Here's what most people get wrong about the 1994 crime bill

During Thursday night’s Democratic presidential town hall, ABC News anchor George Stephanopoulos asked former Vice President Joe Biden about his support of the Violent Crime Control and Law Enforcement Act of 1994.

“An awful lot of people were jailed for minor drug crimes,” Stephanopoulos said. “Was it a mistake to support it?”

“Yes, it was,” Biden said. “But here’s where the mistake came. The mistake came in terms of what the states did locally.”

For decades, Biden was a strident “tough-on-crime” enforcer, who often talked about spearheading a crackdown on criminals. In 1994, he even compared himself to Richard Nixon. “Every time Richard Nixon, when he was running in 1972, would say ‘law and order,’ the Democratic match or response was ‘law and order with justice’—whatever that meant,” Biden said. “And I would say, ‘Lock the S.O.B.s up.'”

There are currently more people in prison in America than any country on earth — the state of Louisiana alone incarcerates more people than any other nation.

But there are some misconceptions the public and the media seem to have about what the 1994 crime did and did not do.

John Pfaff, Fordham law professor and the author of “Locked In: The True Causes of Mass Incarceration-and How to Achieve Real Reform,” cautions against drawing the wrong conclusions about why America is the prison capital of the world — and it doesn’t have as much to do with the Violent Crime Control and Law Enforcement Act of 1994 as people assume.

In his book, Pfaff cites overzealous prosecutors as the real drivers of mass incarceration, not the failed war on drugs that’s commonly pinpointed as the culprit. He also argues that the federal government in the 1990s had less of an impact than local and state governments.

“People often try to argue that the 1994 crime bill ’caused’ mass incarceration, or at least played a major role driving it, and that significantly overstates the bill’s modest effect for several reasons,” Pfaff told the American Independent Foundation.

“First, by the time Clinton signed the law in the fall of 1994, U.S. prison populations had grown by over 750,000 people since the mid-1970s. And while they would grow by another 560,000 by the end of 2009, prison growth actually slowed in the years following the 1994 crime bill.”

Contrary to popular belief, incarceration rates slowly began subsiding in the 1990s, reflecting a drop in crime.

“In fact, most people don’t realize that states added fewer and fewer people to prison pretty much every year after the crime bill — to the point that state prison populations actually dropped in 2000,” he said.

The federal prison population, by contrast, “rose enough to lead to a net national gain,” he added.

Moreover, Pfaff also noted that most U.S. citizens were not in the federal prison system.

“Most of the 1994 crime bill’s provisions — those three strike laws and mandatory minimums — just applied to the federal system, and that holds only about 10% of all prisoners,” he said.

Pfaff said that the largest increases occurred at the state level. Although that was partly encouraged by grants from the federal government, it was not as much as people tend to think.

“Congress offered states $10 billion over about 6 years if they would adopt certain laws to make people convicted of violence serve more time in prison. And while a bunch of states did adopt these laws, most admit they did so independently of the federal system — in fact, several had adopted them a few years before the crime bill passed.”

Many states did not take full advantage of the feds’ offer.

“Strikingly, of the $10 billion the Feds offered, states claimed only $3 billion — they left 70% of the money on the table,” Pfaff said. “…Ten billion sounds like a lot, but not only was it spread over time (it wasn’t $10 billion per year, but total), but it paled in comparison to the tens of billions states were already spending each year on prisons.”

The crime bill did expand the federal death penalty, a decision felt deeply even today. As the Intercept previously reported, that has since allowed the Trump administration to fast track executions. Decisions taken at the federal level also had a serious impact on people serving time.

“Yes, things like abolishing Pell Grants for people in prison likely had negative effects on those confined in prison, both while there and after release,” Pfaff said.

Yet, he insisted that it was an error to focus primarily on federal actions. “Ultimately, mass incarceration in particular, and mass punishment more broadly, are the result of city, county, and state decisions,” Pfaff concluded.

To be clear, the 1994 bill created many other problems. Among other things, it helped buttress a boom in prison construction, as Lauren-Brooke Eisen, a director at the Brennan Center for Justice, told the Washington Post last year.

From 1990 to 2005 alone, she said, the number of prisons in the United States rose by 43%.

“While the precise impact of the grant program is hard to quantify, the law’s passage, and the concurrent or subsequent passage of at least 20 state ‘truth-in-sentencing’ laws, marked a turning point in the length of sentences served nationwide,” she added.

Published with permission of The American Independent Foundation.