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Bill Clinton and Mass Incarceration

Bill Clinton, ever attuned to the national zeitgeist, says the American people may at last be ready to fix a problem he now acknowledges he helped cause during his eight years in office.

Published: October 14, 2014

It surely is a sign of the times that the man who signed into law the 1994 Viol­ent Crime Control Act and the 1996 Anti­ter­ror­ism and Effect­ive Death Penalty Act now is pitch­ing the idea that the Amer­ican people are fed up with mass incar­cer­a­tion and that crim­inal justice reform will (and ought to) be a prime topic of conver­sa­tion in the run-up to the pres­id­en­tial elec­tion of 2016. Bill Clin­ton, ever attuned to the national zeit­geist, says the Amer­ican people may at last be ready to fix a prob­lem he now acknow­ledges he helped cause during his eight years in office.

Here is how Kasie Hunt of MSNBC repor­ted Clin­ton’s comments last week in Little Rock, Arkan­sas.

“We basic­ally took a shot­gun to a prob­lem that needed a .22 – a very signi­fic­ant percent­age of seri­ous crimes in this coun­try are commit­ted by a very small number” of crim­in­als, Clin­ton told the 70 or so mayors and law enforce­ment offi­cials who were gathered at his pres­id­en­tial library here in part to celeb­rate the 20-year anniversary of the community poli­cing program he foun­ded as part of the 1994 crime bill.

“We took a shot­gun to it and just sent every­body to jail for too long,” Clin­ton said, refer­en­cing the fight to reduce viol­ent crime over the past several decades. “I think in this next step where we’re going to be appar­ently debat­ing all this and as the pres­id­en­tial elec­tion approaches, we’ll start to have a discus­sion of all of this,” he contin­ued, point­ing to Repub­lican support for redu­cing prison time, partic­u­larly among the reli­gious wing of the party.

Clin­ton is right that he and his polit­ical contem­por­ar­ies got it mostly wrong two decades ago with their shot­gun approach to the prob­lem of crime and punish­ment. In the federal legis­la­tion of that time, for example, there was $9 billion for prison expan­sion, a federal “three strikes” policy, and a broad­en­ing of the categor­ies of crimes eligible for the federal death penalty. There also were new hurdles imposed upon capital appeals, making it more likely that inno­cent men would languish for decades on death row. These policies gave new momentum to already-grow­ing incar­cer­a­tion rates (rates that had been on the rise since the early 1970s).

Clin­ton is right, too, about the nation’s grow­ing real­iz­a­tion today that the policies and prior­it­ies of the 1980s and 1990s have had a devast­at­ing impact upon communit­ies of color. But, to be fair, both he and his confed­er­ates were warned back then that such policies would dispro­por­tion­ately impact citizens of color. He was warned by some of his closest polit­ical allies in Congress- the members of the Congres­sional Black Caucus, for example—and yet he still signed the crime bill into law.  

And, finally, Clin­ton is right that the current momentum for crim­inal justice reform has been aided by Repub­lican support for it. There is no ques­tion that the costs of mass incar­cer­a­tion (finan­cial and other­wise) have become too much for even some of the harshest retribut­iv­ists to bear. But the Smarter Senten­cing Act, a reas­on­able, bipar­tisan piece of federal legis­la­tion that would help unwind mass incar­cer­a­tion, is languish­ing on Capitol Hill because lawmakers on both sides of the aisle don’t consider its passage to be a prior­ity. Bill Clin­ton should not let this moment pass without push­ing Congress to pass this sens­ible meas­ure this fall.

It’s possible that Clin­ton, with the bene­fit of hind­sight and an appre­ci­ation of what mass incar­cer­a­tion has done to the nation, regrets the fate­ful polit­ical choices he made two decades ago. It’s also possible that he believes that he was, then and now, merely an instru­ment of the people, a vessel pushed inex­or­ably toward these dubi­ous policies by the viru­lent fear of crime that infec­ted that era (and that is impossible for many people today to appre­ci­ate).

Whatever the case, as Clin­ton’s former staffer Leon Panetta just wrote in a newly-published book, the truth is that “crime was drop­ping before Clin­ton and it contin­ued to drop after his pres­id­ency” and that pres­id­ency ended nearly 14 years ago. Clin­ton should­n’t be the first pres­id­ent to repent. And hope­fully he won’t be the last. 

The views expressed are the author’s own and not neces­sar­ily those of the Bren­nan Center for Justice.