Joe Biden said in a 1992 speech that criminal justice legislation he was pushing was so strict that “we do everything but hang people for jaywalking.” Two years later, his signature crime bill made dozens of additional offenses punishable by death.
But in a little-noticed remark earlier this month in New Hampshire, the Democratic presidential front-runner seemed to offer a decidedly different stance on the death penalty.
Fielding a question from a voter aligned with the American Civil Liberties Union about how he’d reduce the federal prison population, Biden gave a long and winding answer: He defended his crime bill, advocated for reforms to the criminal justice system involving nonviolent and drug offenders, and said he was proud of his work with President Barack Obama to cut the federal prison population by 3,800.
Then, unprompted, Biden added: “By the way, congratulations to ya’ll ending the death penalty here.”
Biden’s campaign would not comment on his answer, or shed light on whether he’s changed his position on the death penalty. The ACLU also declined to weigh in, given the ambiguity of his comment.
Biden’s support for the death penalty was consistent throughout his 30-plus years in the Senate. Whether that stand holds will be another case study of how he reconciles long-held beliefs with the leftward march of his party. His record is full of tough-on-crime bills and statements that were in line with Bill Clinton-style centrism, but now look out of step.
This isn’t the first time in recent weeks that Biden, pressed by an ACLU volunteer, answered a question in a way that runs counter to his record. In May, Biden said he would commit to repealing the Hyde Amendment, which bars federal funding for most abortions. His campaign then said he misheard the question and reaffirmed his support for Hyde.
Then, mere hours later, amid the rush of states to stamp out abortion rights, Biden used a speech in Atlanta to reverse his position on the amendment.
“The former vice president has no choice but to change almost every position he’s ever taken,” said Colin Strother, a Democratic strategist in Texas, where capital punishment has long been a flashpoint. "We’ve seen it with a couple positions and we’re going to see it more.”
Most of Biden’s Democratic opponents support abolishing — or at least halting — capital punishment. After California Gov. Gavin Newsom froze the death penalty earlier this year, Sens. Kamala Harris and Cory Booker were quick to add their support for the move. Both highlighted that defendants of color are disproportionately represented on death row.
Others have long records of opposition: Sen. Elizabeth Warren said she didn’t think Boston Marathon bomber Dzhokhar Tsarnaev should face the death penalty. Washington Gov. Jay Inslee halted executions in his state; in a statement he called the death penalty "costly and capricious."
Other Democratic hopefuls, including Bernie Sanders, Beto O’Rourke and Pete Buttigieg, are just as opposed.
“It’s not an equitable, fair, just system right now,” O’Rourke said recently.
The U.S. is moving away from the death penalty, with nine states eliminating it in the past 15 years. Experts say the changes have come mostly through the political process — and usually with the support of some Republicans. Four other states have placed moratoriums on executions.
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“People have become more educated about the problems with the death penalty, including the risk of executing the innocent, that the death penalty is more expensive than life in prison, that it is applied in a racially biased way, and other reasons,” said Jeffrey Kirchmeier, who authored a book chronicling the history of the death penalty in the U.S.
Biden spent decades voicing strong support for the death penalty, and was a force behind expanding the number of crimes that were subject to capital punishment. Even when he called for a moratorium on executions nearly two decades ago, Biden continued to back executions in principle, and stressed the timeout should be temporary.
“I support the death penalty,” Biden said in a Senate Judiciary Committee hearing in 2000. “Let me put it this way: I don’t oppose the death penalty on moral grounds, but I have been fastidious … that if you are going to have a death penalty, you had better go out of your way to make sure you don’t execute an innocent person.”
His stance was in line with Clinton’s repositioning of the Democratic Party on crime, an attempt to shed its bleeding heart liberal image. During his 1992 run, Clinton flew to Arkansas to personally oversee an execution and argue Democrats "should no longer feel guilty about protecting the innocent.”
Obama backed the death penalty during his campaigns, though he later called the practice “deeply troubling.” Hillary Clinton had reservations but also supported executions. Yet in 2016, the Democratic Party platform for the first time explicitly called for abolishing capital punishment.
Now, Biden is being forced to adapt in real time to the party’s drastically different mindset.
The 1994 crime bill, which Biden colloquially named after himself and later called his greatest accomplishment, created 60 new death penalty offenses under 41 federal capital statutes, according to a Brennan Center for Justice analysis of its impact some two decades later.
Nearly 1,500 people have been executed since 1976, more than a third of those in Texas, per statistics kept by the Death Penalty Information Center. After the 1994 law took effect, the number of executions increased from 31 that year, to 56 in 1995, 74 in 1997 and a high of 98 in 1999. Executions fell off precipitously since then, down to 9 so far in 2019.
There were 61 federal prisoners on death row as of December. Twenty-six were black and seven were Latino.
During the early ’90s, Biden stood behind his support for capital punishment, but legislation he carried sought to protect juvenile defendants and those with disabilities from being subject to the federal death penalty. After pushing for leniency in cases in which “racial patterns” were found to have occurred, and expressing concerns over inadequate criminal defense counsel, he continued to back an expansion of the death penalty.
The Racial Justice Act, a bill that had been introduced for years but failed to pass, would have allowed death penalty defendants to cite evidence — such as statistics — demonstrating that the death penalty had been administered in a racially biased way. While members of the Congressional Black Caucus reportedly tried to pressure President Clinton to include the language in the 1994 crime bill, they relented over fears that it would stall the full law.
The difficulty for Biden isn’t just potentially adjusting his position but explaining why, Strother said. The death penalty debate, which floored Michael Dukakis during his 1988 run, is especially tricky given Biden’s long track record on the issue, full of old video clips.
“Times change," Strother said, "but morality doesn’t. It’s constant.”
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