Joe Biden this weekend continued to draw attention to the complicated role he has played in the country’s history of race relations. On Thursday night, he drew criticism when he was asked what Americans can do about the legacy of slavery, and answered by suggesting parents put on a record player for kids, and that social workers should visit parents’ homes to teach them how to care for their children. He followed that by recounting on Sunday his run-in in the 1960s with a young gang leader named “Corn Pop,” a story that involved “the only white guy” at a city pool cutting him a 6-foot piece of chain to defend himself against the razor-wielding teen and his friends.
The politics of race relations have been a central part of Biden’s career, from his high-profile opposition to busing to his authoring of the 1994 Biden Crime Bill. When he talks about his criminal justice record on the campaign trail, he argues today that the focus on the ’94 bill is unfair, because the real rise in mass incarceration happened at the state level and was long underway by then.
Biden is correct that the surge began in the 1970s and accelerated in the 1980s, but a closer look at his role reveals that it was Biden who was among the principal and earliest movers of the policy agenda that would become the war on drugs and mass incarceration, and he did so in the face of initial reluctance from none other than President Ronald Reagan. Indeed, Reagan even vetoed a signature piece of Biden legislation, which he drafted with arch segregationist Sen. Strom Thurmond of South Carolina, to create a federal “drug czar.”
At the time, many Republicans were hesitant about increasing federal spending, and in fact looking for ways to slash the budget. Domestically, Reagan wanted to focus on cutting taxes and reducing social welfare spending, and had little interest in an expansive federal spending program geared toward building new prisons and hiring new police. Biden, on the other hand, was a key policy leader among both parties on the issue of expanding funding to states and municipalities for policing and prisons.
As governor of California, Reagan had been an infamous proponent for law-and-order politics, but when he ran for president in 1980 against incumbent Jimmy Carter, crime was not a significant issue in the race. Rather, the 1980 election focused largely on the economy, inflation, and unemployment.
Biden, meanwhile, was criticizing Carter for not fighting the war on drugs forcefully enough. “I’m trying to alarm the policymakers,” he told the Washington Post months before the 1980 election. “I’m saying that business as usual won’t work.”
Although mass imprisonment is and was primarily driven by states, at the federal level Biden shaped the punitive political culture of the 1980s and 1990s by reviving a policy agenda that was briefly in decline at the end of the 1970s. In three years under Carter, the federal prison population fell by a quarter, even as it was rising at the state level. By the final days of the Carter administration, the federal program that provided resources to states for policing and imprisonment, the Law Enforcement Assistance Administration, or LEAA, was being dismantled.
In the weeks after the election, Biden argued that the problem with LEAA was inadequate coordination and poor management, and that the federal government should take a more assertive stance in this area while continuing to provide funds to states to expand their police and prison systems. “The American people believe we have waged war on crime and failed,” Biden, who was the U.S. senator for Delaware at the time, said. “Therefore, they concluded that nothing can be done about it.” In his view, though, federal funding was an essential piece of the drug war. He saw the need for a program like LEAA, but it needed a stronger manager in charge: a drug czar.
Alongside Reagan’s entry into office, Republicans wrested control of the Senate from the Democrats. South Carolina Democrat-turned-Republican Thurmond replaced Ted Kennedy as Judiciary Committee chair, and Kennedy ceded the ranking spot to Biden. Biden had previously locked horns with Kennedy as they competed to lead the party on crime, with Biden wanting to shed the party’s image as being soft. “As most old-line Democrats view it, the only ways we can deal with violence will have a negative impact on civil rights and liberties. … I think that’s malarkey,” he told the New York Times.
“Give me the crime issue … and you’ll never have trouble with it in an election,” Biden was said to have begged party leadership during meetings. With his new position of power on the committee, he began to shape its agenda accordingly.
As they each started their new roles on the Judiciary Committee, Biden approached Thurmond privately to sort out their shared priorities. Biden brought with him a 90-page draft bill and a promise: “If you keep your right-wing guys from killing this bill, I’ll keep the liberals off the bill. And if you and I stand fast and agree on what we can agree on and just hold firm, we can pass this thing,” Biden told the committee chair.
At the time, the White House and Nancy Reagan were also beginning to focus on drugs and crime, but the president saw little need for increased federal funding. Due to its cost, he had recently scuttled a proposed prison expansion plan from his Attorney General’s Task Force on Violent Crime.
Biden disapproved of Reagan’s plan to scale back funding for crime fighting, complaining in October 1981 about inadequate money to combat drug trafficking. The Coast Guard “just doesn’t have as many boats as the bad guys,” he said. “The boats just aren’t as good.” Biden had joined with some of his Republican colleagues to offer the administration more money to spend on crime. Biden excoriated what he dubbed the White House’s “budgeteers” for the paltry funding being offered to the FBI. “You are cutting not only the muscle, but the bone,” he told the attorney general.
Throughout Reagan’s first two years in office, Biden frequently criticized him for shortchanging the war on crime and drugs. In June 1981, Biden spoke before a House committee hearing on budget cuts to drug enforcement. “I, personally, am getting tired of rhetoric about the war on violent crime and the war on drugs. … These types of budget cuts certainly would seem to contradict a serious effort to develop a federal drug strategy,” he said. “My patience for action in the drug arena by this administration is beginning to waiver. Just as I criticized the Carter administration for a lack of innovative ideas in this area I will criticize this administration if promises and rhetoric are not soon replaced by results,” he continued.
In September 1982, Biden gave a nationally broadcast Democratic response to the president’s weekly radio address. He accused Reagan of “unnecessary budget cuts” to crime funding. “Violent crime is as real a threat to our national security as any foreign threat,” he said. “We have a military budget of $253 billion in 1983, and yet in 1983, we’ll spend less than $3 billion a year to fight crime.” He then called on the federal government to support “state and local police agencies by training their people and giving them more money.”
The Biden-Thurmond bill increased penalties for drugs, including expanding civil asset forfeiture; created a sentencing commission; and eradicated parole at the federal level. It sought to limit access to bail — a provision denounced by the ACLU for “revers[ing] the presumption of innocence.” After the bill passed by huge majorities in the Senate and House (with the parole and bail provisions removed by the House), a question lingered: Would the president, who had in recent months agreed to pursue crime legislation largely in line with the Biden-Thurmond bill, sign it? Reagan had a major sticking point: He opposed Biden’s desired “drug czar” position. Despite a lobbying blitz from Biden and Thurmond, which Biden memorialized in his eulogy for the South Carolina senator, and despite Biden’s support of Reagan’s tax cuts and slashing of social welfare spending, Reagan vetoed the Biden-Thurmond bill, even while advisers fretted about undermining the president’s tough on crime credentials.
Biden, who was the ranking Democrat on the committee from 1981 to 1987, and then chaired it until 1995, continued on this trajectory: shaping many of the laws that would in a sense recreate LEAA and institutionalize a federal drug war. A number of the priorities from the 1982 Biden-Thurmond bill would eventually become law. Biden shaped the Comprehensive Crime Control Act of 1984, which curtailed access to bail; eliminated parole; created a sentencing commission; expanded civil asset forfeiture; and increased funding for states. Biden helped lead the push for the Anti-Drug Abuse Act of 1986, which lengthened sentences for many offenses, created the infamous 100:1 crack versus cocaine sentencing disparity, and provided new funds for the escalating drug war. Eventually, with his co-sponsorship of the Anti-Drug Abuse Act of 1988, his long-sought-after drug czar position was created. These and other laws lengthened sentences at the federal level and contributed to an explosion of federal imprisonment — from 24,000 people locked up in 1980 to almost 216,000 in 2013. In short, these laws increased the likelihood that more people would end up in cages and for longer.
In 1989, Biden criticized President George Bush’s anti-drug efforts as “not tough enough, bold enough or imaginative enough. The president says he wants to wage a war on drugs, but if that’s true, what we need is another D-Day, not another Vietnam, not a limited war, fought on the cheap.” Then, in 1994, he pushed through the massive crime bill, which authorized more than $30 billion of spending, largely devoted to expanding state prisons and local police forces. He bragged of his accomplishments in a 1994 report: The “first [national] drug strategy sought a total of $350 million in federal aid to state and local law enforcement, with states matching the federal assistance dollar for dollar. The first drug strategy I offered—in January 1990—called for more than $1 billion in aid to state and local law enforcement—a controversial view at the time.”
As Biden pushed Republicans to spend more on policing and prisons, he was part of a wave of “New Democrats” pushing the party in evermore punitive directions. Now, with upward of one in every two families having suffered the harms of mass incarceration, Biden says he worries that “too many people are incarcerated.”
Correction: September 19, 2019
A previous version of this story said that Ted Kennedy left the Judiciary Committee in 1981. In fact, he ceded the ranking position, but remained on the committee.