The Deadly Bi-Partisan Agreement That Brought Us Mass Incarceration with 2.5 Million Behind Bars

Over the past four decades, Democrats and Republicans have agreed on almost nothing beyond their ménage à trois love affair with Wall Street. One notable exception was the bipartisan fervor for crime policy “reform” that could be condensed into a campaign-ad bromide: lock ‘em up and throw away the key.

“The two parties started trying to out-tough each other,” says William R. Kelly, a University of Texas-Austin criminologist. “Once it became bipartisan, there was no slowing it down. There’s no foil. There’s no one to argue with.”

A popular American lament rues the lack of political cooperation in Washington and in statehouses. But be careful what you wish for. Bipartisanship in the 1980s and ‘90s sowed the seeds for today’s mass incarceration crisis as pols cultivated crime platitudes over thoughtful analysis. And undoing this now-codified, multibillion-dollar political botch-job won’t be easy, despite the kumbaya incantations coming from both the Right and Left.

"This is an important thing to keep in mind when you’re talking about where we are today with mass incarceration,” Paul Wright, editor of Prison Legal News, told me. “For the past 40 years, virtually every politician—Democrat and Republican, federal and state—has voted in favor of virtually every imaginable tough new crime law that made sentences longer and imprisoned more people in worse conditions. There was no dissent and often no discussion. I think there was more dissent in the Soviet Union’s Supreme Soviet under Brezhnev when laws were debated."

Nixon Paved the Way

The political roots of contemporary mass incarceration reach back to the 1960s, when escalating crime, race riots, campus protests and shocking assassinations fed a sense of growing lawlessness. Richard Nixon seized upon the attendant fear, wielding the crime issue in his presidential campaign of 1968 as a white-vs.-black counterpoint to poverty, the keystone issue of his Democratic opponent, Hubert Humphrey.

“Nixon really was the first major national figure who embraced the loss of law and order as the problem and mass incarceration as the solution,” says Kelly, author of the newly published Criminal Justice at the Crossroads: Transforming Crime and Punishment (Columbia University Press).

In a sense, bipartisan reform began as a political mashup. Both parties supported revamped sentencing in the 1970s. Conservatives wanted longer, tougher prison terms. Liberals, vexed by wildly variable punishments for the same crimes across the 95 federal districts, wanted more standardized sentences.

Ronald Reagan capitalized after his 1980 election, forging a bipartisan coalition fronted on the Left by Sen. Ted Kennedy, the Massachusetts Democrat. The result was creation of the U.S. Sentencing Commission, tasked with creating a “rational sentencing system.” After more than two years of work, the commission presented Congress with 800 pages of new sentencing guidelines in 1987.

For decades, U.S. courts had used a system of indeterminate sentencing, which allowed a broad range of punishment for a particular crime—five to 10 years, for example. The new guidelines assigned a much narrower, determinate sentence—70 months to 85 months, say. A judge’s latitude was clipped.

When the guidelines took effect on Nov. 1, 1987, Congress included a proviso that any mandatory minimum sentence introduced by congressional amendment would override the punishment decreed in the guidelines. Congress immediately began using that power, and state legislatures copied the intensely politicized federal system. Elected officials co-opted the roles of judges and other criminal justice professionals, decreeing thousands of mandatory minimums. Many were based upon emotional, ripped-from-the-headlines anecdotes. Many abhorrent crimes became political theater in statehouses, with podium-pounding legislators passing laws with an implied promise that a tougher sentence could somehow ensure that such an atrocity would never happen again.

It was nonsense, of course.   

Clinton Takes Ownership of Crime

“A lot of it has been really sick or perverse,” says Wright. “One guy says, hey, let’s do a mandatory minimum on this crime, whatever it might be. Let’s make it 20 years! And another legislator says, well, let’s make it 40 years! They were just making up random numbers, pulling them out of thin air.”

Kelly says Bill Clinton’s campaign for president in 1992 was the “switch moment” of crime policy bipartisanship.

“Much of the political leverage on crime control had been owned by the Republican Party since the 1960s,” he says. “Clinton helped the Democratic party realize that it had to try to take ownership away from the Republicans.”

And he did just that, says Marc Mauer, executive director of the Sentencing Project. “While on the campaign trail in 1992 and just after returning to Arkansas (where he was governor) to oversee the execution of Ricky Ray Rector, a mentally impaired black man, Clinton had famously remarked, ‘I can be nicked on a lot, but no one can say I'm soft on crime.’"

Clinton was cheerleader-in-chief for the now-infamous federal crime bill of 1994, which authorized $33 billion to build prisons and hire more law enforcers. (It also eliminated education funding for inmates, the most reliable remedy against recidivism.) In that same era, two dozen states followed the lead of California and Washington by adopting three-strikes laws that imposed long mandatory sentences on repeat offenders, flooding prison systems with lifers.

“The policies were established in states with both Democratic and Republican leadership,” says Mauer, “and often with little analysis of their impact or wisdom in comparison with existing sentencing policy at the time.”

It’s All About the Votes

Clinton was not the only politician who used crime rhetoric as political ear-candy. In my book Scooped, published in 1998, I quoted Sen. Orrin Hatch, the Utah Republican, who said, “Mandatory minimums are a political response to violent crime. Let’s be honest about it. It’s awfully difficult for politicians to vote against them.” And Sen. George Mitchell, the Maine Democrat, said tough-on-crime laws had “little to do with reducing crime and everything to do with increasing votes.”

Reagan and Clinton often get blamed for mass incarceration. But others deserve a share.

“The ‘tough on crime’ movement and the development of the ‘war on drugs’ in the 1980s and 1990s was very much a bipartisan initiative,” Mauer says. “The war on drugs was formally launched by Ronald Reagan in 1982 by an administration seeking to expand the federal role in crime policy. Under the administration of George Bush Sr. the tough on crime rhetoric reached its peak under the leadership of Attorney General William Barr, who frequently framed the problem as ‘more prisons or more crime.’ And Bill Clinton, with strong support from then Sen. Joe Biden, pushed the 1994 crime bill, even highlighting its ‘three-strikes’ provision in his State of the Union address that year.”

Barr, who had a privileged childhood in New York as the son of Columbia University academics, was particularly intractable. He insisted it was “simply a myth” that prisons held “sympathetic people” and “hapless victims of the criminal justice system.”

Barr spent a mere 18 months at the helm of the Justice Department. (After leaving Justice, he led a quixotic initiative to end parole altogether in Virginia. When that failed, he turned to a lucrative career as a corporate lawyer.) But he stands out among policy-makers who troweled mortar into the foundation of mass incarceration. He had many peers, including House Speaker Newt Gingrich, who once suggested in a speech that mass executions of drug smugglers would be an effective deterrent. Like Bill Clinton, Gingrich says he has seen the light and now supports reforms of the system he helped create.

Perhaps the most rabid prison monger was Bill McCollum, a longtime Republican congressman from Orlando who led a House task force on crime. He was a scary Johnny One-Note, spouting a grim vision of an America awash in lawlessness.

“The only way to keep these dangerous individuals off the streets is to build more prisons, get the states to change their laws to require violent repeat offenders to serve at least 85 percent of their sentences, and have minimum sentences,” McCollum wrote in 1994. “The public doesn’t want their tax dollars poured down the drain. They want reform. They want the bad guys locked up and the keys thrown away.”

When I was researching my book in the late ‘90s, I asked Jerome Miller, a longtime advocate for smart sentencing alternatives, what people like McCollum really wanted. He told me, “When the politicians and the public say lock ‘em up and throw away the key, they really mean lock up the young African American males and throw away the key.”

Their wish came true.

Incarceration Pays Off

Jeffrey Reiman, a professor of philosophy at American University, argues in his “Pyrrhic defeat theory” that those who hold the power to fix the mass incarceration mess have little motivation to do so because they benefit from the status quo.

Viewed cynically, the imprisonment of 2 million men reduces unemployment for those who are not locked up, for example. Kelly, of the University of Texas, points out that discussion of reforms emerged not from a moral imperative but from financial panic during the recession, “when states began to realize that incarceration is expensive.”

The prison industry is a brawny backroom political force, between the powerful private prison lobby and influential unions representing a vast horde of inmate-minders. About 450,000 men and women earn a living in the United States as correctional officers, jailers or bailiffs, according to federal data. Roughly the same total number of people work in farming, fishing and forestry occupations in the U.S.

“From one perspective, mass incarceration has been a huge success on a lot of levels, including as a tool of repressive social control,” says Wright. “Think about it: No one will come out and say that they support mass incarceration, yet it thrives on its own. That’s one sign of its success. It succeeds in spite of itself.”

“If the problem mass incarceration was supposed to solve was high crime, that’s gone,” adds Kelly. “So the problem went away, but the engine keeps running in the same direction.”

A few weeks ago, Bill Clinton recanted his own criminal justice policies, including the 1994 federal crime bill. Hillary Clinton, a presumed Democratic presidential candidate, has tried to distance herself from the lingering stink. But close observers say they see little political will for the systemic changes needed to cut prison populations in half, back to the levels of the 1980s.

So far, only the most conspicuous “hapless victims,” to use William Barr’s phrase, are gaining freedom. In fact, some predict a slight growth in the nation’s prison population over the next five years, after meager declines that grabbed headlines.

“It's encouraging that there is now focused attention on the excessive use of incarceration for low-level drug offenders, but mass incarceration cannot be undone solely by reforms in drug policy,” says Mauer of the Sentencing Project. “The broader problem is the excessive use of punishment across the board. We can see this at the extremes with one of every nine people in prison today serving a life sentence, many without the possibility of parole release.”

True reform would require a rewrite of politicized federal and state sentencing guidelines, including retroactive relief for many of America’s 160,000 prison lifers, a third of whom have no possibility of parole.

“I think there is some momentum (toward reform), but I agree it’s almost all rhetoric and political positioning at this point,” says Kelly. “There’s no big-picture blueprint for where this needs to go to really reduce the prison population. So far it’s all piecemeal.”

Wright, of Prison Legal News, is skeptical about the potential for meaningful reform.

He speaks with unique authority, having spent 17 years in prison for killing a man in a drug-related robbery in 1987. Had he committed his crime a few years later, after the mandatory minimum frenzy took hold, he might still be locked up. 

Wright says substantive reform can only happen through the same process that led to mass incarceration: bipartisan commitment in Congress and in statehouses.

“That’s just not happening,” he told me. “We all hear the rhetoric, and it winds up inducing people into thinking that everything’s fine, that they’re working on fixing the problem…Sure, some things are being done. But the more critical issue is what’s not being done.”