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Who’s Responsible for Mass Incarceration?

by Josie

Just how much can any presidential candidate do about mass incarceration?

Josie
Josie
Josie Helen is co-Chief Scribe of Seven Scribes, a staff writer at Daily Kos, and a lawyer. She's from Atlanta.

Two major articles by criminal justice experts last week roundly criticized Hillary Clinton for her support of the Violent Crime Control and Law Enforcement Act of 1994. Both pieces are brilliant— I suggest you read them— and I fundamentally agree with their analysis of how the Clinton administration’s use of tough-on-crime rhetoric perpetuated the demonization of America’s suffering.

After all, perhaps no other federal law fully encompasses the legacy of America’s obsession with correctional control than this one. The law, which expanded draconian sentencing, ensured longer sentencing, and expanded the federal death penalty, among many many other things, is one of the most shameful legislative relics of recent memory. President Clinton— with the support of his wife— boasted about the bill in his 1994 State of the Union, advocating for tough-on-crime policies and calling for a three strikes law. Clinton wasn’t an outlier, and much of the criminal justice narrative of that time centered around incarceration as the only workable answer. But knowing what we know now— and what people should have known then— the law is hard to stomach.

Yet, much of what has been reported about the 1994 act is critically mistaken. The law had much less influence on widespread mass incarceration than the articles imply and than many seem to believe. Our federal government doesn’t wield the real power when it comes to criminal justice, and the more we perpetuate that perception the farther we get from true reform.

Yes, as Michelle Alexander writes in The Nation, “Bill Clinton presided over the largest increase in federal and state prison inmates of any president in American history.” And yes, as Donna Murch notes in the New Republic, “during his two terms, the inmate population grew from roughly 1.3 million to 2 million and the number of executions to 98 by 1999.” Technically, both these facts are true. But this is one of those instances where the technical story is not the whole story.

It is terribly misleading to hold President Clinton directly responsible for what happened in state prisons. Of the 2 million prisoners incarcerated in 2000, Clinton had direct influence on less than 7% of them. Of the almost one hundred executions in 1999, not a single one was federal.

This state and federal discrepancy comes into play in other elements of this bill, as well. For example, historical accounts of the 1994 crime bill have largely blamed the Clintons for the expansion of state truth-in-sentencing laws. It’s a fair conclusion – after all, that 1994 bill allocated billions of dollars to states that enacted these laws, incentivizing longer prison sentences and a growth in prison population. But the story of the states is more complicated. From National Criminal Justice Reference Service: “Following the enactment of the TIS grant program, 30 states made no changes to their truth-in-sentencing laws; another 7 states made only modest changes to the percentage of sentence to be served by violent offenders; five states modified their truth-in-sentencing laws by both increasing the percentage of sentence to be served requirements and eliminating parole release decisions; and nine states that had no truth-in-sentencing laws prior to 1994 passed sentencing reforms that included truth-in-sentencing provisions. In most of these states, the sentencing reform process began prior to the Crime Act.”

The same goes for three strikes laws. While 23 states passed similar three strikes laws following the 1994 crime bill, the Justice Policy Institute reported in 2004 that, “every one of the states that enacted three strikes laws already had existing repeat offender laws on the books.” The Prison Policy Institute reported similarly that “most states and the federal government drafted laws that were narrowly tailored and so their use has been limited and their disruptive impact minimized.” By 1999, fifteen states had seen less than six people sentenced under their three strikes laws. In fact, by 2006, almost every one of those states saw less than 400 people convicted in total in the ten years after the law passed.

That’s not to say the three strikes laws did not have a serious impact, but that impact was almost entirely in Georgia, Florida, and California. The California three strikes law, introduced and passed before the 1994 crime bill, was the absolute worst by far. Over the next ten years 40,000 people were sent to prison for life because of that one law, more than four times the rest of states combined.

In comparison, by the end of 1996, the total number of people that had been convicted under the federal law was just 35.

In fact, the rate of incarceration growth actually slowed after the 1994 bill. Between 1990 and 2000, the prison population grew 71%, down from 134% the decade before. A 71% expansion, of course, is still outrageous. But the previous decade of Republican leadership had been such a frenzied dedication to incarceration that in some ways Clinton was an improvement.


 

I do not want to imply that the Clinton’s impact on incarceration didn’t matter at all. It did. Even one prisoner sentenced under an unfair law deserves justice and accountability. The fact that the impact of some of these policies was negligible means very little to the people and families whose lives were destroyed. And the fact that Clinton kept people in federal prison longer, the fact that he continued the war on drugs, the fact that the administration prevented prisoners from receiving Pell grants – all of it is indefensible.

What’s more, like these articles point out, the impact was from more than just the 1994 act, but the surrounding collateral consequences and budgeting decisions from welfare to education that were also made and supported by his administration.

I also want make clear that I recognize and do not underestimate the power of rhetoric. The 1994 Crime Bill deserves attention and the Clintons deserve criticism in part because evolving rhetoric is key to political maturity. President Clinton and a number of other Democrats made being tough-on-crime a bipartisan issue and therefore very well may have destroyed earlier opportunities for true reform. Crime was exploited by politicians that capitalized on racist perceptions of black people for political benefit in a way that is nothing less than disgusting. Without the federal system to craft a national narrative around many of these issues, there may have been more scrutiny from the public.

The reason I quibble over these technicalities is because ascribing these changes to Clinton obscures a much larger point. Continuing to center blame for mass incarceration in the Clintons has major downsides, primarily that doing so centers power in the virtually powerless.

Bill Clinton’s 1994 Crime Bill didn’t do much because it can’t do much. The reason I’m telling you that President Clinton didn’t cause it is because I want you to know that the next President, Clinton or otherwise, can’t fix it.

Even today, much of the conversation around change in our incarceration regime centers around the federal system – bipartisan agreements in Congress, Bernie’s 1994 vote, Hillary’s 1994 quotes about super-predators. But the federal system is a red herring, a distraction, an easy way for candidates and elected officials to score political points while knowing full well that they can’t deliver. Focusing on a few speeches from a former First Lady, or a vote for one Senator, is a mistake with serious consequences. 

Of the 2.2 million people incarcerated in America right now, about 200,000 are in federal prison. That’s around 10%. The relatively small level of control that the federal system has around policing and incarceration is constitutionally mandated, so basically etched in stone. State police power is derived from the Tenth Amendment, which explicitly limits what federal government can do. When it comes to incarceration, federal power is extremely, extremely limited.



Here’s the reality: if you want to fix mass incarceration, stop talking about Hillary and start talking about your local district attorney.

If you want to fix mass incarceration but you don’t know the name of your local district attorney—or you don’t know when the primary is, or who is opposing them – you are making the biggest mistake you can make as a voter and as a responsible citizen. You cannot improve this problem if you don’t know who is prosecuting cases in your county.

John Pfaff, a professor at Fordham focused on criminal justice, confirms that at least over the last 25 years, “the growth in prison population has been driven almost entirely by change in precisely one part of the criminal justice chain—the prosecutor’s decision to file a felony claim.” That’s a huge impact by a very rarely examined population.

The lesson here is that accountability matters. The governor has power, sure. The state legislature, yes. (Just look at California after the Three Strikes laws.) A few other municipal officials have some influence here. But generally, criminal justice reform lives or dies at your local prosecutor’s office. These decisions are made there. That’s where prosecutors make the choice to send someone to rehab or jail, where the rules are followed, where the plea deals are made. And, by the way, it’s mostly plea deals—  94% of state cases and 97% of federal cases are pleaded out.


If you want to fix mass incarceration but you don’t know the name of your local district attorney—or you don’t know when the primary is, or who is opposing them – you are making the biggest mistake you can make as a voter and as a responsible citizen.
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It’s not just the prosecutor, though. As a voter, you have to know who is on the bench. Local judges have a ton of power and very little accountability. Last week I wrote about this judge in Florida, who sentenced a 23-year-old to 60 years in prison for a probation violation. He has more sentencing power than the president himself. Want to change criminal justice? Look at judges and prosecutors.

State and local level criminal justice is more complicated than federal, and is less sexy and powerful than standing up at a podium on national television and making drastic promises about prisoners or freedom.

But it’s also more important. Local prosecutors are 95% white, in large part because most counties (89%) are majority white. And it is these prosecutors who have directly created a racially disparate criminal justice system that has destroyed neighborhoods, ruined thousands and thousands of lives, and negatively impacted the economic, educational, and societal future of black and brown people in this country.

Prosecutors also have a remarkable amount of discretion, meaning that they often get to choose which crimes to charge people with and what sentences to recommend. That power is especially pronounced at the plea bargain stage, where prosecutors are constrained by little more than their whimsy.

And, to add insult to injury, data on prosecutorial decision-making is virtually impossible to find. Rarely is comprehensive data released on even arrests on convictions, not to mention geographies, demographics, and individual prosecutorial behavior. Often, even the prosecutor’s office doesn’t have it. Knowing what’s going on with prosecutors and judges takes an immense amount of research and time that the average voter doesn’t have.

Not all prosecutors are overly punitive, but many are. There are a number of reasons for this punitive nature, including professional incentives, election advertising, internal relationships, and more—but regardless, the result is the same. And while some prosecutors are more progressive than others, calling oneself a progressive prosecutor certainly does not make it so.

Discretion means there is wide variation. Our total incarcerated population stands currently at about 2.2 million people. (that number is approximate – we don’t actually know the total number— but that’s a different point for a different time.) . That’s down from the peak in 2009, but just saying that the incarcerated population has gone down is misleading. Some states, like California and New York, have cut their prison population drastically, by over 20%. Other states, like Arkansas, have increased theirs by almost as much. What happens on the state level varies, and if you break it down by county level it can vary even more. To draw lines and trends is to project a uniformity that is simply imaginary.

All of these realities have made it extremely difficult to hold accountable the people that are creating our incarceratory state. Over and over in this country, black and brown people are sent to prison by a local elected official that even many informed voters don’t know from Adam.


 

“Here’s my promise: At the end of my first term as president we will not have more people in jail than any other country,” Sanders said a few days ago. “We will invest in education, and jobs for our kids, not incarceration and more jails.”

Our incarcerated population is 500,000 more than China’s, which is in second place with 1.7 million people incarcerated. Sanders is misleading you if he says he has the power to release half a million people from jail. He’s misleading you if he says that any part of the federal government has the power to release that many people. There are only about 200,000 people in the federal system right now, meaning that in the next four years Sanders would have to release every prisoner in federal control, plus some of the other 90% that are in state prisons and local jails.

Even changing the narrative can’t do that.

I am thrilled that the national narrative around criminal justice is evolving, even marginally among conservatives. I think that Clinton should be held responsible for her support in 1994 the same way I think Sanders should be held accountable for his vote in 1994, whether or not her support or his vote actually changed anything. I’m glad that the Clintons have apologized for their role in this system, I truly believe Hillary Clinton has evolved, and I believe that evolving as a person over twenty years should not just be allowed, but celebrated. Yet I also believe that apologies are not enough. This is not an argument in support of either candidate. I think that all candidates should be held responsible for the role they have played in creating the mass incarceration system that has destroyed the lives of so many, including a disproportionate number of minorities.

But we must not allow our scrutiny and praise to be so focused on the promises from presidential and congressional candidates.

For years, prosecutors have managed to avoid responsibility for a system they’ve largely created. Many of them are up for primaries in early March. If you don’t know who’s on the ballot, find out. If you weren’t planning on voting, show up. Prosecutors have an outsized amount of power, but they are subject to the democratic process just like any other elected official. It’s about time we held them accountable.

This essay is also published at Daily Kos

About the Authors:
Josie
Published by Josie
Josie Helen is co-Chief Scribe of Seven Scribes, a staff writer at Daily Kos, and a lawyer. She's from Atlanta. View all posts by Josie

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