The law’s legacy is complicated. It contained powerful funding incentives that ensnared more Americans in the ever-widening net of the criminal justice system. But many of its provisions also protected communities and victims of crimes, like an assault weapons ban and protections for women in abusive relationships.
Overall, though, the law is now seen by many as a major driver of mass incarceration. For that reason, policymakers who played a role in pushing it forward, including presidential candidates Sen. Bernie Sanders and former Vice President Joe Biden, have been attacked for supporting it.
Today, though, there are numerous proposals, such as the Reverse Mass Incarceration Act (which Biden supports), that aim to undo the damage caused by the 1994 crime bill.
An Excessive Focus on Punishment to Control Crime
A lot of ink has been spilled trying to point the finger at how exactly the United States became the world’s number one incarcerator. Today, 6.7 million people are under some sort of correctional control, approximately 2.3 million are behind bars in jails and prisons, and 4.5 million are on probation and parole.
Our punitive response to crime played a critical role. From 1960 to 1980, violent crime soared 270 percent. It continued to increase, peaking at 758 violent offenses per 100,000 people in 1991. Fear of crime became palpable. A 1992 poll indicated that 44 percent of Americans were afraid to walk alone at night within a mile of their homes and that 54 percent of Americans felt there was more crime in their area than there was a year ago.
Since the late 1960s and early 1970s, an overwhelming emphasis on punitive measures to combat crime has resulted in dramatic increases in the nation’s arrest and incarceration rates. These responses include both states and the federal government enacting more draconian laws that significantly lengthened sentences in addition to passing laws adding new crimes to the books. One early example of these harsh measures: New York State’s Rockefeller Drug Laws imposed 15-year mandatory minimums for possession of marijuana and other drugs. Laws like these put unprecedented numbers of people in prison for nonviolent crimes.
Around this time, there was a dramatic shift in America away from rehabilitative views of punishment. This was spurred on by a much-cited article by Robert Martinson, a sociologist who argued that “nothing works” in terms of rehabilitative programming intended to prevent recidivism. Most criminologists began to emphasize retribution and “just deserts.” Policymakers and legislators followed suit, and eventually sentencing schemes were modified to focus on retribution over rehabilitation and crime prevention.
Washington Takes the Punitive Path
Federal funding followed a similar punitive strategy. Since the 1960s, the federal government has played a central role in shaping the nation’s criminal justice landscape through outlays of grant money to states. In 1968, President Lyndon Johnson signed the most sweeping federal crime bill that Congress had ever passed.
Enacted amid nationwide concerns over rising crime rates, the Omnibus Crime Control and Safe Streets Act of 1968 provided $400 million for law enforcement. Summing up the tenor of the nation that ushered in Nixon’s election a few months later, the Republican Party’s 1968 platform stated, “Lawlessness is crumbling the foundations of American society. …We must re-establish the principle that men are accountable for what they do, that criminals are responsible for their crimes, that while the youth’s environment may help to explain the man’s crime, it does not excuse that crime.”
Two decades later, the nation remained preoccupied by crime and drugs. In 1986, the media frenzy surrounding the crack cocaine overdose death of college basketball player Len Bias, who had just been recruited by the Boston Celtics, moved the issue to the center of political discourse. Within months, President Ronald Reagan signed the Anti-Drug Abuse Act of 1986, which increased federal funding for law enforcement and required harsher penalties in federal drug cases, including life imprisonment. This new “tough on crime” legislation mandated a minimum sentence of 5 years without parole for possession of 5 grams of crack cocaine, again imprisoning more people for nonviolent offenses.
At the time of the bill’s signing, a New York Times journalist wrote that most of the funds “will go for new boats, planes and weapons, more drug law-enforcement agents, added Federal prosecutors and new jail cells.” The bill played a central role in the “war on drugs,” dedicating more than $1 billion to state and federal law enforcement agencies to fight crime, including an authorization of $96.5 million for new federal prisons.
The 1994 Crime Bill and Its Legacy
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Violent crime rates worsened in the years that followed, increasing more than 15 percent between 1986 and 1994. Even more sweeping in its scope than the federal funding bills that preceded it, President Clinton then signed the 1994 crime bill, which remains the most extensive federal crime legislation ever passed. It authorized the death penalty for dozens of existing and new federal crimes, and it mandated life imprisonment for a third violent felony, also known as the “three strikes and you’re out” rules. It also banned 19 types of semiautomatic assault weapons, and it created the Violence Against Women Act (VAWA), which was designed to protect victims of domestic violence.
This provided $12.5 billion in grants to fund incarceration, with nearly 50 percent earmarked for states that adopted tough “truth-in-sentencing” laws that scaled back parole. Under this grant program, eligible states received money to expand their prison capacity to incarcerate people convicted of violent crimes.
For the previous decade, Americans had usually identified crime as the biggest problem facing the country. Although it was not known at the time, violent crime had reached its peak in 1991, three years earlier. Crack cocaine, which had appeared in the mid-1980s and was still ravaging large swaths of urban America, was blamed for gang violence and the crime epidemic facing the nation. This climate of fear was summed up by Clinton, who in signing the bill, said, “Gangs and drugs have taken over our streets and undermined our schools.”
Today, policymakers who voted for the bill often point to support from Black communities, including the Congressional Black Caucus (CBC). But the politics behind it weren’t so clear-cut. As professors Elizabeth Hinton, Julilly Kohler-Hausmann, and Vesla Weaver wrote recently in an op-ed, “While supporting the idea of addressing crime, members of the Congressional Black Caucus criticized the bill itself and introduced an alternative bill that included investments in prevention and alternatives to incarceration, devoted $2 billion more to drug treatment and $3 billion more to early intervention programs.” In July of 1994, a group of 10 black mayors from big cities including Atlanta, Cleveland, and Detroit urged the CBC to support the crime bill. The CBC did eventually vote to support the bill, but it was a political compromise, with 26 of the 38 voting members supporting it.
At the time, debate revolved around the bills’ gun safety provision, charges that programs such as “midnight basketball” focused too much on crime prevention, and the death penalty.
But in retrospect, among the most significant and long-lasting impacts of the legislation was the authorization of incentive grants to build or expand correctional facilities through the Violent Offender Incarceration and Truth-in-Sentencing Incentive Grants Program. This provided $12.5 billion in grants to fund incarceration, with nearly 50 percent earmarked for states that adopted tough “truth-in-sentencing” laws that scaled back parole. Under this grant program, eligible states received money to expand their prison capacity to incarcerate people convicted of violent crimes.
The provision helped fuel a prison construction boom. The number of state and federal adult correctional facilities rose 43 percent from 1990 to 2005. For a period in the 1990s, a new prison opened every 15 days on average. To be sure, the prison build-up can be traced back to 1972, and the new federal Truth-in-Sentencing Incentive Grant Program was implemented during an era when many states had already begun to make their sentencing structures and practices more draconian. Yet, while some states had already started to enact tougher sentencing laws, the legislation rewarded states for those decisions, providing powerful incentives for others to adopt them.
Taken together, these series of grants reflect the federal government’s role in spurring states towards more punitive criminal justice measures. The funding encouraged states and cities to increase arrests, prosecutions, and incarceration, playing a tremendously powerful part in growing the size and scope of our correctional system.
Looking to the Future
There are stockpiles of research finding that incarceration has dramatically increased without yielding large crime-reduction benefits for the country — and has in fact harmed communities and torn apart families. Not only that, but in states where prison rates have fallen, the crime rates have fallen as well. Now it’s time for bold federal funding bills to reverse the misguided incentives of the past.
Over the last several years, the federal government has taken some steps to fund criminal justice practices that improve communities without such a punitive aim. For example, the Justice Reinvestment Initiative provides funding and technical assistance to states to improve public safety, reduce corrections spending, and reinvest savings in strategies that can decrease crime and reduce recidivism. Similarly, the Second Chance Act funds reentry efforts. But despite these programs, the federal government has never sent a clear message to states that de-incarceration should be a goal.
Many presidential hopefuls have focused on the federal government’s leverage to incentive a reduction in our correctional populations. For example, Sen. Cory Booker (D-NJ), along with Sen. Richard Blumenthal (D-CT) and Rep. Tony Cárdenas (D-CA), have just reintroduced the Reverse Mass Incarceration Act. The bill provides financial incentives to states — which house 88 percent of America’s prison population — to reduce imprisonment rates. Biden has highlighted the same plan in his criminal justice platform. The legislation would unwind the web of perverse incentives set in motion by the crime bill and other laws.
As introduced, the grant program would provide $20 billion over 10 years, comparable to the amount authorized by the crime bill. That bill authorized $12.5 billion ($19 billion in today’s dollars) to encourage states to build more prisons. Sen. Elizabeth Warren has advocated for “funding what works” and championed using federal funding to incentive cities and states to hire a diverse police force and fund training on implicit bias. Senator Sanders would provide grants to states to reduce their pretrial detention populations and withhold federal funds from states that continue to rely on cash bail systems.
On this 25th anniversary of the crime bill, we must confront the legacy of decades of federal funding to spur draconian responses to crime. The vast number of Americans in prison or on probation or parole ended up there because of America’s deliberate public policy choices. Undoing this failed system must be deliberate as well.