Joe Biden’s toughest opponent is his criminal justice record

Biden will be criticized by key groups within the Democratic Party over his authorship of the 1994 Crime Bill

Published May 1, 2019 6:30AM (EDT)

 (Getty/Scott Olson)
(Getty/Scott Olson)

This article originally appeared on The Fresh Toast.
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Former Vice President Joe Biden announced on Thursday that he would seek the Democratic nomination for the presidency. This is Joe Biden’s third run for the presidency in 32 years, and during his long tenure in public service, the Democratic Party has changed dramatically, particularly on issues involving criminal justice and drug policy. It is on these issues that Mr. Biden’s strengths have become his weaknesses.  

Mr. Biden’s resume of public service would position him to be the most experienced individual to seek the office of president — including a space of nearly 40 years as a U.S. senator and eight years as a trusted Vice President to Barack Obama. However, it also means Mr. Biden has a long voting record in a party that sees certain issues differently than earlier periods of public service.  

Mr. Biden will be criticized widely by progressives, liberals, communities of color, young people, and other key demographic groups within the Democratic Party over his participation in and advancement of the War on Drugs and, and related, his authorship of the Violent Crime Control and Law Enforcement Act of 1994 (also known as the 1994 Crime Bill). The 1994 Crime Bill continued and expanded a criminal justice system that enhanced racial inequities in the enforcement of the law. It expanded the federal government’s use of the death penalty. It included a federal three strikes law. It simultaneously expanded drug testing and restricted opportunities for federal inmates to better themselves.  

For many groups in the Democratic Party, the Crime Bill was seen as a devastating expansion of the police state disproportionately shouldered by communities of color. It is seen as a law that is racist in part and one that has limited the economic, social, and educational opportunities among demographic groups already facing significant challenges in each. Although many in the Democratic Party see portions of the Crime Bill, including the assault weapons ban and the Violence Against Women Act, as positives, it is Biden’s authorship and support of the law as damning. (It should be noted that the only other 2020 presidential candidate who was serving in Congress in 1994, then-Rep. Bernie Sanders, voted in favor of the bill.) 

As chairman of the Senate Judiciary Committee, Mr. Biden pushed legislation that expanded the War on Drugs and as a Senator and Vice President, he did little to reform America’s addiction to treating drug use as a public safety rather than public health problem. Although not the direct cause of the increase, Mr. Biden’s tenure in the Senate saw an explosion in the number of drug arrests in the United States, and his support of legislation (as well as the support of hundreds of other Democrats) helped contribute to it.  

And now, a majority of Americans and a supermajority of Democrats see these issues differently than they did in the 1970s, 1980s, and 1990s. According to a 2017 ACLU poll, 9 in 10 Americans see a need to reform the criminal justice system. The same poll found that that “68 percent would be more likely to vote for an elected official if the candidate supported reducing the prison population and using the savings to reinvest in drug treatment and mental health programs” and “72 percent…would be more likely to vote for an elected official who supports eliminating mandatory minimum laws.” According to a 2018 Voice of the People/University of Maryland poll, between 80 and 90 percent of Democrats supported a variety of reductions in mandatory minimum sentencing. And an October 2018 Gallup poll showed that 75 percent of Democrats supported cannabis legalization. This polling shows an electorate with view very different than Sen. Joe Biden’s voting record. 

So, what is a law-and-order, 1980s drug warrior to do? Repent. 

If Joe Biden wants to be the Democratic nominee in 2020, he needs to face these issues head on, and Mr. Biden may be the best positioned to do so. One benefit the former Vice President has is that many Americans see him as sincere and honest. And while transforming from “Joe Biden, Crime Buster” to “Joe Biden, Criminal Justice Reformer” may be a political calculation, his candidacy depends on his being contrite and convincing.  

Mr. Biden cannot simply say it was a different time and the public had a different view. (They did.) He cannot simply say that he didn’t realize it would have a disproportionate impact on communities of color. (It’s hard to see how he couldn’t.) He needs to apologize to all Americans for pushing legislation that hurt America. He needs to say that he made a mistake and that he knows that lives were lost, opportunity was foregone, and families were ruined because of laws he helped pass. He needs to speak passionately and eloquently about the impact of his work and the problems it has caused. Finally, he needs to explain, in detail, how he will not simply apologize for his past actions, but right them. He needs to issue detailed plans around criminal justice reform, drug policy, policing, mental health policy, and drug treatment policy. He needs to convey to Americans that he has learned the hard lessons of his past and that his presidency is his opportunity to heal the wounds he helped inflict.  

Would a mea culpa of that magnitude help convince every Democratic voter that Mr. Biden is a different person? No. But a sincere and convincing approach to these issues will benefit the former vice president in multiple ways. First, he will convince some voters that he is a reformed person who has seen light. Second, he will help blunt (not eliminate) attacks that would destroy him as a primary candidate if he opted not to apologize. Third, in the event he wins the nomination, it may help him convince voters on the left to turn out to vote for him, even if they are not enthused about his candidacy. Finally, it can show voters that an old dog can learn new tricks and that one of those new tricks can be compassion emerging from listening to the concerns of everyday Americans — a seeming rarity in American politics.  

Or, Mr. Biden can hold firm to his past views on all of these issues (and others), opt not to repent, and ensure that the 2020 Democratic presidential primary is his third strike. 

By John Hudak

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