President Donald Trump's re-election campaign, which is depicting Sen. Kamala Harris (D–Calif.), Joe Biden's vice presidential pick, as "far left" and "radical," was quick to note that the senator has criticized her running mate's draconian record on criminal justice issues. Yet so have the Trump campaign and the president himself, which makes it hard to tell whether this point is meant to reflect badly on Harris or on Biden.
"Harris has repeatedly slammed Biden, going so far as to say that he supported racist policies that hurt the Black community," says a press release from the Trump campaign. "Harris said Biden's 1994 crime bill 'contribute[d] to mass incarceration' in the U.S."
That's a quote from comments that Harris made last May in response to Biden's defense of the Violent Crime Control and Law Enforcement Act—or "the 1994 Biden Crime Bill," as he prefers to call it. "I have a great deal of respect for Vice President Joe Biden, but I disagree," Harris told reporters in New Hampshire. "That crime bill, that 1994 crime bill, it did contribute to mass incarceration in this country." She noted that it "was the first time that we had a federal three-strikes law," requiring a life sentence for anyone convicted of a violent crime after committing two other offenses (violent or not). She suggested that provision "encouraged" similar laws at the state level. Harris also noted that the bill "funded the building of more prisons," which was contingent on state passage of "truth in sentencing" laws that limited or abolished parole.
The Trump campaign points out that Harris also has criticized Biden for bragging about his collaboration with former segregationists. While the context of that criticism was a spat about busing during a Democratic presidential debate in June, Biden has specifically cited his work with Sen. Strom Thurmond (R–S.C.) on the Comprehensive Crime Control Act of 1984, which began a pattern of harsh mandatory minimum sentences that continued into the 1990s, as an inspiring example of bipartisanship. During that period, Biden was eager to show that Democrats could be at least as tough on crime and drugs as Republicans. In a 1993 Senate floor speech, he boasted that "every major crime bill since 1976 that's come out of this Congress, every minor crime bill, has had the name of the Democratic senator from the State of Delaware: Joe Biden."
Biden's criminal justice record is so appalling that the Trump campaign has attacked him from the left on the issue. "In addition to wrecking countless lives with the 1994 crime bill, during his time in the Senate, Biden's 'priority' was legislation that policy experts agree made the opioid epidemic far more deadly," it said in a March 4 press release. "Biden pioneered legislation that decreases the likelihood of people to call 911 if they witness a drug overdose and has even led to prosecutors filing homicide charges against drug overdose victims' loved ones."
The latter claim was based on a provision of the 1986 Anti-Drug Abuse Act that prescribed a sentence of 20 years to life for drug distribution when it results in death. Like many Biden-backed anti-drug policies enacted in the 1980s and '90s, that provision ostensibly was aimed at "kingpins" who make a fortune by selling drugs that kill people. But prosecutions for "drug-induced homicide" (mostly at the state level) usually involve low-level dealers and acquaintances close to overdose victims, since those are the cases in which the causal link is easiest to prove. And the Trump campaign is right that such cases can involve "homicide charges against drug overdose victims' loved ones." These prosecutions are not only cruel and unjust; they are potentially deadly, since fear of homicide charges is a powerful deterrent to calling 911 when someone overdoses.
"Mass incarceration has put hundreds of thousands behind bars for minor offenses," says a Trump campaign video released in May. "Joe Biden wrote those laws." In a June 2 blog post, the campaign slammed Biden as "the chief architect of mass incarceration and the War on Drugs, which targeted Black Americans."
Last year Trump himself criticized Biden for supporting criminal justice policies that had a disproportionate impact on African Americans. "Anyone associated with the 1994 Crime Bill will not have a chance of being elected," he tweeted. "In particular, African Americans will not be able to vote for you. I, on the other hand, was responsible for Criminal Justice Reform, which had tremendous support, & helped fix the bad 1994 Bill!"
Biden has repudiated the myriad mandatory minimums and death penalties he once championed, saying they should be abolished. He also wants to eliminate the irrational sentencing disparity between the smoked and snorted forms of cocaine, which was created by the 1986 law and reduced by the Fair Sentencing Act of 2010. He says that distinction, which led to strikingly unequal treatment of black drug offenders, was "a big mistake" based on misinformation. And while continuing to resist the repeal of federal marijuana prohibition, Biden now calls for decriminalizing cannabis consumption and automatically expunging "all prior cannabis use convictions" (neither of which would have much of an impact at the federal level, since the Justice Department rarely prosecutes low-level marijuana cases).
Trump, by contrast, barely talks about criminal justice reform, beyond occasionally touting his support for the FIRST STEP Act and his commutation of a few drug sentences. The "Law and Justice" page on his campaign website says nothing about those actions or any further steps toward a less arbitrarily punitive criminal justice system. Yet despite his Nixonian "law and order" rhetoric, Trump has intermittently shown seemingly genuine concern about the "very unfair" drug penalties that Biden pushed for decades.
Whether or not Biden's conversion is sincere, it seems unlikely that he could get away with reverting to his old drug-warrior ways given the current climate of opinion among Democrats and Americans generally. Harris, whose own record in this area as a local prosecutor and California's attorney general is nothing to brag about, likewise has "evolved" in response to shifting Democratic opinion and in some respects goes further than Biden. In 2018, after resisting marijuana legalization for years, Harris said she wanted to "decriminalize marijuana nationwide." Last year she was the lead Senate sponsor of the Marijuana Opportunity, Reinvestment, and Expungement Act, which would repeal federal pot prohibition by removing cannabis from the federal lists of "controlled substances."
Trump wants to have it both ways with Biden's criminal justice record, criticizing it as senselessly harsh when that's convenient and citing Harris' similar criticism as evidence of her "radical" proclivities when that seems like a more effective rhetorical tack. It would be interesting to see a debate between Trump and Biden about these issues, since it would give Trump a chance to clarify his position and give Biden a chance to forthrightly address his egregious misjudgments. But it seems unlikely that will happen, given Biden's reluctance to admit that his proudest accomplishments as a senator were disastrous and Trump's reluctance to antagonize conservatives who see nothing wrong with that record.
[This post has been revised to include more criticism of Joe Biden's criminal justice record from the Trump campaign.]