Mass Incarceration

08.28.15 5:03 AM ET

The Bill That Could Break Joe Biden in 2016

The vice president likes to talk up the crime bill he helped pass in 1994. But if he decides to run, he’ll face questions about its contribution to our exploding prison population.

Twenty-one years after helping to pass the Violent Crime Control and Law Enforcement Act as a Delaware senator, Joe Biden is still touting it.

“It put another 100,000 cops on the street, and it cost $1 billion,” he wrote in April, in a release through NYU’s Brennan Center for Justice. “But because crime was rampant, everybody signed on. And it worked.”

The landmark legislation, now known as the 1994 Biden Crime Bill, was expansive and wide-reaching, and it outlaws civilian ownership of assault rifles, possibly the most substantial gun ban in recent American history.

But advocates for prison reform, one of the key issues in the upcoming 2016 presidential race, say one part of the bill is indefensible and contributed to the mass incarceration problem that has made America the most imprisoned citizenry in the Western world.

“It’s a big bill, but it’s a pretty bad bill,” said Marc Mauer, the executive director of the Sentencing Project. “There’s no question it was designed to be a tough on crime bill. That’s how President Clinton talked about it at his State of the Union address. The only reason there’s some half-decent stuff in there is because the Congressional Black Caucus was very adamant about the direction of the bill.”

If Biden decides to run in 2016, he could face questions about the so-called 1994 Biden Crime Bill, which created financial incentives for states to jail more people and keep them in prison for considerably longer sentences.

Protesters from the Black Lives Matter Movement have already interrupted speeches from Bernie Sanders, Jeb Bush, and Hillary Clinton in recent weeks, demanding the presidential candidates lay out definitive plans for overcrowded jails and too-strict sentences on nonviolent offenders.

Mauer points to a $4 billion promise to the states that adopted “truth in sentencing” requirements. Those requirements forced violent offenders to stay in prison for 85 percent or more of their sentences. Some states, like Mississippi, took it even further—mandating that all offenders serve 85 percent of their term before being considered for release.

If the states met those requirements, each would receive a slice of the $4 billion in incentives. By 1998, 27 states and Washington, D.C., met the criteria.

By 1997, almost 70 percent of those jailed for violent crime were imprisoned in one of the truth-in-sentencing states.

But Mauer, whose nonprofit advocates for criminal justice reform, said the talk around the bill had an equally deleterious effect.

“It was important in a symbolic sense. When a bill is paid attention to that much in Congress, it gets a lot more attention. It’s hard to quantify. But it clearly contributed to the rhetoric around crime,” he told The Daily Beast. “[Bill] Clinton talked about the need for a ‘three strikes’ policy in the State of the Union. There was no mandate, but the language around it made it clear.”

Today some who applauded the Biden Bill’s passage when it was signed into law are speaking out against its more punitive elements.

“There was a move in the country to lengthen prison sentences. One of the vehicles, in essence, paid states if they made their sentences tougher,” said Jeremy Travis, former director of the National Institute of Justice, the research arm of the Department of Justice.

Travis is now president of the John Jay College of Criminal Justice. He served on a committee with colleagues Bruce Western and Steve Redburn that explored the “causes and consequences of high rates of incarceration” for the National Research Council—and part of their findings implicates the Biden Bill.

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“These changes in sentencing reflected a consensus that viewed incarceration as a key instrument for crime control. Yet over the four decades when incarceration rates steadily rose, U.S. crime rates showed no clear trend,” Travis and his colleagues wrote.

“Mandatory prison sentences intensified enforcement of drug laws, and long sentences contributed not only to overall high rates of incarceration, but also especially to extraordinary rates of incarceration in black and Latino communities.”

But Travis emphasized that the parts of the bill that created incentives for states to increase sentences were necessary concessions to Senate Republicans. Otherwise, he said, the bill never would have had a chance.

“The pieces of the bill that Joe Biden is most closely identified with have generally been very well accepted. The Violence Against Women Act [also included in the bill] has been acknowledged by everybody as a tremendous influence,” Travis said.

“The parts of the bill that put more people in prison in our country—that’s a Republican part of the bill. The part that I’m on record being critical of is funding states to increase the length of sentences.”

Still, Mauer said a bill like this—one that was co-sponsored by Biden, signed into law by Bill Clinton, and even helped through the Senate with a yea vote by Bernie Sanders—would have no chance today. He doesn’t even think it would garner much support on the right.

“It’s unlikely we’d see anybody in either party somebody coming out for one of those tough-on-crime bills in 2015,” Mauer said.

“There’s reasonable support for change on both sides,” he added. “Hillary Clinton gave a big speech about mass incarceration recently. Bernie Sanders is speaking along those lines, too. On the right, John Kasich has probably been the most outspoken. Rand Paul even co-sponsored legislation with [Democratic Senator] Cory Booker on criminal justice reform earlier this year.”

The tide is changing, Mauer said, but there is a long way to go to undo the series of “tough-on-crime” bills, policies, and rhetoric that led to America’s unique mass incarceration problem.

“I’m not ready to declare victory and go home yet. We still don’t have a sentencing bill that’s moving through Congress this year,” he said.

And even though the bill was passed on Bill Clinton’s desk—and was written in Joe Biden’s name—Mauer said the onus is on everyone who voted for those bills in a climate of fear.

“You can’t blame it all on Clinton or Biden,” he said. “But we’re still paying the bill for those laws today. And we will for years.”