By now, you may have heard that Hillary Clinton supported the controversial 1994 tough-on-crime bill that her husband signed into law. Black Lives Matter activists have called her out for it. Michelle Alexander, author of The New Jim Crow, did as well. A protester at a recent Clinton campaign event even asked her to "apologize to black people for mass incarceration" while invoking her comments from the era.
But one thing that's seldom noted — or only acknowledged as a footnote in stories about the 1994 law — is that Bernie Sanders, Clinton's opponent in the Democratic primary, supported the 1994 crime law too. And while Clinton wasn't in a position to vote for the bill as first lady, Sanders was in Congress — and he did actually vote for it.
Now, the 1994 crime law alone didn't create or cause mass incarceration, as I've written in greater detail before. But the law was punitively "tough on crime," and it did contribute a little to the rise in incarceration from the 1980s through 2000s. (More on the law here.)
Sanders was, based on his comments in Congress at the time, unhappy with mass incarceration. So why did he vote for the 1994 law that's drawn so much criticism from critics of mass incarceration, and what does that mean for Sanders today?
Sanders framed the 1994 crime law as a compromise
While the Clintons have defended the 1994 crime law until quite recently, Sanders was always careful to point out that he saw the law as a compromise — and regularly stated his concerns with mass incarceration.
In 1994, for example, he said that he would support it because it included the Violence Against Women Act, which helped crack down on domestic violence and rape. Sanders said:
I have a number of serious problems with the crime bill, but one part of it that I vigorously support is the Violence Against Women Act. We urgently need the $1.8 billion in this bill to combat the epidemic of violence against women on the streets and in the homes of America.
Earlier in the year, Sanders suggested that he did not see the tough-on-crime parts of the bill as the right solution to crime:
It is my firm belief that clearly there are people in our society who are horribly violent, who are deeply sick and sociopathic, and clearly these people must be put behind bars in order to protect society from them.
But it is also my view that through the neglect of our government and through a grossly irrational set of priorities, we are dooming today tens of millions of young people to a future of bitterness, misery, hopelessness, drugs, crime, and violence. And, Mr. Speaker, all the jails in the world — and we already imprison more people per capita than any other country — and all of the executions … in the world will not make that situation right.
We can either educate or electrocute. We can create meaningful jobs, rebuilding our society, or we can build more jails. Mr. Speaker, let us create a society of hope and compassion, not one of hate and vengeance.
And in 1991, Sanders spoke out against tough-on-crime laws, particularly the 1991 crime bill, in another floor speech:
Let us be honest: This is not a crime prevention bill. This is a punishment bill, a retribution bill, a vengeance bill.
All over the industrialized world now, countries are saying, "Let us put an end to state murder, let us stop capital punishment." But here what we're talking about is more and more capital punishment.
What we're discussing now is an issue where some of our friends are saying we're not getting tough enough on the criminals. But my friends, we have the highest percentage of people in America in jail per capita of any industrialized nation on Earth. We've beaten South Africa. We've beaten the Soviet Union. What do we have to do, put half the country behind bars?
Mr. Speaker, instead of talking about punishment and vengeance, let us have the courage to talk about the real issue: How do we get to the root causes of crime? How do we stop crime, which is in fact a very, very serious problem in this country?
These last two speeches in particular showed a sentiment that Sanders has repeated during the 2016 campaign: To address the problems facing minority communities today, America will need to focus on far more than criminal justice policies — and offer significant economic opportunities in neighborhoods that have been abused and neglected for decades.
Still, Sanders voted for the crime bill, largely because it included some provisions that he strongly approved of, like the Violence Against Women Act and a 10-year assault weapons ban. And he backed more funding for police, which the 1994 law included and remains a popular way to fight crime among liberals and conservatives.
But in other instances, Sanders voted against tough-on-crime measures. He voted against the 1991 crime bill. He voted against banning Pell grants (for college) for prisoners. He voted to amend the 1994 crime law to ban the federal death penalty. And he voted against the Anti-Terrorism and Effective Death Penalty Act of 1996, which stripped defendants and prisoners of their ability to contest court rulings — even when the rulings may be unconstitutional.
But mostly, Sanders didn't really seem to care much about criminal justice policy. To him, the root of many of America's problems, including crime, has always been the economy and economic inequality in particular. The tough-on-crime push never fit into his ideals.
Clinton was genuinely a tough-on-crime politician
So how does Sanders's record and rhetoric compare with Clinton's?
Historically, Clinton has been much tougher and more punitive on crime. It wasn't until last year that she finally acknowledged the 1994 crime law went too far. As recently as 2008, Clinton's campaign aides played the "soft on crime" card against then–presidential candidate Barack Obama by saying he's too liberal and out of touch for opposing mandatory minimum sentences.
Clinton also talked up the 1994 crime law before it passed, as BuzzFeed's Andrew Kaczynski reported:
This bill would have put more police on the street, would have locked up violent offenders so they never could get out again, would have given more prison construction money available to the states and as well as the federal government, but also would have dealt with prevention, giving young people something to say yes to. It's a very well thought-out crime bill that is both smart and tough.
But Clinton has drawn particular ire for comments she made in 1996, when she said, "It's not just gangs of kids anymore. They are often the kinds of kids that are called superpredators — no conscience, no empathy. We can talk about why they ended up that way, but first we have to bring them to heel."
The comments, based on now-debunked research, have drawn criticism from racial justice activists, many of whom see the term "superpredators" as playing into racist stereotypes about dangerous black criminals. But moreover, it showed exactly where Clinton was back in the 1990s — she publicly supported her husband's tough-on-crime measures back then, including the 1994 crime law and the Anti-Terrorism and Effective Death Penalty Act of 1996.
Clinton's record and rhetoric seems racially charged and overboard to many Americans today — now that we know crime started to dramatically drop in the 1990s and the mass incarceration policies passed in that decade played a tiny, if any, role in that drop while imposing enormous costs both financially and to civil liberties.
But it was a fairly mainstream view back in the 1990s, as criminal justice expert Mark Kleiman explained in a Washington Monthly piece you should definitely read:
No one knew then that we'd seen the worst. All we knew is that the number of murders had more than doubled, that the total number of violent crimes had increased six-fold in the previous thirty years, that no reversal of trend seemed to be in sight, and that the street-level arms race financed by the crack trade had expanded the age range of killers and their victims down into adolescence. If you weren't seriously worried about crime in 1994, you just weren't paying attention.
Still, the fact remains that Clinton was absolutely "tough on crime" in the 1990s. And while Sanders voted for the 1994 crime law, the record suggests this was more of an outlier for him in a record that was and remains much softer on crime.
Looking back at this record is important because it can show how candidates will act in the future. If candidates who were supposed to represent liberals and progressives got caught up in Republican-led rhetoric about crime and incarceration, who's to say they won't if a crime wave occurs once again under their watch?
From that view, Clinton's full embrace of the tough-on-crime rhetoric becomes much more alarming, and Sanders's apparent resistance becomes a little more noteworthy.