“This idea that the crime bill generated mass incarceration, it did not generate mass incarceration."

— Former vice president Joe Biden (D-Del.), in remarks in Nashua, N.H., May 14, 2019

The former vice president and 2020 presidential hopeful was a key senator working on the passage of the Violent Crime Control and Law Enforcement Act of 1994, better known as the 1994 crime bill. Biden has taken to calling it the “1994 Biden Crime Bill,” so he’s obviously paternal about it. (Then-Rep. Jack Brooks [D-Tex.] was a key player in the House, as was then-Rep. Charles E. Schumer [D-N.Y.], and of course Bill Clinton pushed for it and signed it into law as president.)

The Fact Checker covered passage of the crime bill, which at the time was derided as an ungainly collection of pork-barrel projects and untested crime-fighting concepts — a “Christmas tree designed by Salvador Dali,” in the memorable words of one expert. Violent crime rates had peaked in 1991, for reasons still debated, though that trend was not apparent when the bill passed. Nevertheless, Clinton toured around the country trying to take credit.

But more recently, a backlash has developed against the law, with some saying it helped lead to higher and higher rates of incarceration. Clinton himself declared in 2015: “I signed a bill that made the problem worse. And I want to admit it.” (Caveat: At the time he was speaking at the NAACP’s annual meeting and his wife was running for president.)

So who’s right?

The Facts

The crime bill had many provisions, such as giving states funds to hire an additional 100,000 police officers, but one part is especially important to this issue. The bill earmarked $8.7 billion over six years for states to build more prisons. About half of that was available to states that enacted “truth-in-sentencing” laws, which curb paroles and required people convicted of violent crimes to serve at least 85 percent of their sentences.

Even at passage, experts said the bill would likely continue a trend of longer prison terms since Justice Department data at the time indicated that people convicted of violent crimes served an average of 55 percent of their sentences.

“While there is no guarantee that the federal government will continue paying for prison construction beyond these next six years, the state sentencing laws will no doubt remain on the books, continuing to increase the prison population,” the New York Times noted when the bill was approved.

Biden’s full remarks are worth quoting in full, though parts are garbled:

“Folks, let’s get something straight. 90/92 of every 100 prisoners behind the bars is in state prison, not a federal prison. This idea that the crime bill generated mass incarceration, it did not generate mass incarceration. The only bill, that bill had $30 — it was $30 billion dollars. $10 billion went to making sure there was rehabilitation, that it was for prevention — that’s what it was about. Secondly, the court, I made sure there was a set up in that law that said there were no more mandatories, except two that I had to accept. One was the President Clinton one of three strikes and you’re out. It was of this entire bill. It included the Violence Against Women Act. It included the gun control efforts, as well as included — anyways I won’t go into it, it’s raining — but here’s the deal. What happened is the mass incarceration incurred by the state setting mandatory sentences.”

Essentially, Biden’s point is that 1994 law applied to federal crimes — and all but 10 percent of convicts end up in prison on state charges.

But recall that the bill encouraged states to build more prisons — with more money coming to them if they increased penalties. The law was part of a wave of anti-crime measures, which included the 1984 Sentencing Reform Act, which added significant mandatory minimums for many federal crimes and abolished federal parole, and “three-strikes-and-you-are-out” laws for habitual offenders.

The 1994 crime bill included an unusually tough federal “three-strikes” provision that required mandatory life imprisonment without the possibility of parole for those who commit a federal violent felony if they had two or more previous convictions for violent felonies or drug trafficking crimes, even if the first two were at the state level.

In 2016, responding to a protester, Clinton blamed the sentencing provisions in the law on Biden. “Vice President Biden . . . he was the chairman of the committee that had jurisdiction over this crime bill,” he said. “Biden said, ‘You can’t pass this bill. The Republicans will kill it if you don’t put more sentencing in.’” (The Biden campaign provided a news clip from 1994 in which Biden called the three-strikes provision “wacko” and reflective of the “tough-on-crime attitude” of Congress.)

Inimai M. Chettiar, director of the Justice Program at New York University’s Brennan Center for Justice, said there was no single factor that led to an increase in incarceration, but one cannot exclude the impact of the crime bill.

“It’s not helpful to talk about one cause, but it does not mean federal policy does not matter,” she said. “The federal government gives funding to states to get them moving in a certain direction,” such as building more prisons.

“Federal dollars have helped buttress mass incarceration for years, most notoriously through the Violent Crime Control and Law Enforcement Act of 1994,” said a 2019 Brennan Center report. The report also notes that “the 1994 Crime Bill is justly criticized for encouraging states to build and fill new prisons.”

Lauren-Brooke Eisen, also of the Brennan Center, said the federal money galvanized the prison construction boom, with the number of prisons rising 43 percent from 1990 to 2005.

“While the precise impact of the grant program is hard to quantify, the law’s passage, and the concurrent or subsequent passage of at least 20 state ‘truth-in-sentencing’ laws, marked a turning point in the length of sentences served nationwide,” she said, pointing to a 2012 Pew Center study of 36 states that found that the average length of stay for offenders released from prison in 2009 increased 36 percent from 1990, with nine states reporting increases of over 50 percent.

To some extent, then, Biden is erecting a straw man by claiming that people think the crime bill caused mass incarceration. Virtually no expert says that.

“Biden is correct that the crime bill did not cause mass incarceration,” Chettiar said. “But he is wrong that it was not a contributing factor. The way Bill Clinton framed it is more accurate than the way Joe Biden is framing it.”

Indeed, Clinton acknowledged that federal policy set the trend.

“In that bill, there were longer sentences. And most of these people are in prison under state law, but the federal law set a trend,” Clinton told the NAACP. “And that was overdone. We were wrong about that. That percentage of it, we were wrong about.”

The Biden campaign disputes the impact of the federal dollars on incarceration. The campaign cited Bureau of Justice Statistics figures showing that from 1980 to 1994, the average annual percentage increase in the incarcerated population was 8.01 percent — and then 5.14 percent from 1994 to 2000.

Another measure is the incarceration rate per 100,000 U.S. residents. For decades, until the early 1970s, it was about 100 for 100,000 residents. By 1994, the rate had increased to 387 per 100,000. After passage of the crime bill, it kept going up: 478 in 2000, 500 in 2010, 655 in 2016. The United States now has 5 percent of the world’s population — and one quarter of the world’s prisoners.

So, the trend had started before passage of the crime bill but certainly continued at a strong pace afterward — even as violent crime rates were falling dramatically.

The Biden campaign also cited an Urban Institute study on the impact of the “truth-in-sentencing” (TIS) provisions of the crime bill, which depending on how you read it either supports or undermines Biden. The study found that the 1994 law had no impact on whether 30 states adopted truth-in-sentencing laws. But the study also 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.

“Rather than as a major force for changing sentencing practices among the states, the federal TIS grant program is better understood as a program that reflected current sentencing practices and the reforms that were going on in the states,” the report said.

The report, citing a General Accounting Office report also flagged by the campaign as well as a Justice Department report, said that federal funding was a key factor in five states and a partial factor in 10 more states. The grant program “contributed to incremental changes in sentencing laws in some states, largely by leading to laws that increased the percentage of sentence served. Second, it provided rewards for states whose TIS practices were already consistent with the federal grant criteria,” the report said.

The Urban Institute quoted a Justice Department official as being surprised by the states’ level of interest in the grant program, considering how small the grants were compared to costs of long-term incarceration. It suggested that the main influence of the grant program was that it allowed states to appear tough on crime. In a footnote, the authors cited an interview with a state official from Connecticut:

When asked about Connecticut’s motivation in moving to an 85 percent truth in sentencing law, Ms. O’Hagan responded that Connecticut liked to be “ahead of the curve” on national reforms, and she implied that the state government might be viewed negatively if it did not seek federal funds to help with its perceived crime problem.

“While some states had already started to enact tougher sentencing laws, the legislation rewarded states for those decisions, and gave powerful incentives for others to adopt them,” Eisen said.

The Pinocchio Test

Biden tries to deflect criticism that the 1994 crime bill contributed to an increase in incarceration by pinning the blame on the states for building more prisons and passing tougher laws. But the federal law set the tone — and the bill he crafted included incentives for states to overhaul their laws and build more prisons.

There are many factors that contributed to the United States having such a high incarceration rate, but few dispute the crime bill was a contributor. Bill Clinton has acknowledged this. If Biden is going to lay claim to the “Biden Crime Bill,” he also needs to take ownership of some of its flaws apparent a quarter-century later.

Two Pinocchios

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Two Pinocchios
“This idea that the crime bill generated mass incarceration, it did not generate mass incarceration."
remarks in Nashua, N.H.
Tuesday, May 14, 2019