Sen. Joe Biden with Senate Majority Leader George Mitchell during negotiations for the 1994 crime bill. (Photo: John Duricka/AP)
There was a time in Democratic politics when nothing mattered more than being “tough on crime.” Think back to 1992, when Bill Clinton — mindful of the way Michael Dukakis had been pilloried over prison furloughs and his opposition to the death penalty four years earlier — took a hiatus from the campaign trail so he could go back to Arkansas and preside over an execution.
These days, though, it seems no Democrat can show enough mercy for the criminal, especially if the crime is drug-related.
Joe Biden hasn’t yet entered the presidential field, and may not, but already his authorship of the 1994 crime bill is under attack from “Black Lives Matter” activists and liberal bloggers. Martin O’Malley has been shouted down over his zero-tolerance policy as Baltimore’s mayor. Even Hillary Clinton has backed away from her husband’s tough-on-crime record — and, remarkably, so has he.
No one’s going to argue the nation hasn’t made serious mistakes in criminal justice over the last 30 years. But the problem with much of this criticism is that it lacks historical context and often some relevant facts. There’s a complex and defensible record here for Biden and for the candidates already in the race, if any of them can summon the courage to defend it.
Let’s start with some history. Most of the sentencing laws that are now widely considered in both parties to be nonsensical — and rightfully so — date back to the 1970s. During the Reagan era, fearful that the president was making them look soft on the issue (because he named a “drug czar” and came up with the slogan “just say no,” and other wildly effective stuff like that), Democrats in Congress — Biden key among them — passed three separate laws establishing stricter minimum sentences for small-time drug offenders.
Because cheap crack cocaine was the primary focus back then, those laws created some unfair disparities between sentencing for crack (which was mostly a poor person’s drug, affecting African-Americans disproportionately) and powder cocaine (in which the white and wealthy indulged). It’s fair to say they also gave rise to a predictable boom in the prison population that would continue, unabated, for decades.
By the time Clinton was in office, however, the ill-conceived, 20-year war on drugs was an obvious and colossal failure, and American cities were awash in violence. If you didn’t experience that firsthand, it’s hard to understand just how pervasive and destabilizing this was.
President Bill Clinton embraces Biden after signing the 1994 crime bill as leading members of Congress and first lady Hillary Clinton look on. (Photo: Dennis Cook/AP)
When I worked the night shift at the Boston Globe in the mid-’90s, it was rare to go more than a few nights without chasing some shooting in one of a handful of extraordinarily treacherous neighborhoods, and rare to go more than a week without knocking on the door of a dead kid’s house. It affected me deeply, as I’m sure it did a lot of other reporters and the cops we covered.
There were 98 homicides in Boston in 1995, which also marked the 10th consecutive year when murders in the United States exceeded the 20,000 mark.
And here’s the really critical thing that almost always gets overlooked when you hear today’s activists indict the response to crime during this time: the victims were overwhelmingly black and poor. So were the residents who found themselves terrorized by the same bunch of kids on the same wretched corners, day in and day out.
Ask yourself how Martin O’Malley, a white city councilman, got himself elected in 1999 in a majority-black city, which was then one of the most dangerous places to walk down the street in America. It’s because Baltimore’s black residents, like the people I met every day in Boston, were tired of cowering in their homes, and they hungered for the reforms that had already improved safety in other big cities.
“If you can see it, and I can see it,” O’Malley repeatedly told voters, “how come the police can see it and don’t do anything about it?” It became a huge applause line.
No one can say with certainty how influential the 1994 crime bill, written by Biden and signed into law by Bill Clinton, was in ultimately reversing soaring crime rates. There are lots of theories about what caused crime to decline, and probably most of them have some validity.
But here’s a fact: That particular law contained only one new provision for a mandatory minimum sentence — the rule commonly known as “three strikes, you’re out” — and it applied only if your last conviction was for a second violent crime.
The law did offer grant money to states to build more prisons, if they agreed to “truth in sentencing” laws that forced violent felons to serve at least 85 percent of their time. But again, we’re talking about violent felons (not pot smokers), and while the money created a new supply of prison cells, the growing demand for those cells was chiefly the result of the booming drug trade itself.
The 1994 law didn’t fix some of the wrongheaded policies of the 1980s, like the disparities between sentencing for crack and cocaine; in that case, political pressure trumped reason. What it did do, though, was to put 100,000 new cops on American streets at a time when big-city mayors had begun to appreciate the importance of having them there.
This was a huge deal, and you’d have to think it had at least something to do with a roughly 35 percent drop in violent crime over the 10 years after the law was passed. So did the data revolution in urban policing championed by mayors like O’Malley.
Yes, there were unintended consequences and sometimes tragic missteps. As the prison sentences piled up, so too did the lost years and broken families, along with a sense of economic hopelessness. As the cops bore down on communities, a kind of battle mentality set in.
William Bratton, now in his second stint as New York’s police commissioner, once told me that political leaders — he was speaking specifically of Rudy Giuliani — had been too slow to readjust their approach once the streets were under control. The residents who had desperately needed more aggressive policing became, all too often, the victims of it.
It’s hard to watch the video of, say, Eric Garner being slowly suffocated to death by a horde of New York cops, for the crime of allegedly selling cigarettes, and not come away feeling that zero-tolerance policing ought not to be tolerated any longer.
But none of that should obscure the other, inescapable piece of a complicated legacy, which is that a lot of people — mostly black and poor — are alive today who would be dead if the rate of violent crime had stayed on the trajectory it was on in 1994.
There’s really no reason that Biden or O’Malley shouldn’t be able to talk about both sides of that legacy. You’d hope they could stand up to the pressure from their own activists and say: I saw a crisis and tried to do something bold about it, and some of what I did worked. And we can at least have a conversation about the things that went right in the ’90s without diminishing the importance of the things that went wrong.
The need for that conversation goes well beyond the current election. Murder rates have been rising sharply again in some cities, and while everyone now agrees that we need to find some more constructive ways of dealing with drug crime, Democratic leaders can’t allow themselves to be drowned out by the loudest and angriest voices in their party — those who would blame everything on law enforcement and the legal system, and who would write off street crime as trivial when compared with the crimes of an unjust society.
We have enough experience to know where that kind of mindset leads you in an urbanized country. And the people who get crushed by it the most are the very people for whom Democrats are supposed to speak.
Biden, flanked by Attorney General Janet Reno, left, and Rep. Patricia Schroeder, discussing the Violence Against Women Act in 1994. (Photo: John Duricka/AP)