During the Democratic presidential primary this year, few acts of legislation have received as much criticism as the 1994 crime bill. It has turned up in debate questions, op-eds, and a memorable clash between Bill Clinton and Black Lives Matter protesters a few weeks ago.
Over the course of the campaign, both Hillary Clinton—who helped advocate for the bill as first lady—and Bernie Sanders—who voted for it as a congressman—have publicly admitted that parts of the bill were mistakes. They acknowledge what criminal justice experts around the country agree: the bill led to rising incarceration rates and longer sentences, including for many nonviolent criminals.
At the same time, many of the draconian sentencing reforms and other changes contained in the bill—officially titled the Violent Crime Control and Law Enforcement Act—are still on the books.
That could change this year. As Congressional leaders rush to find a compromise on a new criminal justice reform bill that could reduce mandatory minimum sentences, at least some of the ideas being bandied about would change the law that is now being attacked by both Democratic presidential candidates.
One proposed law, called the "Reverse Mass Incarceration Act," aims to undo a key portion of the 1994 bill, which incentivized states to increase incarceration rates. While the Brennan Center for Justice, a think tank, proposed their idea for the bill last October, the renewed attention on the '94 bill has given its supporters more hope. At a White House panel yesterday on the economic costs of criminal justice reform, where several of the nation's top economists lambasted our mass incarceration system for damaging the national economy, Inimai Chettiar, director of the Brennan Center’s Justice Program, singled out the 1994 bill.
"Just like in the 1990s, when the federal government incentivized more incarceration, it can similarly use its federal grants to reduce mass incarceration," she said. "To truly end mass incarceration, these kind of incentives have to be changed."
The 1994 bill was long and complicated. In addition to the most controversial provisions, which increased mandatory minimum sentences, it also banned many semi-automatic assault weapons, allowed some juveniles to be tried as adults, and created an office in the Department of Justice dedicated to community policing.
One of the areas that most directly led to increases in incarceration was a grant program for states. The bill allocated $12.5 billion to states that passed "truth in sentencing" laws—laws that require inmates to serve large proportions of the sentence they received, and not be released early due to good behavior or on parole. Much of that funding went to building new prisons.
In order to gain federal funds, nine states that had no truth in sentencing laws on the books passed them, and 21 other states made their truth in sentencing laws harsher. For example, some new state laws raised the percentage of a sentence that inmates had to serve before being eligible for parole.
Essentially, the federal government funded the states with incentives that led them to increase incarceration. Many of the state truth in sentencing laws—which resulted in long sentences for mostly minority defendants—are still on the books. "Clearly this bill incentivized states to become more draconian in their sentencing," Lauren-Brooke Eisen, a senior counsel at the Brennan Center, told me.
The center's proposal is to basically do the opposite. The Reverse Mass Incarceration Act would allocate $20 billion—roughly equal to $12.5 billion in 1994 dollars—for grants to states who reduce both crime and incarceration. Any state that reduced their prison population by 7% over three years would be eligible for funds. The funds would then go to state programs aimed at reducing incarceration further.
That funding would be made up for by savings from states not having to spend on prisons. It would likely be the first federal grant program to directly fund states for reducing incarceration.
“We have a long legacy and history of funding states to fight crime,” Eisen said. “It's time to reverse course and start funding a roll-back of our prison populations.”
It also addresses the fact that—despite the attention paid to criminal justice reform efforts at the federal level—the vast majority of inmates around the country are actually in state prisons. Only reforms at the state level can address their sentencing. But grants to states are a powerful tool for the federal government to incentivize real reform.
The Congressional drive to come to a consensus bill—along with the attention from the Democratic primary—makes now the right time to pass it, Eisen said. "There is this bipartisan consensus that this is not a good use of dollars," she said. "The federal government could take a very significant role in reducing prison populations."
Does it have a chance of becoming law? It's more likely that some of the ideas in the bill might work their way into whatever final criminal justice reform bill the Senate compromises on.
That could be a longer-term effort. Peter Orzsag, the former director of the Office of Management and Budget, said at the White House event on Monday that he thought reform could be passed under the next president if a bill doesn't succeed this year.
Representatives for Sanders' and Clinton's campaigns didn't respond to requests for comment on the 1994 crime bill or what they think of the Reverse Mass Incarceration Act. But if the candidates want to go beyond just talking about the bill's problems and actually undo some of the problems the bill created, this would be a good place to start.
Casey Tolan is a National News Reporter for Fusion based in New York City.