“Today’s clemency action provides relief for individuals who received lengthy sentences based on discredited distinctions between crack and powder cocaine, as well as outdated sentencing enhancements for drug crimes,” Joe Biden said today in a statement announcing another round of clemencies at the end of his presidency. “This action is an important step toward righting historic wrongs, correcting sentencing disparities, and providing deserving individuals the opportunity to return to their families and communities after spending far too much time behind bars.”
This is the right thing to do, of course, but an old friend of mine asked me on Facebook why Biden didn’t do this four years earlier. For the same reason he didn’t enact the First Step Act that Trump pushed through Congress, I responded, before adding, “Biden waited until now so that Trump could get no credit for the most important piece of criminal justice legislation in decades.”
There is more to the story, so before I get to the First Step Act and explain why many of those who will read this post will not have heard of this piece of legislation, I want to make brief readers on the background of the discredited distinctions between crack and powder cocaine which, among other injustices, the First Step Act addressed.
The disparity in sentencing between crack and powder cocaine emerged with the Anti-Drug Abuse Act of 1986, a legislative response to rising concerns about drug use and its societal impacts. This period saw a moral panic fueled by sensationalized media coverage of the so-called “crack epidemic.” Lawmakers, amid a historic crime wave, and seeking to appear tough on crime for their upcoming reelection bids, instituted harsh mandatory minimum sentences. Even though crack and cocaine are the same drug, and even though those who purchased powder cocaine often convert it to crack (I know, I lived in Miami at the time), ready-use crack cocaine, more commonly used in impoverished black-majority communities, was penalized 100 times more severely than powder cocaine. The result was racial disparity in sentencing.
A good source on this is Michael Tonry, who wrote extensively about disparities in drug sentencing and the broader issues of racial inequality in the criminal justice system in his 1995 Malign Neglect. Tonry argues that these policies were rooted in political motivations rather than evidence-based assessments of drug use or harm. Tonry emphasizes how these policies exacerbated racial inequalities and contributed to the over-incarceration of black Americans. (Tonry exaggerates the role drug sentencing played in the phenomenon, but I will leave that to a future essay. It was nonetheless significant and unjust.)
It is important for readers to know that, although this occurred during the Reagan-Bush administration, the law was bipartisan, with support from both Republican and Democratic lawmakers. Of note, Joe Biden was US Senator during the passage of the bill, and he played a significant role in shaping and supporting it. Indeed, Biden, serving as the ranking member of the Senate Judiciary Committee, where he helped craft and promote various anti-drug measures, including mandatory minimum sentencing laws. Biden was a leading advocate for tough-on-crime policies during this period and contributed to the broader legislative agenda of escalating penalties for drug offenses. Biden supported the 100-to-1 sentencing disparity between crack and powder cocaine. I condemned the legislation at the time and wrote about it later in my dissertation.
Some readers may be aware that in the early 1990s, during Bill Clinton’s presidency, Biden played a pivotal role in crafting and advocating for the Violent Crime Control and Law Enforcement Act of 1994, often referred to as the 1994 Crime Bill. As now Chair of the Senate Judiciary Committee, Biden was a driving force behind the legislation, which aimed to address growing public concerns about violent crime in the United States. The 1986 legislation wasn’t a one-off for Biden. More than any other Senator in my recollection, Biden was driven by authoritarian impulse.
Biden’s contributions to the legislation included advocating for expanded mandatory minimum sentences and supporting policies such as “three-strikes” laws, which imposed life sentences for individuals convicted of three serious offenses. The bill also allocated significant funding for law enforcement, enabling the hiring of 100,000 new police officers and supporting community policing strategies. Additionally, it provided substantial federal funding for the construction of new prisons to accommodate the expected rise in incarceration rates.
I supported the 1994 bill at the time and still credit it with bringing down crime and reducing violence. I distinctly remember driving home to Middle Tennessee after vacationing in the Appalachian Mountains when the bill passed just days before my second year of graduate school (the first of my two advanced degrees). While the legislation was initially lauded as a comprehensive solution to crime, its long-term effects, including its contribution to mass incarceration and its disproportionate impact on black and minority communities, have been the subject of significant criticism. As a graduate student in my PhD program in the second half of 1990s, I became critical of the law (its detrimental effects were notable soon after its enactment). Since then I have become more sanguine about the legislation overall but remain highly critical of ow it advanced the drug war.
That said, Biden speech on the Senate floor at the time is contemptible. He described violent offenders as a “predator” class (Hilary Clinton picked up on this, describing drug offenders as “super predators”), arguing that society needed to protect itself from these individuals regardless of the underlying social or economic factors contributing to crime. Biden stated: “It doesn’t matter whether or not they had no background that enabled them to have—to become socialized into the fabric of society.” He said a lot more:
To be sure, individuals should be held responsible for their actions, but for Biden to reject consideration of the root causes of the crime problem hardened the hearts of a nation to interventions that could have ameliorated those conditions and thus reduce crime organically. However, is aware of they history here, one understands why Biden would deny root causes: it was Democratic policies during the 1960s and 1970s that trapped blacks in impoverished inner-city communities, establishing female-headed households as the norm, generating a demoralized criminogenic culture. Biden’s racism is a fact of the historical record, one he is desperate to dissimulate.
Efforts to address the injustice of Biden and others produced began gaining traction in the 2000s, culminating in the Fair Sentencing Act of 2010 under the Obama-Biden administration, which reduced the disparity but crucially did not eliminate it. However, before heaping unwarranted praise on that administration, the Fair Sentencing Act of 2010 reduced the disparity from 100-to-1 to 18-to-1, a move of which I was highly critical at the time. Had the initial legislation ben 18-to-1, I would have condemned it as strenuously as I did at the time. There should be no disparity.
Let’s now return to the matters of Joe Biden’s actions this morning, and why during his four years in office Biden did not grant clemency to those his legislation sent to prison for decades—and why he did not enact the First Step Act Donald Trump signed into law on December 18, 2018. Moreover, if you are asking “What is the First Step Act?” let’s understand your ignorance.
Obviously, the corporate state avoids giving Trump credit for the most significant piece of justice legislation in decades. How significant? The legislation reformed the federal prison system by reducing mandatory minimum sentences for nonviolent drug offenses, expanding early release programs and allowing eligible inmates to earn time credits for good behavior and participation in recidivism-reducing programs, improving prison conditions, such as requiring federal prisons to place inmates closer to their families when possible, and addressing the disparities in sentencing for crack and powder cocaine offenses retroactively. That’s right, had Biden enacted the First Step Act, these prisoners would have already been released.
To drill down on the widespread ignorance of the First Step Act, this can be attributed to several factors. Although the law received some initial media coverage when it was signed into law, it lacked sustained attention afterward. As many readers are aware, coverage of Donald Trump’s presidency focused on controversies and polarizing issues. Immigration was a flashpoint, where media bias portrayed Trump as an authoritarian, going so far as misrepresenting photos of children in cages during the Obama-Biden administration as having occurred under Trump. (There was also the ulterior motive of flooding the country with illegal aliens.)
The First Step Act was a bipartisan achievement that required Trump’s intervention to accomplish. Trump pushing through and signing into law legislation releasing thousands of black men from prison put there unfairly, put there by Democrats, ran counter to the narrative the corporate state was determined to push. Elites controlling the narrative understood that people were primed to overlook it because criminal justice reform isn’t perceptually associated with Donald Trump, whose tough-on-crime rhetoric is depicted as anathema to the critical race theory/ social justice paradigm pushed by the apparatus. After 2010 especially, the corporate state, the mass media, the culture industry, and academia united in pushing out anti-white conservative bigotry, setting up Trump to be the champion of the Deplorables, and depicting the Democrats as sympathetic to the plight of the poor and minority.
As for academia, the institutional frame in which I have been ensconced for the last thirty years, criminal justice curricula and research endeavors focus on systemic racism, mass incarceration, and policing. This was the subject of my dissertation. The woke progressive academics who dominate the institution cannot give Trump credit for freeing people from policies Democrats were in a major way responsible. A lack of detailed and widely disseminated academic analysis of the First Step Act has limited its presence in coursework and scholarly discussions. When the rare criminal justice expert does discuss it—I present yours truly as the rare example of providing both sides—students across the university system, indoctrinated in woke progressive ideology by a lifetime spent in public education, disregard who they perceive as a “conservative” professor (even though in my case I am a liberal and a Marxist) and even report him to the dean’s office—as they did to me after a lecture debunking the central claims of Black Lives Matter and Trump’s work in addressing class and racial injustice in the criminal justice system.
The lack of recognition for the First Step Act and its transformative potential exemplifies a broader pattern of selective narrative control within our corporate, cultural, and political institutions. By downplaying and ignoring Trump’s bipartisan achievement, the corporate state, media, academia, and cultural elite perpetuate a skewed understanding of criminal justice reform and its origins. This neglect not only does a disservice to the truth but also undermines meaningful progress in addressing systemic injustices. This should be a time to reflect on the missed opportunities of the Biden administration (I have put this charitably) and the persistent ideological bias shaping the discourse over the last several decades. Instead, we are presented with a simulacra of a president who did far more harm than good to the nation he purports to serve.
freedom and reason 