Biden has taken credit for the 1994 crime law. But critics say the law contributed to mass incarceration.
Updated Sep 29, 2020, 2:25 PM UTC
One of the most controversial criminal justice issues in the 2020 election may be a “tough on crime” law passed 26 years ago — and authored by Democratic presidential nominee Joe Biden.
If you ask some criminal justice reform activists, the 1994 crime law passed by Congress and signed by President Bill Clinton, which was meant to reverse decades of rising crime, was one of the key contributors to mass incarceration in the 1990s. They say it led to more prison sentences, more prison cells, and more aggressive policing — especially hurting Black and brown Americans, who are disproportionately likely to be incarcerated.
If you ask Biden, that’s not true at all. The law, he’s argued on the campaign trail, had little impact on incarceration, which largely happens at the state level. As recently as 2016, Biden defended the law, arguing it “restored American cities” following an era of high crime and violence.
The truth, it turns out, is somewhere in the middle.
The 1994 crime law was certainly meant to increase incarceration in an attempt to crack down on crime, but its implementation doesn’t appear to have done much in that area. And while the law had many provisions that are now considered highly controversial, some portions, including the Violence Against Women Act and the assault weapons ban, are fairly popular among Democrats.
That’s how politicians like Biden, as well as previous Democratic rivals like Sen. Bernie Sanders (I-VT), can now justify their votes for the law — by pointing to the provisions that weren’t “tough on crime.”
But with Biden’s criminal justice record coming under scrutiny as he runs for president, it’s the mass incarceration provisions that are drawing particular attention as a key example of how Biden helped fuel the exact same policies that criminal justice reformers are trying to reverse. And while Biden has released sweeping criminal justice reform plans that aim to, in some sense, undo the damage of policies he previously championed, Biden’s history has led to skepticism among some progressives and reformers.
Now, with Tuesday’s presidential debate looming, the 1994 law may be another way for President Donald Trump to attack Biden as Trump tries to spin his own punitive criminal justice record positively.
The Violent Crime Control and Law Enforcement Act, now known as the 1994 crime law, was the result of years of work by Biden, who oversaw the Senate Judiciary Committee at the time, and other Democrats. It was an attempt to address a big issue in America at the time: Crime, particularly violent crime, had been rising for decades, starting in the 1960s but continuing, on and off, through the 1990s (in part due to the crack cocaine epidemic).
Politically, the legislation was also a chance for Democrats — including the recently elected president, Bill Clinton — to wrestle the issue of crime away from Republicans. Polling suggested Americans were very concerned about high crime back then. And especially after George H.W. Bush defeated Michael Dukakis in the 1988 presidential election in part by painting Dukakis as “soft on crime,” Democrats were acutely worried that Republicans were beating them on the issue.
Biden reveled in the politics of the 1994 law, bragging after it passed that “the liberal wing of the Democratic Party” was now for “60 new death penalties,” “70 enhanced penalties,” “100,000 cops,” and “125,000 new state prison cells.”
The law imposed tougher prison sentences at the federal level and encouraged states to do the same. It provided funds for states to build more prisons, aimed to fund 100,000 more cops, and backed grant programs that encouraged police officers to carry out more drug-related arrests — an escalation of the war on drugs.
At the same time, the law included several measures that would be far less controversial among Democrats today. The Violence Against Women Act provided more resources to crack down on domestic violence and rape. A provision helped fund background checks for guns. The law encouraged states to back drug courts, which attempt to divert drug offenders from prison into treatment, and also helped fund some addiction treatment.
All of this was an old-school attempt to attract votes from lawmakers who otherwise might be skeptical, and it succeeded at winning over some Democrats. Bernie Sanders, for one, criticized an earlier version of the bill, written in 1991 but never passed, for supporting mass incarceration, quipping, “What do we have to do, put half the country behind bars?” But he voted for the 1994 law, explaining at the time, “I have a number of serious problems with the crime bill, but one part of it that I vigorously support is the Violence Against Women Act.”
Biden also opposed some parts of the law, even while he helped write it. In 1994, he reportedly called a three-strikes provision — that escalated prison sentences up to life for some repeat offenses — “wacko” and illustrative of Congress’s “tough on crime” attitude.
But Biden and other Democratic authors of the law were clear about their intentions: supporting a more punitive criminal justice system to rebuke criticisms that they were “soft on crime.” (The legislation wasn’t enough for some Republicans in Congress, who complained the bill included too much social spending and pledged to pass tougher laws as part of their 1994 campaign to take back the House.) On the website for his 2008 presidential campaign, Biden referred to the 1994 crime law as the “Biden Crime Law” and bragged that it encouraged states to effectively increase their prison sentences by paying them to build more prisons.
Asked about Biden’s support for the law, the Biden campaign pointed to provisions like the Violence Against Women Act, the 10-year assault weapons ban, firearm background check funding, money for police, support for addiction treatment, and a “safety valve” that let a limited number of low-level first-time drug offenders avoid mandatory minimum sentences. They also cited some of his past criticisms of punitive sentences, including the three-strikes measure, and pointed out that a Republican-controlled Congress later cut funding drastically for drug courts.
In a 2016 interview with CNBC, Biden said that there were parts of the law he’d change, but argued that “by and large what it really did, it restored American cities.” (Although crime has dropped since the ’90s, the research suggests punitive criminal justice policies played at best a small, partial role in that decrease.)
Biden also took credit for the law: “As a matter of fact, I drafted the bill, if you remember.”
