On Criminal Justice, Trump and Biden Are Running Against Their Own Records
At the first presidential debate this month, viewers were treated to a rare sight: a Republican criticizing a Democrat for being too tough on crime.
“I’m letting people out of jail now,” President Donald Trump said to Democratic candidate Joe Biden. “You’ve treated the black community as bad as anyone in the country. You called them superpredators and you’ve called them worse than that.”
It was Hillary Clinton who infamously uttered “superpredators” in 1996, not Biden. But ignoring that for the moment, Trump’s attack showed some of the unexpected ways the politics and policy of criminal justice are shaping the presidential election.
The unseasonably hot summer of 2020 was bookended by the police killing of George Floyd in May and the nearly fatal police shooting of Jacob Blake in August, both captured in disturbing video, sparking national calls for policing reform and accompanying unrest.
On social media and live television, Americans watched massive peaceful protests, as well as looting, riots, hundreds of documented incidents of police brutality, federal crackdowns, and fatal street skirmishes. Congress tried and failed to pass policing reforms. Meanwhile, there have been troubling spikes in shootings in many major cities.
Both major party candidates have tried to shape their messages to adapt to the public demands and political dangers this has created, and their ideas have intertwined and interacted in unexpected ways. Biden, the former tough-on-crime Democrat, argues for criminal justice policies that move him closer to what his party’s progressives want, if not all the way there, while trying to assure moderates and independents that he’s still not in league with anarchists. Trump, meanwhile, is campaigning as a diehard law-and-order Republican—even after signing one of the more ambitious criminal justice reform bills in recent history.
Come November, Americans will face a strange choice between someone who once helped usher in the era of mass incarceration but who now says he wants a less punitive system, and someone who helped shorten sentences and reverse unjust convictions but who is now pushing some of the least subtle law-and-order rhetoric in years. In an odd way, both candidates are running against their own records.
But in the end, only one of the contenders’ views on policing and racism will guide the federal government for the next four years.
Does Joe Biden Look Like a Socialist?
The Trump campaign’s attack on Joe Biden’s criminal justice record rests on two arguments that are, if not contradictory, at least competing with each other in the limited attention economy of a presidential election.
The first claim is that Biden was an architect of mass incarceration. “Trump fixed many of the disparities that Biden created and made our system more fair and just for all Americans,” Sen. Tim Scott (R–S.C.) said at the Republican National Convention (RNC) this July.
This is an unsubtle attempt by Republicans to cut into Biden’s support among black voters. Regrettably for Biden, it’s also true.
Although tough-on-crime legislation was a bipartisan fad during the 1980s and ’90s, Biden’s name was prominently attached to some of the worst laws to come out of the era, such as the Comprehensive Crime Control Act of 1984, which expanded civil asset forfeiture, or the Anti-Drug Abuse Act of 1986, which created a 100-to-1 sentencing disparity between crack and powder cocaine. In the decades after the 1986 bill was passed, it ruined countless lives by tying judges’ hands and imposing substantially heavier penalties against federal crack offenders, who were predominantly black, than powder cocaine offenders who committed roughly the same crime.
During this year’s Democratic primary and general election, however, most of the attacks on Biden’s criminal justice record have focused on his role in crafting the 1994 crime bill, known as the Violent Crime Control and Law Enforcement Act of 1994.
This bill created several draconian mandatory minimum sentences at the federal level and offered grants to incentivize states to pass “truth in sentencing” laws and build new prisons. However, mass incarceration is predominantly a state-level phenomenon, and several criminologists have argued persuasively that, while the ’94 crime bill was a bad piece of legislation, it was not a significant driver of mass incarceration, which was already well underway.
The Trump campaign’s second claim is that Biden is controlled by the radical left (or by people in “dark shadows,” if you prefer the president’s version of the story). In this telling, Biden, under the compulsion of Marxist Black Lives Matter activists, will defund the police and let antifa run amok through your suburban neighborhood while your 911 calls go to voicemail.
In fact, the Biden campaign’s platform proposes $300 million in additional funding to the Department of Justice’s (DOJ) Community-Oriented Policing Services (COPS) program which distributes federal grants to local and state police for hiring and training.
Biden’s criminal justice platform advocates for decriminalizing marijuana, ending cash bail, and eliminating mandatory minimums, among other provisions. It also includes a sort of reverse ’94 crime bill, which would offer $20 billion in grants to states to reduce incarceration and crime rates. It’s thoroughly liberal, although not nearly as bold as many on the left would prefer. For instance, it only decriminalizes marijuana rather than legalizing it, and Biden still has authoritarian tendencies when it comes to drug use.
“I don’t believe anybody should be going to jail for drug use,” Biden said at an ABC town hall last week. “They should be going into mandatory rehabilitation. We should be building rehab centers to have these people housed.”
The Democratic Party has lurched left on criminal justice, and Biden has been dragged along with it, although you’ll never mistake him for Angela Davis. As Reason‘s Matt Welch once wrote, Biden is a “rusty weather vane” who will “creak in the direction of the prevailing winds eventually, apologetically if need be.”
Biden did in fact apologize for his role in passing draconian sentencing laws. In a speech last year on Martin Luther King Jr. Day, Biden said those bills “trapped an entire generation,” and that “it was a big mistake when it was made.”
On the other hand, Biden has also repeatedly tried to downplay his enthusiastic support for mandatory minimum sentences.
At last week’s town hall, Biden pointed to the wide support from black politicians for the tough-on-crime bills he authored. This is also true, but it ignores the complicated politics behind support for those laws. As James Forman Jr. writes in Locking Up Our Own, a book about black support for tough sentencing laws, black activists and local politicians wanted safer communities. They also wanted better schools, better housing, better jobs, and better social programs. However, “such efforts had become an object of ridicule by 1975, a symbol of the hopeless naïveté of 1960s liberalism,” Forman writes. So they only got a drug war.
At the first presidential debate, Biden declared that “I am the Democratic Party.” It was meant to project authority and counter Trump’s attacks that he’s owned by the radical left, but Biden has always been and will always be whatever the Democratic Party needs him to be. Still, it’s hard to imagine Biden telling a defunded cop, “Sorry, bucko, but your department is systemically racist, so it’s time to hit the bricks.”
As Biden asked in an August speech, summing up the question before voters: “Do I look like a radical socialist with a soft spot for rioters? Really?”
LAW AND ORDER!
In contrast to the Biden campaign’s voluminous number of proposals, Trump’s criminal justice platform is summed up in three oft-tweeted words: “LAW AND ORDER!”—a phrase that’s emotionally resonant, historically loaded, and perfectly vague. As he’s continued to flounder in the polls, Trump has clung to it like a life preserver. “You don’t want to say anything about law and order,” Trump taunted Biden at the debate.
“The people of this country want law and order, and you’re afraid to say it,” Trump continued, as if Biden was afflicted by a fairytale curse that would turn him into stone if he uttered the phrase.
“LAW AND ORDER!” might not mean anything as a coherent policy platform, but that’s somewhat beside the point. Trump is an almost purely reactionary politician who doesn’t have policies so much as he has gut instincts about what drives outrage and creates anxiety among his base.
Trump knew, for instance, that he should go to Kenosha, Wisconsin, and have his picture taken in front of razed storefronts, but he didn’t know what to say when asked at a roundtable discussion later that day if every police officer should be required to wear
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