Joe Biden and Drug Control: A More Complete Picture (Part 1—the 1970s)

Editor’s Note: Today’s post comes from contributing editor Sarah Brady Siff, a visiting assistant professor at the Moritz College of Law at The Ohio State University, in affiliation with the Drug Enforcement and Policy Center (DEPC). As we prepare for the election next month, her examination of Joe Biden’s historical views on drug policy will continue next week.

Okay, here’s the deal: Joe Biden is a right-leaning moderate on drug control. Always has been. No surprise there.

However, examples of Biden’s past interest and instrumentality in drug policy are surprisingly copious. Spanning a half-century, these facts somehow seem both historical and ongoing. Progressives and libertarians must face the improbability of true policy reform from someone who has waged so much war on drugs for so very long. 

Biden consistently held three broad positions during the 1970s: (1) the harms of recreational drug use were severe and urgent, especially because drugs caused crime; (2) the United States should spend money on drug control, but wisely; and (3) cannabis was really not so bad. The first decade of Biden’s career in national politics showed him that drug control was popular with voters, but difficult to manage.

Biden made heroin a major issue in his first campaign for Senate in 1972. Following a sharp increase in media coverage of heroin beginning in 1970, he correctly discerned his constituents’ anxiety about the drug. Maybe it was his own anxiety too. Whether or not there was actually an increase in heroin “on the streets” at this time, the perception of a heroin threat bubbled along on various early-70s currents—President’s Nixon’s law-and-order rhetoric, federal funding for drug enforcement and education, the war in Vietnam, protest movements, urban unrest, migration, immigration, “white flight,” increasingly affordable international air travel, economic distress, disco, and more. 

As always, the media stood ready to amplify a drug scare. Newspapers printed wire stories about U.S. attempts to stem the flow of opiates across the southern border from Mexico, into New York from Turkey via the “French connection,” and to the West Coast from the “Golden Triangle” of Southeast Asia. The crazier the story, the better; unfounded allegations of a conspiracy to smuggle heroin into the United States inside the dead bodies of American soldiers were printed in hundreds of American newspapers, reaching millions of readers. In other news, wild cannabis scavenging by hippie “pot pickers” and the high value of domestic cannabis crops resulted in several new state-run eradication programs featuring police raids and toxic herbicides. 

Local newspapers, far more robust 50 years ago, reported on local activist and law enforcement efforts to control heroin. In Wilmington, Delaware’s largest city and the seat of its most populous county, the News-Journal conducted a yearlong investigation on heroin in 1972. One article listed the names of suspected heroin dealers and the places where heroin was sold, including people’s home addresses, a McDonald’s, and some intersections (street corners). A highway map with arrows demonstrated how heroin flowed to Wilmington’s 2,000 drug addicts from nearby Philadelphia, New York, and Baltimore. The newspaper dedicated a phone line for readers to call in their tips on heroin activity, and reporters put the police on record as committed to collaring drug dealers and users. Reporters detailed local arrests and prosecutions, often assisted by federal agents. 

Into this newspaper of record went the Biden campaign’s print ads, which had been developed by famed political strategist John Marttila. The ads sought to catch the wave of heroin coverage; about half were mainly about drugs or were mainly about crime with some reference to drugs. The other two topics were taxes and the environment.

Copywriters played up the 33-year age difference between Biden and his opponent Cale Boggs in these “dear old dad” ads. According to the text of the Cold War version, Biden’s anti-crime program included “a crackdown on drugs, more police on the streets, better equipment, a build-up of our court system, and an overhaul of our prisons.” More street lights, faster trials, and “better prisons” were needed; “Most important, it’s going to take an all-out attack on drugs.” According to the polio ad, Boggs belonged to a bygone time when “heroin was still a mysterious drug that kept jazz musicians going all night.” In response, the Delaware chapter president of the American Federation of Musicians, E. Russell Williams, denied that jazz musicians used heroin because their work was too difficult and demanding. “Heroin was introduced in this country after World War I as an opium derivative to relieve pain. There has been nothing mysterious about the drug,” Williams said. “We resent Joe Biden’s citing the jazz musician as a user.”

On the campaign speakers’ circuit, Biden proposed a “billion-dollar federal crash program against drug abuse” that would (a) expand government-funded residential treatment for heroin addiction, (b) use diplomatic pressure to reduce opium poppy cultivation abroad, and (c) deemphasize cannabis. 

Like many others in 1972, Biden expected cannabis to fade from drug enforcement priorities because of mounting evidence that its effects were non-addictive and comparatively mild. In his eyes, heroin was the real enemy: “We must not dissipate our efforts by confusing it with relatively harmless drugs like marijuana, which is neither addictive nor as physically damaging as are both tobacco and alcohol,” he told members of the Wilmington Lions Club in August 1972. He said he would not legalize cannabis, but would “regulate” the plant by making its sale or possession “misdemeanors that will not tie up the resources of the police and courts.” (In a May 1972 interview, Biden said he opposed marijuana legalization, calling it a “phony issue.”)

So Biden’s initial positions were quite similar to Nixonian drug control, which embraced user rehab, supply-side eradication and interdiction, spending more money on enforcement, and keeping cannabis prohibited. In the early 1970s, Biden’s election-winning formula was three parts tough-on-crime, one part lay-off-pot-smokers, and a heap of support-for-law-enforcement well seasoned with fiscal oversight. 

Senator Biden started his first term in 1973 on the heels of a major, historic overhaul of drug laws. Because it was based on the power to tax, federal drug control had previously resided in the Department of the Treasury. Albeit with much bickering and murder, the Bureau of Customs policed drugs at U.S. points of entry while the Federal Bureau of Narcotics (and its shorter-lived Treasury predecessors and successor) policed drugs inside the borders. When the Supreme Court struck down prohibition-by-taxation in 1969, Nixon and the Democratic Congress reconfigured domestic drug control and rehomed it in the Department of Justice, using a regulatory structure with detailed substance scheduling and a range of severe criminal penalties, all based on the power to regulate interstate commerce.

The emergent order did not change the culture of drug law enforcement much, but rather opened new venues for the same old turf wars, corruption, unconstitutional enforcement tactics, and adventurism abroad. Seeking to bring it all under control, Nixon created the DEA in 1973 by combining drug-related personnel from the new Justice agencies, from remnants of the Johnson administration’s anti-crime efforts, and from Customs and the CIA. 

Soon after that, on August 9, 1974, Nixon resigned. President Ford struggled to manage the DEA and to secure FBI-DEA cooperation on major investigations of heroin, cocaine, and cannabis traffickers. Then in 1976, voters elected President Carter, who had promised to back off cannabis. (Democrats held majorities in both the House and the Senate from the mid-50s through 1980.)

Meanwhile, the majority of drug law enforcement was still carried out by state and local police. Heroin use and “street crime” apparently increased through the mid-1970s, even while the federal government granted billions of new dollars to local police agencies via the Law Enforcement Assistance Administration (LEAA). From its creation in 1968, Congress steadily increased LEAA funding but simultaneously criticized the agency for waste, lack of accountability, misplaced priorities, and failure to reduce crime rates by any measure. 

In the mid-1970s, Biden landed a desirable assignment to the Senate Committee on the Judiciary, which was responsible for overseeing the LEAA. In 1975, after GAO and think-tank reports convinced him that the LEAA wasn’t working, he precociously won over a number of influential senators and almost carried out a coup to defund it. In 1978, as chair of the subcommittee on criminal laws and procedures, he held a hearing to explore a Carter proposal to repair the LEAA. (Ultimately the hearing helped justify cutting LEAA funding, a fact that might have endeared Biden to President Reagan when his administration killed it in the name of small government a few years later.) 

Among other critiques, Biden pointed out that seed projects funded by the LEAA always seemed to die rather than gain local support and funding after the federal grant ran out. He also thought the grant-requesting and grant-making processes were overly bureaucratic. With a hint of despair, he observed that Americans were “impatiently demanding more effectiveness from Government crime control while insisting on greater efficiency and economy in Government.” This conundrum troubled Biden immensely and became a central puzzle of his legislative career. Citizens wanted both robust policing and low taxes; how could their leaders deliver both at once? 

Oversight of federal drug control fell to the Judiciary Committee, so Biden’s experience with the LEAA readied him to examine and critique the DEA in 1979, when he was chair of the subcommittee on criminal justice. The worsening complaints about the DEA went beyond waste and a lack of accountability to include the theft of drugs and money, violent and unconstitutional behavior by federal agents in the field, and again the inability to cooperate with others. In one high-profile incident, a DEA task force in Orange County, Florida, fell apart in 1976 after federal agents were charged with brutalizing suspects, a number of erroneous raids resulted in property damage that the Department of Justice paid for, and the task force coordinator was arrested with two other agents in a barroom brawl. The sheriff and the Orlando chief of police returned some $166,000 in LEAA funds rather than continue to work with the DEA.

Biden opened the 1979 hearing by saying he thought what DEA needed most was routine oversight; therefore he would not let it turn into a “major rehash, subject to the political whims of the Drug Enforcement Administration, on what we should be doing in this country with drugs.” He said he agreed with Carter that absolutist approaches would never work, and quoted the president: “‘But the harm caused by drug abuse can be reduced. … We can bring together the resources of the federal government intelligently to protect our society and help those who suffer.” Congress had not been fulfilling its oversight function, he said, but the witnesses should prepare for tough questions. 

Over and over Biden asked drug officials some version of, “Can this ever really work?” He expressed doubts as to whether many of the cases the DEA was making were even significant. In conversation with a presidential drug policy advisor, Biden said that, despite millions spent since 1972 on international narcotics programs, the DEA said there had been as much as a hundredfold increase in imports of cocaine and marijuana. “What is the global strategy? Are we capable of having a global strategy? Is it realistic to sit and talk and do anything about this?” At another point he suggested that Americans had grown too accepting of marijuana to change course. Later, he challenged a medical doctor who said that use of cannabis by teens was “clearly dangerous and undesirable,” but the public didn’t understand. Biden: “Why is it clearly dangerous? What is the evidence? What is the danger?”

Two months after the DEA hearings, Biden presided over “Drug Paraphernalia and Youth.” Witnesses included anti-drug parent groups, a young “student and former drug abuser,” state and local officials from Maryland, paraphernalia industry lobbyists, and a “panel of accessories adherents” that included a retailer, a psychologist, and a bong manufacturer. An assortment of cannabis smoking accessories was on display, including some that were decorated with cartoons or packaged in bright colors. Comments in the hearing transcript indicated that the event was not Biden’s idea but that of Maryland Senator Charles Mathias, the ranking Republican on the subcommittee, who probably was interested in the political optics of airing his constituents’ worries about head shops. Not only in Maryland but all across the country, anti-drug groups had been agitating against the retail trade in pro-cannabis literature and devices to hide, smoke, and prepare it. The issue engendered bountiful newspaper coverage.

Biden wanted to keep the hearing focused on the narrow question of whether the trade in paraphernalia actually contributed to cannabis use by minors. After Robert DuPont—MD, psychiatrist, and president of a drug abuse think tank—went on and on about cannabis smoking’s detrimental effects, Biden asked, “What does all the paraphernalia spread out in front of you have to do, in your opinion, with the use of marijuana or the inducement of the use of marijuana? Does it relate?” It was a powerful signal of hypocrisy, DuPont replied. “The outwardly visible, commercially exploited flouting of the drug laws … is an outrage.” 

“The Department of Justice’s position,” Biden responded, “has been that federal legislation was passed to emphasize concern over marijuana by arresting its users. This concern over marijuana may be a drain of resources from cocaine and heroin enforcement. Is the deterrent value … worth the effort?” 

Next week in “Part 2: The 1980s,” Biden works on funding the drug wars. 

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