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Crime and Punishment
Misconceptions on Mass Incarceration

Secretary Hillary Clinton has been taking a beating from the civil rights left over her strong support for the 1994 crime bill, which toughened sentences for a range of federal offenses, and, according to its critics, was particularly devastating to African American men. While some of this criticism may be warranted—especially given Clinton’s recent efforts to cast herself as a full-throated supporter of Black Lives Matter—it is probably not the case that the crime bill was a very big driver of the phenomenon we now call mass incarceration. In fact, no federal policy was. As Fordham law professor John Pfaff explains in an illuminating interview with Slate:

The reason I push so hard against this idea that the 1994 act caused mass incarceration is not just a desire for historical accuracy, although I think that’s important. It’s that saying that the 1994 act caused mass incarceration seems to imply that the federal government can get us out of the problem too. If Clinton passed a law that caused this to happen, then conceivably D.C. should be able to pass a law that reverses this problem. And that’s just not right. This is not a federal issue. And to stress that the feds didn’t cause it is important because it drives home the fact that if you really want to fix it, you have to go state by state, county by county, and change state criminal codes, change DA charging practices, and change how the plea bargaining system works. Nothing can come out of D.C. that can fix this because it’s not really a fed-created problem. And that’s what really bothers me about this ’94 act narrative. By saying the Clintons caused it, it suggests whoever is president next can fix it. And that’s just not true.

As the Senate mulls a bill to ease sentencing for some offenses, it’s important for people who want to see prison reform—and we count ourselves among that group—to remember Pfaff’s perspective. The federal government didn’t create this problem, and, while it can make some progress on the margins, it can’t solve it, either. For one thing, ninety percent of prisoners in America are housed in state, not federal, facilities. Moreover, as Pfaff suggests, and as we’ve written before, much of the real action in criminal justice reform is in plea bargaining and prosecutorial culture, not just sentencing. For a variety of reasons, prosecutors have grown much more aggressive in throwing the book at defendants over the last several decades.

People really interested in reducing the prison population can’t be satisfied with a federal law marginally reducing minimum sentences, or even with state-level legislation knocking a few misdemeanors down to infractions. Initiatives like these don’t address much of the real reason our prison population has grown so much. A better approach, as Glenn Reynolds has suggested, would be to reform plea bargaining procedures, or, as Pfaff has hinted elsewhere, to change the way prosecutors are compensated. Once the civil rights left has a better handle on the origins of the problem, it will be better situated to enact lasting solutions.

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