Joe Biden moved to position himself as an advocate of criminal justice reform Tuesday, releasing a plan designed, in part, to offset his history of aligning with law-and-order social conservatives, which has complicated his pitch to today’s Democratic voters.
The plan Biden’s campaign unveiled for reforming the nation’s system of deterring and punishing criminals does not stand out as unique in a race where his rivals have already been campaigning on many of the same ideas.
Like much of the Democratic field, Biden would end the use of private prisons, shift focus from incarceration to prevention and eliminate racial disparities in sentencing.
But for Biden, the stakes are higher than for many of his rivals. He faces another Democratic debate next week where opponents may call him to account for supporting laws during his years in the Senate that critics say helped lead to the expansion of mass incarceration. An opponent who will be standing next to Biden on the debate stage, Sen. Cory Booker of New Jersey, immediately challenged the plan as inadequate to erase Biden’s history of championing incarceration.
“He knows a number of people are going to try to weaponize his service in Congress against him,” said a senior Biden advisor who spoke before the plan was unveiled on the condition of anonymity.
“As he has noted, he didn’t get everything right. This plan is a true reflection of what he believes. He believes in opportunity, he believes in fairness.”
Some of the planks in the Biden proposal are ambitious. It would end cash bail altogether. The plan promises to “reform our pretrial system by putting in place, instead, a system that is fair and does not inject further discrimination or bias into the process.”
The plan also aims to end policies that lead to incarceration or the loss of a driver’s license for low-income defendants who don’t have the resources to pay fines.
In other areas, the plan is more modest than those of Biden’s rivals.
Most of the candidates are championing federal legalization of marijuana, for example. Biden takes a more measured approach. He advocates decriminalizing the drug and allowing states to legalize should they choose, but he stops short of calling for outright federal legalization.
“He very much believes we need more research to study the positive and negative impacts of cannabis use,” said another campaign official. “A lot of researchers will say… that there are a number of negative side effects of cannabis or side effects we don’t fully understand. But he is saying here nobody should be in jail because of cannabis use.”
On Tuesday, Sen. Kamala Harris of California — who will also stand next to Biden at the debate — unveiled legislation that would effectively legalize marijuana federally by removing it from the Controlled Substances Act altogether. Under the measure, prior and pending convictions would be expunged and marijuana law would be left entirely to the states.
“Times have changed — marijuana should not be a crime,” Harris said in a statement. “As marijuana becomes legal across the country, we must make sure everyone — especially communities of color that have been disproportionately impacted by the war on drugs — has a real opportunity to participate in this growing industry.”
The Marijuana Opportunity Reinvestment and Expungement Act, which she introduced along with Rep. Jerrold Nadler (D-N.Y.), also authorizes a 5% tax on pot to provide services for communities “most adversely impacted by the war on drugs” and grants for loans to small marijuana businesses operated by “socially and economically disadvantaged individuals.”
Booker, meanwhile, made clear that he believes Biden is still carrying the baggage of his past on criminal justice issues.
“It’s not enough to tell us what you’re going to do for our communities, show us what you’ve done for the last 40 years,” Booker wrote on Twitter. “You created this system. We’ll dismantle it.”
He amplified the comment in a statement in which he said that “the proud architect of a failed system is not the right person to fix it.”
“The 1994 crime bill accelerated mass incarceration and inflicted immeasurable harm on black, brown and low-income communities. While it’s encouraging to see Vice President Biden finally come around to supporting many of the ideas I and others have proposed, his plan falls short of the transformative change our broken criminal justice system needs,” Booker said.
Booker has already tangled with Biden over the former vice president’s fraught history with race. The New Jersey senator was one of Biden’s first rivals to demand he apologize for talking nostalgically about legislative partnerships with segregationists early in his career. That touched off a difficult and politically bruising period in the campaign during which Biden’s lead in the polls eroded.
The focal point of the Biden plan is an infusion of money for state and local governments to invest in prevention programs. Only states that eliminate mandatory minimum sentences for nonviolent crimes and take other, similar, steps to reduce incarceration would be eligible to compete for the $20 billion in grant funding.
The proposal was inspired by the Brennan Center for Justice, a think tank many progressives look to for guidance on criminal justice reform.
The prevention focus includes a proposal to triple federal Title I education funds, which go to schools with a high percentage of low-income students, and an expansion of federal money to treat substance abuse.
Biden would push to eliminate the federal death penalty and create incentives to push states to also eliminate capital punishment, reversing a provision of the 1994 crime bill he championed that expanded the federal death penalty. Biden is also pushing to scrap harsher sentences for crack cocaine than powdered cocaine — a disparity that discriminates against low-income and minority drug users — which came about as a result of legislation he co-sponsored in 1986. And Biden vows to use the president’s clemency power to release inmates facing unreasonably long prison sentences, as President Obama did.
“Some people would like to believe he never served as vice president to President Obama,” an aide said, stressing that the policies in the new Biden plan are very much in line with his agenda during the Obama era. As president, campaign aides said, Biden would resume the Obama-era use of Justice Department consent decrees to address misconduct by local police forces.
The plan also focuses heavily on juvenile justice reform, promising to invest $1 billion annually in it. Congress, Biden says, has woefully underfunded the Juvenile Justice and Delinquency Prevention Act, which helps protect the rights of child defendants.
Like other Democratic candidates, Biden takes aim at private prisons. During the Obama administration, the federal government launched an initiative to end its use of such facilities, which was rescinded by the Trump administration.
Biden vowed to restore that phase-out and ban the use of private detention centers for immigrants, which has become a rallying point for opposition to Trump’s immigration policies.