America’s incarceration rate hasn’t been this low in nearly a quarter-century. In just the last decade, the population in prisons and jails across the country has shrunk by upwards of 150,000 inmates. All the while, the violent crime rate has plummeted.
It’s a significant shift that has gone virtually unnoticed in the midst of a bitterly fought election campaign, even as it appears to mark the end of the bipartisan tough-on-crime consensus.
Both President Donald Trump and former Vice President Joe Biden have played up their justice reform bona fides, even as they try to paper over their less-than-progressive records.
In the backdrop, Black Lives Matter and other racial justice groups are demanding not just tinkering, but wholesale change.
Whoever wins will inherit a justice system still geared, in many ways, toward the war on drugs and mired in a three-strike philosophy, which levies stiff prison sentences to repeat offenders, even for non-violent crimes. They will face a protest movement demanding an end to the racial disparities baked into the system. The changes they make are sure to have knock-on effects worldwide: Many countries follow America’s lead on justice policy.
“There are times when you can move a lot of social change quickly,” says Lauren-Brooke Eisen, director of the Brennan Centre’s Justice Program. “This is one of those times.”
The stakes are huge.
Incarceration nation
The 1960s and 1970s saw a staggering rise in violent crime in America. Waves of economic recession, increased urbanization, organized crime, and widely available powder cocaine and crack cocaine all played a role in tripling the violent crime rate in less than two decades.
In the midst of the upswing, candidate and future President Richard Nixon built a campaign around a return to safety. He promised to crack down on drug use, end pretrial release, and go to war with the Mafia. He pioneered the use of no-knock warrants to go after drug dealers and implemented aggressive pretrial detention. Through it all, Nixon had public opinion at his back.
And his tough-on-crime measures didn’t take long to show results—not in crime reduction, but in incarceration numbers. By the end of Nixon’s five years in office, America’s prison population, in both state and federal facilities, had grown by a quarter.
While states may have pursued various crime reduction strategies, the policy preference in D.C was clear: aggressive enforcement, more charges, and longer sentences.
It was in the middle of America’s newfound incarceration kick that Joe Biden entered the Senate. Formerly a public defender and criminal attorney, he ran as a liberal but quickly made a name for himself as a centrist on the Senate judiciary committee. He chaired 1977 hearings on the state of America’s penal system, arguing that “[rehabilitation is] not necessarily a workable premise upon which to base our entire correctional system.
“I feel the focus of our prison system should be to impose humane but strict punishment for the commission of crimes,” Biden said. While he hardly billed himself as a hardliner (he told the committee the anecdote of once representing a youth, even after Biden caught him breaking into his car), he did call for a system of “just desserts.”
In 1984, he was a Senate co-sponsor of the Comprehensive Crime Control Act, one of the most drastic changes to the American justice system in the 20th century. On top of new release and parole restrictions and new mandatory minimum sentences, the law introduced the concept of the “armed career criminal.”
The designation, an early version of a three-strike law, targeted recidivist drug and firearm offenders and carried a minimum 15-year sentence. Thousands would be convicted under the statute—perhaps unsurprisingly, a Department of Justice analysis recently found that 80 per cent of those convicted using the statute were Black.
The measures jived well with the Reagan administration, which massively escalated Nixon’s war on drugs. By 1985, the combined federal-state prison population (excluding local jails) had doubled from a decade earlier. Despite that, the violent crime rate stayed stubbornly high straight through the 1980s.
In 1986, Biden again co-sponsored expansive legislation, the Anti-Drug Abuse Act, which imposed stiffer penalties for possession of crack than for powdered cocaine, even though the available evidence at the time demonstrated that the two drugs were functionally the same— powdered cocaine, of course, happened to be preferred by white people. (The sentencing commission, at the time, also recommended against the differential sentencing regime.)
Biden became the full-time chair of the judiciary committee in 1987, cementing his role as the ranking Senate Democrat on the justice file.
About six months after President George H. W. Bush took office in 1989, Biden blasted the administration for not doing enough on the war on drugs. “We’ve passed 208 new, tough anti-crime laws in the past five years. If you want more, I am sure the Congress will oblige…You failed to put in your budget the money needed to make those tough laws work.” He called for a “D-Day” in the war on drugs.
In his new book, Crack, historian David Farber traces how many of those expansive drug bills built the scaffolding for America’s crusade against the inner cities. He notes that, in the speech, Biden “sounded a bit like General Jack Ripper in the Cold War classic, Dr. Strangelove, he was ready to take the drug war to the enemy—in this case, to fellow Americans—no matter the cost.”
Biden’s partner-in-crime through those years was Strom Thurmond, the ex-Democrat who had made a name for himself opposing civil-rights legislation and integration, and who spent much of the 1980s sponsoring tough-on-crime legislation. “In the last six years, Senator Thurmond and I, and other members of this committee, have literally been responsible for writing thousands of pages of hard-hitting new laws,” Biden bragged at a 1989 hearing.
Those laws, he volunteered, “took away discretion under all but very limited circumstances from the federal court judge—if you are convicted of robbery, you go to jail for a set time, bang, whether you are black or whether you are white, whatever, you go to jail.” He confessed that his own policies, only a few years old at that point, had already strained the prison system.
The strains were evident, as the sentenced prison population surpassed a million. By 1989, nearly half of all federal and state inmates were Black, locked up largely due to drug prosecutions. Earlier in the Eighties, prison sentences for Black offenders were roughly 10 per cent longer than for white people, but by the end of the decade, the disparity grew to nearly 50 percent.
Amongst the voting population, there was an endemic belief that America’s cities weren’t safe. Biden himself elucidated a commonly held belief in Washington that drugs had destroyed the family unit in the “inner city barrios and the ghettos, particularly in Black neighborhoods.” He described “literally packs of young men and women roaming the city without any parental control at all—none.”
Eisen notes that we know, now, that these mass incarceration policies weren’t reducing crime or helping racialized communities. The measures created a standard of over-policing of these neighborhoods, separating families and removing members of the community in the name of justice. “Some of this was just knee-jerk,” she says. “It wasn’t thoughtful.”
Even if those policies were reactionary, there was always a clamouring for more. The beating and sexual assault of jogger Trisha Meili in Central Park in 1989 became evidence, for many, that the criminal penalties hadn’t gone far enough. After the attack, New York cops quickly rounded up five Black and Latino teens and charged them, despite Meili having no memory of the assault. The evidence was weak, and the prosecution forged ahead despite exculpatory DNA evidence.
Nevertheless, then-real estate magnate Donald Trump wrote a now-infamous open letter in the New York Times, arguing that “civil liberties end when an attack on our safety begins,” and demanding in all-capital letters: “BRING BACK THE DEATH PENALTY.” Around the same time, Trump maintained a well-documented professional relationship with several companies and unions known to be owned or affiliated with the New York mob, who were responsible for scores of killings in the city and controlled huge swaths of the country’s drug trafficking infrastructure.
The tough-on-crime kick reached new heights in the early 1990s. Biden, as chair of the judiciary committee in a Democratic-controlled Senate, introduced sweeping new omnibus legislation which, on top of host of expanding sentences and providing $1 billion in new policing money, sought to impose the death penalty for drug-trafficking charges that involve murder. That bill didn’t become law, but many of its tenets found their way in 1994’s Violent Crime Control and Law Enforcement Act, supported by the Clinton White House.
As a Justice Department fact sheet from the time reads: “It is the largest crime bill in the history of the country.” The bill meant 100,000 new police officers, and $10 billion for more prisons.
In a 1994 report, Biden celebrated the new law, writing that it would “help bring significant numbers of hard-core drug addicts under control.” He wrote that “to maximize the number of offenders serving time, we must use a variety of prison settings.” That included the use of bootcamp prisons.
“States were actually paid to build more prisons, or build new wings of their prisons, if they adopted these laws,” Eisen notes. “The 1994 crime bill didn’t create mass incarceration, but it sent a message to states that they should be focused on incarceration.”
Biden’s increasingly hawkish stance on criminal justice was a clear product of the political age. The Democratic Party feared losing ground with middle-class voters, so sought to steal ground from the George H. W. Bush Republicans. One Harvard journal from 1996 described it thus: “The Democrat approach can be summarized in a few brief words: more police, fewer guns.”
By the time Clinton hit the campaign trail in 1996, there were 1.6 million Americans in prison. The racial disparity only grew: A Black man was seven times more likely than a white man to be in prison.
The thing is, violent crime was already in free-fall. FBI statistics show the violent crime rate hit its apex in 1991, before it fell by about 50 percent by the end of the decade, seemingly unconcerned with the increasingly punitive criminal justice bills coming out of the Senate.
Why, exactly, violent crime fell so drastically remains a subject of some debate. But, increasingly, the consensus is that mass incarceration had little-to-no positive effect—other countries around the world, including those who did not embark on America’s quixotic war on drugs, saw similar declines in violent crime.
The 2000s
Biden relinquished the gavel at the judiciary committee in the mid-Nineties and moved on to the Senate foreign relations committee. The so-called Central Park Five were ultimately exonerated in 2001, although Trump has never apologized or retracted his demand for capital punishment.
When Biden geared up for a run at the White House in 2008, he highlighted his criminal justice record as one of his greatest achievements. But his campaign never quite got off the ground.
When his Senate colleague Barack Obama picked Biden, he lauded his running mate for bringing “Democrats and Republicans together to pass the 1994 Crime Bill, putting 100,000 cops on the streets, and starting an eight-year drop in crime across the country.” In office, Biden would take to calling it, as he told the New York Times in 2009, “the Biden Crime Bill.”
At the start of Obama’s term, the violent crime rate was the lowest it had been in decades. Meanwhile, nearly 2.5 million people sat in prison.
And yet, in Obama, America finally had a president who sought to turn the tide on mass incarceration.
In 2010, the Obama administration signed into law the Fair Sentencing Act, which erased mandatory minimum sentences and reduced, but did not eliminate, the sentencing disparity for crack cocaine. A broader strategy, implemented in his second term, sought to offer alternatives to incarceration for non-violent offences. It aimed to dismantle some of the anti-drug statutes that were hallmarks of Biden’s time in the Senate. Attorney General Eric Holder reduced funding for state-level prosecutions that no longer seemed to serve a clear purpose. He issued consent decrees to bring dysfunctional police departments to heel.
Even the optics were significant: Obama was the first American president to visit a federal prison.
For the first time since Nixon took power in 1969, America’s prison population began declining.
Some of that was the natural result of a drop in crime. Some of it came from the judiciary. The Supreme Court first declared chunks of Biden’s “armed career criminal” statute vague and unconstitutional in 2015. (Parts of the law remain in effect and continue to cause headaches at the top court.)
Obama was also chasing progress already being made on the state and local level.
“There are prosecutors who are being swept into office now who would have never won in the Eighties and Nineties,” Eisen says. The 2000s have been marked by prosecutors and attorneys general who have situated themselves on the frontlines in the fight for change in the criminal justice system. “Over the last decade or so, the role of prosecutor has transformed.”
In California, Kamala Harris—first as the attorney general of San Francisco, and later at the state level—has fit awkwardly between old and new.
As the state attorney general, she pushed for broader programs to get former inmates “back on track,” providing supports to end recidivism. She beefed up accountability for police officers deploying excessive use of force. She prosecuted more cannabis charges, but generally avoided jailtime for low-level drug offences.
When she took office, the state prisons had been so full, operating at nearly twice their stated capacity, that the Supreme Court ruled in 2011 that the overcrowding was a violation of prisoners’ constitutional rights and ordered the state to remedy the situation. By 2013 she had failed to comply with the order—even after moving thousands of inmates to camps in the woods, and tasking them with fighting forest fires. That year, a court admonished the state for failing to comply with the Supreme Court order, writing that the state “continually responded to this Court’s deference with defiance.” Harris had also appealed a decision striking-down California’s death penalty.
Since joining the Senate, Harris has been more bullish on reform, championing bail reform, co-sponsoring legislation to expand transparency for private prisons, and introducing a bill to decriminalize marijuana.
Other states were even more hawkish, such as Mike Pence’s Indiana. As governor, from 2013 to 2017, he continued prosecuting the war on drugs. He signed one 2013 bill that did lighten some sentences and expand record expungements, but only after pressuring lawmakers to stiffen penalties for drug charges. Three years later, heading into a reelection campaign that was ultimately interrupted by his selection as Trump’s vice presidential candidate, he signed a law that reinstated a 10-year mandatory minimum sentence for those convicted of dealing cocaine, meth, or heroin who already have a criminal record for dealing one of those drugs.
Eisen notes that there has been significant tension at the state level between reform and status quo. She points to Kentucky, where new drug laws are driving up the prison population all over again—with private prisons being brought in to handle the excess capacity.
The actual prison population is only one metric to judge America’s criminal justice system by, Eisen points out.
“In a lot of states there are these compromises, where there might be bipartisan criminal justice reform, but rather than diverting these people entirely, the compromise is to put these people on parole,” she notes. While parole might be better than sentenced time, release conditions are often incredibly difficult to adhere to, and leads to many offenders heading to prison anyway.
With the Obama administration on its way out, and Trump on his way in, many predicted a fervent return to heavy-handed criminal justice policies with Republican control of both houses.
In some respects, that’s exactly what happened. Attorney General Jeff Sessions, shedding an apparent reformist mindset on drug prosecutions, quickly signaled his position that any drug prosecution is a good drug prosecution. In 2018 alone, American police made roughly 1.7 million drug arrests. A third of those charges were for marijuana possession.
When Sessions spoke to a room full of police officers in 2018, he decried that America was locking-up fewer people than years prior. He joked that “We’ve got some space to put some people,” eliciting laughs from the crowd. “We need to reverse a trend that suggested that criminals won’t be confronted seriously with their crimes.” This is, perhaps, unsurprising from Sessions, as he was the author of a 1992 paper entitled “the case for more incarceration.”
Given the Trump administration’s hard-line stance, few expected the First Step Act, a justice reform bill that was winding its way through Congress, to pass. Opposition from Senate Majority Leader Mitch McConnell meant it was unlikely to even land on the president’s desk.
A full court press from the president’s son-in-law Jared Kushner, with the help of a phalanx of reform-minded governors, a push from the Koch Institute, and a suite of celebrities helped bring the administration onboard. Kim Kardashian West, in particular, is credited with swaying the administration to get onboard with reforms to reduce the disproportionate burden placed on Black men in the justice system. The Act was signed in 2018 and expanded Obama-era reforms, reduced a number of mandatory minimums, improved prison conditions, and created opportunities to shorten prison sentences outright.
It has been heralded by reformers of all stripes as a progressive step, although it has drawbacks. “Certain parts were not retroactive, certain parts were not funded adequately,” Eisen notes.
Beyond that one bill, Trump has also endorsed the racist policy of stop-and-frisk, he has revived the death penalty for federal crimes, he has rescinded directives to avoid fines and fees for poor defendants, and has wielded the Department of Justice against Black Lives Matter protesters. And, of course, he appointed Sessions as attorney general.
Yet throughout the Trump term, the prison population continued to drop. What’s more, decarceration has been closing the racial gap in prisons. In 2006, for every 100 Black Americans, 2.3 over the age of 18 were serving time in prisons or jails across the country. As of 2018, that number fell precipitously to 1.6—still a drastic over-representation, but the gap has narrowed significantly. (The rate for white Americans is about 0.3.)
The 2020 Election
Today, there is a momentous amount of revisionism and whitewashing going on, as the candidates try and reshape their own legacies in real time. And you would be hard-pressed to find two tickets as complicated and self-contradictory on criminal justice matters as Biden-Harris and Trump-Pence.
At the State of the Union, earlier this year, Trump lauded his reform record. “Everybody said that criminal justice reform couldn’t be done, but I got it done and the people in this room got it done,” he said. There is little mystery to why the president has lauded his signature on the First Step Act, endorsed and branded by Kim Kardashian West. He has hoped it would improve his standing with Black voters.
A photo with a grinning Lil Wayne, which the rapper tweeted out with an endorsement of what the president has “done so far with criminal reform,” seems evidence that there was some wisdom in that strategy.
However, conservatives are increasingly coming around to the idea that mass incarceration is neither fiscally prudent nor a good use of government resources. The Charles Koch Institute has spent significant time and money advancing a smart-on-crime agenda in recent years. Vikrant Reddy, a senior research fellow at the institute, has become a central cheerleader for the end of the “bipartisan cause” of mass incarceration. “Conservatives take pride in their reputation for being ‘tough on crime,’” Reddy wrote in 2016. “They need not compromise that reputation, or the convictions associated with it in order to take the lead in criminal justice reform; in fact, that reputation is why they can take the lead.”
At the first presidential debate, a boisterous Trump tried to do exactly that, berating Biden for his record.
“You did a crime bill in 1994, where you call them super predators,” Trump thundered. (There is no evidence of Biden ever using that term.) He continued, after some back and forth: “I’m letting people out of jail now.”
Even before launching his bid for president, Biden has tried to rebrand his own record.
At a 2019 forum on drug policy, weeks before launching his primary bid, Biden suggested his legislative record was not his own. “I got stuck with, because I was chairman of the judiciary committee, writing most of the drug legislation that occurred in that period,” he said. Still, he acknowledged that “the big mistake was us buying into the idea that crack cocaine was different than powdered cocaine.”
Those comments are fundamentally at odds with Biden’s own record, and his own comments made as recently as the Obama administration.
In October, at an ABC townhall, Biden acknowledged that his crime bills were a mistake—but proceeded to shift blame. “The mistake came in terms of what the states did locally,” he told a voter. “What we did federally, it was all about the same time for the same crime … Black folks went to jail a lot less than they would have before.”
Those comments are categorically untrue. Biden even suggested that a sentencing commission had endorsed his tough-on-crime bills—but that ignores the commission’s explicit opposition to the disproportionate penalties for crack possession, for example.
It can be hard to separate the wheat from the chaff here. Trump is using the First Step Act as evidence of his progressive streak, even as he touts his law enforcement chops by prioritizing tough sentences and the death penalty. (“It’s very hard for people to square,” Eisen admits.)
Biden, meanwhile, is insisting his position has evolved drastically, even as he offers limp defenses for two decades of work building that very criminal justice system he claims to oppose.
The one area where it is very easy to separate the two candidates, however, is in what they’re promising to do in office.
Trump’s reelection platform, essentially a list of 50 bullet points, promises more police, more criminal penalties, and even to treat drive-by shootings as acts of domestic terrorism. It also promises to “end cashless bail and keep dangerous criminals locked up until trial.”
Ending cashless bail appears to be a rejection of a growing movement to fight cash bail, which disproportionately affects low-income people accused of crimes. Several states have eliminated cash bail, instead determining the need for pre-trial custody based on risk instead of ability to pay, and have seen positive results.
Biden’s platform, meanwhile, offers an expansive roadmap for substantive criminal justice reform, including everything from ending the use of federal private prisons to endorsing the end of cash bail.
“Today, too many people are incarcerated in the United States,” Biden’s justice policy reads. “And too many of them are Black and brown. To build safe and healthy communities, we need to rethink who we’re sending to jail, how we treat those in jail, and how we help them get the health care, education, jobs, and housing they need to successfully rejoin society after they serve their time.”
Perhaps most significantly, Biden has committed to offering up to $20 billion to encourage states to pursue alternatives to incarceration—an effective reversal of the policies he pursued during his time on the Senate judiciary committee.
“That illustrates how far the pendulum has swung,” Eisen says.
