Don't Punish Clinton, Sanders for 1994 Crime Bill

Don't Punish Clinton, Sanders for 1994 Crime Bill
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The “Black Lives Matter” movement has made criminal justice issues paramount in the African-American community, and this week both Democratic presidential campaigns will be emphasizing their views on the subject to South Carolina’s heavily African-American electorate. But both have a blotch on their records: a 1994 crime bill, which President Bill Clinton signed, and then-Rep. Bernie Sanders supported.

The Nation magazine’s Michelle Alexander, in a searing essay titled “Why Hillary Clinton Doesn’t Deserve the Black Vote,” sums up the bill that both Clintons “championed” as follows: “a $30 billion crime bill that created dozens of new federal capital crimes, mandated life sentences for some three-time offenders, and authorized more than $16 billion for state prison grants and the expansion of police forces.” She blames the bill, as well as separate legislation signed by Clinton that codified a “100-to-1 sentencing disparity for crack versus powder cocaine,” for creating “the highest rate of incarceration in the world.”

While the bulk of her criticism is squarely aimed at the Clintons, she doesn’t exonerate Sanders’ vote. She declares that “Bernie, like Hillary, has blurred vision when it comes to race,” even if he is a “lesser evil,” and expressed hope that African-Americans will abandon the Democrats and “build a new party.”

But should we treat support of the bill as evidence that neither candidate has the interests of African-Americans at heart, and that the Democrats are a hopeless vessel for those demanding racial equality?

You might draw that conclusion if you were a child, or not born yet, at the time of the bill’s inception and did not experience the political strife of the 1980s and 1990s. But context matters, as do details. The story of the 1994 crime bill and its impacts cannot be easily summed up in a few sentences.

Why did Bill Clinton want a crime bill in the first place? Two reasons. The first was substantive: There was a lot of crime back then. More than double the current rate. There was a legitimate public demand for action.

Second, Democrats had long been pegged as soft on crime, hampering their electoral prospects. A shadow hanging over the Democrats in the 1992 campaign was the infamous Willie Horton scandal. The losing 1988 Democratic presidential candidate, Massachusetts Gov. Michael Dukakis, was pilloried for a furlough program that allowed the convicted murderer, who was serving a life sentence, to viciously rape a woman and torture her fiancé.

To most Americans, the above facts were outrageous and inexplicable: How does someone serving a life sentence get a weekend furlough to commit more horrific crimes? There was no point explaining that furlough programs that covered murderers were commonplace with a bipartisan history of effectiveness. Good luck trying to rationalize that because lifers often eventually had their sentences commuted to avoid expensive and unnecessary prison overcrowding, furloughs were a way to give prisoners reason to behave, test their ability to function on the outside and make a gradual transition. “Weekend passes” was decreed liberalism run amok.

With crime still on the rise, Clinton’s 1992 campaign broke with the recent Democratic past by combining left and right themes, saying, “I want to be tough on crime and good for civil rights.” Clinton knocked the incumbent Republican for cutting law enforcement funds, pledged to fund 100,000 more police officers, embraced the death penalty as well as gun control. After winning the presidency, he sought to follow through on his rhetoric.

Everything Alexander said about what was in the crime bill is true, but incomplete. The bill was not strictly about incarceration. Also included in the $30 billion were funds aimed at crime prevention: community policing, drug treatment and so-called “midnight basketball” leagues to help keep teens out of trouble. The landmark Violence Against Women Act was established in that bill, which has helped reduce domestic violence by two-thirds, a steeper drop than the overall decline in violent crime. And the bill included an assault weapons ban, although congressional Republicans refused to renew it a decade later.

Clinton also tried to contain the Senate’s more conservative impulses, successfully narrowing the scope of its “three strikes” mandatory life sentence provision in the final version. “We shouldn't litter it up with every offense in the world,” Clinton admonished, saying it should focus on the “relatively small number of people that are wreaking heartbreak and devastation and death.”

Clinton’s efforts to soften the Senate version and include prevention programs won support for the bill from several members of the Congressional Black Caucus. The caucus chairman said at the end of the process, “We have put our stamp on this bill.”

But the president also had to appease Republicans to compensate for lost Democratic votes. He maintained the crack and powder cocaine disparity (Clinton pushed for reducing the disparity in his second term but got nowhere with the Republican Congress). And he tied funds for state prison construction to the removal of state judicial discretion on sentencing.

How was Clinton rewarded for achieving this compromise, three months before the 1994 midterm elections? By getting hammered by Republicans for “midnight basketball.”

What was intended to be an inexpensive way to pull young males away from fraught late-night situations was mocked as another wasteful liberal welfare program, often with racial overtones. "Maybe Magic Johnson could play in this league but I don’t want my kids to play in it,” one congressperson scoffed. While many assume that Democrats lost the Congress in the 1994 elections because of Clinton’s failed health care reform, Republican pollster Frank Luntz credited right-wing backlash to the crime bill.

That’s the political environment the Clintons were operating within.

So did they achieve as much as they could, considering the conservative headwinds? Or did they fail to forcefully challenge dangerous ideas that ended up ravaging the black community?

You can’t easily weigh the pros and cons without assessing the overall impact of the law. It’s too simplistic to associate with the law every aspect of America’s record of incarceration in the past 20 years.

As Mark Kleiman explained in a recent analysis, the three-strikes provision was "mostly an irrelevancy” since it only applied to federal crimes and most prisoners are held by states. The same goes for the bill’s expansion of the federal death penalty, which was never used to execute anybody. But he is far less charitable about the negative impact of prison construction and the hand-tying of state judges.

On the flip side, the Violence Against Women Act was a success. There is evidence that the ban on manufacturing high-capacity magazines, part of the assault weapons ban, was reducing carnage before the provision lapsed. Debate rages whether funding additional police contributed to the current lower crime rate. The Washington Post Fact-Checker says “maybe—but only modestly,” although Kleiman stresses that thousands of African-Americans have not been victims of homicide in part because of the law. Cities that had midnight basketball, which lives on in several cities despite never getting much federal funding, did reap a drop in property crime rates.

With that mixed record, people are sure to draw differing conclusions about whether Clinton was justified in signing the bill and Sanders in voting for it. But seeing the full record in historical context, it’s hard to argue that anyone had a callous disregard for black lives in pursuing the legislation.

No question certain policies had terrible impacts, and we need to learn from those failures. Fortunately, many federal and state government officials have; since 2000, incarceration rates are down 22 percent among African-American men and 47 percent for African-American women.

Both of today’s Democratic candidates say that they have learned from the past as well, and have policy platforms to prove it. Should they be forever tarnished when compromise legislation doesn’t work as they had hoped?

Bill Scher is a senior writer at Campaign for America's Future, executive editor of LiberalOasis and a contributor to RealClearPolitics. He can be reached at or follow him on Twitter @BillScher.

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