As president-elect Joe Biden prepares to take office next month, drug policy reform advocates will be watching closely to see if his new administration follows through on campaign promises to roll back the punitive laws he once supported.
Biden was widely criticized during his campaign for his role in promoting legislation that led to large-scale incarceration of people accused of drug crimes. While serving as a Senator, Biden championed numerous pieces of legislation that helped fuel the war on drugs.
Together with Senator Strom Thurmond (R-SC), Biden was the driving force behind the 1984 Comprehensive Control Act which expanded federal penalties for drug crimes. The legislation also allowed police to seize the property of defendants in drug cases through civil asset forfeiture irregardless of whether the accused were found guilty.
The Anti-Drug Abuse Act of 1986, which was sponsored and partially written by Biden, increased penalties for drug crimes and created a 100-to-1 sentencing disparity between those accused of possessing and distributing crack and powder cocaine. This sentencing disparity, which has been partially addressed, treats violations involving crack more harshly, contributing to systemic racial injustices in incarceration.
Two years later, Biden co-sponsored the followup Anti-Drug Abuse Act of 1988 which increased penalties for drug possession and transportation. The Act also established the Office of National Drug Control Policy.
Perhaps Biden’s most infamous piece of drug legislation is the Reducing Americans’ Vulnerability to Ecstasy Act, or the RAVE Act. The original 2002 RAVE Act did not get enough support from lawmakers, but a similar law also sponsored by Biden, the Illicit Drug Anti-Proliferation Act, still known as the RAVE Act, passed as an attachment to the AMBER Alert Bill in 2003.
The RAVE Act expanded the Controlled Substances Act to prohibit “knowingly opening, maintaining, managing, controlling, renting, leasing, making available for use, or profiting from any place for the purpose of manufacturing, distributing, or using any controlled substance.”
The legislation has been broadly interpreted by some event organizers which has had a chilling effect on efforts to provide risk reduction services such as on-site testing for potentially deadly adulterants.
“If I were governor of my state or the mayor of my town, I would be passing new ordinances relating to stiff criminal penalties for anyone who holds a rave, the promoter, the guy who owns the building. I would put the son of a gun in jail. I would change the law,” said Biden during a 2001 Senate hearing. “There’s no doubt about where these raves are, in the middle of the desert. Arrest the promoter. Find a rationale unrelated to drugs.”
Biden has also championed legislation that contributed in other ways to the rapid expansion of the US prison population in the 1990s and 2000s. Biden partially wrote the Violent Crime Control and Law Enforcement Act of 1994, legislation that increased prison sentences and authorized the Attorney General to expand funding for state prisons.
Recanting Past Drug Legislation
In the late 2000’s, Biden began to reconsider his support for drug legislation that was disproportionately incarcerating people of color. Reflecting on the sentencing disparity for crack and powder cocaine in a 2008 hearing before the Subcommittee on Crime and Drugs of the Senate Judiciary Committee, Biden admitted that he was complicit in the racist war on drugs.
“Many have argued that this 100-to-1 disparity is arbitrary, unnecessary, and unjust, and I agree. And I might say at the outset in full disclosure, I am the guy that drafted this legislation years ago with a guy named Daniel Patrick Moynihan, who was the senator from New York at the time. And crack was new. It was a new ‘epidemic’ that we were facing,” Biden told the subcommittee.
Biden added that medical professionals convinced lawmakers that crack cocaine was more dangerous without considering that this form of cocaine was predominately used by people of color.
“And we had at that time extensive medical testimony talking about the particularly addictive nature of crack versus powder cocaine. And the school of thought was that we had to do everything we could to dissuade the use of crack cocaine. And so I am part of the problem that I have been trying to solve since then, because I think the disparity is way out of line.”
Biden’s stance on drug laws and his later recanting of this legislation may have been influenced by his son Hunter Biden who was arrested for drug possession in 1988, the same year that his father voted for that year’s version of the Anti-Drug Abuse Act. After Hunter Biden was nominated to serve on the Amtrak Reform Board in 2006 he said in a disclosure statement that, “In June 1988, I was cited for possession of a controlled substance in Stone Harbor, NJ. There was a pre-trial intervention and the record was expunged.”
According to news reports, Hunter Biden has been in rehab at least six times for drugs and alcohol. He told The New York Times that he spent four years addicted to crack cocaine and had been to rehab “seven or eight times.” Psychology Today, which details Hunter Biden’s history of addiction treatments, reported that in 2014, he underwent therapy with ibogaine in Mexico.
Joe Biden Commits to Drug Law Reform
Joe Biden has been trying to reverse his own policies for more than a decade, but took more decisive steps once he entered the presidential race.
During the final presidential debate, when challenged on his drug policy record and the Anti-Drug Abuse Act of 1986, Biden admitted plainly that the legislation needed to be rewritten. “It was a mistake,” said Biden. “I’ve been trying to change it since then, particularly the portion on cocaine.”
A section on Biden’s campaign website dedicated to “Eliminating Racial Disparities and Ensuring Fair Sentences,” specifically commits to “End, once and for all, the federal crack and powder cocaine disparity” and to “ensure that this change is applied retroactively.”
Biden makes a number of statements on his campaign website that signal a shift in his thinking about how drug laws impact communities of color. “We need to confront racial and income-based disparities in our justice system and eliminate overly harsh sentencing for non-violent crimes,” says Biden on the site.
During the final debate, Biden went a step further and laid out his new approach to the enforcement of drug laws that continue to be used by police and prosecutors. Instead of locking up people accused of drug crimes, Biden says he will shift the criminal justice system away from incarceration to rehabilitation.
“We should not send anyone to jail for a pure drug offense,” said Biden. “Nobody should be going to jail because they have a drug problem. They should be going to rehabilitation, not to jail. We should fundamentally change the system and that’s what I’m going to do.”
Perhaps influenced by the efforts of his own son to seek treatment for addiction, Biden states on his campaign website that he will work to connect people who need support with social services instead of sending them to prison. “Too often, those in need of mental health care or rehabilitation for a substance use disorder do not get the care that they need,” says the website. “Instead, they end up having interactions with law enforcement that lead to incarceration.”
Vice president-elect Kamala Harris, a former San Francisco District Attorney, came under fire on the campaign trail for her prosecution of drug cases. Like Biden, Harris also assured voters that she would reform laws that she once enforced. “We will – on the issue of criminal justice reform – get rid of private prisons and cash bail,” said Harris during the vice presidential debate. Biden’s website echoes this promise, pledging that “Biden will end the federal government’s use of private prisons.”
Drug decarceration under Biden’s new vision comes with a caveat. According to his website, Biden intends to “End all incarceration for drug use alone and instead divert individuals to drug courts and treatment.”
According to his campaign website, Biden will require federal courts to compel those accused of drug offenses into treatment programs to address their substance use – and incentivize states to put these same requirements in place. Biden also pledged to expand funding for federal, state and local drug courts to carry out these policies.
“They should be going into treatment across the board. That’s what we should be spending money on. That’s why I set up drug courts which were never funded by Republican friends,” said Biden. “They should not be going to jail for a drug or an alcohol problem. They should be going into treatment. Treatment. That’s what we’ve been trying to do. That’s what I’m going to get done.”
Some critics have referred to this approach as “the kinder and gentler War on Drugs.” Sheila Vakharia, Deputy Director of the Department of Research and Academic Engagement for the Drug Policy Alliance, stated on Twitter that drug courts are not an alternative to incarceration or a substitute for all drug decriminalization.
“While it is noteworthy that Biden has explicitly said that people who use drugs do not belong in jail and should instead get access to treatment, his support for interventions such as drug courts should give us all pause,” Vakharia told Lucid News. “No one should have to get arrested and plead guilty to a drug charge in order to get access to treatment, which, if they do not complete to the satisfaction of the court can then lead to incarceration. Drug courts are built upon the premise that treatment should be completed in exchange for freedom – which other health condition is treated this way?”
Vakharia notes further that Oregon’s Measure 110, which DPA worked to pass, is a true model of a public health approach to drug use. “If we truly want to treat substance use disorders as health issues, people should not be subject to arrest, with the threat of incarceration and a lifelong criminal record, and treatment should be readily available and accessible for all who want it.”
The Biden-Harris Transition Team did not reply to a request for comment.
Reform of Cannabis Laws Comes First
The continous reform of state laws against cannabis has been on the forefront of drug policy reform for decades. During the 2020 election, this momentum gained critical velocity as voters in five states passed ballot measures to legalize cannabis or approve the use of medical cannabis. Voters in Arizona, Montana, and New Jersey passed marijuana legalization initiatives, Mississippi passed medical marijuana, and South Dakota approved separate initiatives to legalize both the personal use of cannabis and medical cannabis.
Washington, D.C. voters approved a measure to decriminalize entheogenic plants and fungi, and Oregon voters approved two groundbreaking measures to legalize psilocybin therapy under state law and decriminalize possession of all drugs, with cannabis tax revenue funding expanded treatment services. The use, sale, and possession of psilocybin, cannabis, and other drugs are still illegal under federal law.
During the vice presidential debate, Harris promised that during her administration, “we will decriminalize marijuana, and we will expunge the records of those who have been convicted of marijuana.”
On his campaign website, Biden said he believes that no one should be in prison for using cannabis. The president-elect pledges to “Decriminalize the use of cannabis and automatically expunge all prior cannabis use convictions.” Biden says “he will support the legalization of cannabis for medical purposes, leave decisions regarding legalization for recreational use up to the states, and reschedule cannabis as a schedule II drug so researchers can study its positive and negative impacts.”
The promise of reform for federal drug laws is within sight. Earlier this month, closely following the UN reclassifying cannabis as a less dangerous drug, the House of Representatives passed the MORE Act which calls for decriminalization of cannabis. Most Republicans opposed the bill, indicating that the current Republican-controlled Senate might not take it to a vote. But the special runoff election in Georgia on January 5 could shift the Senate to Democratic control. This would presumably make the MORE Act more likely to come up for a vote and pass, setting the stage for the reform of federal law governing other substances.
On January 27th at 5:30 pm PT (8:30 pm ET), Lucid News reporters Mike Margolies and Ann Harrison will host an online forum to discuss drug policy reforms proposed by President Joe Biden and Vice President Kamala Harris, with a community discussion following the event. Mike is the Founder of Psychedelic Seminars and a psychedelic community catalyst. Ann is a founding editor of Lucid News. Register here.
Image: Gage Skidmore