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Analysis

The Complex History of the Controversial 1994 Crime Bill

A political compromise, the crime bill contributed to both the crime decline and mass incarceration. But not in the way that people might think.

April 14, 2016

Cross-posted at MSNBC.com

When Hillary Clin­ton and Bernie Sanders take the stage Thursday night in Brook­lyn, the debate moder­at­ors will almost certainly ask them about a 22-year-old crime law. The issue is back in the news after the 1994 crime bill came up at a Hillary Clin­ton campaign rally last week.

Since then, much has been said about the legis­la­tion’s effect on crime and mass incar­cer­a­tion. Some argue the meas­ure, offi­cially called the Viol­ent Crime Control and Law Enforce­ment Act of 1994, led to a drop in crime. Others vehe­mently contend it did not. Ques­tions abound about its impact on mass incar­cer­a­tion.

With millions watch­ing Thursday, the candid­ates can help put the bill in context — and offer their specific ideas to move crim­inal justice policy forward.

Like most polit­ical comprom­ises, the crime bill did some good and some bad. It contrib­uted to both the crime decline and mass incar­cer­a­tion. But not in the way that people might think.

First, the good: Though the crime bill was not respons­ible for the entire drop in crime, it likely helped — not by lock­ing people up, but by putting more cops on the street, stud­ies show. It provided fund­ing for 100,000 new police officers and $14 billion in grants for community-oriented poli­cing, for example. From 1990 to 1999, the number of police officers rose 28 percent, from 699,000 to 899,000, partly funded by the crime bill.

Research also indic­ates smarter poli­cing tactics, like the ones funded by the bill, and social and economic factors — like an aging popu­la­tion and decreased alco­hol consump­tion — played a role in the crime decline as well.

Crime had already star­ted declin­ing before the bill passed. From 1991 to 1994, crime dropped 10 percent and viol­ence decreased by 5 percent. From 1994 to 2000, crime fell an addi­tional 23 percent, with viol­ent crime drop­ping by almost 30 percent. All of the above contrib­uted to the fall.

Then there’s the bad: Although incar­cer­a­tion was already rising stead­ily before the crime bill, several of its provi­sions helped increase incar­cer­a­tion even further. Never­the­less, this increase had little impact on Amer­ica’s subsequent drop in crime.

From 1970 to 1994, the rate of impris­on­ment exploded 400 percent, to 387 per 100,000 people. From 1994 to 2009, impris­on­ment contin­ued to rise, doub­ling.

The crime bill contrib­uted to this increase in incar­cer­a­tion. First, it banned 19 types of semi­auto­matic assault weapons, author­ized the death penalty for dozens of exist­ing and new federal crimes, and insti­tuted a federal “three strikes and you’re out” provi­sion.

But those facets were far less perni­cious than how the crime bill influ­enced states to increase their prison rolls. The bill gran­ted states $12.5 billion to build pris­ons if they passed “truth-in-senten­cing” (TIS) laws, which required inmates to serve at least 85 percent of their sentences.

A 2002 Urban Insti­tute study found that between 1995 and 1999, nine states adop­ted TIS laws for the first time, and another 21 states changed their TIS laws to comply with the crime bill’s require­ments and then apply for fund­ing. By 1999, a total of 42 states had such laws on the books, sustain­ing an increase in impris­on­ment.

The crime bill, however, was just the most high-profile legis­la­tion to increase the number of people behind bars. On their own, states passed three-strikes laws, enacted mandat­ory minim­ums, elim­in­ated parole, and removed judi­cial discre­tion in senten­cing. By dangling bonus dollars, the crime bill encour­aged states to remain on their tough-on-crime course.

What’s worse, research shows the dramatic increase in incar­cer­a­tion in the 1990s and 2000s played a limited role in bring­ing down crime. A clas­sic case of “dimin­ish­ing returns,” incar­cer­a­tion’s effect on redu­cing crime had been declin­ing since before 1980. Since 2000, the effect of incar­cer­a­tion on crime has been even more limited. When pris­ons are used spar­ingly, incar­cer­a­tion is reserved for the highest-risk and most-seri­ous offend­ers. When prison popu­la­tions grow to be too large, it is usually by incar­cer­at­ing less seri­ous offend­ers. In other words, the more people we put in prison, the less likely each addi­tional inmate has on redu­cing crime.

With crime and punish­ment again in the national debate, hope­fully Thursday night Sanders and Clin­ton will outline specific plans for rein­ing in our system of mass incar­cer­a­tion, which impris­ons more than 2.2 million Amer­ic­ans. Ted Cruz and John Kasich have also endorsed crim­inal justice reform in some way on the campaign trail, with even Donald Trump acknow­ledging possible areas for change.

There is a solu­tion they can cham­pion. Just like in the 1990s, the federal govern­ment can encour­age states to continue their current traject­ory. Between 2008 and 2013, 32 states reduced both impris­on­ment and crime. A federal “Reverse Crime Bill” can encour­age states to go further.

A modern crime bill can shift the flow of federal dollars by provid­ing grants to states that reduce rates of both crime and impris­on­ment. Clin­ton, in an inter­view with the New York Daily News edit­or­ial board, recently acknow­ledged a role for Wash­ing­ton to set finan­cial incent­ives for states to reduce impris­on­ment. She should expand on those points in Brook­lyn Thursday.

As we debate these issues, it’s import­ant to remem­ber the facts: Crime is at its lowest levels today. And mass incar­cer­a­tion is near its highest. The crime bill likely played a role in the crime decline, but it also certainly increased the number of Amer­ic­ans behind bars.

The next pres­id­ent can and should back legis­la­tion to reverse the bad while preserving the good.