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.