Commentary: Is Biden Out of Step on Criminal Justice Reform?

By David M. Greenwald

While the nation has been transfixed with the Trump administration’s handling of everything from coronavirus to his debate to racial unrest, some on the left have given former Vice President Biden a virtual pass for his weak record on justice reform—and in particular his support for the 1994 crime bill.

Last week, Chelsey Sanchez put forward a provocative article in Harper’s Bazaar arguing, “Many think that the former vice president’s criminal justice platform is at odds with demands of the current moment. Here’s where he stands.”

Sanchez points out, “Unsurprisingly, Biden—who helped author the 1994 crime bill—is far from a future that imagines the abolition of police and prisons, even if Trump and his Republican backers would like conservative voters to think so.”

In fact, Biden’s actual campaign plan more closely resembles something from the 1990s Clinton administration than something you would read from cutting edge reformers like Larry Krasner or Chesa Boudin, or on the presidential campaign side—the platforms of Bernie Sanders or Elizabeth Warren.

Instead, Sanchez points out, the campaign “promises a renewed commitment to reforming the justice system by investing a whopping $300 million for police departments to hire more officers and train them on ‘community-oriented’ policies.”

The platform also proposes expanding access to mental health and substance abuse services, but also “creating a competitive $20 billion grant program in an effort to encourage states to implement crime-prevention policies.”

“What I support are the police having the opportunity to deal with the problems they face and I’m totally opposed to defunding the police offices,” Biden said during the debate.

He continued: “As a matter of fact, police, local police, the only one defunding in his budget calls for a $400 million cut in local law enforcement assistance. They need more assistance.

“The vast majority of police officers are good, decent, honorable men and women,” he said later in an answer lauding officers. “They risk their lives every day to take care of us, but there are some bad apples. And when they occur, when they find them, they have to be sorted out. They have to be held accountable.”

That certainly does not dovetail with my views that we need to move money from policing into mental health services and partner law enforcement with non-profits like CAHOOTS, which has 30-year track records of reducing interactions between police and people in mental health crisis.

There are more aggressive reform-minded portions of his platform as well.  He does seek to reduce incarceration, eliminate racial disparities in the sentencing process, hold police officers accountable for misconduct, and offer rehabilitation for those who were previously incarcerated among other things.

The $20 billion grant, Sanchez notes, is modeled off a proposal by the Brennan Center for Justice, in which “states, cities, and counties will receive funding if they take on policies that reduce crime and incarceration.”

But, at the same time, “He calls for funneling money into the system at a time when organizers and protesters want to defund the police.”

Sanchez writes, “While many political pundits and analysts are quick to paint Biden’s platform as a sweeping and comprehensive suite of well-intentioned reforms, many of those who have long fought and organized against the injustices of the justice system see it as adding insult to injury.”

Biden has steadfastly opposed the notion of defunding the police—even in its more benign forms.

In a June op-ed, Biden writes, “While I do not believe federal dollars should go to police departments violating people’s rights or turning to violence as the first resort, I do not support defunding police. The better answer is to give police departments the resources they need to implement meaningful reforms, and to condition other federal dollars on completing those reforms.”

But the problem for reformers like me is how do you implement a reform when you believe the process in several areas is fundamentally broken?  Why are we sending police officers into mental health crises?  We saw last week two examples of how that is the exact wrong approach, where we learned more details of the police intervention into Miles Hall’s death in Walnut Creek and Robert Coleman’s death in West Sacramento.

Meanwhile, we see CAHOOTs with a 30-year track record, where they have taken on tens of thousands of calls for service, with only 150 of those requiring police backup and NONE of them requiring the fatal use of force.

Sanchez points out that Biden’s plan would call for $300 million to the COPS program (Community Oriented Policing Services) which, among other things, authorizes the hiring of additional officers and investing in training for a “community policing approach.”

That sounds good, but critics warn that such funding doesn’t always go to community-oriented purposes.

“Since the program started, billions of dollars have gone to encourage more policing, and far, far less has gone to more community-minded policing,” Rachel Harmon, the director of the Center for Criminal Justice at the University of Virginia School of Law, told ABC News.

Furthermore, there is a fundamental problem with the notion that reforms will result in actual reductions in level of violence.

“The philosophy undergirding these reforms is that more rules will mean less violence. But police officers break rules all the time,” wrote Mariame Kaba, an organizer and founder of Project NIA, for a June op-ed on police abolition in The New York Times.

Indeed, California in recent years has implemented key reforms such as regarding the use of force, police transparency and body-worn cameras.

The problem is that we still lack enforcement mechanisms to hold police accountable, and we still end up with disputes over whether the force was justified—while we still end up sending police into situations where they are ill-equipped to handle.

As Kaba puts it: “Look what has happened over the past few weeks—police officers slashing tires, shoving old men on camera, and arresting and injuring journalists and protesters. These officers are not worried about repercussions any more than Daniel Pantaleo, the former New York City police officer whose chokehold led to Eric Garner’s death; he waved to a camera filming the incident. He knew that the police union would back him up and he was right. He stayed on the job for five more years.”

State Senator Steven Bradford attempted to at least give local agencies the ability to strip officers of their certification—and he couldn’t get that through the heavily Democratic legislature this year.

Meanwhile, Sanchez points out that Biden “famously helped author the 1994 crime bill.”

A lot of the tough-on-crime policies that propelled mass incarceration came out of that.

She writes, “Through the tantalizing promise of federal funding, states were incentivized to pass mandatory minimum sentencing laws, build more jails and prisons, and take on other punitive measures that decidedly not only kept people in jail for longer but also ensnared more individuals into the sticky system.”

Biden now admits that was a mistake.

“It was a big mistake that was made,” he said at the start of 2019. “We were told by the experts, ‘With crack you can never go back.’ … It’s trapped an entire generation.”

The question that many reformers will ask—can they trust Biden to enact these reforms or will he buckle under pressure from the police unions, just like the California legislature did this past session?

—David M. Greenwald reporting

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