It was a moment that may come back to haunt Joe Biden—perhaps as soon as tonight’s Democratic debate: In an earlier round this summer, Senator Cory Booker of New Jersey wheeled on the former vice president, attacking his sponsorship of the 1994 federal crime bill with a roundhouse punch. “There are people right now in prison for life for drug offenses,” Booker said, “because you stood up and used that tough-on-crime phony rhetoric that got a lot of people elected but destroyed communities like mine.”
It is true that the bill—which extended the death penalty to 60 new crimes, stiffened sentences, offered states strong financial incentives for building new prisons, and banned a range of assault weapons—helped lead to the wave of mass incarceration that’s resulted in the United States accounting for 25 percent of the world’s prison population.
But Booker’s implication that the law was simply a cynical sop to fearful white voters is at odds with the political realities of the time, when the bill passed with bipartisan support, including the votes of more than two-thirds of the Congressional Black Caucus (CBC), and with the backing of other black leaders beyond Capitol Hill. This is the second straight presidential election in which the crime bill has loomed as a loaded issue—Hillary Clinton was excoriated from the left in 2016 for her past support—and it will doubtless continue to surface as long as Biden is in the race. The current furor over the law is an object lesson in just how short the American political memory has become, and in how, in hindsight, complicated policy debates get flattened into stark shades of right and wrong.
“I tell people today that the crime bill wasn’t that controversial back then,” says Michael Waldman, who in 1994 was a domestic-policy aide in Bill Clinton’s White House, and who now heads the Brennan Center for Justice at the NYU School of Law, a leading advocacy group and think tank on criminal-justice issues. Waldman personally deplores the bill’s effect on incarceration rates, even as he admires what he sees as its more salutary results, such as its emphasis on community policing.
“It was welfare reform that was controversial” at the time, he explained to me, referring to Clinton’s campaign promise to fundamentally restructure the social safety net. But for Biden, Waldman said, “it’s really hard to spend your time as a candidate explaining the past to the present. The view of that crime bill has hardened into a caricature. It’s a question of how much energy is it worth trying to fight it.”
Indeed, from the distance of 25 years, it is difficult to fathom the effect that three decades of rising crime, and the explosion of the crack-cocaine epidemic in the mid-1980s, had on public sentiment—or the political pressure it generated. Consider this as context: Today is precisely as distant in time from 1994 as 1994 was from the Charles Manson murders, the moon landing, and Woodstock. In other words, a world away. Public opinion around the bill has shifted rapidly in recent years. Just four years ago, Biden was still proudly referring to the law as the “1994 Biden Crime Bill.” As the chair of the Senate Judiciary Committee, he championed the bill and helped shepherd its passage.
“It’s not only the Democratic Party that’s changed,” Waldman said. “It’s the country and the context that’s changed. Crime between 1960 and 1990 tripled ... The level of social disruption and panic that caused is hard to explain now, because since then the crime rate has been dropping. We are living with the consequences of the reaction to the very real social crisis of the time.”
Representative James Clyburn of South Carolina, who as House majority whip is the highest-ranking black member of Congress, voted for the crime bill, and he made the same point in vivid terms. In his first congressional race, in 1992, Clyburn once explained to an audience in the historic black enclave of Atlantic Beach that he opposed mandatory minimum prison sentences, which would become a feature of the 1994 legislation. “Those people darn near lynched me in that meeting, and there wasn’t a single white person in the room,” Clyburn told me. “The atmosphere back then—the scourge of crack cocaine and what it was doing in these African American communities—they were all for getting this out of their community.”
“I don’t care what color you are, if you are a criminal, you aren’t going to like the crime bill,” then-Representative Kweisi Mfume of Maryland, the chairman of the CBC, said at the time in an interview with the Los Angeles Times. “Beyond that, if you are looking for some sense of security, for bans on weapons that are in our streets, for additional police officers and for programs for inner-city and rural young people, the crime bill helps you.”
Other leading black voices did oppose it, however, including former Representative John Conyers of Michigan, a senior Democrat who at the time was on the Judiciary Committee, and Representative Maxine Waters of California. The NAACP called it “a crime against the American people.”
The very elements of the law that liberals now condemn were the product of the way Washington used to work—the sometimes messy result of bipartisan give-and-take. The bill, which also included some $30 billion to help hire 100,000 new police officers and more than $6 billion for crime-prevention programs, was the kind of compromise that is all but unheard of today. And it nearly failed altogether on a procedural vote just before its passage, when an unlikely alliance of legislators banded together to defeat the measure that would have sent the bill to the House floor: Republicans who mocked the bill’s funding for social programs such as “midnight basketball,” conservative Democrats who opposed the assault-weapons ban, and black and white liberal Democrats who objected to the expansion of the death penalty.
The bill was eventually revived, in part because the White House acceded to stiffer sentencing provisions to win the Republican votes needed for passage in the face of conservative Democrats’ sustained opposition to the assault-weapons ban. It passed the House on a vote of 235–195 and the Senate by a final tally of 61–38. As my colleague Ronald Brownstein has noted, the bill also had the crucial backing of a coalition of 10 African American mayors, representing cities such as Detroit, Atlanta, Cleveland, Denver, and Baltimore.
Former Representative Charles Rangel of New York, the longtime Democratic congressman from Harlem, was one of 11 CBC members to oppose the bill in the end. But he is quick to note that opposing it was much easier for him—coming from a safely blue district—than it was for members in more competitive places who faced an overwhelming wave of public pressure to act against crime.
“There were some of us who had the luxury—not the courage, but the political support—to look at the far-reaching negative impact of the bill,” Rangel told me. “Whether it was Reagan or Clinton, the whole idea was that longer and tougher jail sentences [were] going to, in the long run, be another burden that our community would face at the expense of not having access to education and other social programs. Only people that came from a district that had no national reelection problems had the luxury of voting against this type of legislation. The only thing people wanted from us was to do something.”
Rangel recalled that when the White House first became aware of his opposition, Clinton aides arranged for a group of black clergymen to meet him “to raise hell about my position.” He said he patiently argued with the group that longer sentences and “three strikes” provisions were not the solution. But he said it was a challenge. “When you go to town-hall meetings, people just demand that you explain what the hell you’re going to do to reduce crime. I can’t overemphasize. You’re not there to give a course in sociology or the impact of slavery or poor schools and lack of economic opportunity or self-esteem,” Rangel added. “When someone is scared to walk the goddamn streets, anything that you can tell them to help alleviate that fear is going to be accepted.”
Clinton himself pitched the bill as a boon for justice for black Americans. In a memorable 1993 address to a convention of the predominantly black Church of God in Christ at Mason Temple in Memphis, from the pulpit where Martin Luther King Jr. delivered his last sermon, Clinton imagined what King would say if he came back from the dead. “I did not live and die to see the American family destroyed,” Clinton said, trying to channel King’s thoughts in a way that may seem presumptuous for a white politician in 2019, but that was generally praised back then. “I did not live and die to see 13-year-old boys get automatic weapons and gun down 9-year-olds just for the kick of it. I did not live and die to see young people destroy their own lives with drugs and then build fortunes destroying the lives of others. That is not what I came here to do.”
A 2016 analysis by the Brennan Center concluded that the 1994 bill contributed both to the subsequent decline in crime and to the doubling of the rate of imprisonment from 1994 to 2009. Criminologists disagree on the reasons for the overall crime decline—citing factors from an aging population to decreased alcohol consumption—but there is a general consensus that the sheer increase in the number of police on the streets (together with computer-aided policing tactics) played a role. From 1990 to 1999, the number of police officers nationwide rose 28 percent, from 699,000 to 899,000, partly due to funding in the crime bill.
At the same time, it is beyond dispute that incarceration rates also increased dramatically, spurred by the provision of the crime bill that funneled $12.5 billion for prison construction to states that required inmates to serve at least 85 percent of their sentences. A 2002 Urban Institute study found that from 1995 to 1999, nine states adopted such laws for the first time, while 21 others changed existing laws to qualify for the funds. By 1999, a total of 42 states had such laws in place. At the same time, many states passed their own tougher sentencing laws, which only exacerbated the trend. Communities of color bore the brunt of the crime bill’s effects. In a damning 2016 op-ed, the author and scholar Michelle Alexander argued that, “by the end of Clinton’s presidency,” many African American men had been “relegated to a permanent second-class status eerily reminiscent of Jim Crow.”
Through the years, Biden didn’t just promote the crime bill occasionally—he made its passage a centerpiece of his decades of legislative accomplishment in Washington. Tough-on-crime rhetoric and policy proposals became a signature part of his political persona, not just in Delaware but on the national stage. He long supported civil-asset seizures of drug proceeds, mandatory sentences for drug possession, and harsh differences in penalties for the possession of crack and powder cocaine.
Biden portrayed the 1994 bill as an unalloyed political asset for a Democratic Party that had been at pains since the late 1960s to prove its bona fides on crime. “The liberal wing of the Democratic Party is now for 60 new death penalties,” he said on the Senate floor at the time. “The liberal wing of the Democratic Party is for 100,000 cops. The liberal wing of the Democratic Party is for 125,000 new state prison cells.” And, he added, “I’d like to see the conservative wing of the Democratic Party.”
Today he is taking a decidedly different approach, with a criminal-justice plan that would send federal funds to states if they reduce incarceration rates, and that would provide increased spending for child-abuse-prevention, education, and literacy programs if states eliminate mandatory minimum sentencing for nonviolent crimes. He also proposes rolling back disparities between the treatment of crack and powder cocaine, and ending the federal death penalty.
The crime bill had electoral consequences from the start. In the 1994 midterm elections, the assault-weapons ban was deeply damaging for some of its Democratic supporters. Representative Jack Brooks of Texas, the bill’s House sponsor and the Judiciary Committee chairman, lost the seat he had held for more than four decades because of the ban—despite his personal opposition to it. The Democrats lost the Senate and control of the House for the first time in 40 years.
Even a year later, public feeling against the assault-weapons ban was so intense in some quarters that when I happened to run into Chuck Schumer, one of the leading backers in the House, while he was on vacation in Jackson Hole, Wyoming, I was surprised to see him sporting a week-long growth of beard. When I asked him why, he explained that then–FBI Director Louis Freeh had warned him that he was the subject of death threats, so he thought he had best disguise his appearance.
Today the bill’s political consequences still resonate, but in almost precisely the opposite way. “Anyone associated with the 1994 Crime Bill will not have a chance of being elected,” Donald Trump tweeted earlier this year. “In particular, African Americans will not be able to vote for you.” That is probably an overstatement, but as Booker’s debate attack on Biden showed, the issue remains politically delicate.
For his part, Clyburn is philosophical about his vote for the bill. “We operated on the theory that we were not going to lose in ’94,” he said. “We put stuff in there that we thought we would build on. But then we lost in 1994, and all of the punitive stuff, the Republicans kept all that and got rid of some of the good stuff.”
Clyburn argued that political progress is not made on a linear plane, but swings like a pendulum. “We went left in this country in the 1994 bill when we put in the assault-weapons ban. But when it came time for renewal, we didn’t have the votes. The country had gone back to the right,” he said. “The country’s going to move back to the left. We’re going to get another assault-weapons ban. I don’t say it’s going to happen next year. But we’re going to get one.”