Joe Biden’s Pivot to a “Law-and-Order” Approach to Crime Is a Return to Form

Voters aren’t even telling pollsters that crime is a top issue for them. That isn’t stopping President Joe Biden from shifting to the right on crime anyway.

Joe Biden speaking in Lanham, Maryland on February 15, 2023. (Maryland GovPics / Flickr)

Historically, it’s never been a good sign when Joe Biden’s decided to get “tough on crime.” The former Delaware senator’s decades-long crusade against crime led him to become one of the leading architects of mass incarceration — a set of policies that he was, in part, elected president to fix.

So it’s an ominous development that just as he prepares to officially announce his reelection bid, and with Republicans controlling the House for the foreseeable future, Biden has abruptly folded to GOP pressure over the issue. This most recent controversy relates to the president’s flip-flop over a Republican push in Congress to overturn the District of Columbia’s recent rewrite of its criminal code: Biden first opposed the GOP bill, now he says he’d sign it into law.

The reason for the backpedal is that the Right has successfully cast the DC bill as a soft-on-crime giveaway to offenders. With West Virginia’s Sen. Joe Manchin (D-WV) signing onto the Right’s effort and numerous Democrats in conservative districts voting for the bill, Biden abruptly turned around and vowed to go along with it, reportedly in part thanks to the recent drubbing taken by outgoing Chicago mayor Lori Lightfoot.

Biden, with an eye on reelection, chose political expediency and to cover his right flank, drawing ire from several quarters in the process. One is DC home rule supporters, since signing the Republican bill into law would be only the fourth time Congress has ever nullified laws passed by the DC Council. The last instance was thirty-two years ago.

The other is congressional Democrats, who are especially up in arms about the lack of communication around the move. The entire Democratic Party is being dragged along with the president, with several high-profile Democrats now wavering on the bill or outright switching to supporting it. In fact, according to NBC News, the administration and the rash of consultants attached to the party are actively celebrating Biden’s shift as smart strategy, with the White House “planning a full-throated effort to present him as tough on crime to try to chip away at any Republican advantage on an issue that has put many Democrats on the defensive.”

Biden and the Democrats’ rightward shift on crime is an exhaustion of political imagination and psychic defeat.

“If Republicans thought President Biden would hand them a wedge issue for 2024, they thought wrong,” gushed Lis Smith, the Democratic strategist best known for bringing us Pete Buttigieg and smearing the women Andrew Cuomo sexually harassed.

But nearly everything you’ve just read sits on top of a pyramid of faulty assumptions.

Reality Bites

Let’s start with the DC bill itself, which does not remotely resemble Republicans’ and Fox News’ portrayal.

As Slate’s Mark Joseph Stern has detailed, the bill, the Revised Criminal Code Act (RCCA), is less a decarceral effort, like ones passed in states like New York or even by Donald Trump, and more a years-in-the-making attempt to clarify and rationalize the District’s outdated criminal code. First written in 1901 with sporadic updates since, the code is full of confusions and imprecision, prompting this current effort to rewrite it, done in large part through input from prosecutors’ offices.

The RCCA does lower maximum sentences for crimes like carjackings, burglaries, and robberies, and abolishes most mandatory minimum sentences. But that’s because the sentences on the books right now don’t make a lot of sense, like the whopping forty-year maximum sentence for carjackings. At the same time, by splitting crimes like robbery into different categories and tiers of severity — instead of the blanket fifteen-year maximum sentence that currently exists for all robberies, whether a snatch-and-grab mugging or an armed holdup — the bill lowers sentences for some crimes, but also raises them for a bunch of others.

To put it plainly: the Right is brazenly lying about what this bill actually is, and Biden and the Democrats don’t care enough to do anything but meekly and preemptively roll over.

Second, the idea that crime is the make-or-break issue of the foreseeable future is dubious. For both Republicans and Democrats, crime ranks low in Gallup’s polling of what Americans see as the country’s most pressing problem, far below issues like inflation, the economy, and the government and poor leadership.

Crime likewise ranks far lower than inflation and the economy in the most recent Associated Press-National Opinion Research Center Center for Public Affairs Research poll, where it’s also singled out as a priority by respondents less than climate change, immigration, gun issues, health care, and even education and student debt. It doesn’t even register as a priority among Texans in the latest University of Texas/Texas Politics Project survey. The one major poll it does rank highly on is Pew’s February results, though even there it’s on par with cutting the deficit — and well below issues like strengthening the economy, lowering health care costs, and reducing the influence of money in politics.

You don’t need polling to understand this. The country just went through a midterm election where the Right tried to make crime the issue; the results were distinctly underwhelming for Republicans. In fact, beyond Chesa Boudin in San Francisco, progressive prosecutors, progressives who have fought police excesses, and even actual prison abolitionists were swept into power all over the country, from Iowa, Dallas, and San Antonio, to Pennsylvania, Minneapolis, and Oklahoma City. They did this despite a tidal wave of right-wing fearmongering around crime, and despite, like all of the victorious socialist candidates and officials like Bernie Sanders ally Keith Ellison (who won reelection as Minnesota’s attorney general), taking stances that the likes of Fox, Lis Smith, and James Carville would caricature as being “soft on crime.”

Lori Lightfoot was a heavy hand on crime, and yet she failed miserably at the ballot box.

The idea that Lori Lightfoot’s humiliating recent third-place finish in Chicago is some kind of referendum on crime and crime alone is being pushed by the liberal establishment, but its grounding in reality is questionable. Lightfoot loudly and consistently positioned herself against the “defund the police” demand that Democrats have taken to blaming for their failures, punted on the police reform she’d been voted in to enact, took extreme measures against George Floyd protesters that even police balked at, and attacked her most prominent left-wing challenger, Brandon Johnson, as an anti-police radical who would make the city more dangerous — before losing to him by nearly five points.

Lightfoot was a heavy hand on crime, yet she failed miserably at the ballot box — a fact that should serve as a wake-up call to Biden and other Democrats who view posturing on the issue as their ticket to victory.

None of this means that crime is entirely irrelevant, or that voters’ concerns about it can simply be hand-waved away. But this attempt to brand concerns over crime as an electoral be-all and end-all and progressive approaches to crime as a political liability doesn’t square with the real world.

Admitting Defeat

Far from some savvy, hard-headed piece of political strategy, Biden and the Democrats’ rightward shift on crime represents an exhaustion of political imagination and psychic defeat.

The once-ambitious Biden agenda is dead, with GOP control of the House forestalling its future revival. Any progressive attempt to deal with inflation is similarly blocked, with the Fed’s recession-baiting strategy now the sole option on the table. Having refused to abolish the debt ceiling when Democrats controlled Congress, the president is now poised for a series of bruising fiscal hostage scenarios that will likely see him forced to accept unpopular spending cuts.

The temporary, pandemic-driven expansion of the welfare state is steadily shrinking as his administration winds down COVID emergency measures. Executive action faces the brick wall of a hard-right Supreme Court that Biden has no appetite for challenging. And potential international crises over Iran and China are piling up, while the Ukraine war has collapsed in terms of US public salience.

In the face of all this, it’s not surprising the president and his party would revert to the position they’re most comfortable in: the classic Democratic strategy of emphasizing how scary their opposition is, to keep as many independents and disaffected progressives in the fold while trying to poach conservative issues from the Right. This may well explain not just this latest move on crime, but the White House’s recent weighing of harsh immigration measures, including policies put in place under Trump.

As the midterm results showed, that strategy could even at this late stage still have enough juice to carry Biden to another term. But it’s less promising as a recipe for making the urgent, transformational change this moment demands. In the meantime, it leaves the president’s left flank wide open to a serious primary challenge.

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