This is part of Reason's November 2020 issue election cover package. Read the case against Donald Trump here.
During a Democratic presidential debate last year, Cory Booker weaponized one of Joe Biden's proudest accomplishments. The New Jersey senator noted that the former vice president, who represented Delaware in the Senate for 36 years, "has said that, since the 1970s, every major crime bill—every crime bill, major and minor—has had his name on it."
Said was an understatement. Biden has not just noted his leading role in passing those laws; he has crowed about it repeatedly over the years, throwing it in the face of Republicans who dared to think they could be tougher on crime and fellow Democrats he viewed as too soft. Now here he was, after a notable shift in public opinion about criminal justice issues, bemoaning the excessively, arbitrarily punitive policies he had zealously promoted for decades.
"The house was set on fire, and you claimed responsibility for those laws," Booker continued. "You can't just now come out with a plan to put out that fire."
Biden's response was telling. Those crime bills, he said, "were passed years ago, and they were passed overwhelmingly." More recently, he noted, he had tried to ameliorate some of their worst consequences—for example, by sponsoring a 2007 bill that would have eliminated the unjust, irrational sentencing disparity between the smoked and snorted forms of cocaine, which led to strikingly unequal treatment of black and white drug offenders. That gloss brushed over the fact that, just a few years before he entered the 2020 presidential race, Biden was still bragging about the incarceration-expanding Violent Crime Control and Law Enforcement Act—or, as he preferred to call it, "the 1994 Biden Crime Bill."
Booker, one of three African-American senators, 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."
The exchange was a powerful reminder of Biden's faults. The Democratic nominee's main qualification for office, aside from the fact that he is not Donald Trump, is his long history of public service. But that history is littered with egregious misjudgments on a wide range of issues, some of which he sticks with still. Even when Biden changes his positions—as he has on issues such as gay marriage, immigration, the Iraq war, and the death penalty, as well as drug policy and mandatory minimum sentences—he tends to rewrite history, saying he only did what everybody else was doing, implying that he acted based on the best information available at the time, or suggesting that he voted strategically to prevent even worse outcomes.
Biden's reluctance to forthrightly acknowledge his errors blurs the contrast with Trump, a man who seems incapable of taking the blame for anything. Biden magnified that problem by choosing as his running mate Sen. Kamala Harris (D–Calif.), a former prosecutor who, like Biden, has recently recast herself as a criminal justice reformer while airbrushing her hardline past. More to the point, Biden's persistently misguided policy instincts, spanning nearly half a century, make you wonder what fresh disasters his presidency would bring.
'A Big Mistake'
Biden's handiwork in the Senate included the Comprehensive Crime Control Act of 1984, which he introduced along with Sen. Strom Thurmond (R–S.C.), an archconservative and former segregationist. That law abolished parole in the federal system, increased drug penalties, established mandatory sentencing guidelines, and expanded civil asset forfeiture.
Two years later, Biden wrote the Anti–Drug Abuse Act of 1986, which prescribed new mandatory minimums for drug crimes and created the notorious weight-based sentencing distinction that treated crack cocaine as if it were 100 times worse than cocaine powder, even though these are simply two different ways of consuming the same drug. Under that law, possessing five grams of crack with intent to distribute it triggered the same five-year mandatory minimum sentence as 500 grams of cocaine powder; likewise, the 10-year mandatory minimum required five kilograms of cocaine powder but only 50 grams of crack. Two years later, Biden co-sponsored another Anti–Drug Abuse Act, which established the "drug czar" position he had been pushing for years and created additional mandatory minimums, including a five-year sentence for crack users caught with as little as five grams, even if they were not involved in distribution.
As Biden explained it on the Senate floor in 1991 while holding up a quarter, "we said crack cocaine is such a bad deal that if you find someone with this much of it—a quarter's worth, not in value, but in size—five years in jail." To be clear: Biden was not marveling at the blatant injustice of that punishment but touting his anti-drug bona fides.
Because federal crack offenders were overwhelmingly black, while cocaine powder offenders were more likely to be white or Hispanic, the rule Biden championed meant that darker-skinned defendants received substantially heavier penalties than lighter-skinned defendants for essentially the same offenses. As that trend became clear, the African-American legislators who had supported the law turned against it. By the early 1990s, pressure was building for reform of crack penalties.
"We may not have gotten it right," Biden conceded 16 years after he helped establish the 100-to-1 rule. Five years later, during an unsuccessful bid for his party's 2008 presidential nomination, he introduced a bill to equalize crack and cocaine powder sentences. That was the bill he cited in response to Booker's criticism, suggesting he had seen the injustice of excessively harsh drug penalties by then. Yet as vice president in 2012, he was still citing his work with Thurmond on the 1984 crime bill, which started the ball rolling on mandatory minimums, as an inspiring example of bipartisan collaboration.
The distinction between smoked and snorted cocaine "was a big mistake when it was made," Biden admitted in a speech he gave just before entering the presidential race in 2019, nine years after Congress approved a law that shrank but did not eliminate the sentencing gap. "We thought we were told by the experts that crack…was somehow fundamentally different. It's not different." The misconception, he added, "trapped an entire generation."
That was by no means Biden's only mistake. Even as some of his fellow Democrats in Congress were beginning to question the conventional wisdom that drug penalties can never be too severe, he was working to make them more draconian.
Biden was eager to portray himself as tougher on drugs than the Republicans. In a televised response to a 1989 speech in which then-President George H.W. Bush announced yet another escalation of the war on drugs while waving a plastic bag of crack, Biden questioned the administration's zeal. "Quite frankly," he said, "the president's plan's not tough enough, bold enough, or imaginative enough to meet the crisis at hand," which he called "the No. 1 threat to our national security."
'Hold Every Drug User Accountable'
After Bill Clinton was elected in 1992, Biden joined forces with the president to outflank the Republicans on crime issues, long a vulnerability for Democrats. Thus was born Biden's pride and joy, the biggest crime bill in U.S. history.
The 1994 law created 60 new capital offenses, increased drug penalties yet again, established a federal "three strikes" rule requiring a life sentence for anyone convicted of a violent crime after committing two other felonies (one of which can be a drug offense), and provided $10 billion in subsidies for state prison construction, contingent on passage of "truth in sentencing" laws that limited or abolished parole, along with funding to hire 100,000 police officers. Biden, who bragged that he had conferred with "the cops" instead of some namby-pamby "liberal confab" while writing the bill, was proud of all the extra punishment. Like a crass car salesman hawking a new model with more of everything, Biden touted "70 additional enhancements of penalties" and "60 new death penalties—brand new—60." He denounced as "poppycock" the notion, which would later be defensively deployed by Clinton, that "somehow the Republicans tried to make the crime bill tougher."
Decades later, Biden was still defending his toughness. "I knew more people would be locked up across the board," he told The New York Times in 2008, "but I also said it would drive down crime." Yet a long downward trend in violent crime had already begun by the time Congress approved the 1994 bill. The violent crime rate, which includes homicide, rape, robbery, and aggravated assault, peaked in 1991 and fell for three consecutive years before the law took effect.
Although Biden said he was trying to lock up the sort of dangerous thugs who would "knock my mother on the head with a lead pipe," "shoot my sister," or "beat up my wife," his ire was not restricted to predatory criminals. Equating peaceful transactions involving arbitrarily proscribed intoxicants with "a rising tide of violence," he wanted to imprison low-level drug dealers and punish their customers. "We have to hold every drug user accountable," he said in his 1989 response to Bush's speech, "because if there were no drug users, there would be no appetite for drugs, and there would be no market for them."
Biden likewise had no reservations about civil asset forfeiture, a system of legalized theft that allows police to seize cash and other property based on a bare allegation that it is connected to drug offenses. At that point, the owner has the burden of challenging the forfeiture, a process that often costs more than the property is worth. "The government can take everything you own," Biden exulted in 1991, "everything from your car to your house, your bank account."
Nor did Biden think through the implications of his Reducing Americans' Vulnerability to Ecstasy (RAVE) Act, part of a long campaign against "club drugs." The RAVE Act, which Biden renamed the Illicit Drug Anti-Proliferation Act in 2003 after critics complained that he was attacking a specific musical genre and the lifestyle associated with it, amended the so-called crack house statute, a provision of the Anti–Drug Abuse Act of 1986 that made it a felony, punishable by up to 20 years in prison, large fines, and property forfeiture, to "manage or control any building, room, or enclosure" and knowingly make it available for illegal drug use.
Biden thought that language was inadequate to go after rave promoters—"the scum who should be put in jail"—because they often used spaces owned by other people. So he expanded the provision to cover temporary venues used for raves or other events where people consume drugs.
A month after the law was enacted, the Drug Enforcement Administration (DEA) used it to shut down a fundraising concert in Billings, Montana, sponsored by two groups critical of the war on drugs, the National Organization for the Reform of Marijuana Laws and Students for Sensible Drug Policy. During a July 2003 confirmation hearing for DEA Administrator Karen Tandy, Biden pronounced himself "disturbed" by that use of his law. He asked Tandy to explain how she planned to "reassure people who may be skeptical of my legislation that it will not be enforced in a manner that has a chilling effect on free speech."
In addition to chilling the exercise of First Amendment rights, Biden's anti-rave law discouraged efforts to reduce drug hazards. Rave promoters who tried to protect MDMA users from dehydration and overheating by distributing water bottles and providing "chill out" rooms, or who let organizations such as DanceSafe distribute harm reduction literature, would thereby be providing evidence that they knowingly made a place available for illegal drug consumption. In recent years, the Justice Department has cited Biden's legislation while threatening to prosecute any organization that sets up supervised consumption facilities where people can use opioids in a safe environment monitored by medical personnel.
'Joe Biden Wrote Those Laws'
Biden's record as a drug warrior is so appalling that Trump has attacked him from the left on the issue. "Anyone associated with the 1994 Crime Bill will not have a chance of being elected," the president tweeted last year. "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!" Trump was alluding to the FIRST STEP Act, a package of modest reforms that he signed in 2018.
"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."
Today Biden portrays himself as a criminal justice reformer, calling for the abolition of the mandatory minimums and death penalties he once championed. He also says the federal government should let states legalize pot. But unlike most of the candidates he beat for the Democratic nomination, he resists repealing the national ban on marijuana, saying he is waiting for science to clarify "whether or not it is a gateway drug"—a rationale for prohibition that drug warriors have been citing for 70 years.
Given the current climate of opinion in the Democratic Party, it seems unlikely that Biden could get away with reverting to his old drug-warrior ways. But his history on drug policy and criminal justice epitomizes his readiness to react mindlessly whenever he perceives a menace to public safety or national security.
One part of the 1994 crime bill that Biden definitely does not regret is the federal ban on semi-automatic guns that Congress described as "assault weapons," which expired in 2004. Biden favors a new and supposedly improved version of that law, including a requirement that current owners of the targeted firearms either surrender them to the government or follow the same tax and registration requirements that apply to machine guns. During an argument with a Detroit autoworker in March, Biden suggested that the Second Amendment no more protects the right to own guns he does not like than the First Amendment protects the right to falsely cry "Fire!" in a crowded theater.
In a New York Times op-ed piece last year, Biden conceded that the 1994 "assault weapon" ban had no impact on the lethality of legal guns, because manufacturers could comply with the new restrictions "by making minor modifications to their products—modifications that leave them just as deadly." But that is a problem shared by all such bans, since they draw lines based on features, such as folding stocks, barrel shrouds, and flash suppressors, that make little or no difference in the hands of criminals. The distinction that Biden perceives between guns with those features and functionally identical models without them is just as spurious as the distinction he once perceived between crack and cocaine powder.
As he did when confronting "the drug problem" in the 1980s and '90s, Biden feels an overpowering urge to do something, whether or not that thing makes any sense. "There's no excuse for inaction," he tweeted after the 2017 massacre in Las Vegas. "We must act now," he insisted after the 2019 mass shooting in Virginia Beach (which, like most such crimes, was committed with ordinary handguns rather than "assault weapons"). Such comments reflect the same sort of knee-jerk urgency that, by Biden's account, "trapped an entire generation" because he did not bother to educate himself about matters on which he was legislating.
An 'Epidemic' of Sexual Assault on Campus
Biden's career was built on the politics of panics. In the 1990s, he supported a Trump-like crackdown on illegal immigration, including a border fence and expedited removals, that resembled tactics he now deplores. A decade later, he was still calling for more border barriers, saying employers who hire unauthorized residents should go to prison, opposing driver's licenses for people who can't prove their citizenship, and condemning "sanctuary cities" that refuse to cooperate with immigration enforcement.
When he was vice president, Biden played a key role in Department of Education guidelines that undermined the due process rights of college students facing sexual assault allegations. To comply with the department's new advice regarding Title IX, which prohibits sex discrimination in educational programs that receive federal money, colleges dramatically expanded their definitions of punishable behavior and adopted streamlined procedures that effectively presumed the guilt of accused students.
As critics such as the journalist Emily Yoffe have noted, the new rules commonly denied students the right to testify, the right to present exculpatory evidence, and even the right to know the details of the charges against them. The upshot was that students were suspended or expelled based on conflicting recollections of frequently drunken encounters that both parties agreed started consensually.
Biden said the regulatory guidance that gave rise to these kangaroo courts was necessary to address an "epidemic" of sexual assault on campus. He repeatedly cited a discredited estimate that "one in five" female college students is sexually assaulted by graduation, eight times the rate indicated by Justice Department data. And he falsely claimed that "we've made no progress" in reducing sexual assault of young women since the early 1990s, when in fact the rate of victimization among female college students had been cut in half.
After 9/11, Biden did not just vote for the PATRIOT Act, which expanded the federal government's surveillance authority in the name of fighting terrorism. He bragged that it was essentially the same as legislation he had been pushing since 1994. And when President George W. Bush reacted to Al Qaeda's attacks by targeting a country that had nothing to do with them, Biden did not just vote to authorize the use of military force against Iraq. He steadfastly defended the administration's strategy, warning his colleagues that "failure to overwhelmingly support" the resolution was "likely to enhance the prospects that war will occur."
Biden later claimed he never thought Bush actually would go to war, seeing the authorization as a way to pressure Saddam Hussein into cooperating with international arms inspectors. "Immediately, the moment it started, I came out against the war at that moment," he told NPR last year. But that is not true. Although he occasionally criticized Bush for acting too hastily and with insufficient international backing, Biden repeatedly voiced support for the war. He did not publicly acknowledge that his vote to authorize it was a mistake until November 2005, more than two years after the U.S. invasion.
If Biden has learned anything from the Iraq debacle, it was not apparent in his response to a New York Times questionnaire about executive power last year. Biden argued that presidents have the authority to use military force without congressional approval "when those operations serve important U.S. interests and are of a limited nature, scope, and duration." Since "U.S. interests" are in the eye of the beholder and the president unilaterally decides when military operations are "limited" enough that they do not qualify as "war," that formulation amounts to a blank check.
At 78, Biden would be the oldest president ever elected in the United States. But there is little sign that he has acquired much wisdom during a career filled with lessons about the limits of government power and the fallible judgments of the people who wield it.
Should the government tax violent entertainment and use the proceeds to help crime victims? Biden sees "no legal reason" why not. Should the president fight COVID-19 by requiring all Americans to mask up, notwithstanding the lack of a plausible legal basis for such an order? "Yes, I would," Biden says. Should Congress repeal Section 230 of the Communications Decency Act, which made the internet as we know it possible by protecting online platforms from liability for content posted by users, because Biden is mad at Facebook? You bet. What could possibly go wrong?
It's a question that Biden, who presents himself as an alternative to an intolerably impulsive and shortsighted president, never seems to ask.
Justin Monticello, who produced a video for Reason about Biden's record, contributed research for this article.