Did the 1994 crime bill cause mass incarceration?

Jail cells are seen in the Enhanced Supervision Housing Unit at the Rikers Island Correctional facility in New York March 12, 2015. New York City is proposing to reduce violence among inmates at its troubled Rikers Island jail by limiting visitors, adding security cameras and separating rival gangs, Mayor Bill de Blasio announced on Thursday. REUTERS/Brendan McDermid (UNITED STATES - Tags: CRIME LAW CIVIL UNREST TPX IMAGES OF THE DAY)

The Violent Crime Control and Law Enforcement Act of 1994, commonly known as the crime bill, was sponsored by Joe Biden 26 years ago. It is often blamed for extending tough-on-crime policies that overly criminalized Black Americans. Is this narrative warranted? The issue is complicated, but we’ll do our best to make some sense of it.

Although the 2020 Democratic National Convention mentioned the Violence Against Women Act, it did not dwell on the more controversial parts of the crime bill. Since the beginning of his presidential race, however, former Vice President Joe Biden has been asked repeatedly about his role in creating this bill. It came up during his vice-presidential selection when Congressional Black Caucus (CBC) chair Karen Bass, who was under consideration as his running-mate, responded with a shrewd history lesson. Although Bass reported that she would have opposed the bill if she had been in Congress at the time, she said, “I understand very well why elected officials did what they did, because the masses of the people in these communities were demanding it.”

Rep. Bass is right. According to a 1994 Gallup survey, 58% of African Americans supported the crime bill, compared to 49% of white Americans. Most Black mayors, who were grappling with a record wave of violent crime, did so as well. As he joined a delegation of mayors lobbying Congress to back the bill, Baltimore Mayor Kurt L. Schmoke said, “We’re trying very hard to explain to Congress that this is a matter that needs bipartisan support.”

In a recent interview Rep. James Clyburn, a member of the House leadership and one of the most powerful African American elected officials, reflected on the reasons for his vote in favor of the bill. “Crack cocaine was a scourge in the Black community,” he recalled. “They wanted it out of those communities, and they had gotten very tough on drugs. And that’s why yours truly, and other members of the Congressional Black Caucus, voted for that 1994 crime bill.”

As Yale law professor James Forman Jr. wrote in his much-cited 2017 book, Locking Up Our Own, “At the height of the [crack] epidemic, Black political and civic leaders often compared crack to the greatest evils that African Americans had ever suffered.” Writing twenty years earlier, another prominent African American scholar, Harvard law professor Randall Kennedy, argued that “Blacks have suffered more from being left unprotected or under-protected by law enforcement authorities than from being mistreated as suspects or defendants” (“Unprotected or under-protected” are interesting and important choice of words, to which we’ll return).

It was against this backdrop that the CBC considered its options. The draft bill contained many provisions to which they objected, such as giving states incentives to implement mandatory minimum sentences and preventing currently incarcerated people from obtaining Pell grants for education. At the same time, the bill offered significant funding for crime prevention, including community policing, drug treatment, and programs for young people. It also contained the landmark Violence Against Women Act, which sharply reduced the incidence of domestic violence, and a ban on assault weapons, which helped to reduce the firearm homicide rate.

In the end, said Maryland representative Kweisi Mfume, the then-chair of the CBC, “We have put our stamp on this bill.” Two-thirds of the CBC members voted for its passage, as did the only Black senator at the time, Illinois’ Carol Moseley Braun. But key CBC members voted No on the bill, including John Lewis, Maxine Waters, John Conyers, and Charles Rangel. Similar to these CBC members in the mid-1990s, Rep. Bass’s comments made it clear that she thought “there was another way to go.” Still, she reminded us of the importance of complexity and nuance when looking at a politician’s record from decades ago.

It is easy to play Monday-morning quarterback. But did the controversial 1994 crime bill actually reduce violence while increasing mass incarceration and racial disparities in the criminal justice system?

Let’s begin with the facts. Between the end of the 1960s to the beginning of the 1990s, the overall rate of violent crime more than doubled before peaking in 1991 and beginning a long-term decline that brought the rate back down to the levels of the early 1970s. The homicide rate followed a similar pattern, with less variation between peaks and troughs. Between 1980 and 2006, the incarceration rate more than quadrupled before beginning a long-term decline that has brought it down to roughly where it stood when the 1994 crime bill was enacted. Since 2006, incarceration rates have fallen by 17% for White Americans, 26% for Hispanics, and 34% for African Americans.

Did the 1994 crime bill help decrease the rate of violent crime? Probably, although the rate had begun to decline before the bill went into effect. Did the bill contribute to the expansion of incarceration? Again, probably so, although the bulk of the growth occurred in the fifteen years before the bill was enacted and has fallen significantly for nearly fifteen years.

But one thing is clear: the 1994 bill interacted with—and reinforced—an existing and highly problematic piece of legislation: The Anti-Drug Abuse Act of 1986, which created huge disparities in sentencing between crack and powder cocaine. Under this bill, a person was sentenced to a five-year minimum sentence for five grams of crack cocaine, but it took 500 grams of powder cocaine to trigger the same sentence. Because crack is a cheaper alternative to powder cocaine, it is more prominent in low-income neighborhoods. These neighborhoods are more likely to be predominately Black and in urban areas that can be overpoliced more easily than suburban or rural areas. While the Fair Sentencing Act of 2010, enacted under the Obama-Biden administration, reduced the crack/powder cocaine disparity from 100:1 to 18:1, the damage had been done, and its effects continue to this day.

In the absence of the 1986 anti-drug bill, the effects of the 1994 on extended incarceration rates would have been less severe. But as James Clyburn’s comments show, getting tough on drugs was a key objective of the 1994 bill, not an unintended byproduct.

Let’s return to the “unprotected or under-protected” comment from Prof. Kennedy. Members of the CBC claim they want better policing for Black communities rather than more. This is complicated for people to interpret, especially when polls show that over 80% of Blacks want more police presence, not less. Often, surveys don’t ask the right type of questions about policing—questions that would get at complexity and nuance. Here’s what we mean:

Police respond more slowly to calls for service in Black communities. Ambulance services responding in Black communities compared to white communities are several minutes slower. If someone is suffering from a stroke or heart attack, these minutes are often a matter of life and death.

In addition, the violent crime clearance rate is unacceptably low. To most Black people, it seems that police care less for their communities, for their deceased loved ones, and for their own lives. So, when Black people say “more policing,” they mean better than what they have and similar to what predominately white communities receive. Black people want police to experience their neighborhoods and really engage in community policing rather than overpolicing their neighborhoods and harassing Black drivers and young people while responding too slowly when they are most needed.

Many people, understandably, see the 1994 crime bill as the principal source of the problems discussed here, even if the truth is much more complicated than that. Still, after a half-century tough-on-crime era that began with Richard Nixon’s War on Drugs, it is time to reexamine our policing and incarceration policies with our eyes as firmly fixed on the disparities they have created and the damage they have done as on the ills they were created to abate.

This does not mean demonizing the police, who have been given one of the most demanding jobs in our society. It means clarifying their mission and providing the resources and personnel to handle problems, such as dealing with people with mental heath conditions, which the police should not be expected to address on their own. But it also means fair and equal treatment for all communities—and full, timely accountability for law enforcement officers who fail to meet this standard.