Bill Clinton never treated his brutal criminal justice measures as some sort of morally queasy compromise with Republicans; he advocated for them himself and was unequivocal in his defense of them, treating them as a positive good rather than a necessary evil.
As a British newspaper observed at the time about the signing of the crime bill: “Mr. Clinton is couching his defense of the bill in punitive terms, praising its extensions of the death penalty, and its funds to increase prisons and police numbers by 20 percent, and mandatory life sentences for a third felony conviction.”
His support was not qualified by any serious doubts; he emphatically stated that the crime bill reflected the country’s “values.” At his signing ceremony, Clinton announced that in passing the bill, “[w]e together are taking a big step toward bringing the laws of our land in line with the values of our people.”
But as criminal justice journalist Natasha Vargas-Cooper observes, “Those values would come to define the current morass of mass incarceration: punitive, arbitrary, and fear-based.” Clinton’s crime bill “is now widely seen as contributing to the human catastrophe of mass incarceration,” with Clinton overseeing the largest increase in prison inmates of any American president, including Ronald Reagan. Throughout the 1990s, the prison population continued to rapidly expand, until millions were housed in US jails and prisons.
The statistics are by now depressingly familiar. The prison boom had especially harsh consequences for African Americans. Soon, one in every fifteen black men would be in jail or prison, with one-third being incarcerated in their lifetimes. Prison sentences of black men were nearly 20 percent longer than those of white men for similar crimes. More black men are under correctional control than were enslaved in 1850, and a black child whose father didn’t complete high school has a 50 percent chance of seeing him incarcerated by the time she reaches the age of fourteen.
Mass incarceration ripped black communities apart, taking parents away from children and husbands away from wives. Sociologists Bruce Western and Becky Pettit write about the prison “poverty trap,” whereby those released from prison are stuck in a neverending cycle of joblessness and despair, with prison compounding preexisting disadvantages and steadily eroding social institutions. Those released from prison have a hard time finding jobs, and “workers with prison records experience significant declines in earnings and employment.”
Western and Pettit also document the effects of prisons on families. Not only does it take parents away from children by locking up fathers, but “parents in prison are likely to divorce or separate, and through the contagious effects of the institution, their children are in some degree ‘prisonized,’ exposed to the routines of prison life through visitation and the parole supervision of their parents.”
The Violent Crime Control Act was the apotheosis of late-twentieth-century American draconianism. When the bill was finally signed into law, Jesse Jackson called it a “criminal act,” invoking Jim Crow and lambasting Clinton.
If Reagan had proposed a Howard Johnson “sixty new flavors of killing” plan, if Reagan had proposed ten billion dollars in new prison construction, while school systems in DC close because of lack of capital improvement, and others should be closed for the same reason, there’d have been massive demonstrations. Reagan could not have put through this crime bill. Bush could not have put through this crime bill. It’s a combination of Kool-Aid and cyanide.
But the 1994 crime bill was only the beginning of Clinton’s implementation of “get tough” policy-making. Those attempting to excuse Clinton for the crime bill have argued that it was a reasonable response to the excessive crime rates of the period. But even as people were noting declines in criminal violence later on, during the mid 1990s, Clinton was still attempting to seem tougher on crime than Republicans.
In 1996, under the headline “While Crime Has Declined, The Campaign Rhetoric Hasn’t,” the Philadelphia Inquirer took note of the strange contradiction between the reality of the crime statistics and the overheated political rhetoric about crime coming from both Clinton and Dole.
While Americans became steadily safer, Bill Clinton continued to propose extreme new initiatives on crime control.
Clinton advocated strict curfews for juveniles, a policy almost certain to lead to the racially disproportionate hassling of African-American young people, and difficulties for teens who worked late at jobs. He promoted and signed legislation cutting school funding from states that did not adopt “zero tolerance” expulsion policies for a child that brought a gun to school. (Hillary Clinton brags proudly of this policy, and several of the other crime control initiatives, in her memoir.) Clinton also supported amending the Constitution to add a “crime victims’ rights” provision.
Clinton also took a number of executive steps to advance and expand the reach of the drug war. Clinton “greatly expand[ed] the scope of routine drug testing” in the federal prison system, by requiring that every person arrested be given a drug test, instead of the previous policy of testing at random. Not only that, but Clinton pressured state governments to adopt the same policy, vowing “to take all appropriate steps to encourage the states to adopt and implement the same policies that we are initiating at the federal level.”
Clinton was also strongly insistent on strict drug testing for all parolees, saying: “It’s time to say to parolees, if you go back on drugs, you’ll go back to jail.”
Clinton even tried to insinuate his drug testing programs into unprecedented realms. He proposed, for example, that every teenager should be required to take a drug test before being issued a driver’s license. Speaking in favor of his initiative, Clinton said:
I believe we should use the privilege of a driver’s license to demand responsible behavior by young people when it comes to drugs, too . . . We’re already saying to teens if you drink you aren’t allowed to drive. Now we should say that teens should pass a drug test as a condition of getting a driver’s license. Our message should be simple: No drugs or no driver’s license.
When Clinton released this plan, the legal director of the ACLU called it a “drug mania gone crazy.” The ACLU pointed out that the idea was downright foolish from a social policy perspective, since “depriving somebody of the ability to drive may mean depriving them of the ability to go to school, get a job, support their families or do the kinds of things that prevent them from doing drugs.”
Perhaps one of Clinton’s most shameful drug war ignominies was the issue of the crack-cocaine sentencing disparity. Here, Clinton not only knowingly and materially furthered the enactment of a racist policy, but he misled black leaders about his role in doing so.
Civil rights groups had long objected to a major injustice in cocaine sentencing policy. While those convicted of possessing powdered cocaine faced a one-year prison sentence, crack possessors received a mandatory five years. And for dealers, trafficking in five grams of crack was treated with the same severity as tracking in five hundred grams of powder cocaine, a hundred-to-one disparity. As everyone knew, crack-cocaine users were far more likely to be black than powder cocaine users; the vast majority of those prosecuted federally on crack charges were black or Latino.
The end result was that black cocaine addicts and dealers were given far higher prison sentences than their white counterparts, even when having handled precisely the same amount of cocaine.
As Representative Melvin Watt explained, “[i]f somebody is convicted of selling $225 worth of crack cocaine, they get the same penalty as somebody who sells $50,000 worth of powder cocaine . . . Poor young kids who can afford only crack go to jail. Rich young kids who can afford powder go home and sleep in their own beds.”
Activists and black leaders had long fought to have crack and powder cocaine sentencing equalized. And in 1995, it seemed as if they might finally have succeeded. The United States Sentencing Commission, after studying the disparity, produced a recommendation that it be equalized.
After investigating the issue, the commission concluded that “the media and public fears of a direct relationship between crack and other crimes do not seem confirmed by empirical data.” But when the commission moved to implement the recommendation, Congress passed a bill blocking the plan.
Black lawmakers called on Clinton to retain the sentencing commission’s recommendation by exercising his veto power. Civil rights groups “led a telephone campaign to pressure the president to veto the bill.” Jesse Jackson said the president had the ability “with one stroke of your veto pen, to correct the most grievous racial injustice built into our legal system.” The Congressional Black Caucus said that the discrepancies “make a mockery of justice” and that it is “the first test of our seriousness . . . to aggressively root out and eliminate policies and practices that are patently unfair.”
And the political cover was clear: Clinton could simply claim that he deferred to the superior expertise of the sentencing commission, without needing to make a particularly spirited argument in favor of racial justice.
Clinton signed the bill into law, nullifying the sentencing commission’s recommendation and retaining the one-hundred-to-one disparity. He defended his decision with a grand display of anti-drug tough talk.
“I am not going to let anyone who peddles drugs get the idea that the cost of doing business is going down,” Clinton said. “Tough penalties for crack trafficking are required because of the effect on individuals and families, related gang activity, turf battles and other violence.”
Civil rights groups were livid. Clinton’s decision to sign the legislation came just over one week after he had spoken publicly about racial inequities in the criminal courts. On the day of Louis Farrakhan’s Million Man March, Clinton had given a speech about race relations in which he declared that “Blacks are right to think something is terribly wrong . . . when almost one in three African American men in their twenties are either in jail, on parole, or otherwise under the supervision of the criminal justice system.”
Clinton said that it was unfair that a “disproportionate percentage” of black men were in prison for drug crimes “in comparison to the percentage of blacks who use drugs in our society.” Clinton’s comments were made on October 16. On October 27, the press reported that he would be rejecting the recommendation to equalize crack and powder sentences.
The reversal was seen as an attempt to avoid upsetting white voters. As a sentencing commission official commented upon Clinton’s signing of the bill, “[t]his is a total political call on their part . . . They are not going to do anything that will make the president look bad on the crime issue.”
The Washington Post’s editorial board criticized Clinton for making “the easy, politically safe choice,” noting that the president “played down the real issue — terrible sentence disparity — and signed with a flourish and the usual anti-crime rhetoric.” By this point, though, the Post sighed, it was probably “unrealistic to expect the president to do the right thing” on such an issue.
But Clinton’s stance was actually worse than it seemed; not only did he not want to lower cocaine punishments, he wanted to increase them. Yet he made every effort to conceal his true position.
Speaking to a group of black journalists, Clinton indicated that the crack/powder inequity pained him, saying that “the situation that exists is unfair, unjustifiable, and should be changed. And I’m going to do what I can to eliminate a huge percentage of the disparity.”
One might think this flatly contradicted his actions. After all, a man who had wanted to “eliminate a huge percentage of the disparity” had signed legislation rejecting the sentencing commission’s proposal to eliminate the disparity.
But there was no contradiction at all. What Clinton actually meant by “eliminate the disparity” was raising powder cocaine sentences in order to match crack sentences, rather than reducing crack sentences.
He did not have in mind a proposal like that of the sentencing commission, which would have lowered the amount of time drug offenders spent in prison. As he said upon signing the legislation affirming the disparity, “when large-scale cocaine traffickers sell powder with the knowledge that it will be converted into crack, they should be punished as severely as those who distribute the crack itself.” Elsewhere, Clinton was even more explicit that his concern for “reducing the disparity” meant “injustice for all”:
Question: Well, would you raise the penalty for powder cocaine?
Bill Clinton: That’s what I would do — yes . . . there’s no question that the disparity is entirely too great in the sentencing. And I think when it comes to trafficking, they should raise the cocaine trafficking penalties.
Of course, this was like proposing to fix racial disparities in death penalty sentencing by simply finding more white people to kill. Perversely, Clinton’s position made him appear to care about the inequity, while in reality not proposing to alleviate any of the punishment inflicted on people being convicted under the unjust crack laws. Fixing the disparity without lowering crack sentences presumed that those sentences were perfectly fair, but that powder cocaine users were simply getting off lightly. Its solution was to make members of all races suffer equally.
One of the key points made by opponents of the disparity had been that all cocaine starts as powder cocaine; crack is derived from powder. The result was that street-level crack dealers were punished more heavily than their suppliers. As the Washington Post’s Jefferson Morley explained:
Imagine two drug dealers, one a supplier and one a street dealer. The supplier sells the street dealer three grams of cocaine. The street dealer mixes the drug with baking soda, cooks it in his microwave oven, producing six grams of crystalline smokeable crack cocaine. If he gets arrested and sent to federal court, he faces a mandatory minimum of five years in jail. The supplier has to get caught with 500 grams of powder cocaine — about 1.7 pounds — to face that much time in federal prison.
Clinton’s response to this was to concede that it was unfair — then to insist that the supplier be punished just as heavily. At every point, Clinton openly attempted to fudge and equivocate on the issue, so that black audiences would think he wanted to fix the disparity, while he simultaneously told white audiences that he would have no mercy when it came to the scourge of crack in American cities, and did not believe in being soft on drug dealers.
In 1997, the sentencing commission tried again, issuing a recommendation that the disparity be reduced to a mere ten to one. This time, Clinton signed on and promised to support the plan in his dealings with Congress. But the Congressional Black Caucus sensed Clinton’s commitment was anemic, and insisted that having ten-to-one racist sentencing was only somewhat better than having one hundred-to-one racist sentencing.
Ultimately the Black Caucus’s view didn’t matter; the proposal went nowhere and the law remained unchanged. As the CBC predicted, Clinton did not follow through on his promise to pressure Congress.
Still, Clinton now uses his tepid support for the ten-to-one plan to portray himself as a crusader for reform. Asked by Democracy Now! in 2000 to defend his record on drug crime, Clinton used it to boast that “I did my best to persuade Congress to get rid of the discrepancy between crack and powdered cocaine in the sentencing guidelines.” To another journalist, Clinton blamed the Right, saying that “by the time we got to this issue, the Republicans were in [the] majority and we just couldn’t do it.” He did not mention that when he was afforded the unrestricted opportunity to eliminate that discrepancy entirely, he had chosen not to.