Joe Biden (Photo by Justin Sullivan/Getty Images)
Assessing Joe Biden’s criminal justice reform proposals is a matter of perspective. If you think of Joe Biden as the author of the 1994 crime bill, and a white Democrat who needed to tout “tough on crime” bona fides as a response to, like, Ronald Reagan, then last week’s reform package is an evolutionary step forward for the man and the country. His plan is a repudiation of many of the now-discredited theories of criminal justice that animated the 1994 bill, and reflects a nuanced take on federal criminal justice and its relationship with state power. It’s an approach that would have been revolutionary in 1994, and an approach that largely animated the Obama-Biden focus in 2008. My inclination is to give Biden credit for learning from his previous mistakes, as we all should, and to assess his plan based on its current merits.
Unfortunately, looking at the plan as a current proposal, and not a mere make-good for the past, is where everything goes wrong. 1994 Joe Biden < 2019 Joe Biden < A Modern Democrat Running For President.
Most of the media attention around Biden’s plan has focused on his weaksauce approach to marijuana legalization. Biden wants to decriminalize marijuana use at the federal level, and leave it to the states to decide whether to legalize it. Other Democratic candidates have pushed for the legalization of marijuana, and the release of people imprisoned for its use. Biden’s approach here is not bold, but it’s not all that different from the plan Senator Kamala Harris has introduced, along with Representative Jerry Nadler, in Congress.
I juxtaposed those two on purpose, not just because Harris has also shifted her position on marijuana laws and not because Harris is Biden-kryptonite. It’s because there’s really no centrist, good-government, restrained plan that Biden has that Harris doesn’t also have, only Harris has it in more detail. If you like Biden, you should LOVE Kamala Harris, and that fact that you don’t is, you know, something you should probably work on.
To me, the biggest problem with our marijuana laws are that they are used by the police as an excuse to stop, harass, murder, or incarcerate black people. A white woman in the suburbs is not getting strip searched for “suspected” marijuana use, no matter what laws are on the books. But cops use marijuana laws as the gateway drug for a whole series of horrors they inflict on black and brown communities.
It is in dealing with racist, murderous cops where Biden’s plan exposes itself as completely useless. Biden proposes a $20 billion grant program to states that reduce incarceration and crime rates. But the only thing in his plan that can be reasonably read to address police brutality is a paltry $300 million he offers to fully fund the Community Oriented Policing Services (COPS) program. Biden says COPS was never fully funded, and he’s right. But COPS is literally a program created in the (wait for it) 1994 crime bill that is wholly inadequate to deal with the problems of racially biased police brutality.
You can have all of the decriminalization of marijuana you like, but I still live in a country where driving while black can be a capital offense. Biden’s plan has nothing for me in my quest to survive my encounters with the police, or at least receive justice after they murder me.
Other candidates do. Julian Castro and Cory Booker, especially, have unveiled extensive plans to address police brutality. Elizabeth Warren has a proposal to de-militarize the local police. Even Bernie Sanders, who wasn’t exactly the quickest on the uptake with the “Black Lives Matter” thing, has a plan specifically aimed at combating police brutality. These candidates speak in the language of force protocols, de-escalation requirements, and piercing the veil of qualified immunity which so often lets the police civilly get away with what juries will not convict them of criminally.
The difference between Biden’s plan and the ones of the more progressive candidates is that when Biden talks about criminal justice reform, he’s thinking of “criminals.” He’s thinking of who should be called “criminals,” who shouldn’t be, and who deserves a “second chance” to become a “law-abiding citizen.” When progressives talk of criminal justice reform, they’re talking about “justice.” Who has been denied “justice” in this country, and what can we do to make it so all citizens have equal rights to justice and due process, regardless of the color of their skin?
Biden sees a criminal justice system that isn’t fair to all suspected criminals; I see a criminal justice system that isn’t fair to all Americans. That’s why the first heading on Biden’s page about his plan is called “PREVENTING CRIME,” not PREVENTING BRUTALITY.
Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.