“I did criminal justice reform, which President Obama could not get approved, which the media never talks about. If President Obama got criminal justice reform done, it would be front-page stories all over the place. I got it done. I think that African Americans appreciate it. So, I got that.”
— President Trump, in remarks to reporters at the White House, Aug. 9, 2019
“The bill he talks about is a bill that in my — our administration, we passed. We passed that bill that you added onto. That’s the bill, in fact, you passed.”
— Former vice president Joe Biden, at a Democratic presidential candidate debate, July 31, 2019
Reducing racial disparities in the criminal justice system has been a bipartisan project for both the Barack Obama and Donald Trump administrations.
But in these remarks, Trump gives no credit to Obama. And Biden, in turn, minimizes the scope of the First Step Act that Trump signed in 2018, describing it as an add-on to Obama’s legislation. In fact, the law Trump signed goes well beyond that.
A 1986 law sponsored by Biden when he was a senator “required a five-year mandatory minimum sentence for trafficking in 500 grams of powder cocaine or five grams of crack,” a ratio of 100 to 1, as The Washington Post’s Elise Viebeck reported. (Note: We previously said the disparity originated in a 1994 law, but it came from legislation in 1986.)
“The scientifically unjustifiable 100:1 ratio meant that people faced longer sentences for offenses involving crack cocaine than for offenses involving the same amount of powder cocaine — two forms of the same drug,” the ACLU says. “Most disturbingly, because the majority of people arrested for crack offenses are African American, the 100:1 ratio resulted in vast racial disparities in the average length of sentences for comparable offenses. On average, under the 100:1 regime, African Americans served virtually as much time in prison for non-violent drug offenses as whites did for violent offenses.”
Obama signed the bipartisan Fair Sentencing Act in August 2010, repealing the five-year mandatory sentence for first-time offenders and reducing the sentencing disparity to 18 to 1 for repeat offenders. In other words, an offense involving 500 grams of powder cocaine still required a minimum sentence of five years. But the threshold for a five-year sentence was raised for crack cocaine offenses, from 5 grams to 28 grams.
“We found that the Fair Sentencing Act reduced the disparity between crack and powder cocaine sentences, substantially reduced the federal prison population, and resulted in fewer federal prosecutions for crack cocaine,” Judge Patti B. Saris, who was chair of the U.S. Sentencing Commission in 2015, said at the time. “All this occurred while crack cocaine use continued to decline.”
As Viebeck reported: “Once the ratio narrowed to 18-1 in 2010, the number of federal crack convictions dropped dramatically. In 2016, roughly 1,500 people were sentenced, a decrease of 67 percent from six years earlier, the commission reported.” (These statistics cover federal offenses. Most crimes are prosecuted by the states, not the federal government, and roughly 90 percent of all U.S. prisoners are in the custody of the states, according to the Justice Department.)
The Fair Sentencing Act applied prospectively, meaning the crack cocaine disparity was reduced only for offenses that occurred after Obama signed the law in 2010.
Trump and his son-in-law and adviser, Jared Kushner, pushed for a new round of reform in the criminal justice system, bringing together a bipartisan coalition of Democrats, Republicans, libertarians, the ACLU and others, prevailing on Senate Majority Leader Mitch McConnell (R-Ky.) to post the bill for a vote, and weathering criticism from conservatives such as Sen. Tom Cotton (R-Ark.). The result was the First Step Act, which Trump signed in December.
The Brennan Center for Justice called it “historic criminal justice reform legislation” and described some key provisions:
The FIRST STEP Act shortens mandatory minimum sentences for nonviolent drug offenses. It also eases a federal “three strikes” rule — which currently imposes a life sentence for three or more convictions — and issues a 25-year sentence instead. Most consequentially, it expands the “drug safety-valve,” which would give judges more discretion to deviate from mandatory minimums when sentencing for nonviolent drug offenses.
In an overdue change, the bill also makes the Fair Sentencing Act retroactive. Passed in 2010, the Fair Sentencing Act has helped reduce the sentencing disparity between crack and powder cocaine offenses — a disparity that has hurt racial minorities. The FIRST STEP Act will now apply the Fair Sentencing Act to 3,000 people who were convicted of crack offenses before the law went into effect.
The law Trump signed also directs the creation of more prisoner programs designed to reduce the likelihood of recidivism and awards time credits toward early release to prisoners who participate. However, the president’s budget proposal for 2020 would provide $14 million for the programs in the First Step Act, when the law calls for $75 million a year for five years, as the Marshall Project reported.
Biden said at the July 31 debate: “The bill he talks about is a bill that in my — our administration — we passed. We passed that bill that you added onto. That’s the bill, in fact, you passed.” He was responding to Sen. Cory Booker (D-N.J.), but Booker, one of the sponsors of the First Step Act, was talking about the same bill as Trump.
The First Step Act builds on what Obama did by making the 2010 reform to crack sentencing laws retroactive. But it goes well beyond that, for instance, by shortening mandatory minimum sentences across the board for nonviolent drug offenses at the federal level.
A Trump campaign spokesman said Biden “helped create the problem” with the 1986 law and a 1994 crime bill he also sponsored, which together instituted the three-strikes rule as well as the 100:1 ratio in crack cocaine sentencing.
“The Fair Sentencing Act was certainly important, but it was narrower and relatively non-controversial,” Trump spokesman Zach Parkinson said. “Even Jeff Sessions was a co-sponsor of the bill, and it saw little opposition in Congress.” Of Biden, he said, “It’s pretty rich for him to take credit for undoing what is widely considered to be a bad law that he helped make.”
The Biden campaign said the “safety valve” provision, which allows judges more discretion on sentencing in Trump’s First Step Act, first appeared in the 1994 crime law Biden sponsored. The law Trump signed expanded the safety valve to cover more types of offenders, the Biden campaign said. Biden also sponsored the Second Chance Act in 2007 with Sen. Patrick J. Leahy (D-Vt.). That bipartisan bill provided grants to local governments and other groups to fund “literacy classes, job training, education programs and substance abuse and rehabilitation programs for inmates.”
“Joe Biden is proud of the work that the Fair Sentencing Act did to reduce the crack versus powder cocaine sentencing disparity and repeal several mandatory minimums,” Biden spokesman Andrew Bates said. "He was also instrumental in the creation of the safety valve that the First Step Act recently expanded. As president, he would eliminate mandatory minimums, private prisons, and the sentencing disparity between crack and powder cocaine, while delivering numerous other urgently-needed reforms.”
Trump’s claim that “the media never talks about” the First Step Act is wrong. The Post ran a front-page story when the bill cleared its biggest hurdle: the Republican-controlled Senate. The New York Times ran a front-page story shortly before the law’s passage. Hundreds of other reports have appeared in national media outlets before and after its passage, according to a search of news databases.
The Pinocchio Test
There’s an old saying, “Success has many fathers, but failure is an orphan.” Trump and Biden are trying to orphan each other on criminal justice reform instead of accepting that their administrations share parenting duties.
Trump’s statement — “I did criminal justice reform, which President Obama could not get approved” — is worth Three Pinocchios. The First Step Act was described as historic criminal justice reform, but one of its biggest pieces was, in fact, an extension of Obama’s efforts in 2010. When we reached out to Trump’s campaign, a spokesman acknowledged the Fair Sentencing Act was “certainly important” legislation, but the president was not so careful.
Biden’s statement — “We passed that bill that you added onto” — is worth Two Pinocchios. The former vice president minimized the scope of the First Step Act by describing it as a mere add-on to what Obama signed, when it goes much further.
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