Some blame the 1994 crime bill for record incarceration levels, taking a devastating toll on African Americans. History and statistics tell a more complex story, according to criminologists.
“Gangs and drugs have taken over our streets,” President Clinton said in 1994 as he signed a far-reaching anti-crime bill to bipartisan acclaim.
Defending the law at the time, a frightened era of crack-cocaine wars and record murder rates, Hillary Clinton, as first lady, warned about an emerging generation of “super-predators” — a notion she later repudiated.
Confronted last week by protesters from the Black Lives Matter movement, Bill Clinton defended his tough crime stance, even though he, like Hillary Clinton, has joined in recent calls for sweeping reforms in criminal sentencing.
For some critics, the 1994 crime bill has come to epitomize the late-20th-century policies that sent incarceration to record levels and ravaged poor communities, taking a particularly devastating toll on African Americans that political leaders are only now working to reverse.
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History and statistics tell a more complex story, according to criminologists.
The Violent Crime Control and Law Enforcement Act of 1994 was a composite measure, with elements reflecting opposing impulses. It offered incentives to states to build more prisons if they toughened sentences, and it added some mandatory-minimum sentences to those that already existed. But it also promoted the expansion of community policing and drug courts as alternatives to jail. It established a federal “three-strikes” law and expanded the federal death penalty, but outlawed assault rifles.
Some critics portray the law as a critical turning point as the country rushed to put more low-level offenders in prison, ravaging low-income communities.
But in fact, the data shows, the startling rise in imprisonment was already well under way by 1994, with roots in a federal-government war on drugs that was embraced by Democratic and Republican leaders alike.
“The trend of increased incarceration had already started two decades before 1994,” said Jeremy Travis, the president of the John Jay College of Justice in New York. Travis led federal research on crime during the Clinton administration and coedited a 2014 report by the National Academy of Sciences, “The Growth of Incarceration in the United States.”
“To lay mass incarceration and the damages to black communities on the doorstep of the 1994 crime act is historically inaccurate,” Travis said, although elements of the law added to the problem in a modest way.
What the historical record does show is that many federal and state changes in criminal-justice policy led to a fourfold rise in the incarceration rate from the early 1970s until it declined modestly in the last few years.
The rise in incarceration was driven by state laws like the 1973 Rockefeller drug laws in New York. And it was stoked by a major 1986 federal drug act, which expanded mandatory sentences and set the now-notorious 100-to-1 ratio in the quantities of powdered versus crack cocaine that could trigger severe penalties.
Still, the incentives offered to the states in the 1994 law — nearly $10 billion for prison construction on the condition that states adopt “truth in sentencing” policies — may have added somewhat to the prison populations of the 28 states that took advantage of the provision. There, the results may still be playing out decades later as prisons are forced to establish geriatric units for inmates they cannot parole.
Incarceration’s disproportionate effect on African Americans continues: In 2014, the Justice Department reported, 6 percent of all black men ages 30-39 were in prison; the rate was 2 percent for Hispanic men and 1 percent for white men.
The steady rise in incarceration into the 21st century calls for further explanation because it persisted through a steep decline in violent crime.
No one could have known for sure in 1994, but the violent-crime rate had already peaked. It plummeted over the next quarter-century, even as more people were sent to prison.
The crime bill passed with enthusiastic and bipartisan support, including a “yes” vote from Sen. Bernie Sanders of Vermont, the current rival to Hillary Clinton for the Democratic presidential nomination. Sanders, who was an independent in 1994, has said that he opposed certain parts of the legislation — like mass incarceration and death-penalty provisions — but voted for the bill because it included an assault-weapons ban and language dealing with violence against women.
Bill Clinton, too, has decried some of the more worrisome parts of the law. In an address before the national convention of the NAACP last July, he acknowledged that the law had gone too far in toughening sentencing standards and that it had contributed to mass incarceration. “I signed a bill that made the problem worse,” he said. “And I want to admit it.”
But when confronted by Black Lives Matter protesters last Thursday during a campaign event for his wife in Philadelphia, Clinton strongly defended his 1994 crime bill.
“I don’t know how you would characterize the gang leaders who got 13-year-old kids hopped up on crack and sent them out onto the street to murder other African-American children,” he said to a protester who repeatedly interrupted him. “Maybe you thought they were good citizens.”
“You are defending the people who kill the lives you say matter,” he said. “Tell the truth. You are defending the people who cause young people to go out and take guns.”
A day later, Clinton said that he regretted the confrontation.
Criminologists have debated how much of the fall in crime can be ascribed to the rise in incarceration. Most, including the National Academy of Sciences panel that Travis helped lead, have concluded that extra incarceration played only a modest role compared with wider social changes.
One contributing factor to the seemingly odd persistence of high incarceration is suggested by John Pfaff, a professor of criminal law at Fordham University. Beyond the spread of mandatory sentences and other policies, he said, district attorneys became much more likely to bring felony charges and seek long sentences, perhaps reflecting a changing public mood.
Particularly in the years before the mid-1990s, he said, sentencing laws in the states — which account for 87 percent of the country’s prisoners — had become more severe. But on top of that, he said, local prosecutors became much more aggressive.
Across the country, the probability that an arrest would result in felony charges roughly doubled between 1994 and 2008 — a trend that Pfaff said seemed unrelated to anything in the 1994 federal law.
Douglas A. Berman, a professor of criminal law at Ohio State’s Moritz College of Law, agreed with other experts that the direct effects of the 1994 law on incarceration rates had often been exaggerated.
He also said that Bill Clinton’s embrace in the early 1990s of anti-crime rhetoric may have been a political necessity, considering the drubbing that Michael Dukakis received in the 1988 presidential campaign for being considered soft on crime. And Bill Clinton is right to say that black Americans were disproportionately victimized by runaway crime.
But the Clintons share blame with many others from that era, Berman said, for overemphasizing “tough” responses at the expense of more thoughtful solutions that did not involve the endless expansion of prisons.