Government

Will Biden Take The Second Step Against The War On Drugs? Can He? 

President Biden has a terrible track record when it comes to the drug war, but even if he wanted to change it, can he?

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(Photo by Drew Angerer/Getty Images)

I have to admit something right of out the gate here: Because of his long and gruesome history of authoring the drug war, I utterly despise Joe Biden. There are few individuals outside of the Reagan administration — when “the true war on drugs began” — who bear as much blame for the modern drug war as Joe freaking Biden. For example, it was Biden who wrote the 1994 Crime Bill. Yet even that piece of misery was but one part of Biden’s embrace of the kind of panic politics that’s allowed the drug war to destroy as many lives as it has.

There are libraries of material written about the modern drug war, but what still stands out to me personally is Michelle Alexander’s New Jim Crow (here is a shortened law review article version). Just how enormous and deeply entrenched has the war on drugs become? Two points identified by Alexander put the issue in perspective:

[I]f our nation were to return to the incarceration rates of the 1970s — a time, by the way, when civil rights activists thought that imprisonment rates were egregiously high — we would have to release four out of five people who are in prison today.” More than a million people employed by the criminal justice system could lose their jobs.

In other words, not only is the sheer number of human beings we incarcerate grotesquely high, but there is a perverse economic incentive to keep it going. The simple fact is that without leaders such as Biden, who were so willing and eager to appear tough on crime, we wouldn’t have this system of mass incarceration. A system, by the way, that does not treat everyone equally but disproportionately impacts minorities. Of course, others besides Biden bear blame, but again, with things like the crime bill, Biden represents one of the primary figures that got us here.

But now that Biden is president it appears, at least rhetorically, that he wants to change the current state of things with the drug war he helped create. This appearance of a change of heart necessarily begs the question of what exactly can Biden do? As Elizabeth Nolan Brown at Reason points out, right now Biden can use his pardon power to start freeing drug war victims immediately. The ACLU has also called on Biden to direct federal prosecutors to quit pursuing drug cases. But will Biden do these things? I have my doubts. And when it comes to legislation, even if he wanted drastic change Biden is facing what likely amounts to an insurmountable hurdle.

Yes, the previous administration and Congress passed criminal justice reform in the form of the First Step Act. But that bill was extraordinarily modest, and even then faced an absurd campaign of fearmongering that very nearly derailed it. Any effort at significant reform, like say repealing the Controlled Substances Act, would therefore certainly face enormous obstacles. It is also important to remember that even if the entire Democrat majority in Congress was willing to support significant repeal of the drug war, the filibuster is still a thing and Senators Joe Manchin and Kyrsten Sinema have said they will not vote to get rid of it under any condition. So even if Biden wants to take a significant second step, it will require nuking the filibuster, which his party won’t do. The result is millions will continue to suffer.

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I don’t take such a grim view because I want to or to suggest giving up. But one has to face reality. It would also be a mistake to harbor only grim views about our future. Even though our system of mass incarceration still targets Black men in particular disproportionately, from 2001 to 2017 the rate of incarceration for this demographic declined by 34%.

The only way to change things even more is to keep the issue at the forefront of our national politics. One can find no greater policy to criticize. I submit the war on drugs has been the most destructive, costly, and ineffective domestic policy in the past century. Millions upon millions have had their lives needlessly destroyed by it. Joe Biden should have to answer for the role he played. And Sinema and Manchin should have to explain why they won’t take the only steps available to correct a horrendous wrong.

Tyler Broker’s work has been published in the Gonzaga Law Review, the Albany Law Review, and is forthcoming in the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.

 

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