Democratic candidate Joe Biden's history on being tough on crime could come back to bite him as the party's positions shift on the issue. | Justin Sullivan/Getty Images 2020 elections ‘Joe Biden needs to atone’: Ex-veep braces for debate pile-on The former vice president’s crime-fighting record was once a signature strength. In the current Democratic Party, it might be a liability.

Joe Biden spent much of his career carving out an image as a tough-on-crime Democrat. But few who watch the second presidential debate are likely to get that impression from him.

The rapid evolution of the politics of racial justice has made what used to be a signature strength into a potential liability, forcing him to scuttle his positions and rhetoric from decades ago — or risk getting trampled by opponents questioning his civil rights record. The biggest test comes Wednesday night, when he’ll be flanked onstage by two of his sharpest critics on race, Sens. Kamala Harris and Cory Booker.


Biden’s crime-fighting efforts were once praised by African American leaders — including by the nation's first black president, Barack Obama, who cited the then-senator’s role in passing the landmark 1994 crime bill when he chose Biden as a running mate in 2008.

But that 1994 law is now anathema in progressive circles. And for many, Obama is no longer enough to validate Biden’s credentials.

“Joe Biden needs to atone. He needs to admit the error of his ways,” said Desmond Meade, president of the Florida Rights Restoration Coalition and leader of the successful 2018 effort to restore voting rights to as many as 1.4 million people with felony convictions. “As a person previously convicted of a crime, there was a level of atonement I needed to do. I couldn’t just say it was in the past."

The criminal justice plan Biden unveiled last week is a major step in that direction. It takes a decidedly different approach toward law-and-order issues, most notably on the death penalty — which Biden now calls for eliminating after decades of supporting it. For the first time, Biden has also called for eliminating mandatory-minimum sentences at the state and federal levels.

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It’s not enough for Booker, who has accused Biden of being “an architect of mass incarceration” and has said Biden needs to explain himself. Booker’s rhetoric, echoed by activists and whispered by Biden critics, reflects the seismic shift in tone and substance over criminal justice in the party in recent years.

Meade called the 1994 crime bill “the mother ship for mass incarceration."

"And it wasn’t just the policies," he said. "It was the narrative, the culture it created about crime and policing.”

But Symone Sanders, a Biden campaign adviser who touted his crime proposal in a web video, said critics are creating a false impression about Biden, the legislation and the time it was born — during a high-crime era when “there were mayors across the country — black mayors, clergy folks — white and black people were calling out for change and they were begging their elected officials to do something.”

What’s more, Biden opposed additional mandatory-minimum sentences called for in the bill, which he noted in his congressional testimony at the time and in media interviews. But Republicans wanted it in, and the swirling political forces of the moment worked in their favor. Democrats were fighting to keep the House in 1994 and wanted to hand President Bill Clinton a win with the legislation — which also included the now-expired assault-weapons ban, the Violence Against Women Act and additional funding for drug treatment.

“He’ll be ready on that debate stage to discuss his record. He’ll be ready to defend himself against attacks from those who mischaracterize his record,” Sanders said.

The 1994 crime bill isn’t Biden’s only area of vulnerability. His tough-on-crime record in the Senate is long, dating to his first term, which began in 1973, when he repeatedly pushed for mandatory minimums. He played key roles in a 1984 law expanding police powers for civil-asset forfeiture and in two drug-abuse laws in 1986 and 1989. Biden, however, also made sure to advocate for more drug treatment over the years as well.

Biden once prided himself on being so tough that he chided President George H.W. Bush in 1989 for doing too little to stop “violent thugs.” Even President Ronald Reagan was too soft in Biden’s estimation: After Reagan vetoed one of Biden’s crime bills in 1983, the then-senator said, “This administration has, to put it frankly, always been strong on rhetoric about crime but weak on substantive action.”

Biden bragged in a 1994 floor speech that Republicans couldn’t outflank him on crime: “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.’”

But that was then. At the debate, a kinder and gentler Biden is expected to talk more about drug treatment, decriminalizing marijuana and eliminating mandatory minimums. He’s expected to fire back both at Booker, for his time as Newark, N.J., mayor when police were racially profiling citizens, and at Harris, who supported a controversial truancy law in 2010 as California attorney general.

He’s also prepared to express some contrition.

“There are some things he got wrong,” Sanders said, referring to his support of 1986 legislation that treated crimes related to crack cocaine more seriously than crimes related to powder cocaine, the former of which was associated with blacks and the latter with whites. She noted Biden sought to rectify the disparity in 2007 legislation.

"I haven't always been right. I know we haven't always gotten things right, but I've always tried,” Biden, telegraphing what he’s ready to say Wednesday, said in January at a Martin Luther King Jr. commemoration in Washington. Biden didn’t mention the 1994 crime bill specifically but brought up the 1986 cocaine legislation, which passed the Senate with only two no votes.

“It was a big mistake when it was made,” Biden said. “There's still a systematic racism and it goes almost unnoticed by so many of us.”

As long as Biden remains the front-runner, that’s unlikely to be explanation enough — his rivals will not allow Biden or his allies to argue that the discussion of racial justice wasn’t as robust as it is today.

“The question is, what were you doing to address structural inequality and institutional racism throughout your life? Don’t just tell us what you’re going to do. Tell us what you’ve already done,” Booker, speaking Thursday at the Urban League in Indianapolis, said in a preview of his debate strategy. “Don’t just tell us you’re going to be a champion for our communities when you become president, if you haven’t been a champion already.”

Yet the debate could be a good opportunity for Biden to explain himself, said Basil Smikle, a Democratic strategist who worked for Hillary Clinton and served as the executive director of the New York Democratic Party. Given Biden’s strong polling with African Americans, Smikle said it was important for the candidate to release his criminal justice before the issues play out on the debate stage.

“Voters can understand if you changed your mind, but they want to know why,” he said. “The narrative that explains the change in his thinking is very important as a voter as they look to ask: ‘Is he believable?’ He’s capable of doing this. I don’t know if he’ll be successful.”



CORRECTION: A earlier version of this article misstated who vetoed a crime bill in 1983. It was President Ronald Reagan.