It’s Been 30 Years Since Biden Passed His Most Notorious Law With Bill Clinton. It’s Still Totally Misunderstood. (2024)

This story was produced in partnership with the Garrison Project, an independent, nonpartisan organization addressing the crisis of mass incarceration and policing.

This year marks the 30^th birthday of one of the most notorious pieces of legislation from Bill Clinton’s presidency: the 1994 Crime Bill. Although many of the 1994 Violent Crime Control and Law Enforcement Act’s provisions expired in the early 2000s, the bill took on new life during the 2016 presidential primaries. Hillary Clinton’s critics attacked her support of the bill, arguing that it, and by extension Clinton herself, was responsible for causing mass incarceration. In the 2020 Democratic primary, criminal justice reformers—and President Joe Biden’s opponents—pounced, because as a senator he was the bill’s primary sponsor.

Claims that Biden was an architect of mass incarceration will likely be resurrected again this year as he runs for reelection. “You cannot bring up President Biden without talking about the ’86 mandatory minimum sentencing, the ’88 crack laws and the ’94 crime bill,” radio personality Charlamagne Tha God, who interviewed Biden on his show The Breakfast Club in 2020, recently told the New York Times.

But these critics are wrong. There is no evidence that the Crime Bill contributed to mass incarceration in any meaningful way. And it is critically important to explain why. Blaming the Crime Bill for mass incarceration doesn’t just get basic facts wrong; it arises from—and contributes to—a fundamental misunderstanding of the limited way the federal government impacts prison policy, of the intractable local politics that drive mass incarceration, and of the current efforts to roll it back.

Pointing out that the Crime Bill did not drive mass incarceration is not an exercise in pedantic fact-checking. It’s an exercise in explaining-the-entire-system-incorrectly-checking. And, erroneous explanations for how we got here lead to ineffective policy proposals for how to go somewhere else. Misguided by the misplaced emphasis on the Crime Bill, reformers have laid out proposals to roll back mass incarceration that would both do very little and give too little attention to those that could do real good.

The Crime Bill isn’t so much a law itself as a holding company for many federal laws. It included the Violence Against Women Act, the Jacob Wetterling Act (which would later morph into the Sex Offender Registration and Notification Act), an act establishing the federal assault weapon ban, the act creating the Community Oriented Policing Services (COPS) program, and dozens of other provisions, including cutting Pell grants for people in prison, shielding personal information of abortion providers in DMV databases, and authorizing funding for social programs like midnight basketball.

When people say that the Crime Bill “caused” mass incarceration, what they are usually referring to, even if they are not aware of it, is the Violent Offender Incarceration and Truth-in-Sentencing (VOI/TIS) grant program. The VOI/TIS program established a $10 billion pool of grant money available from 1995 to 2001 to states that adopted policies that kept people convicted of violent crimes in prison longer. The more specific funding part required states to adopt “truth in sentencing” laws which held that people convicted of violent offenses had to serve at least 85 percent of their sentence before they would be parole-eligible.

It’s easy to see why people imagine that this provision helped drive mass incarceration: Billions of dollars became available to states, but only if they forced people to stay in prison longer. It’s a simple and compelling account of mass incarceration. It’s also incorrect.

To start, the timing is off. The VOI/TIS grants did not start until 1996, and prison populations had been growing since 1972. Between 1972 and 1994, the U.S. prison population grew from 200,000 people to just a little over 1 million. From 1995 to 2001, when the VOI/TIS grants expired, it grew by less than 300,000; the prison population grew by another 200,000 by the time it peaked in 2009. In other words, about 60 percent of the growth in U.S. prisons between 1972 and 2009 took place before the VOI/TIS program.

But even that analysis oversells the impact of VOI/TIS. To start, a 1998 evaluation by the U.S. Government Accountability Office found that in 1997, only 27 states received VOI/TIS funding. Of the 27 states, 12 said the grants had no impact on their decision to adopt qualifying truth-in-sentencing laws (most had adopted them before 1994), and 11 said the grants only played a partial role in passing TIS laws since most had been considering them before 1994. A post-program follow-up found that states only claimed $3 billion of the $10 billion offered by the bill. Meaning: They left 70 percent of the money on the table.

Not that it was that much money anyway! Ten billion dollars sounds like a lot of money. But that was over six years, and possibly across 50 states, at a time when states were spending tens of billions per year on incarceration. All told, the grants from the Crime Bill amounted to about 2 to 3 percent of correctional spending.

Yet even this overstates the importance of the VOI/TIS grants. Over the duration of the program, state prison populations grew, but at an increasingly slower rate. As crime declined, the machinery of mass incarceration slowed down. A similar dynamic has played out in New York over the past 25 years: As crime declined, the number of incarcerated people decreased by 54.7 percent from 1999 to 2024.

Remarkably, during 2001, the last year of VOI/TIS, state prison populations actually fell (from 1.249 million to 1.247 million), although an increase in federal prison populations led to a net national increase. State prison populations rebounded in 2002, but likely for reasons that had little to nothing to do with the Crime Bill and far more to do with the fear-based politics in the wake of the Sept. 11 attacks. Furthermore, if one compares states that qualified for the VOI/TIS grants to those that did not, there is almost no noticeable difference in prison growth rates.

It’s also important to note that other provisions of the Crime Bill, like the increased funding for hiring more police officers under COPS, and its push for community-oriented policing, did not contribute to mass incarceration. The explanation is simple: Despite the increase in police officer staffing over 1994 to 2001 thanks in part to COPS, total arrests fell by more than 10 percent, from 13.5 million to just under 12 million during the same period. So, fewer people entered the system, even as the number of police officers rose.

Yet in 2019, this abiding belief that the Crime Bill in general, and the VOI/TIS grants in particular, caused mass incarceration led several Democratic representatives and senators to introduce a bill titled “The Reverse Mass Incarceration Act.” The legislation sought to create a decarceral version of the Crime Bill: It would offer roughly the same amount of money, updated for inflation, to states that cut their prison populations. Putting aside the fact that the bill had no chance of passing during the Trump era, its underlying premise was fatally flawed. If states refused federal money in the 1990s to do what was politically easy, why should we expect a similarly small-sized grant program aimed at doing what is politically hard to succeed? There were deeper problems with the proposal, such as the fact that the costs of decarceration fall on rural communities that house prisons while the grants were aimed at urban communities, creating a politically difficult disconnect between costs and benefits.

But if the only problems with the Crime Bill narrative were a few Democratic senators drawing up a doomed bill at a time when they were out of power, or that some people got mad at Hillary Clinton or Joe Biden for the wrong reasons, then there might not be much reason to complain about it. But there are two much more consequential costs to this bad narrative.

First, it makes us overlook how the feds can move the needle when it comes to mass incarceration. It’s not through the executive or legislative side, but the judicial.

Malcolm Feeley, one of the most preeminent scholars of prisons and mass incarceration, said that, in many albeit complex ways, “litigation has probably been the single most important source of change in prisons and jails during the past 40 years.” Federal courts imposed population caps, consent decrees, and other interventions that significantly mitigated the cruelest and most inhumane aspects of our prison system. The judiciary got its wings clipped under Clinton too, but in that was in 1995, thanks to a bill Biden did not sponsor (although he somewhat supported) called the Prison Litigation Reform Act.

The Crime Bill provides an account easy to grasp and get excited about: Congress threw billions of dollars at the states, and the states greedily threw thousands of people in prison to get it! The PLRA does not do that. It’s all about “standing” to sue about prison conditions in federal court, about the “exhaustion” of “state remedies,” and about the durability of consent decrees. These are topics that are very hard to get ordinary people excited about. But they matter. A lot.

The essence of the PLRA is that it makes it hard for people in prison to sue over the conditions in which they are held, which makes it a lot easier for states to cram more and more people into preexisting facilities instead of incurring the steep capital costs of building new prisons. California provides a striking lesson on how this plays out.

In 2009, a 20-year-long legal battle over conditions in California’s overcrowded prisons culminated in the 9^th Circuit Court of Appeals ordering the state to reduce its prison population from 200 percent of its rated capacity to 137.5 percent. The agency that the 9^th Circuit put in charge of managing health care in California’s prisons admitted that overcrowding was likely causing about 60 preventable deaths a year—more than the total number of people executed in death penalty cases across all 50 states in most of the years between 1990 and 2009. In 2010, California appealed to the U.S. Supreme Court and lost, 5–4, in 2011’s Brown v. Plata decision. But the four dissenters—Scalia and Alito among them—held that despite the clear, fatal costs of overcrowding, the lawsuit should have been dismissed under the PLRA.

Unable to escape the lawsuit, California responded later in 2011 by adopting a policy called “Realignment,” one of the most sweeping pieces of prison reform legislation adopted in U.S. history. Since then, essentially one-third of the national decline in state prison populations has been due to the reduction just in California. Criminologists and others have discussed how U.S. prison populations started to decline in 2010—but it really was a decline in the California prison population, with several other states making small downward adjustments.

But California only adopted Realignment because it was narrowly unable to shield itself from litigation via the PLRA, and conditions in the state’s prisons were among the worst nationwide. Which means that the PLRA likely shields other states from legitimate litigation that would lead them to cut their prison populations. Note, too, that California adopted Realignment grudgingly despite the Democrats having near supermajorities in both chambers of the Legislature. Which means that any sort of Realignment-like reform surely faces tougher political resistance too, on top of the barriers erected by the PLRA.

Yet there has been little to no effort to repeal or amend the PLRA. Perhaps it would be a futile gesture given the filibuster and other anti-majoritarian impediments. But in 2005, Democrats like Bernie Sanders and Hillary Clinton attempted to repeal yet another harsh Clinton-era tough-on-crime law, the Antiterrorism and Effective Death Penalty Act, despite a Republican president and a Republican majority in the Senate. Inaction on the PLRA is not inevitable.

So, the focus on the fairly-dormant but easy-to-understand Crime Bill comes with a real cost: largely ignoring the technocratic and legalistic law that still holds real consequence—the PLRA.

The second harm that comes from focusing on the Crime Bill is that it displaces the real source of mass incarceration, away from a very local “us” and onto a more distant federal “them.” The only way that the Crime Bill could have caused mass incarceration is if the states would not have locked up more people but for the federal money. It’s a story of a clear, single villain—which points to a clear, single institution to target.

But that is not the story of mass incarceration. Mass incarceration did not come about from a series of federal top-down decrees. We ended up with the world’s largest prison population because thousands of local actors like sheriffs and district attorneys, supported by millions of voters from both parties and across all demographic groups, wanted it. Or at least they wanted something like it, even if they disagreed about the goals and designs. As James Forman and Michael Fortner have shown, tough-on-crime arrest and sentencing policies often had support from local Black leaders and communities—sometimes they even led the charge. Mass incarceration was not driven by federal funding, but came about from the orders given to local police by locally elected mayors, to the people elected as county prosecutors, to the state laws passed by locally elected state legislators. All elections and policy choices over which the feds had little to no say.

The feds did not even play a leadership role. It’s worth noting that the two major sentencing policies the Crime Bill pushed for—a federal three-strikes law and state truth-in-sentencing laws—were both laws that several states had adopted years earlier. The Crime Bill was reactive, not proactive. So it’s not even possible to argue that the Crime Bill’s real impact was more through persuasion or suggestion than through its meager financial incentives.

Our current sprawling archipelago of prisons, of harsh post-release restrictions, parole limitations, wide-spread arrests, overcrowded, deadly jails, inadequate prison training and health care: All of these are local decisions requiring local efforts to reverse. This, of course, poses a policy challenge. We cannot target one identifiable, high-profile, highly salient actor—the federal government—to pass a big, dramatic bill to roll any or all of this back.

Successes have come from the people canvassing for local elections, protesting in front of city halls, and speaking up at public meetings. So, the work of rolling back mass incarceration has to be done in statehouses, down-ballot county elections, and local city budget hearings. Which requires a lot of people, unglamorous work in municipal office buildings, and often an inability to simply write a donation to a major national advocacy organization and hope they can lobby the right set of legislators in D.C.

Mass incarceration is a national phenomenon, but a local story. No federal villain got us here, and no federal hero will be able to sweep in to save us. And to the extent there is a federal office that can police the most extreme edges of abuse in our system, it’s not Congress and its easy-to-vilify power to throw cash around, but the federal courts and their arcane doctrines limiting who can sue and how. These causes of mass incarceration are harder, more labor-intensive, sometimes more technocratic to fix, and they force us to confront our own roles in how we got here. But they are the causes, not the Crime Bill.