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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.