On Tuesday, Joe Biden announced Kamala Harris as his running mate, putting to rest lingering questions about how candidates with condemnable criminal-justice records might fare in today’s Democratic Party — at least for now. Some observers thought an electorate so attuned to the inequities of policing and prisons might reject them, especially Black voters. In fact, Biden and Harris’s records have proved so politically inconsequential that it’s worth reassessing whether they’re liabilities at all.
It was reasonable to predict otherwise. Even before the police killing of George Floyd in Minneapolis — which occurred after Biden had locked up the primary — American attitudes toward the criminal-legal system were shifting. The Black Lives Matter movement’s onset brought new attention to inequitable and racist policing. The rise of Donald Trump and his abettors has further politicized racism for many, especially Democrats, and recognizing the criminal-legal system’s role has become crucial to understanding its reach. Polling attests to the results. According to the Associated Press and NORC Center for Public Affairs Research, the percentage of Americans who see police violence as a serious problem jumped 13 points between 2015 and 2020, including 16 points among white adults. These shifts have similarly changed how local races are decided. For prosecutor candidates, the traditional route to election has entailed bragging about how many people they’ve imprisoned. But recent years saw an unprecedented number of “progressive” district and state attorneys get elected. Victors in Cook County, Illinois; St. Louis County, Missouri; Philadelphia; and San Francisco have all won on promises to reduce jail populations, hold bad police officers to account, and prosecute fewer low-level offenses.
These trends looked worrisome for candidates like Biden, Harris, and Amy Klobuchar, and did surface during the primary. The Sunday before Minnesota’s Super Tuesday vote, Klobuchar’s rally stage was taken over by Black activists demanding that she drop out, which she ended up doing the next day. Their stated reason was her handling of Myon Burrell’s murder case in 2002 when she was district attorney of Hennepin County, Minnesota; the trial ended in a life sentence for a 16-year-old boy who may have been innocent. But at no other point did having a punitive record seem determinative. Klobuchar’s didn’t stop her from earning a coveted endorsement from the New York Times editorial board, or sustaining her campaign long after its unviability was beyond a doubt. Harris’s record could be construed as even less costly. She was criticized early on by progressives for her prosecutorial work in California — as San Francisco’s district attorney, and then state attorney general — and drew flak for resurfaced comments where she bragged about prosecuting parents for their children’s truancy. But she remained a persistent mid-tier candidate and could boast several impressive fundraising hauls, including one of her biggest after she attacked Biden’s anti-busing record — hinting at a donor base that was more interested in viewing her as an antiracist crusader than a repentant jailer. If anything, the voter disinterest that tanked Harris’s campaign seemed more linked to her muddled messaging and Biden’s grip on the Black electorate, which was one of her few plausible paths to victory.
That Biden emerged victorious affirms the eminent forgivability of such a record. The former senator turned vice-president preempted his own campaign by acknowledging his mistakes as a “tough on crime” zealot. He was known in the Senate to criticize George H.W. Bush’s drug war as insufficiently brutal, and co-authored the most punitive federal crime bill in a generation, which was signed into law by President Clinton in 1994. “It was a big mistake that was made,” Biden said at a Martin Luther King Jr. Day event last January, referencing sentencing disparities he once supported that treated crack cocaine, which had a greater presence in Black communities, as requiring harsher punishment than powder cocaine. “We were told by the experts that ‘crack, you never go back,’ that the two were somehow fundamentally different. It’s not. But it’s trapped an entire generation.” This proved sufficient. That generation’s suffering — and that which rippled outward from it — did not deter an overwhelming share of the primary electorate, which handed Biden a decisive win at the polls earlier this year. His coalition included an overwhelming share of Black voters. The former vice-president now leads President Trump in most national surveys, and has somewhat ironically reconstituted himself as a bulwark against executive branch racism.
Biden’s ascension and choice of vice-president suggest that, rather than being a liability for which candidates are punished, these records have merely nudged them to make moderate entreaties in exchange for more influence than ever before. And far from compensatory, these entreaties have simply aligned them with the Democratic mainstream. Biden’s criminal-justice platform includes ending the use of solitary confinement as punishment and eliminating cash bail. When Harris was heading her own campaign, her platform went slightly further, incorporating a national “use of force” standard for police officers and an end to mandatory minimum sentencing. Neither candidate was revolutionary; that these positions have gained wide purchase in dozens of localities already makes them relatively safe, on top of the expected uncertainty around their implementation, even if Biden wins the presidency. In any case, the most important metric for assessing their political arcs in retrospect may have nothing to do with anything they’ve done: President Trump, who is so broadly reviled by Democrats that few transgressions are seen as worth delivering him a second term. (A not-irrational impulse.) On the whole, this hasn’t been a bad deal for either Democrat.
But it poses a dilemma for reformers. Whatever leverage advocates might’ve held over Biden and Harris as candidates seems to extend no further than over any other Democrat — that is, they can be pushed to embrace popular positions, but anything more dynamic will be a stretch. Perhaps more revealing is that none can point to electoral consequences for officials seeking to transition from careers as architects of mass incarceration to the White House. That makes two primaries in a row where the more historically punitive presidential contender won, despite the opprobrium of activists. Hillary Clinton’s casting of deprived children as “super-predators” and shilling for the Clinton crime bill no more disqualified her than Biden’s complicity did him.
The cumulative effect is that, in an age of unprecedented outcry against racist and unequal law enforcement, the 2020 Democratic ticket comprises two figures whose presence there would have horrified reformers as recently as 15 years ago — and will likely continue to provoke suspicion and antipathy moving forward. Their latest platforms suggest they could be amenable to progressive pressure and indicate evolution. But that openness seems unlikely to derive from any impulse to repent or compensate. Accountability for their records thus far has merely entailed greater empowerment. A critical mass of Democratic voters has ruled on the salience of their conduct and found nothing disqualifying. This is consistent with how politics and punishment have traditionally intermingled in the U.S. But it’s a poor deterrent to anyone considering a similar destructive path in the future.
