How an early Biden crime bill created the sentencing disparity for crack and cocaine trafficking

The new form of cocaine was called crack, and by the summer of 1986 it was fueling fears of a drug epidemic.

Mayors pleaded for federal help to protect inner-city neighborhoods from traffickers. Black clergy members held vigils on street corners in New York City, calling cocaine a "new form of genocide." In Washington, Democrats charged that the Reagan administration was surrendering the fight.

A 44-year-old Democratic senator from Delaware with a growing national profile stepped forward with a bill aimed at heading off the crisis.

The bipartisan legislation crafted by Joe Biden, which authorized new funding for drug treatment programs and stricter penalties for drug offenses, passed overwhelmingly, with the support of most black lawmakers, and was signed into law by President Ronald Reagan.

Later, a little-noticed provision in the law came to be viewed as one of the most racially slanted sentencing policies on record: a rule that treated crack cocaine as significantly worse than powder cocaine and ended up disproportionately punishing African Americans.

Sixteen years after its passage, Biden disavowed the provision, saying "the road to hell is paved with good intentions," quoting nuns who taught him as a child. His campaign now calls the disparity in sentencing "a profound mistake" that he wants to reverse.

As he makes another bid for the White House, Biden, now 76, is facing criticism over his past advocacy for tough-on-crime policies, particularly his authorship of the 1994 omnibus anti-crime law that is blamed for accelerating incarceration rates, especially of black men. One of his Democratic rivals, Sen. Cory Booker of New Jersey, last week said that the law "inflicted immeasurable harm on black, brown, and low-income communities." Booker is expected to raise the issue again before a national audience during this week's primary debate.

Biden's role in passing the lesser-known 1986 law and creating the crack-powder disparity reveals how he grappled with policies year earlier that would affect the black community. The episode could further complicate his ongoing struggle to reconcile his decades-long record with changing political and societal norms.

An examination of Biden's work on a half-dozen criminal justice bills found that his legislation included liberal priorities but also broadly served to push federal criminal policy to the right in response to a surge of violent crime. Biden's language and policy positions were mainstream for Democrats at the time, reflecting a political consensus around tough-on-crime policies during the crime wave that began in the 1970s and efforts by many in the party to assert a more centrist image.

Critics now say those policies helped fuel incarceration and racial disparities in the criminal justice system - and are calling on Biden to take responsibility for his part.

"He has a burden on him to explain," Kevin Ring, president of the nonprofit advocacy group Families Against Mandatory Minimums, said in an interview this month. "He needs to say clearly, 'Here is what I think I got right back then and what I got wrong, here is what I think today.' . . . Otherwise, he's going to litigate the past in a way I don't think will be helpful to him."

On the campaign trail, Biden has at times played down the power he wielded or suggested he did not support policies that he touted as they became law, such as additional prison funding.

"It's about the future," he told reporters Wednesday in Dearborn, Michigan. "What do we do from this point on? . . . We should be shifting the whole focus, which I've been arguing for the last 15 to 20 years, to prevention, not, in fact, incarceration."

Last week, Biden's campaign released a 10-page criminal justice reform agenda to reduce the prison population, fight racial disparities and strengthen efforts to rehabilitate offenders. The specifics of several proposals directly contradicted policies Biden helped write and pass as a senator.

"It was a big mistake when it was made," Biden, who declined to be interviewed for this report, said of the measure that created broad sentencing disparities between crack and powder cocaine during a speech in January. "We were told by the experts . . . that [crack] was somehow fundamentally different. It is not different. But it has trapped an entire generation."

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Biden, a former public defender, was elected to the Senate in 1972, during a period of rising violent crime and the year after President Richard Nixon declared a "war on drugs."

The country's violent crime rate, which would peak in 1991, had more than doubled since 1960.

Back in Biden's home state, Dennis Williams, a former Wilmington, Delaware, mayor who is African American, said he observed a sharp increase in cocaine-related violence while working on the city's police force during the crime wave.

"Everybody was alarmed," Williams, Biden's longtime friend, said in an interview. "It wasn't just the white community. . . . The black community had solid neighborhoods, and they were afraid. They wanted to be protected also."

Early on, the young senator called for a much broader federal role in the traditionally state and local task of fighting crime - and warned in dire terms about dangers facing the public.

Americans "are worried about being mugged on the subway," Biden said on the Senate floor on July 22, 1976. "Women are worried about being raped on the way to their automobiles after work. . . . They worry that their government does not seem to be doing much about it, and unfortunately, they appear to be right."

The following year, Biden joined the Judiciary Committee and called for Democrats to respond more forcefully to voters' fears, saying he could "no longer dismiss as being totally uninformed, ill-advised, and prejudiced or racist the concern of those folks out there who are scared."

By mid-1986, crack cocaine was readily available in major cities, and federal data showed a spike in cocaine-related deaths, a trend that received widespread attention after two sports stars fatally overdosed that June. Emergency rooms and drug treatment programs were flooded with addicts. Medical experts told the media that crack was uniquely addictive and violence-provoking in its users relative to powder cocaine.

"There is simply no federal program in place to address this serious public health and law enforcement crisis," Rep. Charles Rangel, D-N.Y., stated at a hearing on July 18, 1986.

On Capitol Hill, Biden helped author an aggressive drug bill that Senate Democrats hoped would counter drug trafficking, assist local communities - and benefit the party in the 1986 elections.

His status as the top Democrat on the Judiciary Committee and leader of a Democratic working group on narcotics abuse made Biden a key player in the rush to pass a final bill before November, according to published accounts of the bill's passage and people who worked on the legislation. A year later, he would mount a brief, unsuccessful presidential bid.

The Anti-Drug Abuse Act authorized more than $1 billion for drug enforcement, education and treatment programs. But one of its most consequential provisions was the "100-1" rule, so named because it required a five-year mandatory minimum sentence for trafficking in 500 grams of powder cocaine or five grams of crack.

Though Biden took responsibility for the formula in 2002, it is unclear exactly how it came to be part of his bill. The ratio was more aggressive than proposals from either the Reagan administration, which sought a "20-1" rule, or House Democrats, who held the majority and sought a "50-1" rule, but less aggressive than the "1,000-1" ratio proposed by Sen. Lawton Chiles, D-Fla., the co-chairman of Biden's working group.

The process had turned into a political "bidding war" between Republicans and Democrats, who were courting fearful voters ahead of the 1986 elections, said Eric Sterling, a former House Democratic staffer who worked on the 50-1 proposal.

No experts recommended a 100-1 ratio, said Sterling, now president of the Criminal Justice Policy Foundation, a drug policy and criminal justice reform group, who said he regrets working on the House proposal.

"Biden was the lead anti-drug guy among the Democrats," Sterling said in an interview this month. "As ranking member, he had critical sign-off authority on legislation. A lot of these concerns about the 100-to-1 ratio really are questions that Biden needs to answer for."

Biden's campaign said the 100-1 rule reflected a consensus in the Senate that crack cocaine was a crisis that demanded "strong steps" from policymakers.

The disparity, which has since narrowed, was "a profound mistake that [Biden] is adamant be fully corrected," the campaign said.

"Throughout his time in public service, in moments when hard decisions had to be made, Joe Biden always put everything he had into making the best possible judgments that he could. He accepts responsibility for what he got wrong and for what he got right," campaign spokesman Andrew Bates said in a statement.

The 100-1 rule received scant attention at the time.

One of the few outspoken critics was then-Rep. Barney Frank, D-Mass., who called the bills' various proposals the "legislative equivalent of crack."

"It yields a short-term high, but does long-term damage to the system, and it's expensive to boot," he said in September 1986.

Still, Frank noted this month that Biden's positions were widely shared.

"I don't think there was anything extraordinary about his role at the time," he said in an interview. "I think he was wrong in the way most of the country was wrong, which I say smugly because I was right."

The House and Senate versions of the bill passed each chamber overwhelmingly - by a vote of 392 to 16 in the House on Sept. 11 and by a vote of 97 to 2 in the Senate on Sept. 30.

On the Senate floor, Biden described the legislation as a consensus measure that left out the most controversial proposals from both sides.

"All 100 senators can be proud of this legislation on its merits, and can be proud of the process that led to the bill," he said the day the Senate measure passed.

After several weeks of negotiations, the final bill easily passed both chambers on Oct. 17: by unanimous consent in the House and by voice vote in the Senate, indicating a lack of controversy.

With the exception of Frank, few critics of the measure cited the crack-powder disparity as the reason for their opposition.

"This bill was thrown together in such a sloppy manner [that] it is really difficult to assess all the flaws," then-Sen. John Melcher, D-Mont., told the Medill News Service in a report published Oct. 1, after voting against the Senate version.

Reagan signed it into law one week before the Nov. 4 elections, in which Democrats won control of the Senate.

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Over the next decade, Biden began to publicly cast doubt on policies such as mandatory minimums that were central to his previous bills, even as he devoted substantial time to crime legislation.

His efforts culminated in an omnibus crime law in 1994, a massive expansion of federal crime-fighting efforts that ordered life sentences for three-time violent offenders, authorized $6.9 billion for crime prevention programs and banned 19 types of semiautomatic weapons. The measure drew more opposition than the 1986 bill, but still gained support from most black lawmakers.

The law also led to the eventual reassessment of the 100-1 rule by ordering the United States Sentencing Commission to study the effects of the policy on the federal prison population.

This effort revealed a startling statistic: African Americans made up 88.3 percent of those convicted of federal crack offenses in 1993, even though federal survey data showed that a majority of crack users were white.

In a 1995 report to Congress, the commission wrote that although the crack penalties "apply equally . . . regardless of race," uneven enforcement can result in defendant pools that are not representative of who commits crimes.

"The 100-to-1 crack cocaine to powder cocaine quantity ratio is a primary cause of the growing disparity between sentences for Black and White federal defendants," the commission wrote, recommending that Congress change the policy.

It was not until seven years later that Biden disavowed the 100-1 rule.

"I'm the guy that wrote the law - literally," he said at a hearing on May 22, 2002. "I'm the guy who drafted the legislation that resulted in this disparity."

While running for president in 2007, Biden went further and introduced legislation that would treat crack and powder cocaine equally, which drew support from then-Sen. Barack Obama, D-Ill.

Three years later, when Biden was vice president, Obama signed into law a measure that narrowed the ratio to 18-1, still treating crack cocaine more harshly, but to a lesser degree. Biden did not comment publicly on the change at the time.

The effects of the 100-1 rule are still being assessed.

In 1993, the first year the Sentencing Commission differentiated between crack and powder cocaine in its data, roughly 3,750 people were sentenced for federal crack offenses.

Once the ratio narrowed to 18-1 in 2010, the number of federal crack convictions dropped dramatically. In 2016, roughly 1,500 people were sentenced, a decrease of 67 percent from six years earlier, the commission reported. Overall, federal prisoners made up 12 percent of the total prison population at the end of 2017, according to federal data.

Biden's current criminal justice agenda would reverse virtually all of his past tough-on-crime measures, including mandatory minimum sentences and the remaining crack-powder sentencing disparity.

“I haven’t always been right,” Biden said in January at a breakfast honoring the Rev. Martin Luther King Jr. “I know we haven’t always gotten things right, but I’ve always tried.”