Claim: 1994 crime bill, strongly promoted by then-Sen. Joe Biden, brought 'mass incarceration to Black Americans.'
The 1994 crime bill, signed by President Bill Clinton, was a grab-bag of crime-fighting measures, ranging from three-strike provisions mandating a life sentence for repeat offenders and funding for states to hire 100,000 additional police officers, to a Violence Against Women Act.
As chairman of the Judiciary Committee, then-Sen. Joe Biden drafted the bill, known formally as the Violent Crime Control and Law Enforcement Act of 1994, which was billed by Democrats as a major crackdown on crime.
In addition to mandatory sentencing for repeat offenders, the bill:
created 60 new death penalty offenses under 41 federal capital statutes, such as crimes related to terrorism, murder of a federal law enforcement officer and civil rights murders;
offered grants for building and expanding correctional facilities to qualifying states that enforced mandatory sentencing of 85% of an offender's sentence conviction;
called for a crackdown on gang memberships;
included a ban on federal assault weapons, a provision on community oriented policing services, and the Violence Against Women Act.
A post on Instagram charges the bill "bring(s) mass incarceration to black Americans."
For fact-checking purposes, there are two issues at play: whether the bill caused mass incarceration in general and whether it caused mass incarceration to Black Americans.
Prison building boom
A 2019 analysis by The Brennan Center for Justice declared the crime bill's legacy "complicated."
"It contained powerful funding incentives that ensnared more Americans in the ever-widening net of the criminal justice system," the study said. "But many of its provisions also protected communities and victims of crimes, like an assault weapons ban and protections for women in abusive relationships."
"Overall, though, the law is now seen by many as a major driver of mass incarceration. For that reason, policymakers who played a role in pushing it forward, including presidential candidates Sen. Bernie Sanders and former Vice President Joe Biden, have been attacked for supporting it."
Lauren-Brooke Eisen, director of the Justice Program at the Brennan Center for Justice, a nonpartisan law and policy think tank, says one of the most significant and long-lasting impacts of the legislation was the enticement to states to build or expand correctional facilities through the Violent Offender Incarceration and Truth-in-Sentencing Incentive Grants Program.
"Many states were already building new prisons, but the federal money incentivized the prison construction boom," Eisen told USA TODAY. "These federal funding streams, beginning in the 1960s, reflect the federal government’s role in spurring states towards more punitive criminal justice measures. The funding encouraged states and cities to increase arrests, prosecutions, and incarceration, playing a tremendously powerful part in growing the size and scope of our correctional system."
Effect of truth-in-sentencing laws
The bill earmarked $8.7 billion over six years for states to build more prisons. About half of the money was available to states that enacted “truth-in-sentencing,” or TIS, laws, which cut back on paroles and required people convicted of violent crimes to serve at least 85% of their sentences.
By 1998, 27 states and the District of Columbia met the TIS criteria for the grant program, according to the Justice Department. Eleven states adopted truth-in-sentencing laws in 1995, Another 13 adopted them for “certain offenders to serve a specific percent of their sentence.”
Under the TIS laws, violent offenders admitted to prison in 1996 would spend an average of 88 months in prisons, the DOJ report said.
A 2012 Pew Center study of 36 states found that the average length of stay for offenders released from prison in 2009 had increased 36% from 1990, with nine states reporting increases of over 50%.
But TIS was generally implemented at a time when violent offending was decreasing, according to a 2002 study by the Urban Institute's Justice Policy Center.
"Were the sentencing practices of 1996 to persist during a time when the number of violent offenses increases, the impacts on prison populations and corrections management could be dramatic," the study found.
Marc Mauer, executive director of The Sentencing Project, a campaign to end life imprisonment, told USA TODAY that the 1994 crime bill certainly encouraged the use of expanded incarceration by providing funding to the states for prison construction. But he added that "mass incarceration was already well under way prior to the adoption of that legislation."
"There are a variety of factors that influence prison populations," he said. "So while it is clear that the 1994 bill did not accelerate the growth of prisons, it's at least possible that this growth would have been more modest had the federal funding not been in place."
Mass incarceration started in the 1960s
Stephen Ross Johnson, of Knoxville, Tennessee, a board member of the National Association of Criminal Defense Lawyers and past president of the Tennessee Association of Criminal Defense Lawyers, told USA TODAY that it is "over simplistic" to say the 1994 crime bill led to mass incarceration.
Asked if the bill caused or largely contributed to it, Johnson says: “The bottom line answer to that is no. Was it a link in the chain? Yes. Is it the beginning of the chain? No.”
Johnson argues that the roots of mass incarceration can be found in the late 1960s and early 1970s, with legislation that created, among other things, the RICO statute, which broadened the scope of federal law as the war on drugs began to take shape.
The veteran criminal defense attorney, who founded the Tennessee Innocence Project, contends that mass incarceration also got a boost from a series of bills in the 1980s that created presumptive detention for federal arrestees.
That, he says, essentially made bail nonexistent in the federal judicial system. That 1980s legislation also created mandatory minimum penalties for drug offenses in the federal system and federal sentencing guidelines designed to promote uniformity but at the cost of higher penalty ranges.
“People that are poor and of color ended up (under sentencing guidelines) with much higher sentences,” Johnson says.
Numbers behind 'mass incarceration'
The term "mass incarceration" is relative. From 1980-94, the nation's prison population more than doubled on a per capita basis, from 139 prisoners per 100,000 American residents to 387, according to the federal government's Bureau of Justice Statistics for 1994.
In 1980 alone, state and federal prisons posted a 12% increase in the number of inmates, with an average yearly increase between 1980 and 1994 of 8.7%. In 1989, the federal and state inmate population swelled by a whopping 13.5% as 84,764 new inmates joined the prison ranks.
By contrast, from 1994 — the year the crime bill was passed — to 1995, the inmate population increased by 6.7%. The annual increase then dropped steadily for the next six years, from 5.1% between 1995-96 to 1.1% between 2000-01.
"During 2000, the prison population rose at the lowest rate since 1972 and had the smallest absolute increase since 1980," the BJS study said.
Race and incarceration
Regarding mass incarceration of Black Americans, the issue plays out against the reality of longstanding racial disparities in imprisonment rates.
In 1993, according to the BJS, the incarceration rate of Black people at the state and federal levels was seven times that of whites. At the end of 1993, there were 1,471 Black inmates per 100,000 Black U.S. residents, compared to 207 white inmates per 100,000 white residents. In 2011, the proportions were roughly the same, with 478 white males in prison for every 100,000 white males in the general population, and 3,023 Black males in prison for every 100,000 Black males in the population.
Any increase in the overall prison population would automatically translate into a larger number of Black inmates, even if the Black percentage of the inmate population stayed the same.
According to the Bureau of Justice Statistics bulletin Prisoners in 2002, the total number of sentenced inmates under state or federal jurisdiction rose 27% between 1995 and 2002 — from 1,585,586 inmates to 2,033,331 — but reflected "only small changes in the racial and Hispanic composition of the inmate population."
In 1995, among inmates with sentences of more than one year, white people accounted for 33.5% of prisoners under state or federal jurisdiction, while in 2002 they were 34.2%. Black prisoners in 1995 accounted for 45.7% of prisoners, and in 2002 accounted for 45.1%.
While the difference is stark, it is less than in the previous 13 years. Between 1980-93, the percentage of sentenced inmates who were Black rose from 46.5% to 50.8%.
A report on "Racial Disparity in U.S. Imprisonment across States and Over Time," published in the Journal of Quantitative Criminology in 2019, found that a large increase in Black imprisonment is traceable in many states to the crack epidemic in the mid-1980s.
This disparity, the report says, began to ease starting in the 1990s.
"Whatever its other effects, this suggests that the 1994 crime bill did not aggravate the preexisting racial disparity in imprisonment," the report said.
Biden and the crime bill
The question of any link between the crime bill and mass incarceration took on political implications with Biden's presidential candidacy.
In 2019, Biden, speaking in New Hampshire, rejected charges that the 1994 crime bill spurred mass incarceration.
“Folks, let’s get something straight, 90/92 of every 100 prisoners behind the bars is in state prison, not a federal prison," he said, according to the Washington Post. "This idea that the crime bill generated mass incarceration, it did not generate mass incarceration."
Biden's disclaimers were somewhat undercut in 2016, when former President Bill Clinton, who championed the original bill, told the NAACP "there were longer sentences" spelled out in the legislation.
"And most of these people are in prison under state law, but the federal law set a trend,” Clinton said. “And that was overdone. We were wrong about that. That percentage of it, we were wrong about.”
It was perhaps noteworthy that the former president's mea culpa came before a critical audience of Black Americans at a time when Hillary Clinton was running for president.
Our ruling: False
Our research finds that while the crime bill did increase the prison population in states, it did not bring about a mass incarceration relative to earlier years. Rather, it coincided with a slowdown in the annual grown of the state and federal prison population. Nor did it bring about mass incarceration of Black people, compared to before the bill was passed. We rate this claim as FALSE.
Our fact-check sources
Economic Impacts of Prison Growth, Congressional Research Service, 2010
The Influences of Truth-in-Sentencing Reforms on Changes in States’ Sentencing Practices and Prison Populations, Urban Institute, Justice Policy Center
Time Served, the High Cost, Low Return of Longer Prison Terms, The Pew Center on the States
"Racial Disparity in U.S. Imprisonment across States and Over Time," The Journal of Quantitative Criminology, 2019.
Contributing: Jamie Satterfield, Knoxville News Sentinel
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This article originally appeared on USA TODAY: Fact check: 1994 crime bill didn't bring mass incarceration of Black people