The 1994 Crime Bill has recently become a hot topic in the primary race on the Democratic side. Crafted during the Presidency of Bill Clinton, largely by Chuck Schumer in the House and Joe Biden in the Senate, and supported by the then First Lady and now presidential candidate Hillary Clinton, it passed in the House of Representatives by 235 to 195, with 46 Republicans joining 188 Democrats and 1 independent to vote "yes." 64 Democrats voted against their party, and 131 Republicans voted "no."
That independent voting yes was one Bernie Sanders, who in a piece on his campaign website titled Sanders Voted for 1994 Crime Bill to Support Assault Weapons Ban, Violence Against Women Provisions, includes his statement at the time that he criticized the mass incarceration and death penalty provisions in the bill.
In posting this piece I am neither attacking Sanders for hypocrisy nor excusing the Clintons for some of the harsh provisions of the bill. The reality was in 1994 that crime was a serious political issue, and even though the Democrats controlled both the House and the Senate (where the final conference version passed 61-34, with Russ Feingold the only Democrat opposed and among the Republicans supporting were Spector, Roth, and Jeffords), the bill could not have gotten passed into law without Republican support in the House. It thus represented something of a compromise between the two parties, something that usually means it is a mixture of good and bad.
I am taking the time to write about this today because of this op ed in today’s New York Times. The author, David Yassky, is currently the Dean of Pace University school of Law School, but at the time was was counsel to the House Subcommittee on Crime, and thus in a position to have full knowledge of the crafting of the law. As he notes early in his piece,
As counsel to the House Subcommittee on Crime led by Charles E. Schumer, then a representative, I spent 18 months helping to draft and negotiate the 1994 crime bill. Anyone who thinks the bill was just about locking people up is simply wrong.
In his column Yassky explains why he is writing this piece now:
If the battle over the 1994 bill was just campaign noise, we could shrug it off, but what’s really at stake is the future of crime policy. If we are going to move forward thoughtfully — keeping our neighborhoods safe without consigning huge segments of the population to life behind bars — we must understand how we got here.
He then provides some context. In Clinton’s first year of office, “violent crime struck nearly 11 million Americans,” there were more than 32 million thefts and burglaries and there was a large ongoing political debate on how to address crime.
In one paragraph, Yassky lists a number of features in the bill crafted by Clinton, Biden and Schumer:
The bill they devised actually reduced sentences for federal drug crimes by exempting first-time, nonviolent drug offenders from the onerous “mandatory minimum” penalties created under earlier administrations. It funded specialized drug courts, drug treatment programs, “boot camps” and other efforts to rehabilitate offenders without incarceration. It allocated more than $3 billion to keep at-risk young people away from gangs and the drug trade.
But there were more features as well. The bill incorporated both the assault weapons ban and violence against women act offered by then Representative Sanders as a reason for supporting it. It also incorporated Bill Clinton’s campaign promise for the “100,000 cops on the beat” program.
On the negative side, it continued the Reagan era sentences and expanded the federal death penalty. Yassky’s argument was that was necessary in order to obtain sufficient votes for passage.
Before returning to Yassky, I’d like to offer some personal observations, shaped by my own involvement in politics as a participant and observer for the better part of 6 plus decades, beginning while I was in high school; one who teaches about politics and government to adolescents; and one who in the past decade or so has gotten to know fairly well a number of Members and Senators. The nature of our government is such that major pieces of legislation usually must include compromises, because it is rare that a party has sufficient control to do something on its own. At least until the recent radicalization of the Republican party, both parties included diverse elements that would not always hold together on key issues. Consider that the landmark 1964 Civil Rights Act could not have been passed without the active support of then Senate Republican Leader Everett Dirksen, because a significant part of the Democratic membership of the upper chamber were segregationist Southerners, including such well known names as Richard Russell and Herman Talmadge of Georgia, James Eastland and John Stennis of Mississippi, and John Sparkman of Alabama. Leading a filibuster against the bill was Robert Byrd of West Virginia. In those days 67 votes were necessary for cloture, which would not have been achieved without strong support from Republicans. Of course, many of those Republicans were moderates like Jake Javits and Ken Keating from New York, Leverett Saltonstall of Massachusetts, and George Aiken of Vermont, all of whom voted for the bill.
One reason it there had been sitting Senators directly elected President between Jack Kennedy and Barack Obama is because a Senator who is going to accomplish things will inevitably have to vote for legislation that includes provisions s/he does not like. Absent compromise, little progress is made legislatively. And we should all be aware of how the refusal to compromise by the current Republicans in the Senate is one reason a large number of issues in this country have not gotten addressed. Even during the first two years of his first term, President Obama faced a then minority Republican party willing to threaten filibusters against almost any proposal that the President proposed.
Yassky points to the successes of the Crime Bill:
Since 1994, violent crime rates have essentially been cut in half. As Bill Clinton pointed out in Philadelphia, the people who benefit most from decreased crime are residents of poor urban neighborhoods. And — crucially for progressives — the reduction in crime has helped restore citizens’ confidence that government can accomplish important goals.
I note that unfortunately, the Reaganite notion that government is the problem has unfortunately become a mantra of too many on the other side of the political aisle.
But Yassky acknowledges that the law also created problems, among which clearly has been the disproportionate focus among minority young men in “stop and frisk” programs.
And of course another is the massive increase in incarceration. Of the many additional inmates, Yassky writes
These people may not be hardened criminals, but taking them off the street nonetheless helps to reduce crime. That is what makes the mass incarceration problem so morally vexing. Bill Clinton diagnosed this issue precisely in a more reflective speech last year: “The good news is we had the biggest drop in crime in history. The bad news is we had a lot of people who were locked up, who were minor actors, for way too long.”
One thing Yassky points out is that this is not merely a function of locking people up for non-violent drug offenses. He cites research that only about 1/5 of those entering incarceration since the 1990s did so for drug offenses (and some portion of those were not non-violent offenders). He goes on to write
As FiveThirtyEight.com recently pointed out, if prisons in the United States released every drug offender tomorrow, we would still have the highest incarceration rates in the world (next up: the United States Virgin Islands, Turkmenistan and Cuba). When we talk about “mass incarceration,” we are mostly talking about people convicted of relatively low-level crimes of violence or theft — a stolen iPhone, a street-corner fight, a few-hundred-dollar burglary from a clothing store.
Stepping back for a moment and offering another observation if I may: many of those who have been victimized by such low-level crime have an immediate reaction of wanting the offender punished by incarceration, which makes addressing the mass incarceration problem more difficult.
Yassky cautions that Democrats cannot abandon addressing the issue of crime to “law and order”Republicans. But he also notes that we do have to make changes, starting with moving away from our over-reliance upon incarceration as a solution:
The next evolution in criminal justice policy must be to reform our correctional system, and we must start by restoring rehabilitation as a core goal. Maybe prisons can someday accomplish that goal, but the ones that we have today do not. Instead, we should make much greater use of parole, halfway houses and other forms of supervised release. We also need to devote far greater resources to mental health services. By some estimates, more than 20 percent of inmates have a recent history of mental illness.
I would add to that paragraph several other items to consider.
- far too many inmates are functional illiterate and/or lack skills that make them employable. Having a criminal conviction merely exacerbates the problem of finding employment once they are released.
- our increasing use of police in schools, especially when not appropriately trained for dealing with problematic students, leads to too many young people getting pulled into the criminal justice system and thus put on the dangerous track that is a part of the school to prison pipelin
- slashing the social safety net is still a problem because it puts economic pressure on people who might be tempted to turn to low level crime
There are other things I could add.
Do we as a society need to revisit our entire approach to criminal justice? Yes.
Do the problems we currently face trace solely or mainly to the 1994 crime bill? I would argue not, because minimum sentences pre-date them, and the notion of the expansion of private prisons is independent of that piece of legislation.
We have by far the highest rate of incarceration of any major nation or democracy. That by itself should be a flashing red light that we need to reexamine what we are doing, including revisiting the provisions of previous legislation, including the 1994 Crime Bill.
I hope that we as Democrats can do so without attempting to use it as a political cudgel which ignores the reality both of how that bill became law and the successes it helped us achieve.