued for undoing some mandatory minimums for drug offenses. He also supported the “safety valve,” which allows a few low-level first-time drug offenders to avoid mandatory minimum sentences. At least, Lopez writes, Biden “is on record stating his regrets and concerns with tough-on-crime policies through the 1990s and 2000s.” [German Lopez / Vox]

Even if Biden truly believed that his approach to crime would increase safety for some, it seems that he also understood it would inflict serious damage to whole communities, not just to the people he called “violent thugs.” And even if that weren’t the case, his primary motivation appears to have been political wins, not safety. The challenge for Biden in 2019 is to convince the public that his views on criminal policy have changed, not because the political winds have shifted, but because he has come to understand that his actions caused far more harm than good. Maybe it’s too much to ask that politicians not care about politics, but at the very least, Biden must show that he crossed a line of human decency, over and over, and that he is deeply sorry for the lives that have been ruined along the way.

“People at their best always evolve,” said Brittany Packnett, a St. Louis-based activist who was a member of Obama’s 21st Century Policing task force. When she and other activists met with Biden and other officials during Obama’s presidency, she said it was apparent that Biden understood the urgency of reform. “But we need to be told the story of that evolution. This needs to be clarified for us such that any plan that he puts forward addressing this would be seen as believable.” [Nicholas Fandos / New York Times]