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Biden on criminal justice: After working the middle, criticism from the left

Along with mandatory minimums, laws included ‘assault’ rifle ban and domestic violence penalties

As a senator, Joe Biden worked with Strom Thurmond on legislation to establish mandatory prison sentences for drug offenses. (CQ Roll Call file photo)

Former Vice President Joe Biden’s record as a senator who crafted tough-on-crime laws in the 1980s and the 1990s will likely make him a target on the presidential debate stage Wednesday night, as Democratic opponents seek to paint him as out of touch.

But as with many aspects of his 36-year record in the Senate, work that put Biden squarely in the center of his party on criminal justice now poses a problem as he tries to to attract voters seeking younger, more diverse leaders.

As violent crime rates and a crack cocaine epidemic raged in the ’80s and ’90s, Democrats and Republicans battled to one-up each other over who could be toughest on crime.

Biden championed strict minimum prison sentences and an expansion of the federal death penalty. Some of his 2020 rivals, like Sen. Cory Booker, who has branded the “war on drugs” a failure, and Sen. Kamala Harris say those policies contributed to mass incarceration and unequal treatment for minorities.

“The proud architect of a failed system is not the right person to fix it,” Booker said in a statement last week after Biden released a justice overhaul plan.

Yet laws Biden is attacked for included a sweeping package that had features liberals support, including a ban on semi-automatic assault rifles and increased penalties for domestic violence.

Biden’s role as a key player on crime dates to him becoming the top Democrat on the Senate Judiciary Committee in 1981.

“The political context of the time was, ‘Lock ’em up,’” said Scott Wallace, who worked as counsel for the Judiciary panel under Pennsylvania Sen. Arlen Specter, a Republican who later became a Democrat. “Tougher sentences, longer sentences, whatever the crime du jour was, that’s the way Congress did things on crimes in the ’80s and ’90s.”

After two decades in which Congress had repealed almost all legislation requiring mandatory minimum sentences, Biden, in 1984 and 1986, helped pass two bills that went in the opposite direction. The Comprehensive Crime Control Act, which he spearheaded with South Carolina Republican Strom Thurmond, established mandatory minimum sentences for drug offenses.

The Anti-Drug Abuse Act of 1986 put in place stricter penalties for drug crimes and instituted tougher sentences for crack cocaine, more prevalent in minority communities, than for powder.

When he became Senate Judiciary chairman in 1987, shortly before he launched his first failed presidential campaign, Biden told aides he wanted to double down on crime, according to a report in The New York Times.

‘Hang people for jaywalking’

That began a six-year odyssey that culminated in the 1994 passage of a sweeping anti-crime bill that has been the focus of much of the current criticism of Biden’s legacy. 

Biden clashed throughout the process with Republicans over whose proposal had the most teeth. The Delaware senator said in 1991 that his bill was “much tougher” than one proposed by President George H.W. Bush.

“We do everything but hang people for jaywalking,” Biden said.

His work ultimately got a boost from President Bill Clinton, who was inaugurated in 1993 and made the passage of a tough crime package a priority of his administration. It was also helped along by public opinion polls that showed crime was a top issue among voters in the 1994 midterm elections.

Clinton wanted money for hiring 100,000 new police officers, an expanded federal death penalty and an overhaul of the federal appeals process for death row inmates. Those provisions were already in Biden’s bill. Biden acted swiftly to introduce a bill that included most of what Clinton asked for and a few new provisions.

He bypassed his committee and got his bill passed on the Senate floor. The House version of the measure faced more opposition, some of it from Democrats.

Democrats who supported gun rights opposed the bill because it banned the sale of assault rifles and set a waiting period for handgun purchases, a provision that was later split out and passed separately as the Brady Act.

Liberals argued that the death penalty and mandatory minimums were hollow at the federal level because almost all violent crime was prosecuted in state courts. And the Congressional Black and Hispanic caucuses fought for a provision designed to counter racial bias in death row sentencing, which was ultimately dropped from the bill.

Rethinking mandatory minimums

By then, Biden had started to revise his thinking on mandatory minimum sentences.

“I think we’ve had all the mandatory minimums that we need,” he told an audience of lawyers, judges and probation officers at a 1993 symposium sponsored by the U.S. Sentencing Commission. “We don’t need the ones that we had.”

But Biden predicted that he would not be able to prevail over his colleagues. Indeed, that October, Biden said on CBS’ “Face the Nation” that he would support tougher mandatory minimum sentencing if Republicans would agree to the gun control measures in the bill.

The final bill, signed by Clinton, authorized $30.2 billion over six years and represented an unprecedented federal venture into crime-fighting.

The money would go toward hiring police officers and building prisons, partly in the form of grants to states that adopted tough “truth in sentencing” laws requiring repeat violent offenders to serve at least 85 percent of their sentences. It paid for prevention programs — ridiculed by Republicans as “pork.” It authorized the death penalty for dozens of existing or new federal crimes and put in place a “three-strikes-and-you’re-out,” provision, which mandated life imprisonment for a third violent felony in most cases.

The new law also put in place the first federal penalties for domestic violence and crimes against women, and a ban on the sale of 19 types of semi-automatic rifles. The 10-year ban expired in 2004 and was not renewed.

“I knew in 1994 that this was bad policy and would lead to more incarceration and greater racial disparity in sentencing,” said Marc Mauer, executive director of The Sentencing Project. “Joe Biden and Bill Clinton had access to the same research I did, and they came to very different conclusions.”

Biden attempted to head off some of that criticism last week, unveiling a new criminal justice agenda that would abolish the death penalty at the federal level, eliminate mandatory minimum sentences and end sentencing disparities for crack and powdered cocaine.

But in a preview of what’s to come on the debate stage, Booker criticized the proposal on Twitter as too little, too late.

“You created this system,” he wrote. “We’ll dismantle it.”

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