When President Biden became the Democratic nominee A lot of information and misinformation began to spread, especially amongst Black people in social media circles. Of course, there are many points to criticize him on regarding policy, but we need to be honest about the premise behind the discussions. One particular point of interest is the ’94 Crime bill. In simplistic terms this vital piece of legislation is best known for being a precursor to disproportionate sentencing and mass incarceration of Black men. Without a doubt Joe Biden owns that legislation whenever confronted about it and accepts and acknowledges all criticism related to it. When examined further it is easy to see that like any other bill passed by congress, a bi-partisan conclusion is needed for it to be passed into law. In exchange for the support of America’s Black communities at the poll, Bill Clinton promised legislation as a solution for a growing drug abuse epidemic and Joe Biden took the lead. Biden and other congressional democrats presented their GOP counterparts with a more community friendly approach to this and their efforts were in no small part sabotaged before the bill would ultimately land beneath President Clinton’s pen. Lets explore the precedent for this bill and the path America took to get to this point.
As crime increased across the US after World War II it saw its peak between the 1970’s and early 1990’s. This time frame is important to the narrative of over sentencing for nonviolent crimes and over policing as it pertains to narcotics. In 1972 New York City was suffering an opioid epidemic specifically heroin as the substance of focus; with a homicide rate four times what it is today. Nelson Rockefeller, New York’s Republican governor, had previously backed drug rehabilitation efforts, job training, and access to affordable housing. The approach to dealing with the epidemic was to treat it as a social problem and a growing portion of Americans agreed with this approach at that time as many Americans do currently.
Republican President Richard Nixon declared a national war on drugs and Rockefeller suddenly had a change of heart. Influenced by an advisor, Nixon decided more progressive approaches to policy had failed. That advisor was John Daniel Erlichman, Assistant to the President for Domestic Affairs. He pushed for zero tolerance punishments with “drug pushers” and his legislation was easily passed. This method became a trend as other states took on mandatory minimums to deal with drug dealers. The most significant issue was that even though White people were using and handling drugs at a high rate, it was mostly Black and Hispanic people filling the courtrooms and being given these hard sentences.
To prove the malicious intent behind this series of policymaking by its producers we present as evidence a quote from the man himself, John Erlichman. I am often countered by citizens on the right ideologically with the notion that correlation does not mean causation. Let’s see what Erlichman’s “intent” was, as he explains it in an interview for Journalist Dan Baum’s book in 1994, not published in print until he wrote for Harper’s Bazaar in 2016.
“You want to know what this was really all about,” referring to Nixon’s declaration of war on drugs. “The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the antiwar left and Black people. You understand what I’m saying. We knew we couldn’t make it illegal to be either against the war or Blacks, but by getting the public to associate the hippies with marijuana and Blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course, we did.”
Members of Erlichman’s family have challenged the veracity of the quote as is expected since he passed away in 1999 and is not present to defend his words. This is a high-level government official with the ear of the president conspiring to legislate in opposition to, oppress, suppress, and provide obstacles both literally and figuratively against a specific racial demographic as well as others based on political ideology and affiliation. He happens to be a White male and member of the Republican Party, these two attributes being crucial to the discussion about governing in or against the interests of specific demographics by race.
Between 1972 and 1985
Drug addiction was clearly a horrible domestic issue there is no denying that, but this is about why particular efforts to curb the issue affected specific communities and demographic groups disproportionately. This is not merely about bad policy; this is about which details make it bad policy specifically and who suffers from said policy disproportionately.
It is important to note the history of specific kinds of policymaking and more so what ideologies and demographic groups support this kind of policymaking. We must know who is championing what laws and who is voting for them to be passed.
We understand the term “The War on Drugs” was created by the top Republican leader serving as US President in 1968 with dubious intent and messaging, but the political war began decades earlier in the work of Harry Anslinger (another Republican wow.) With this evidence US History reveals a decades long political agenda to influence voters towards tougher legislation where designated narcotics are involved. This is not necessarily an issue that could lead to disproportionate sentencing, but when emphasis on different narcotics varies, we are left to face the data whether historically or mathematically. During this period, upwards of 26 million Americans (based on NIH data) were considered regular drug users. Interestingly government policies urged law enforcement agencies to de-emphasize marijuana and cocaine and increase efforts to enforce against heroin. Obviously use of those less emphasized drugs expands during this time.
In 1986 University of Maryland basketball star Len Bias died of an overdose of what was thought to be crack cocaine. In response to the outrage caused by his death, a few weeks later Congress passed the Anti-Drug Abuse Act of 1986 which first ushered in mandatory minimum sentences for specific quantities of cocaine. According to statistics referenced by the ACLU the average federal drug sentence for African Americans was 11% higher than for Whites. Four years after the “Drug Abuse Act of ’86” the average federal drug sentence for African Americans was 49% higher than for Whites. Members of congress were concerned that “crack” which was a cheap derivative of cocaine, could spread out beyond urban areas and into the suburbs. The danger of crack being far more addictive and deadly was pushed as a narrative in the media and by the time it was widely realized that Bias died of a powder cocaine overdose the bill had already passed in congress. While mostly a bipartisan venture there were key points of contention along partisan lines in creating this bill. Ultimately signed by Republican President Ronald Reagan who ran on being tougher on crime than his counterpart Walter Mondale, it faced a Democratic majority in the House and Republican majority in the Senate. For many the biggest issue was how quickly it would be passed suggesting that it was largely based on vague or poorly defined information.
In this election year the theme for a specific portion of America was once again about being tough on crime and there had not been much of a unifying theme up to this point. Quoted in a New York Times piece Roger Ailes a Republican television consultant stated, “there is a growing feeling that you cannot be too tough on drug pushers.” On September 11th, the House considered 25 amendments eventually accepting 18 of them. A few of them were more controversial than others and deserve mention because of a theme that proves consistent within GOP political ideology. There was mostly bipartisan support for some form of tougher sentencing at this point but let us look at a few points of contention. One amendment co-sponsored by a Republican Duncan Hunter of California and Democrat Tommy Robinson of Arizona would require the President to respond to drugs being imported into the US with military force 30 days after the bill was signed. This amendment was eventually passed. A second amendment proposed by Dan Lungren a Republican from California would allow the use in court of evidence obtained illegally. This attack on constitutional rights was adopted on a 260-154 vote. It is especially important to understand only 8 Republicans joined 146 Democrats who opposed it. A third amendment pushed by George Gekas a Republican from Pennsylvania would authorize the death penalty in cases where there had been a killing connected to a drug related crime during a continuing enterprise. In other words, a way to sneak in more death penalties in States where there would otherwise be no consideration of a death penalty, a way to federally infringe on states’ rights. Though President Reagan is on record for being against the inclusion of the death penalty, the amendment was adopted 298 to 114 with 104 of the No votes coming from Democrats. Up to this point what we have seen is a strong push by a particular party to not only propose extreme and harsh punishments on drug related and mostly nonviolent crimes, but also disproportionate enforcement and infringement on constitutional rights to do so… mostly related to election year rhetoric and usually in opposition to more progressive legislation.
In a quote from a 2016 opinion piece for NPR’s “Code Switch” series; my fellow Washingtonian Alicia Montgomery explains the concerns Black residents had at the time regarding violence and crime in general. As her writing explains, Black residents of many urban communities were working towards deterring crime and they eventually put their support behind a Democrat who promised new legislation.
“Even though none of my family members lived in the heart of the violence, the threat hovered just a few blocks away. The Washington Post and other media reported the grim facts. Murders climbed from 147 people in 1985 to 194 in 1986 and 225 in 1987. And kids were getting caught up in the violence and the crime. Between January 1987 and October 1988, nearly 500 children had been shot and stabbed. Almost 1,400 kids under the age of 15 were arrested in the anti-drug effort called Operation Clean Sweep. These scenarios were playing out in Los Angeles, New York, Baltimore and many other cities.”
Democrats were basically begging for votes and unfortunately the key legislative focus to get the votes they needed depended on trying to assume the mantle of being “tough on crime.” The Democrats’ more innovative methods of deterring drug related crime by creating afterschool programs, heavily funding drug treatment programs in and out of prison and implementing drug courts were played off as “pork” by their colleagues across the aisle. Early release provisions for nonviolent drug offenders were scrapped for mandatory minimum sentences and an over emphasis on one form of a drug allegedly used more by one socioeconomic demographic than it is used in larger amounts in its base form by another group. In short Republican policymakers sabotaged legislation that was based on proposals deemed helpful for the community just as they have more recently with Covid 19 legislation and Infrastructure legislation. In closing, Joe Biden accepts full responsibility for getting the bill passed. When looked at with nuance, we see that the disproportionate outcomes were largely due to the Republican Party’s efforts to make the bill their own during bipartisan negotiations.
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