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Biden’s Current Prison Reform Stance Counter to His Abysmal Record

by David M. Reutter

After decades of leading the charge during the tough-on-crime era, Democratic presidential candidate and former U.S. Vice President Joseph R. Biden, Jr. is trying to fashion himself as a champion of prison reform. Since July 2019 his campaign website has included proposals to abolish the death penalty, legalize marijuana use and reform sentencing laws, as well as a push to “stop corporations from profiting off of incarceration.”

But that position is far from the one he took as a senator in 1989, at the height of a crime wave that led to many of the country’s anti-drug policies which encouraged mass-incarceration. Back then Biden went on television to criticize as inadequately harsh the plan of President George H.W. Bush to escalate the war on drugs.

“Quite frankly, the president’s plan is not tough enough, bold enough, or imaginative enough to meet the crisis at hand,” said Biden, who wanted not only tougher penalties for drug dealers, but also to “hold every drug user accountable.”

In criticizing Bush’s plan, Biden said it “doesn’t include enough police officers to catch the violent thugs, not enough prosecutors to convict them, not enough judges to sentence them, and not enough prison cells to put them away for a long time.”

As head of the Senate Judiciary Committee in the late 1980s and early ’90s, Biden not only supported the war on drugs that led to mass incarceration, he co-authored many of the laws that led America to have the world’s highest per capita prison population. He pushed The Comprehensive Control Act of 1984, which expanded federal drug trafficking and civil asset forfeiture without proof of guilt, and the Anti-Drug Abuse Acts of 1986 and 1988 that increased crack cocaine and overall drug offense penalties.

The Violent Crime and Law Enforcement Act of 1994, which increased drug possession sentences and increased prison funding, was an achievement he hung his political hat on. His 2008 presidential campaign website called that Act the “Biden Crime Law,” and it proudly touted the funding in the law that encouraged states to effectively increase their prison populations by paying them to build more prisons.

In 2016, Biden was asked on CNBC if he was ashamed of that law. “Not at all,” he responded. “As a matter of fact, I drafted the bill, if you remember.” While acknowledging he’d change parts of the law, he maintained that “by and large what it really did, it restored American cities.”

Biden did distance himself a bit from his tough-on-crime record in 2008 when he backed the Second Chance Act, which provides monitoring and counseling services to former prisoners. He also supported the Fair Sentencing Act of 2010. It reduced the disparity between prison sentences for crimes involving crack and powder-cocaine from 100-1 to 18-1. In January 2018, Biden said the disparity “was a big mistake when it was made. We thought, we were told by the experts, that crack you never go back. It was somehow fundamentally different. It’s not different.” His son Hunter Biden was a well-known crack user who has been to rehab several times, but not prison.

Then, in July 2019, as he was ramping up for a run in the 2020 presidential race, Biden released a sweeping criminal justice reform plan. In addition to decriminalizing marijuana and ending the death penalty, it proposed eliminating mandatory minimum sentences for nonviolent crimes, abolishing private prisons, getting rid of cash bail, and discouraging the incarceration of children. He also says he will create a $20 billion grant program to encourage states to reduce incarceration and crime.

Biden’s record worries criminal justice reformers that if crime rates soar again he will revert back to his tough-on-crime stance. “Even if Biden had subsequently learned the error of his ways,” wrote Branko Marcetic for Jacobin, “the rank cynicism and callousness involved in his two-decade-long championing of carceral policies should be more than enough to give anyone pause about his qualities as a leader, let alone a progressive one.”

Most direct criticism from Biden’s rivals for the Democratic presidential nomination was confined to three who have now dropped out of the race: Senators Cory Booker of New Jersey and Kamala Harris of California, as well as Obama administration Secretary of Housing and Urban Development Julian Castro of Texas.

But in August 2019 Senator Elizabeth Warren took a not-so-subtle swipe at her opponent by calling for repeal of the 1994 crime bill that Biden authored. Without naming the former vice president, Warren called the law a “punitive ‘tough on crime’ approach” that was “wrong.”

“It was a mistake,” Warren added, “and it needs to be repealed.”

And in a January 2020 op-ed for The State, a South Carolina newspaper, Nina Turner, a former state senator and campaign co-chair for Senator Bernie Sanders of Vermont, said that Biden had “repeatedly betrayed black voters to side with Republican lawmakers and undermine our progress.”

Criticism of Biden’s criminal justice positions have been a key factor hurting his presidential chances. The one-time front runner performed poorly in the Iowa caucuses and New Hampshire primary and is no longer favored to win the Democratic Party’s nomination. 



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