Fordham Law Professor John Pfaff participated in a Q&A with Slate writer Leon Nayfakh about the degree to which Democratic presidential candidate Hillary Clinton can be held to account for mass incarceration in modern-day America.
Neyfakh: OK. So, from everything you’re saying, it sounds like the ’94 crime bill didn’t contribute to mass incarceration in the way some people think. But when it comes to evaluating the Clintons’ record on criminal justice, isn’t it fair to hold the spirit of the law—and the rhetoric they talked used to talk about it—against them?
Pfaff: I think that’s completely fair. And even at the time people said that doubling down on longer sentences and even more draconian punishment was not the way to address the crime problem. The federal three strikes laws, the expanded federal death penalty, the truth in sentencing grants—even at the time you could have said, “This is not great policy, and it’s not going to do what you want it to do.” But that’s different from saying that those policies actually caused mass incarceration to happen. The truth is we were well on our way to mass incarceration by that point. The trend was already set and nothing changed before or after 1994 in terms of how that trend was moving.
The reason I push so hard against this idea that the 1994 act caused mass incarceration is not just a desire for historical accuracy, although I think that’s important. It’s that saying that the 1994 act caused mass incarceration seems to imply that the federal government can get us out of the problem too. If Clinton passed a law that caused this to happen, then conceivably D.C. should be able to pass a law that reverses this problem. And that’s just not right. This is not a federal issue. And to stress that the feds didn’t cause it is important because it drives home the fact that if you really want to fix it, you have to go state by state, county by county, and change state criminal codes, change DA charging practices, and change how the plea bargaining system works. Nothing can come out of D.C. that can fix this because it’s not really a fed-created problem. And that’s what really bothers me about this ’94 act narrative. By saying the Clintons caused it, it suggests whoever is president next can fix it. And that’s just not true.