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The 1994 Crime Bill and Beyond: How Federal Funding Shapes the Criminal Justice System

The 1994 crime bill has a complicated legacy, dominated by funding incentives blamed for driving mass incarceration. A quarter century later, there are numerous proposals to undo the damage.

September 9, 2019

Septem­ber 13 marks 25 years since the sign­ing of the most far-reach­ing crime bill Congress ever passed. Stand­ing in front of a crowd of uniformed police officers, Pres­id­ent Bill Clin­ton extolled the crime-fight­ing poten­tial in the Viol­ent Crime Control and Law Enforce­ment Act of 1994, now commonly referred to as the 1994 crime bill.

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

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.

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.