[SIZE=5]Explosive EXCLUSIVE from The New York Times.[/SIZE]
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Joseph R. Biden Jr. in 1994, after a vote ensuring the passage of a vast crime bill, one of several key pieces of crime legislation he helped write.CreditCreditJohn Duricka/Associated Press
SKIP TO CONTENTSKIP TO SITE INDEX
THE LONG RUN
[SIZE=7]‘Lock the S.O.B.s Up’: Joe Biden and the Era of Mass Incarceration[/SIZE]
He now plays down his role overhauling crime laws with segregationist senators in the ’80s and ’90s. That portrayal today is at odds with his actions and rhetoric back then.
By Sheryl Gay Stolberg and Astead W. Herndon
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WASHINGTON — In September 1994, as President Bill Clinton signed the new Violent Crime Control and Law Enforcement Act in an elaborately choreographed ceremony on the south lawn of the White House, Joseph R. Biden Jr. sat directly behind the president’s lectern, flashing his trademark grin.
For Mr. Clinton, the law was an immediate follow-through on his campaign promise to focus more federal attention on crime prevention. But for Mr. Biden, the moment was the culmination of his decades-long effort to more closely marry the Democratic Party and law enforcement, and to transform the country’s criminal justice system in the process. He had won.
“The truth is,” Mr. Biden had boasted a year earlier in a speech on the Senate floor, “every major crime bill since 1976 that’s come out of this Congress, every minor crime bill, has had the name of the Democratic senator from the State of Delaware: Joe Biden.” :eek::eek:
Now, more than 25 years later, as Mr. Biden makes his third run for the White House in a crowded field of Democrats — many calling for ambitious criminal justice reform — he must answer for his role in legislation that criminal justice experts and his critics say helped lay the groundwork for the mass incarceration that has devastated America’s black communities. That he worked with segregationists to write the bills — an issue that recently dominated the political news and seems likely to resurface in Mr. Biden’s first debate on Thursday — has only added to his challenge. So has the fact that black voters are such a crucial Democratic constituency.
Mr. Biden apologized in January for portions of his anti-crime legislation, but he has largely tried to play down his involvement, saying in April that he “got stuck with” shepherding the bills because he was chairman of the Senate Judiciary Committee. But an examination of his record — based on newly obtained documents and interviews with nearly two dozen longtime Biden contemporaries in Washington and Delaware — indicates that Mr. Biden’s current characterization of his role is in many ways at odds with his own actions and rhetoric.
Mr. Biden arrived in the Senate in 1973 having forged close ties with black constituents but also with law enforcement, and bearing the grievances of the largely white electorate in Delaware. He courted one Southern segregationist senator, James O. Eastland of Mississippi, who helped him land spots on the committee and subcommittees dealing with criminal justice and prisons, and became a close friend and legislative partner of another, Strom Thurmond of South Carolina.
While Mr. Biden has said in recent days that he and Mr. Eastland “didn’t agree on much of anything,” it is clear that on a number of important criminal justice issues, they did. As early as 1977, Mr. Biden, with Mr. Eastland’s support, pushed for mandatory minimum sentences that would limit judges’ discretion in sentencing. But perhaps even more consequential was Mr. Biden’s relationship with Mr. Thurmond, his Republican counterpart on the judiciary panel, who became his co-author on a string of bills that effectively rewrote the nation’s criminal justice laws with an eye toward putting more criminals behind bars.
In 1989, with the violent crime rate continuing to rise as it had since the 1970s, Mr. Biden lamented that the Republican president, George H. W. Bush, was not doing enough to put “violent thugs” in prison. In 1993, he warned of “predators on our streets.” And in a 1994 Senate floor speech, he likened himself to another Republican president: “Every time Richard Nixon, when he was running in 1972, would say, ‘Law and order,’ the Democratic match or response was, ‘Law and order with justice’ — whatever that meant. And I would say, ‘Lock the S.O.B.s up.’”
At a time when Democrats tended to espouse the “root cause” theory of crime — the idea that poverty and other social ills bred criminal activity — and Republicans thought punishment was the answer, Mr. Biden wanted to “abandon the old debate,” as he told The Philadelphia Inquirer in June 1994. But he often seemed to tilt strongly toward the Republican view.
“It doesn’t matter whether or not they’re the victims of society,” Mr. Biden said in 1993, adding, “I don’t want to ask, ‘What made them do this?’ They must be taken off the street.”
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Mr. Biden declined an interview for this article. In a statement, his campaign said that he had “fought to defeat systemic racism and unacceptable racial disparities for his entire career,” and that he “believes that too many people of color are in jail in this country.” The statement went on, “As president, he would fight to put an end to mandatory minimums, private prisons and cash bail, and he would support automatic expungement for marijuana offenses because he believes no one should be in jail for marijuana.”
On the campaign trail in South Carolina on Saturday, Mr. Biden hinted that he intended to propose a criminal justice reform package to do just that, and also proposed extending Pell education grants to prisoners — moves that would directly repudiate provisions of the 1994 crime bill.
“Instead of teaching people how to be better criminals in prison, we should be educating people in prison,” Mr. Biden told the South Carolina Democratic convention.
Biden supporters say his evolution should be admired, that he has grown on criminal justice issues as new evidence has emerged. Citing the strong public support for the crime bill at the time, they said Mr. Biden was responding to a national emergency of drug abuse and violence that had particularly terrorized black communities.
But other Democrats say a fuller reckoning is required.
Representative Bobby Rush, a veteran congressman from Chicago, described the crime bill as “a proverbial Trojan horse” for black communities and called his “yes” vote the worst he had given in more than a quarter-century in the House.
“Did he not know that the war on drugs combined with the legislative imprimatur of the U.S. Congress and federal law would create havoc in our communities?” Mr. Rush said, referring to Mr. Biden. “And I wonder, what was he responding to?”
What he was responding to, according to Harmon Carey, director of the Afro-American Historical Society in Wilmington, were the powerful political currents of his home state. During the 1980s and 1990s, Delaware was a place in transition, with a booming financial-services culture clashing with the rising poverty, crime and racial tension in Wilmington, the state’s largest city, which is also majority-black.
“Joe’s a decent fella, but he was doing what his white constituents wanted,” Mr. Carey said. “The white people wanted to send people to prison. They wanted cops. And that’s what he did.”
[SIZE=6]Racial Ferment in Delaware[/SIZE]
Mr. Biden was a political unknown, a onetime public defender who had served just two years on the New Castle County Council, when he pulled off a stunning electoral upset, unseating a popular Republican senator by a margin of less than 1 percent. The year was 1972. The new senator-elect was 29.
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Marching in Wilmington in the aftermath of the 1968 rioting and National Guard occupation.CreditJohn Peterson/The News Journal
He had come of age during a time of intense racial ferment in his adopted state. Wilmington erupted in rioting after the Rev. Dr. Martin Luther King Jr. was murdered in the spring of 1968, and the governor imposed a dusk-to-dawn curfew and called in the National Guard, an occupation that lasted nine months. In 1971, black students in the city filed a class-action lawsuit to force schools to desegregate.
In this environment, Mr. Biden would quickly position himself as a new type of white politician: always approachable, with meaningful personal relationships in black communities. To this day, Mr. Biden tells the story of how, home from college for the summer, he was the only white lifeguard at a largely black municipal swimming pool.
“The nightly news had a way of making these stories seem like a conversation between the races in Wilmington, but I knew blacks and whites weren’t talking to one another,” Mr. Biden wrote in his autobiography “Promises to Keep.” “I knew that from my experience at [the] swimming pool.”
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The Wilmington swimming pool where Mr. Biden once worked as a lifeguard has been renamed in his honor.CreditSuchat Pederson/The Wilmington News-Journal, via Associated Press
Still, his relationship with Wilmington’s black community was complicated. As a freshman senator, he spoke out against the state’s court-ordered school-busing program. Busing was not universally popular among African-Americans, several community leaders recalled in interviews, but Mr. Biden’s vocal opposition went further.
“The real problem with busing,” Mr. Biden said in 1975, “is you take people who aren’t racist, people who are good citizens, who believe in equal education and opportunity, and you stunt their children’s intellectual growth by busing them to an inferior school, and you’re going to fill them with hatred.”
From his first term, Mr. Biden made his focus clear: the environment, a balanced budget and, especially, crime — all issues that other Democrats were not addressing, said Ted Kaufman, one of Mr. Biden’s closest and longest-running advisers.
“He knew and said that the main victims of crime were in the African-American community, so he ran on saying we have to do something about getting tough on crime,” Mr. Kaufman said, adding that Mr. Biden had also stressed the need to protect defendants’ civil liberties.
That tough-on-crime stance, Mr. Kaufman said, was “a very popular position to take in the African-American community.” But in interviews with community leaders in Wilmington, not everyone agreed. Though they remembered Mr. Biden fondly and said he remained widely popular in the black community, several stressed that their focus had been on systemic problems like economic inequality and failing schools — not on getting more police officers and prisons.
“We thought job opportunities would reduce the number of people on the corners resorting to drugs and crimes,” said the Rev. Dr. Vincent Oliver, a Wilmington pastor and longtime civil-rights activist.
Added James M. Baker, a former Wilmington mayor, who is black, “We knew you couldn’t arrest your way out of the problem.”
But Mr. Biden’s newfound agenda did appeal to a different, and larger, segment of Delaware’s electorate: white voters. In Delaware, the southern portions of the state are often likened to the lands of the Old South; and at the same time, many northern white liberals had fled Wilmington and shared Mr. Biden’s opposition to busing. In 1978, Mr. Biden would cruise to re-election, winning by 17 points.
In his next term, Mr. Biden would begin a legislative push against crime that would last nearly two decades. In that time, according to Mr. Carey, the historical society leader, he often struck a careful balance, using personal relationships to maintain his good standing in Delaware’s black community, while carefully legislating in the more conservative interests of white voters and law enforcement.
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Harmon Carey, head of the Afro-American Historical Society in Wilmington, said Mr. Biden’s approach to crime legislation reflected “what his white constituents wanted.”CreditHannah Yoon for The New York Times
The crime legislation would mark his hometown — and hometowns across America — forever.
Current statistics from the United States Bureau of Prisons show that African-Americans, who make up roughly 12 percent of the American population, account for 37.5 percent of the federal prison population. And an October 1995 report by The Sentencing Project, which advocates criminal justice reform, found that between 1989 and 1995 the percentage of young black men who were either on probation, in prison or jail jumped to 32 percent from 23 percent.
“We got the wrong kind of police. Not the community police, just more police who weren’t sensitive to black and brown people. We got more prisons,” Mr. Oliver said. “I don’t know what drove him to do it, I don’t know the political landscape, but that wasn’t what we were calling for. Not at all.”
[SIZE=6]Forging Ties With Segregationists[/SIZE]
Even before he was sworn into the Senate in January 1973, Mr. Biden wrote Mr. Eastland, the powerful chairman of the Judiciary Committee, expressing his interest in a seat on the panel. A Democrat and wealthy plantation owner from Mississippi, Mr. Eastland was one of the “old bulls” of the Senate, an unabashed Dixiecrat and foe of integration who referred to black people as “an inferior race.”
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Senator Strom Thurmond, left, served with Mr. Biden, center, on the Senate Judiciary Committee. Together, they wrote roughly a half-dozen crime bills.CreditJohn Duricka/Associated Press
Mr. Biden recently has tried to minimize his alliance with Mr. Eastland, saying he had to “put up with” the senior Democrat. But letters between them, archived at the University of Mississippi and published this year by CNN and The Washington Post, show that Mr. Biden courted the older man, who saw him as a kindred spirit in their opposition to busing and became a mentor to the young senator.
Mr. Biden finally landed a seat on the judiciary panel in February 1977, and wrote to Mr. Eastland again, petitioning to be put in charge of the subcommittee overseeing prisons and sentencing. By year’s end, with Mr. Eastland’s support, he was pushing to narrow judicial discretion by creating a commission to set “presumptive sentences,” and to eliminate pardons and parole. His aim, he told his hometown newspaper, The Wilmington Evening Journal, was “equitable and definitive sentences for all,” including defendants “who don’t meet the middle-class criteria of susceptibility to rehabilitation.”
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The segregationist Mississippi senator James Eastland, right, pictured with Edward Kennedy, helped Mr. Biden get committee assignments relating to criminal justice.CreditHenry Griffin/Associated Press
In 1981, when Democrats lost the Senate, Republicans installed another old bull Southern segregationist as chairman: Mr. Thurmond, a Democrat-turned-Republican from South Carolina, who had run for president in 1948 on the Dixiecrat platform. Mr. Biden became the ranking Democrat on the committee.
Over the next decade — first with Mr. Thurmond as chairman and then Mr. Biden after Democrats won back the Senate in 1986 — the pair wrote roughly a half-dozen crime bills together, laying the groundwork for three of the most significant pieces of crime legislation of the 20th century: the Comprehensive Crime Control Act of 1984, establishing mandatory minimum sentences for drug offenses; the 1986 Anti-Drug Abuse Act, which dictated much harsher sentences for possession of crack than for powder cocaine; and the Violent Crime Control and Law Enforcement Act of 1994, a vast catchall tough-on-crime bill that also included money for prevention, including Mr. Biden’s signature initiative, the Violence Against Women Act.
It was not only a partnership, but also a friendship, Mr. Biden recounted in 2003 when he spoke at Mr. Thurmond’s funeral — even as he acknowledged that he had arrived in the Senate “emboldened, angered and outraged” by Mr. Thurmond’s past.
“Strom and I shared a life in the Senate for over 30 years,” Mr. Biden said in his eulogy. “We shared a good life there and it made a difference. I grew to know him. I looked into his heart and I saw a man, the whole man. I tried to understand him. I learned from him and I watched him change, oh so subtly.”
[SIZE=6]Crack Cocaine and ‘a Tragic Mistake’[/SIZE]
In June 1986, a star forward for the University of Maryland basketball team, Len Bias, died of a cocaine overdose, two days after he had signed with the Boston Celtics. His death created a media frenzy amid a national panic over crack, a cheap, smokable form of cocaine that was alarming drug-abuse experts and fueling a wave of violent crime in American cities, especially black neighborhoods.
Mr. Biden convened a hearing the next month. Among the witnesses was Dr. Robert Byck, a Yale psychiatry professor and a leading expert on cocaine. He warned of a crack epidemic in the nation’s cities and pleaded for more money for prevention and research.
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After the college basketball star Len Bias died of a cocaine overdose in 1986, lawmakers expanded on Mr. Biden’s 1984 bill that had created mandatory minimum sentences for drug offenses.CreditBill Smith/Associated Press
“How likely is it if someone smokes some crack today that they will be addicted in five weeks from now?” Dr. Byck said. “We don’t know answers to simple questions like that.”
Lawmakers responded by expanding on the 1984 bill that had created mandatory minimum sentences for drug offenses. The 1986 law set a minimum of five years for 5 grams of crack or 500 grams of powder cocaine, the so-called 100-to-1 sentencing disparity.
A 2002 report to Congress from the United States Sentencing Commission found that in 1992, 91.4 percent of federal crack cocaine offenders were black. In releasing a 2006 report on the 1986 measure, the American Civil Liberties Union called the law “a tragic mistake.”
“There was a belief that crack was more potent,” said Ron LeGrand, a former prosecutor who spent three years at the Drug Enforcement Administration and joined Mr. Biden’s staff in 1987. “It wasn’t based on any science; we just thought it was.”
The bill did include money for prevention, which Mr. Biden lauded as its “most important provisions” when he spoke about it on the Senate floor. But it took more than two decades — until 2007 — for Mr. Biden to call for undoing the crack-powder disparity, which he called “arbitrary, unnecessary and unjust,” while acknowledging his own role in creating it.
“I am part of the problem that I have been trying to solve since then,” he said in 2008, “because I think the disparity is way out of line.”
[SIZE=6]Three Strikes, You’re Out[/SIZE]
In Mr. Clinton’s State of the Union address in 1994, he touted his “three strikes and you’re out” proposal, which would incarcerate certain repeat violent offenders for life, and called on Congress to pass a “strong, smart, tough crime bill.” Mr. Biden took up the call.
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For President Bill Clinton, signing the 1994 law was an immediate follow-through on his campaign promise to focus more federal attention on crime prevention.CreditDennis Cook/Associated Press
“What do you need?” he asked in a Senate floor speech that year — it was, he said, the question he had put to police unions while preparing the bill. “They said, ‘The first thing we need is we need more cops.’ And they said, ‘The second thing we need is we need more prisons.’”
Several police unions did not respond to requests for comment.
Violent crime had hit its peak in 1991, with 758 violent crimes per 100,000 Americans, federal statistics show — more than twice the 1970 rate. By the time the 1994 bill was passed, the crime rate was on the decline.
In other Senate floor speeches in 1993 and 1994, Mr. Biden spoke openly of wanting, as Mr. Clinton did, to rid Democrats of their reputation of being soft on crime. Mr. Biden presented the moment as a political window long overdue.
“One of the things I want to do, in addition to end the crime, is end the political carnage that goes on when we talk about crime,” Mr. Biden said. “This is one of these issues that I hope, after this bill, will be moved out of the gridlock category and into an emerging consensus.”
Yet at the same time, Mr. Biden appeared to be evolving. Aides say that by the mid-1990s he was concerned about possible inequities from the 1986 legislation, and his rhetoric reflects a certain shift.
At a 1993 symposium, he called for undoing some mandatory minimums he had helped create, saying they were “not positive” and were “counterproductive.” The next year, he called the three-strikes provision “wacko.” Mr. Biden became a more vocal advocate of diversion programs for first-time offenders, including boot camps and some drug courts.
“It is not enough simply to keep building prisons,” he said in June 1994, because statistics showed that “the prison population keeps growing to fill new spaces.”
The bill he helped fashion — the Violent Crime Control and Law Enforcement Act of 1994 — reflects those varied interests. It was a vast catchall bill that had a string of punitive measures desired by law enforcement. It banned assault weapons, created 60 new death penalty offenses, stripped federal inmates of the right to obtain educational Pell grants, gave states incentives to build prisons, set aside money for 100,000 new police officers and codified the three-strikes rule.
But it also had prevention programs and other measures intended to woo skeptical Democrats, including the Violence Against Women Act to support female victims of crime; drug courts to offer treatment for first-time offenders; a “safety valve” provision, backed by Mr. Biden, allowing limited waivers from mandatory minimums; and money for a “midnight basketball” program to keep inner-city youth off the streets. That portion drew derision from Republicans, who cast the entire bill as soft on crime and chock-full of Democratic social welfare programs.
Like Mr. Biden’s other crime initiatives, the 1994 bill created a personal conundrum: How could he help lift up and protect his black constituents from crime without decimating their neighborhoods by sending a disproportionate number of black people to prison?
“The criminal justice system has a disparate impact on black people,” said Carol Moseley Braun, a former senator from Illinois who is black and supported the bill. “Was Joe mindful of this? Yes, he was. Did we discuss it? Yes, we did.”
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The Rev. Jesse Jackson, pictured with Vice President Al Gore in fall 1994, said that year’s crime bill portended “the most fascist period of our history.”CreditAfro American Newspapers/Gado, via Getty Images
Black leaders, though, were bitterly split over the measure. Baltimore’s mayor, Kurt Schmoke, was in favor, as were black mayors in Atlanta, Cleveland, Detroit and Denver. The Rev. Jesse Jackson was against, calling the bill a harbinger of “the most fascist period of our history.”
In the House, the Congressional Black Caucus, then led by Kweisi Mfume, blocked an early version of the bill because of concerns over its punitive measures. But after money for prevention was added, Mr. Mfume switched his position. Of 40 Congressional Black Caucus members, 25 voted for the bill, 12 voted against and three didn’t vote.
One of those who voted against it, Representative Bobby Scott of Virginia, called the bill a political document rather than one based on evidence of and research into what would actually reduce crime.
“We were told that ‘three strikes and you’re out’ polls better than anything you could blurt out in a campaign, including the environment, Social Security, education,” he said in a recent interview. “That was the evidence and research we used to put in that bill.”
In August 1994, as the measure passed the Senate, Mr. Biden said he was giving his constituents back home exactly what they wanted.
“The telephones in the State of Delaware are ringing off the hook,” he said in a speech on the Senate floor, dismissing Republican complaints of “pork” in the bill. “They are not talking about pork or pork chops or anything else. They are saying: ‘Pass the crime bill. Give me 100,000 cops, build more prisons, and get on with it.’ “
Bobby Cummings, who was a rising star in the Wilmington Police Department in the 1980s and eventually became police chief, said the senator was beloved by hometown police officers because he had helped them get “more resources, more people on the street.”
But by 1994, Mr. Cummings said, it was already clear inside the police department that the cops-first approach was not working on the street.
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Bobby Cummings, former police chief in Wilmington, said Mr. Biden’s earliest crime-prevention efforts ingratiated him with the police. But by 1994, he said, it was clear that putting more officers on the street wasn’t the solution.CreditHannah Yoon for The New York Times
“It didn’t make people safer,” he said. “Really I don’t think anything changed except it threw people in jail.”
[SIZE=6]‘You Should Repair Damage Done’[/SIZE]
The legacy of the 1994 crime bill is mixed. While some studies show that it did lower crime, there is also evidence that it contributed to the explosion of the prison population. Biden aides and supporters often note that the trend toward mass incarceration began much earlier, in the 1970s, and that states — not the federal government — house an overwhelming majority of the nation’s inmates.
That is true, said Vanita Gupta, who led the Justice Department’s Civil Rights Division under President Barack Obama and now runs the Leadership Conference on Civil and Human Rights. But the 1994 bill, she said, “created and calcified massive incentives for local jurisdictions to engage in draconian criminal justice practices that had a pretty significant impact in building up the national prison population.”
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As many of his Democratic opponents call for ambitious criminal justice reform, Mr. Biden must answer for his role in creating some of the most significant pieces of crime legislation of the 20th century.CreditEric Thayer for The New York Times
But Mr. Kaufman, Mr. Biden’s close adviser, who briefly succeeded him as senator after Mr. Biden became vice president, said that was not the bill’s intent: “We were focused on how to effectively and fairly reduce violent crime. That was the charge given to us by community leaders and voters — including of color.”
Mr. Biden long defended the bill, saying as recently as 2016 that it “restored American cities” and that he was not ashamed of it. Looking ahead, even Biden supporters say it is now up to the former vice president to explain his role — and how he views his own legacy.
“It’s a fair question that people ask among members of the black community about this issue of mass incarceration and disparate impact,” said Gregory M. Sleet, a retired federal judge whom Mr. Biden had helped install as the first black United States Attorney in Delaware. “It’s a fair conversation to have about his role,” he said, adding that he thought Mr. Biden had good intentions and had worked with the best evidence he had at the time.
Mr. Biden, critics of the measure say, needs to explain what he will do next.
“I think that’s his challenge; I’ll be listening and observing,” Mr. Jackson said in an interview. “When you harm somebody, you should atone for a sin; you should repair damage done. That’s how you get redeemed.”
Correction: June 25, 2019
An earlier version of this article misspelled the given name of a former leader of the Congressional Black Caucus. He is Kweisi Mfume, not Kwase.
Correction: June 26, 2019
The article also described incorrectly Joseph R. Biden Jr.’s comments to his hometown newspaper about defendants who “don’t meet the middle-class criteria of susceptibility to rehabilitation.” Mr. Biden said he wanted “equitable and definitive sentences for all.” He did not say he wanted to prevent such defendants from being set free.
Follow Sheryl Gay Stolberg and Astead W. Herndon on Twitter: @SherylNYT and @AsteadWesley
Sheryl Gay Stolberg reported from Washington, and Astead W. Herndon from Wilmington, Del. Kitty Bennett contributed research.