A ‘Destructive’ Climate Fostered the 25-Year-Old Crime Act. Can We Fix It?

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As we mark the 25th anniversary of passage of the 1994 Violent Crime Control and Law Enforcement Act, it is being disavowed by many who had previously supported it, including leading presidential candidates.

Rejecting the punitive provisions of the Act, passed at the height of the “tough-on-crime” era, and the destructive political climate it helped bolster is a critical step in recognizing the harms caused by mass incarceration.

But much more than rhetoric is needed. Equally important is championing reforms that address the effects some sections of the law have had on low-income communities, particularly communities of color,

At 356 pages, the 1994 law remains the most far-reaching crime bill in our nation’s history. The legislation, which covered a wide range of issues, included elements that are worth praising—and remain popular today—such as protections for battered women and support for substance abuse programs.

But it also included measures that many now oppose. The law, for example, authorized the death penalty for dozens of federal crimes, and created an “habitual offender” law that mandated life imprisonment for third felonies in many circumstances.

In another measure with far-reaching and damaging impact, people in prison were no longer eligible for Pell grants that enabled low-income individuals to take college-level courses and gain the educational qualifications that would help them better integrate with civilian society on their release.

Given that 90 percent of incarcerated people are under state and local jurisdiction, federal lawmakers did their best to ensure that their punitive approach was duplicated at the state level, by authorizing $9.7 billion in grants to encourage states to build new prisons and adopt “truth-in-sentencing” laws that required individuals to serve at least 85 percent of their sentence before being eligible for release.

While not all the federal grant monies were spent, an Urban Institute study focused on studying the impact of the crime legislation found a total of 28 states and the District of Columbia received truth-in-sentencing grants between 1996 and 1999.

Between 1995 and 1999, nine states adopted truth-in-sentencing laws and another 21 states changed their pre-existing truth-in-sentencing statutes—although there isn’t certainty on how many of these changes were directly linked to the 1994 Crime Bill.

Most states had already passed harsh sentencing laws before the 1994 legislation, but the federal law provided a bipartisan push to continue down the tough-on-crime road—and go even further.

The number of people in prison continued to grow for 15 years following enactment of the legislation, even though crime rates had been going down before passage of the bill and continued declining long afterwards. According to the Congressional Research Service, the number of state and federal correctional facilities grew from 1,277 in 1990 to 1,821 in 2005, representing a 43 percent increase.

The 1994 Act certainly did not create mass incarceration, but there is no question that it helped accelerate its growth, both directly and indirectly. An equally, if not more dangerous, consequence of the law was the impact that it had on national and state politics. The Act gave the green light for Democratic and Republican lawmakers, voters and prosecutors to support locking up more people and building more prisons.

It solidified the tough-on-crime era as a bipartisan one.

Official party platforms adopted tough-on-crime policies and called for more punitive criminal justice measures. Just a few months following passage of the federal bill, California voters overwhelmingly approved Proposition 184, which created a three-strike law that set a minimum sentence of 25 years to life for people convicted of offenses for the third time. And between 1994 and 2008, there was a nearly 40 percent increase in felony charges filed by prosecutors, who began to more aggressively assert their authority due to the changing political climate.

While the Act is still on the books, the politics of mass incarceration are finally beginning to change. Americans are beginning to hold policymakers accountable for the racial injustices created by our system of mass incarceration, and the exponential growth in the nation’s jail, prison, parole, and probation populations.

So while denouncing the Act is welcome, there are concrete steps that policymakers should take to put teeth behind the rhetoric and mend the black and brown communities who are disproportionately suffering the legacy of the policies enshrined in the legislation.

First, policymakers must begin to rebalance spending priorities. Sen. Bernie Sanders recently accused South Carolina of spending more on prisons than on schools, prompting a “fact check” by PolitiFact.

Yet Sanders was right, and South Carolina is not unique. Every single state in the nation averages more spending on prisons than on students. This must change.

A direct repudiation of the 1994 Act’s emphasis on federal spending should involve direct investments into communities harmed by mass incarceration, including investing in substance abuse programs, mental health clinics, youth programs, and supportive housing.

These investments should be determined through a “People’s Assembly Process” that draws input from directly affected communities nationwide, as recently called for by the Vision for Justice initiative launched by The Leadership Conference on Civil and Human Rights and supported by the American Civil Liberties Union and many others.

Second, the nation’s sentencing systems must be revised dramatically.

This includes eliminating the death penalty and mandatory minimums—including life without parole. A maximum sentence of no more than 20 years in prison should be created, along with “Second Look” legislation that allows anyone who has served 10 years or more to apply for resentencing. All reforms should be made retroactive to apply to currently incarcerated people.

Finally, policymakers must commit to specific decarceration goals.

At the American Civil Liberties Union, (ACLU) we’ve launched a campaign to get all of the presidential candidates to commit to a 50 percent decarceration goal during their presidential term. So far, 14 presidential candidates have committed to this goal, including almost all of the leading candidates.

This represents a seismic shift from the presidential politics that drove crime and justice policymaking in the 1990s.

Udi Ofer

Udi Ofer

A 2018 ACLU Smart Justice poll found that 59 percent of likely voters prefer a candidate who supports reducing the number of people in jails and prisons, and 75 percent of voters prefer a candidate who supports reducing racial disparities in the criminal legal system.

Voters are hungry for change, and dismantling the impact of the 1994 legislation is a way to begin feeding their emerging hunger for social and racial justice.

Udi Ofer is deputy national political director of the American Civil Liberties Union and director of the ACLU’s Justice Division. He welcomes readers’ comments.

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