Reckoning with the Past:

The 1994 Crime Bill and the 2020 Presidential Election

On the day before the Senate voted on its revision of the Violent Crime Control and Law Enforcement Act of 1994,¹ then-Senator Joe Biden spoke of violent criminals, saying, “it doesn’t matter whether or not they’re the victims of society… They must be taken off the streets.”² In response to rising violent crime, with a crime rate double of that two decades earlier,³ Democrats focused on seeming more “tough on crime.”⁴ President Bill Clinton’s 1992 campaign speech in front of a backdrop of uniformed police officers⁵ set the tone for the Democratic party’s emerging perspective on criminal justice: more cops, more prisons, and harsher sentences, all in the name of protecting disenfranchised communities.⁶ Biden, a fourth-term Senator from Delaware, led the efforts on the 1994 “crime bill,”⁷ a bill that Vice Presidential candidate Kamala Harris claimed to “contribute to mass incarceration for our country.”⁸ With a 500% increase of people in jails and prisons over the last forty years,⁹ candidate for President Joe Biden reconciled with his past, saying, “I will also accept responsibility for what went wrong.”¹⁰ While the 1994 crime bill’s impact has been misunderstood and inflated, it demonstrates the meeting of old and new within the Democratic party. As politicians are beginning to grasp the effects of a flawed criminal justice system on recidivism and racial disparities, voters are requiring party-leaders like Biden to acknowledge their troubled past and lead the nation toward a new vision of justice.

As Biden entered his 4th-term as a Senator from Delaware, he was increasingly concerned with the rising poverty, crime, and racial tensions hitting Wilmington, the state’s largest city. Since this crime largely victimized African-Americans, Biden was motivated to pursue a more “tough on crime” stance, according to Ted Kaufman, a longtime Biden adviser. Kaufman alleged that the African American community supported Biden’s stance. However, former Wilmington Mayor James M. Baker, an African-American, told The New York Times in a June 2019 interview that, “we knew you couldn’t arrest your way out of the problem.” As community leaders, and Biden, grappled with responding to crime that disproportionately affected the Black community but was committed by disproportionately Black offenders, the state’s White population supported policies that strengthened police departments and prisons.¹¹ With conflicting perspectives emerging from Biden’s base, the 1992 Democratic party platform identified that the “way to restore order in our cities is to put more police on the streets.”¹² While Biden identified that his previous stance on mandatory minimums¹³ and a three-strikes provision was flawed, he needed to include legislation that would appeal to the Republican Senate majority and his Democratic colleagues.¹⁴ Despite the uncertainty of Black politicians in Delaware and throughout the country, the Democratic party’s need to respond to violent crime motivated Biden to defend the 1994 Violent Crime Control and Law Enforcement Act.¹⁵

The U.S. Department of Justice identified that the 1994 bill was “the largest crime bill in the history of the country.”¹⁶ At 356 pages,¹⁷ the bill included various punitive measures designed to win the support of “law and order” Republicans.¹⁸ The bill provided for 100,000 new police officers and $9.7 billion in funding for prisons. But the bill required lawmakers to grant 50% of the funding for police officers and prisons to states that adopt “Truth-in-Sentencing” (TIS) laws. The TIS laws require that people convicted of violent crimes must serve at least 85% of their sentence before they are eligible for parole.¹⁹ Beyond grant programs, the bill expanded the death penalty to roughly 60 new offenses and instituted “new and stiffer” penalties for gang-related violent and drug crimes. The bill also introduced a federal “three-strikes” provision, which sentences a person to life imprisonment after three violent felony or drug trafficking convictions. Lastly, the bill eliminated higher education for inmates by revoking Pell Grant funding to any person incarcerated at a state or federal penal institution.²⁰

While these laws would have alone ensured passage in the Senate, the Democratic-controlled House²¹ required the addition of social welfare programs. The since expired²² Assault Weapons ban prohibited the manufacture, transfer, and possession of a semi-automatic assault weapon.²³ The act also included stiffer sentences for repeat sex offenders,²⁴ required states to create a publicly-accessible sex-offender registry,²⁵ and allowed victims of Federal violent or sex crimes to speak at sentencing.²⁶ The “Violence Against Women” portion of the bill created the National Domestic Violence Hotline.²⁷ While the act motivated states to adopt stiffer penalties for violent and major drug-trafficking crimes through the TIS grant program, it also allowed the Attorney General to make grants to states and municipalities for creating drug courts. These drug courts would provide non-violent drug offenders an option outside of incarceration, involving judicial supervision during substance-abuse treatment.²⁸

The complex bill met both resistance and support from the African American community, demonstrating the uncertainty surrounding the bill’s effects. While former Senator from Illinois Carol Mosely Braun, who is Black, supported the bill, Rev. Jesse Jackson told reporters that it would lead to “the most fascist period of our history.”²⁹ Across the nation, support was similarly fractured, with Black mayors in Baltimore, Atlanta, Cleveland, Denver, and Detroit supporting the bill, while the Congressional Black Caucus initially rejected an early version of it. However, in its final version, 25 of the 40 Black members of Congress voted in support and 12 against.³⁰

Controversies and lack of answers about the bill’s impacts continue to seep into the national conversation, especially as Joe Biden runs for President. As the Democratic primary race was beginning to ramp up, the combined state and federal imprisonment rate was 431 sentenced prisoners per 100,000 U.S. residents, a rate significantly higher than any other country in the world. Within this population, the imprisonment rate for black men was 5.8 times higher than for white men.³¹ Even as criminal justice reform activists spread a narrative that the 1994 bill led to this increase, it appears that the bill had little effect on prison population rates or violent crime — good or bad. While the prison population more than doubled from 1994 to 2011, it had already been rising, having quadrupled in size from 1980 to 1994.³² Since the federal prison system only accounts for about 13% of prisoners in the United States,³³ the bill had little to no effect on the overall incarceration rate. The bill also did not decrease violent crime rates as it had intended to. While rates have shown a steady decrease since 1994,³⁴ a study by the U.S. Government Accountability Office found that the COPS grants only caused 5% of this decrease.³⁵ Still, the extensive crime bill went beyond federal criminal law changes and grants to strengthen police departments by motivating states to adopt Truth-in-Sentencing laws through grant programs.

Some activists, like Vanita Gupta, the Assistant Attorney General for Civil Rights under President Obama, said that the bill “created and calcified massive incentives for local jurisdictions to engage in draconian criminal justice practices.”³⁶ Of these incentives, the Truth-in-Sentencing grant program offered $10 billion to states that prohibited parole until an inmate has served 85% of the minimum sentence of their crime.³⁷ However, the Government Accountability Office reported that only 4 states said that the grants strongly influenced their decision to adopt TIS laws.³⁸ New York, a state that received the grant, actually had a declining prison population.³⁹ However, the Bureau of Justice Statistics data also indicates that roughly 75% of prison admissions for a violent offense in 1997 were in states with TIS laws.⁴⁰ While TIS laws themselves show an increase in prison admissions, 27 of the states creating TIS laws said that the grants were irrelevant.⁴¹ Although the 1994 bill may not have directly contributed to rising prison populations, it set a precedent and standard for states to follow regarding sentencing their prisoners and stripping them of opportunities to demonstrate rehabilitation.

One direct impact of the 1994 bill was the Pell Grant funding revocation for any person incarcerated at the federal or state level. While the 1964 Higher Education Act allowed inmates to apply for financial aid to attend college while in prison, the crime bill decimated these programs by making participation nearly impossible for most inmates.⁴² According to a U.S. Department of Education study, 19% of adult inmates are illiterate, and 60% are functionally illiterate, whereas the national rate is 4% and 23%, respectively.⁴³ With recidivism rates as high as 71% in some areas of the United States, the search for programs that would reduce these rates was critical. A study funded by the National Institute of Justice found that higher education was more effective than boot camps and vocational training at reducing recidivism,⁴⁴ and a U.S. Department of Education study found that “every dollar spent on education returned more than two dollars to the citizens in reduced prison costs.”⁴⁵ There appears to be no reasonable explanation as to why funding for inmates’ education was abolished, considering its effectiveness and estimated economic returns.

The limited effect of the 1994 crime bill demonstrates that criminal justice reform designed to decrease mass incarceration cannot just take the form of changing federal criminal laws but also involve encouraging states to start their efforts. In an editorial for The New York Times Magazine, John Pfaff indicated his disdain for the attention the 1994 bill had been receiving, writing that “no one is debating” the Anti-Terrorism and Effective Death Penalty Act and Prison Litigation Reform Act; as both of these Clinton-era laws made it more difficult for prisoners to use their legal rights while incarcerated.⁴⁶ Pfaff, in a Fordham Law School paper, also found that mass incarceration is mostly a local problem, caused by County Prosecutors.⁴⁷ In his 2020 criminal justice plan, Biden alludes to both federal legislation and a focus on reform at the state and county level. Biden hopes to “tackle various root causes of crime” by investing in education, housing, mental health care, addiction treatment, and after-school programs. In addition to pursuing efforts to abolish the death penalty and federally legalize marijuana, Biden will allow the Department of Justice to investigate prosecutorial misconduct.⁴⁸ Biden’s perspective on criminal justice has changed from denial of the root cause theory of crime to a plan that openly embraces and builds legislation based on this theory.

Over the last three years, the United States has seen a reckoning of public and political opinion on criminal justice reform and mass incarceration. In the wake of police brutality cases sweeping across the country, from Ferguson to Louisville to Minneapolis, these issues are being talked about and understood more. As the 2020 Presidential election unfolded, an African-American boy has a one-in-three chance of being imprisoned during his life.⁴⁹ Vice President Biden and Senator Harris are faced with the challenge of not only addressing the injustices made by officials in the past but changing the current criminal justice system to be more effective, more fair, and more just. Elizabeth Hinton, in her book From the War on Poverty to the War on Crime, writes that “we can excuse the set of actions and choices these historical actors made as a product of their time or as merely an electoral tactic, but by doing so, we will continue to avoid confronting legacies of enslavement that still prevent the nation from fully realizing the promise of its founding principles.”⁵⁰ As the United States faces another election, the individuals elected to public office, from President to County Prosecutor, will be faced with the task of fighting against mass incarceration, fighting for racial justice, and fighting for a justice system that protects our nation’s founding promises.

1. Andrew Kaczynski, “Biden in 1993 Speech Pushing Crime Bill Warned of ‘Predators on Our Streets’ Who Were ‘beyond the Pale’,” CNN, March 7, 2019. [https://www.cnn.com/2019/03/07/politics/biden-1993-speech-predators/index.html]

2. Michael Kranish, “Joe Biden Let Police Groups Write His Crime Bill. Now, His Agenda Has Changed,” The Washington Post, June 9, 2020. [https://www.washingtonpost.com/politics/joe-biden-let-police-groups-write-his-crime-bill-now-his-agenda-has-changed/2020/06/08/82ab969e-a434-11ea-8681-7d471bf20207_story.html]

3. David Muhlhausen, “Innovative Approaches to Addressing Violent Crime” (speech, Washington, DC, October 12, 2017), National Institute of Justice. [https://nij.ojp.gov/speech/innovative-approaches-addressing-violent-crime]

4. Sheryl Gay Stolberg and Astead W. Herndon, “‘Lock the S.O.B.s Up’: Joe Biden and the Era of Mass Incarceration,” The New York Times, June 25, 2019. [https://www.nytimes.com/2019/06/25/us/joe-biden-crime-laws.html]

5. Gwen Ifill, “THE 1992 CAMPAIGN: The Democrats; Clinton, in Houston Speech, Assails Bush on Crime Issue,” The New York Times, June 24, 1992. [https://www.nytimes.com/1992/07/24/us/1992-campaign-democrats-clinton-houston-speech-assails-bush-crime-issue.html]

6. Sheryl Gay Stolberg and Astead W. Herndon.

7. Sheryl Gay Stolberg and Astead W. Herndon.

8. Tal Axelrod, “Harris Knocks Biden on Crime Bill: ‘It Did Contribute to Mass Incarceration in Our Country’,” The Hill, May 15, 2019. [https://thehill.com/homenews/campaign/443871-harris-knocks-biden-on-crime-bill-it-did-contribute-to-mass-incarceration]

9. “Criminal Justice Facts,” The Sentencing Project, September 2, 2020. [https://www.sentencingproject.org/criminal-justice-facts/]

10. Veronica Stracqualursi, Sarah Mucha, Arlette Saenz, and Caroline Kenny, “Joe Biden Invokes Obama to Defend Record, Says He’s Sorry for Remarks on Working with Segregationists,” CNN, July 6, 2019. [https://www.cnn.com/2019/07/06/politics/joe-biden-defends-record-obama-2020/index.html.]

11. Sheryl Gay Stolberg and Astead W. Herndon.

12. “1992 Democratic Party Platform,” 1992 Democratic Party Platform | The American Presidency Project, July 13, 1992. [https://www.presidency.ucsb.edu/documents/1992-democratic-party-platform.]

13. Don J. DeBenedictis, “How Long Is Too Long?,” ABA Journal, October 1993. [https://books.google.com/books?id=i4Z4D5V-kD0C&pg=PA74&lpg=PA74&dq=%22I+think+we%E2%80%99ve+had+all+the+mandatory+minimums+that+we+need.+We+don%E2%80%99t+need+the+ones+that+we+have.%22&source=bl&ots=t65CfOWL2Y&sig=P8TEZNgAD-Ma5jcVPbaB8beL-t0&hl=en&sa=X&ved=0CB4Q6AEwAGoVChMIvpim-4LFxwIVh3YeCh2mKwZW#v=onepage&q&f=false]

14. Sheryl Gay Stolberg and Astead W. Herndon.

15. Sheryl Gay Stolberg and Astead W. Herndon.

16. “Violent Crime Control and Law Enforcement Act of 1994,” U.S. Department of Justice, October 24, 1994. [ https://www.ncjrs.gov/txtfiles/billfs.txt]

17. “H.R. 3355 (103rd): Violent Crime Control and Law Enforcement Act of 1994 — House Vote #416 — Aug 21, 1994,” GovTrack.us. [https://www.govtrack.us/congress/votes/103-1994/h416.]

18. Sheryl Gay Stolberg and Astead W. Herndon.

19. H.R. 3355, Session of 1994, Title II, Subtitle A. [https://www.congress.gov/bill/103rd-congress/house-bill/3355?q=%7B%22search%22%3A%5B%221994+violent+crime%22%5D%7D&s=3&r=3]

20. “Violent Crime Control and Law Enforcement Act of 1994.”

21. “H.R. 3355 (103rd): Violent Crime Control and Law Enforcement Act of 1994 — House Vote #416 — Aug 21, 1994”

22. Meghan Keneally, “Understanding the 1994 Assault Weapons Ban and Why It Ended,” ABC News, September 13, 2019. [https://abcnews.go.com/US/understanding-1994-assault-weapons-ban-ended/story?id=65546858.]

23. H.R. 3355, Title IX, Subtitle A.

24. H.R. 3355, Title IV, Chapter 1.

25. H.R. 3355, Title XVIII, Subtitle A.

26. H.R. 3355, Title XXVIII, Subtitle A.

27. H.R. 3355, Title IV.

28. H.R. 3355, Title V.

29. Sheryl Gay Stolberg and Astead W. Herndon.

30. Sheryl Gay Stolberg and Astead W. Herndon.

31. E. Ann Carson, “Prisoners in 2018,” U.S. Department of Justice, April 2020. [https://www.bjs.gov/content/pub/pdf/p18.pdf]

32. “Past Inmate Population Totals,” Federal Bureau of Prisons, Last Updated October 29, 2020. [https://www.bop.gov/about/statistics/population_statistics.jsp#old_pops]

33. E. Ann Carson.

34. “State-by-state and national crime estimates by year(s),” Uniform Crime Reporting Statistics, Federal Bureau of Investigation, Accessed October 30, 2020. [https://www.ucrdatatool.gov/Search/Crime/State/RunCrimeStatebyState.cfm]

35. Laurie E. Elkstrand and Nancy R. Kingsbury. “Community Policing Grants,” United States Government Accountability Office, October 2005, 14. [https://books.google.com/books?id=4I2O9A0RANoC&pg=PA14#v=onepage&q&f=false]

36. Sheryl Gay Stolberg and Astead W. Herndon.

37. John Pfaff, “Bill Clinton Is Wrong About His Crime Bill. So Are the Protesters He Lectured,” The New York Times, April 12, 2016. [https://www.nytimes.com/2016/04/12/magazine/bill-clinton-is-wrong-about-his-crime-bill-so-are-the-protesters-he-lectured.html]

38. “Truth in Sentencing,” United States General Accounting Office, February 1998, 3. [https://www.govinfo.gov/content/pkg/GAOREPORTS-GGD-98-42/pdf/GAOREPORTS-GGD-98-42.pdf]

39. John Pfaff, April 11, 2016, 10:08 am. [https://twitter.com/JohnFPfaff/status/719527528159973377]

40. Paula M. Ditton, “Truth in Sentencing in State Prisons,” U.S. Department of Justice, 1. [https://www.govinfo.gov/content/pkg/GAOREPORTS-GGD-98-42/pdf/GAOREPORTS-GGD-98-42.pdf]

41. John Pfaff, April 11, 2016, 10:02 am. [https://twitter.com/JohnFPfaff/status/719526002905518080]

42. David Karpowitz and Max Kenner, “Education as Crime Prevention: The Case for Reinstating Pell Grant Eligibility for the Incarcerated,” Bard Prison Initiative, 6–7. [https://web.archive.org/web/20071127065134/http://www.bard.edu/bpi/pdfs/crime_report.pdf]

43. 1992 National Adult Literacy Survey, U.S. Department of Education, National Center for Education Statistics, 1992, Accessed in David Karpowitz and Max Kenner.

44. Sherman, et.al., “Preventing Crime: What Works, What Doesn’t, What’s Promising,” Report prepared for the National Institute of Justice under Grant Number 96MUMU0019, Accessed in David Karpowitz and Max Kenner.

45. “The Three State Recidivism Study,” U.S. Department of Education, 3, Accessed in David Karpowitz and Max Kenner.

46. John Pfaff, “Bill Clinton Is Wrong About His Crime Bill. So Are the Protesters He Lectured.”

47. John Pfaff, “The Causes of Growth in Prison Admissions and Populations,” Fordham University School of Law, SSRN, January 23, 2012. [ https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1990508]

48. German Lopez.

49. “Criminal Justice Facts.”

50. Elizabeth Hinton, “EPILOGUE: Reckoning with the War on Crime,” From the War on Poverty to the War on Crime: The Making of Mass Incarceration in America, Cambridge, Massachusetts; London, England: Harvard University Press, 2016, 335. [http://www.jstor.org/stable/j.ctvjk2w72.13.]