Criminal Justice

Cory Booker's Slam Against Joe Biden's Criminal Justice Record Shoveled Some More Dirt on the Old Lock 'Em Up Consensus

The climate of opinion has changed so dramatically that Democrats are politically obliged to support reform.


Former Vice President Joe Biden and Sen. Kamala Harris (D–Calif.) both caught flak during last night's Democratic presidential debate because of their records on criminal justice. The criticism is both justified and encouraging, and so are the two candidates' attempts to remake themselves as reformers. The attacks and defenses show that the bipartisan consensus on putting more and more people in cages for longer and longer periods of time has not only fallen apart but is perceived as a shameful episode from which leading Democratic politicians are eager to distance themselves.

When Sen. Cory Booker (D–N.J.) slammed Biden for his conspicuous role in promoting mass incarceration as a senator, the former vice president said the crime bills he wrote or cosponsored "were passed years ago and passed overwhelmingly." It's true!

The Comprehensive Crime Control Act of 1984, which abolished parole in the federal system, increased drug penalties, established mandatory sentencing guidelines, and expanded civil forfeiture, passed the Senate by a vote of 91 to 1. The Anti-Drug Abuse Act of 1986, which imposed new mandatory minimums for drug crimes and created the notorious 100-to-1 weight-based sentencing disparity between snorted and smoked cocaine, got 97 votes in the Senate. Eighty-seven senators thought the Anti-Drug Abuse Act of 1988, which created additional mandatory minimums, including a five-year minimum for mere possession of crack cocaine, was a swell idea.

Everyone (or almost everyone) was doing it, so why pick on poor Joe Biden? Well, for one thing, not everyone was quite as eager as Biden to be identified with the anti-drug, tough-on-crime, lock-'em-up-and-throw-away-the-key agenda. He was the lead co-sponsor of the 1984 bill, wrote the 1986 bill, and introduced the bill that became the Violent Crime Control and Law Enforcement Act of 1994, which created 60 new capital offenses, increased drug penalties yet again, and provided $10 billion in funding for prison construction. Support for the 1994 law, which Biden was still bragging about as recently as 2015, was less overwhelming: It got 61 votes in the Senate.

Still, it's true that 1994 was "years ago." Or as Biden complained later in the debate, "We're talking about things that occurred a long, long time ago."

Biden noted that he had seen the error of his ways, although he tellingly did not put it that way. "Since 2007, I, for example, tried to get the crack/powder cocaine disparity totally eliminated," he said. Biden introduced that bill in the midst of his unsuccessful run for the 2008 Democratic presidential nomination, only 21 years after he created the disparity.

Booker was not impressed by Biden's excuses. "You are trying to shift the view from what you created," he said. "There are people right now in prison for life for drug offenses because you stood up and used that 'tough on crime' phony rhetoric that got a lot of people elected but destroyed communities like mine. This isn't about the past, sir. This is about the present right now. I believe in redemption. I'm happy you evolved. But you've offered no redemption to the people in prison right now for life."

Harris, another drug warrior turned reformer, likewise got an earful from Rep. Tulsi Gabbard (D–Hawaii). "Senator Harris says she's proud of her record as a prosecutor and that she'll be a prosecutor president," Gabbard said. "But I'm deeply concerned about this record. There are too many examples to cite, but she put over 1,500 people in jail for marijuana violations and then laughed about it when she was asked if she ever smoked marijuana. She blocked evidence that would have freed an innocent man from death row until the courts forced her to do so. She kept people in prison beyond their sentences to use them as cheap labor for the state of California. And she fought to keep a bail system in place that impacts poor people in the worst kind of way."

I don't know how sincere Biden and Harris are in their new commitment to a less mindlessly punitive criminal justice system, but it may not matter. The climate of opinion on this subject has changed so dramatically that they feel politically obliged to support sentencing and drug policy reform. Nor is the shift limited to Democrats. It is no longer unusual to hear conservative Republicans decry excessive punishment and mass incarceration, and even Donald Trump, who ran on an anti-crime platform eerily similar to what Joe Biden was saying in the 1980s and '90s, has intermittently joined their ranks by condemning unjust prison terms, commuting drug sentences (well, just two so far), and supporting the FIRST STEP Act.

It would be going too far to say this trend amounts to a new consensus, since more than a few Republicans are strenuously resisting it. But the old consensus, the one that Biden tried to hide behind last night, is dead, and it's a pleasure to see politicians dumping dirt on it.

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  1. “The climate of opinion has changed so dramatically that Democrats are politically obliged to support reform.”

    I would like to believe that’s true, but I suspect it’s the other way around–if public opinion changes, it will be because the Democrat candidates so publicly supported reform.

    The candidates, at this point, are way outside the Overton window on so many issues, from socialism to the Green New Deal and Medicare for All. I don’t see any reason to believe that this issue isn’t the same.

    Here in California, criminal justice reform has been driven by court orders and other spending priorities–more so than any other concerns.

    Voting for Democrats because we think they’ll big on criminal justice reform may be like voting for Democrats thinking they’ll be less likely to initiate wars–and then getting LBJ and Obama.

    When the government employee unions that represent first responders, prison guards, etc.., and run the Democratic Party, start denouncing candidates for what they’re saying, I might start thinking this could be real. Until then, I’d assume they’re just playing to activists (who volunteer for campaigns) and radicals (who donate a lot of money)–and also act as super delegates. That would be my guess, more so than that this reflects a genuine change in public opinion.

    1. Gotta agree with you Ken. As much as I want this criminal justice reform moment to be a real and long lasting shift in public attitudes/values, I just don’t believe it. I think if we start getting a protracted increase in crime rates like we saw in the 1970s-1980s, I think we are going to see a return to and massive amplification of those era’s policies that we are currently trying to eliminate. Time will tell though.

  2. If Gabbard’s take down of Harris doesn’t end her political career, I don’t want to hear another word about the Democrats being anti incarceration. Everything Gabbard said was true. And it was more than just “I want to lock everyone up”. It was also how Harris wrongly convicted innocent people and then fought to keep them in jail even though she knew she was innocent. The rest of the Democratic candidates are just crazy. Harris is straight up evil.

    1. Oh, it’ll end her career all right.

      You can pretty much guarantee that the Party and the media will destroy Gabbard completely. She won’t even be able to get elected dog-catcher in Hawaii. Which she can’t anyway since that’s a position legally reserved for ethnic Hawaiians.

      1. You are probably right. Remember that the next time Democrats are telling you how much they care about you.

      2. I read that as ending Harris’s career. But that’s just me…

        1. I think he did too. He was just being cynical. I meant Harris but sadly, he is probably right that it will be Gabbard.

          1. Yeah, I was making a joke there.

            But the Democratic establishment will try to destroy Gabbard like they tried with Sanders.

    2. Harris is a difference of personal action versus supporting a policy.

      No “tough on crime” rhetoric equates to knowingly suppressing evidence.

  3. I don’t know how sincere Biden and Harris are in their new commitment to a less mindlessly punitive criminal justice system

    I do, and I bet you do too, and I didn’t even have to finish reading to know that.

  4. In fairness to Biden (I feel dirty for saying that), the 70s and 80s had more than their fair share of violent crime, which has been falling since then. That’s not to say that the laws he passed weren’t bad, but its a lot easier to take shots at him with the benefit of hindsight.

    1. I find this interesting as well. Obviously, from a libertarian perspective those laws were shit, but at the time the public outcry was pretty loud for strict measures.

      1. Just like public outcry for “common sense”, “sensible” gun legislation in the wake of mass shootings?

  5. …the bipartisan consensus on putting more and more people in cages for longer and longer periods of time has not only fallen apart but is perceived as a shameful episode from which leading Democratic politicians are eager to distance themselves.

    And yet, it’s a battle to make even modest reforms. Each of us gets only one life, and Biden has ruined a lot of them. He’s not atoned. Booker is consistently good on this issue.

  6. Cory Booker vs. Joe Biden.
    New Jersey vs. Delaware.
    Asshole meets ass wipe.
    What a duel!

  7. >>>She blocked evidence that would have freed an innocent man

    is this part real? evil beyond.

    1. Yes it is.

      In February, California Gov. Gavin Newsom ordered new DNA testing in the 1983 murder case of Kevin Cooper. Cooper came within hours of execution in 2004 after being charged with the murders of an adult couple and two children. Harris opposed the testing when she was the state’s attorney general.

      Cooper turned out to be innocent.

      And then there is this

      The lab was closed after it was determined that a top technician, who testified on prosecutors’ behalf for drug cases, mishandled drug samples seized from suspects.

      While the San Francisco Police Department was responsible for running the lab, not Harris’s district attorney office, a court ruled in 2010 that the district attorney’s office violated defendants’ constitutional rights by not disclosing what it knew about the tainted drug evidence.

      The lab was shut down after a lead technician, who testified on behalf of prosecutors on drug cases, was found to have systematically mishandled the drug samples seized from suspects, even consuming some herself.

      Judge Anne-Christine Masullo wrote in her decision that prosecutors “at the highest levels of the district attorney’s office knew that Madden was not a dependable witness at trial and that there were serious concerns regarding the crime lab.”

      Harris has denied being aware of those issues until the scandal exploded and also noted that her office implemented reforms once it had. Her office dismissed an estimated 1,000 cases as a result.

      1. bizarre part is she soldiers on like it’s not real. tyrant.

        1. Psychopaths can be like that.

  8. But Booker will still vote for him. Just another hack.

  9. And now these candidates call for “common sense”, “sensible” gun laws, which will cause more incarceration.

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