John Pfaff wrote a piece for the New York Times Magazine about Bill Clinton’s recent confrontation with Black Lives Matter protestors at a rally for his wife. Pfaff describes why both the former president and the protestors are misguided regarding the 1994 Violent Crime Control and Law Enforcement Act.
It was the umpteenth time this primary season that debates over criminal-justice reform have put a 22-year-old law back under the spotlight. Here’s the thing, though:
The protesters were basically wrong.
So was Clinton.
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…its actual impact on prison populations was slight — and so was its impact on crime. Understanding this isn’t just about making sure the historical record is correct, or refereeing a fight between the Clinton campaign and Black Lives Matter protesters. It has important implications for reform today.
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For one thing, most of the act’s provisions applied only to federal crimes. The tough new anti-gang laws, the expanded death-penalty provisions, the three-strikes laws: All applied only to those tried in federal court. And those, over all, are fairly minor players, with the federal prison system holding about only 13 percent of all prisoners. The other 87 percent of inmates are in state systems — and none of the act’s new criminal laws affected what happened in state systems.
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The most obvious thing to consider is that rates of violent crimes and property crime began to decline in 1992, three years before the law’s various provisions started going into effect. There’s no real perceptible change in the rate of that decline after the act. If you want to claim that the law did much to stop crime, this alone is a pretty significant problem. It’s not the only one, either.
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It’s strange how often the act comes up these days. Its effect on crime was consistently hampered by the sheer size of state and local justice systems, diminishing any impact it might have made for good or for ill. And in many ways, the debates over it are largely symbolic. Almost all of its provisions are now defunct: the TIS grants, the police grants, the assault-weapons ban, even the ban on Pell grants for inmates. All of these have either run their course or are being reversed.
Meanwhile, as the vestigial Violent Crime Act gets all this attention, no one is debating two worrisome Clinton-era criminal-justice laws that remain on the books. The Anti-Terrorism and Effective Death Penalty Act (A.E.D.P.A.) continues to make it hard for capital and noncapital inmates alike to raise habeas corpus claims and challenge wrongful incarcerations. And the Prison Litigation Reform Act (P.L.R.A.) still makes it much harder for inmates to challenge intolerable prison conditions in federal court. These laws’ impact on the narrow issue of mass incarceration is unclear, but they matter — and they remain relatively invisible. If we want to debate the Clinton legacy, we should at least debate the parts of it that are still in effect today.
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The federal government cannot end mass incarceration. Ending it will require state-by-state, even county-by-county fights. It will involve state-level sentencing-reform bills (like the one passed by Mississippi in 2014) and efforts to vote out hyperaggressive prosecutors (as in Chicago or in Mississippi’s 16th District). Federal officials are by no means innocent of causing mass incarceration, nor are they useless when it comes to reversing it. But they are relatively minor players.
The debate over the 1994 Violent Crime Act only distracts us from this point, and from focusing on what really matters.