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Joe Biden's controversial criminal justice record, explained

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If Vice President Joe Biden became the next president, he could be tasked with fixing a problem he helped create: mass incarceration.

Over the past few months, criminal and racial justice reformers have become more ingrained in presidential campaigns, tasking Democrats with turning back the tough-on-crime policies that ratcheted up mass incarceration and the war on drugs. Hillary Clinton, Bernie Sanders, and Martin O'Malley have all been forced to address these issues on the campaign trail — in large part due to Black Lives Matter activists threatening or actually taking control of the candidates' speaking events.

But Biden, who seems to be getting closer to entering the presidential race, ushered in many of the laws that created these problems — at least on the federal level — in the first place. During the 1980s and '90s, Biden sponsored laws that, for example, enacted federal mandatory minimum sentences for drug trafficking and increased funding for US prisons.

Biden now acknowledges his support for some of these laws was a mistake, particularly provisions that led to a huge disparity in crack and powder cocaine sentences. And supporters argue that Biden's record is much more nuanced than his critics would suggest, filled with what the vice president saw as compromises to get otherwise good ideas — such as the Violence Against Women Act — passed.

That may be true, but it also may not matter much to Black Lives Matter activists and other criminal justice reformers. Sanders, who's widely perceived as more progressive than Biden (despite voting for the now-controversial 1994 anti-crime law), was interrupted by protesters in multiple rallies because of questions about his racial justice platform. Someone like Biden, who has a much longer record of supporting tough-on-crime policies that hurt black communities, will likely face even more pressure.

Biden consistently supported mass incarceration

As senator over the past three decades, Biden backed and even authored some of the major tough-on-crime laws that are now criticized for perpetuating racial disparities in the criminal justice system.

Here are some examples, drawn in part from Jamelle Bouie's rundown at Slate:

  • Comprehensive Control Act: This 1984 law, spearheaded by Biden and Sen. Strom Thurmond (R-SC), expanded drug trafficking penalties and federal "civil asset forfeiture," which allows police to seize and absorb someone's property — whether cash, cars, guns, or something else — without proving the person is guilty of a crime. Under the federal Equitable Sharing program, local and state police get up to 80 percent of the value of what they seize as funds for their departments, which critics say creates a for-profit incentive to take people's stuff.
  • Anti-Drug Abuse Act of 1986: This law, sponsored and partly written by Biden, ratcheted up penalties for drug crimes. It also created a big sentencing disparity between crack and powder cocaine — even though both drugs are pharmacologically similar, the law made it so someone would need to possess 100 times the amount of powder cocaine to be eligible for the same mandatory minimum sentence for crack. Since crack is more commonly used by black Americans, this sentencing disparity helped fuel the disproportionate rates of imprisonment among black communities.
  • Anti-Drug Abuse Act of 1988: This law, co-sponsored by Biden, strengthened prison sentences for drug possession, enhanced penalties for transporting drugs, and established the Office of National Drug Control Policy, which coordinates and leads federal anti-drug efforts.
  • Violent Crime Control and Law Enforcement Act: This 1994 law, partly written by Biden and signed by President Bill Clinton, imposed tougher sentences (including some mandatory minimums) and increased funding for prisons, fostering the explosive growth of the US prison population from the 1990s through the 2000s — a trend that's only begun to reverse in the past few years. Since black Americans are disproportionately likely to be incarcerated, the law helped contribute to the mass incarceration of black Americans in particular. But the law also included all sorts of other measures, including the Violence Against Women Act that helped crack down on domestic violence and rape, a 10-year ban on assault weapons, funding for firearm background checks, and grant programs for local and state police.
  • The RAVE Act: This 2003 law built on the Anti-Drug Abuse Act of 1986 to impose civil penalties on businesses that knowingly lease, rent, use, or profit from a space where illicit drugs are being stored, manufactured, distributed, or used. The idea was to go after raves in which drugs are widely used. But the law has been widely criticized for making rave organizers so paranoid about anti-drug crackdowns that they stopped doing anything that would implicate them in drug use, including providing medical or educational services for drug users.

In short, Biden helped write and co-sponsored two of the most important pieces of legislation in the punitive war on drugs — the 1986 and 1988 laws — and helped create the sentencing disparity for crack and powder cocaine. And he was at least partly behind other laws that perpetuated mass incarceration and increased police powers. Not exactly the kind of record Black Lives Matter is looking for.

But Biden's supporters say attributing the effects of these laws entirely to him misses some of the nuance — and genuine shifts — in the vice president's stances over the decades.

Biden saw many of these laws as compromises — and he has changed his mind since the 1980s and 1990s

Joe Biden speaks at the Senate in 2008.

Joe Biden speaks at the Senate in 2008.

Scott Ferrell/CQ-Roll Call Group via Getty Images

To Biden's credit, he has eased his tough-on-crime stance over the past 30 years. In 2008, he backed the Second Chance Act, which provides monitoring and counseling services to former prison inmates. And in his last few years in the Senate, Biden began supporting the full elimination of the sentencing disparity between crack and powder cocaine. (The disparity was reduced from 100-to-1 to 18-to-1 in 2010 with the passage of the Fair Sentencing Act of 2010.)

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, who was the Senator from New York at the time. And crack was new. It was a new "epidemic" that we were facing. And we had at that time extensive medical testimony talking about the particularly addictive nature of crack versus powder cocaine. And the school of thought was that we had to do everything we could to dissuade the use of crack cocaine. And so 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.

Biden's supporters also point out that he wasn't fully on board with some of the harsher measures in the 1994 law. For example, in a 1993 symposium sponsored by the US Sentencing Commission, Biden argued for undoing some mandatory minimums for drug offenses. "I think we've had all the mandatory minimums that we need. We don't need the ones that we have," he said. "But quite frankly, I don't think I will prevail… I've watched how the process works. I am not at all hopeful there will be [enough] senators prepared to vote with me."

This wasn't just talk, according to the vice president's office. The 1994 law ultimately included what's called a "safety valve" that allows a very limited number of low-level first-time drug offenders to avoid mandatory minimum sentences. This part of the 1994 law — along with the Violence Against Women Act, the 10-year ban on assault weapons, funding for firearm background checks, and grant programs for local and state police, which were all part of the 1994 measure — were some of the big-ticket items that led Biden to back the bill, even though he didn't support every part of it, Biden's office claimed.

Biden even warned the New York Times in 1994 of a measure backed by the Clinton administration that required a life sentence for three-time violent offenders. Biden said, according to the Times, that it could have a potentially negative impact if states followed the federal government's lead and adopted their own punitive three-strikes laws.

But Biden has seemed proud of the law, even some of its tough-on-crime measures, in the past. In Biden's 2008 presidential campaign website, his campaign called the 1994 law the "Biden Crime Law." And the website proudly touted a funding program in the law that encouraged states to effectively increase their prison sentences by paying them to build more prisons — a direct endorsement of more incarceration.

Furthermore, one of the parts of the law Biden remains fairly proud of — grant programs for local and state police — produced mixed results.

Some grants from the newly established COPS Office encouraged community policing, when police work closely with local communities to help establish their priorities. This is the kind of policing Biden has talked up in recent months — in which cops get out of the squad car and interact with local residents to encourage better communication.

But, coupled with a spending boost for Byrne grants in the 1994 law, the COPS grants paid for larger police forces with outsize presences in black neighborhoods. This problem persisted for decades: Until 2014, Byrne grants rewarded police departments for making as many drug arrests as possible. As Neill Franklin, a retired Maryland police major who's now executive director of the anti-drug-war Law Enforcement Against Prohibition, previously told me, this created a perverse incentive for cops to focus on poor black communities:

One of the requirements for completing a federal grant application for funds to combat drugs was showing how many drug arrests we made. The thinking was that the more drug arrests you have, the more significant your drug problem. If you have a significant drug problem, the federal government will give you more funds.

So what did we do? We had our officers go out and make as many drug arrests as they could. Where did we do that? We did that in communities of color.

Yes, it was that easy. Most of the people in these impoverished communities are always in the streets. They sell on the street corner. They have no political power or capital and no financial power, so there's also very little pushback. Doing these evening and afternoon sweeps meant 20 to 30 arrests, and now you have some great numbers for your grant application.

The question for reformers: Is Biden's support for change sincere?

Joe Biden speaks at a press conference following a mass shooting in Chattanooga, Tennessee.

Joe Biden speaks at a press conference following a mass shooting in Chattanooga, Tennessee.

Jason Davis/Getty Images

Biden's supporters argue that the 1980s and '90s were completely different times. Plagued by high crime and drug use rates, the public pressured lawmakers to do something to fight crime — and that led to the tough-on-crime laws that Biden and other legislators backed.

But what if crime begins to go up again after its decades-long decline? If Biden didn't fight the conservative instinct to be tough on crime before, it's possible he would be unable to do it the next time around.

Still, Biden seems better positioned to argue that he genuinely understands some of the concerns compared with other Democrats in the race. O'Malley, for example, pushed tough-on-crime policies as mayor in Baltimore less than a decade ago. And Clinton, who lobbied for the 1994 law on behalf of her husband, has only recently started apologizing for its effects. Biden, at least, is on record stating his regrets and concerns with tough-on-crime policies through the 1990s and 2000s. The question is whether that would be enough to satisfy Black Lives Matter activists if Biden entered the race.

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