Know who’s got more responsibility for mass incarceration than Hillary? Bernie Sanders

With the primary election contests finally moving on from those centers of ethnic diversity, Iowa and New Hampshire, the attacks on Hillary Clinton are taking on a bit of color. By that I mean I can’t open a social media feed without seeing someone screaming about how Hillary Clinton destroyed the social fabric of the black community, in large part because she impliedly supported the 90’s policies that led to mass incarceration. I say impliedly because she was not an elected official and we don’t have a recorded vote for her on the issue, but it wouldn’t be surprising if she did support them. In 1994, those policies enjoyed widespread popularity; basically everyone supported them.

The policies being referred to, the ones that helped our nation’s path to the mass incarceration crisis we have today, were part of the Violent Crime Control and Law Enforcement Act. Among other things, it instituted the assault weapons ban that is continually discussed today, increased penalties for gang violence, provided federal money to build prisons as well as other “alternatives to incarceration”, created and funded a host of grants for different aspects of policing and police hiring, created the Violence Against Women Act and funded battered women’s shelters, created sex offender registration, funded drug treatment and DNA analysis, and provided several granting entities for programs at schools and parks and to create economic opportunities in disadvantaged areas. It also threw the federal government behind the idea of life imprisonment after “three strikes” after “serious violent felonies” or “drug trafficking.” [1]

Introduced in the first session of the 103rd Congress (1993), the House bill had three sponsors, all Democrats, including then Rep. Chuck Schumer (NY). The sponsors of the Senate version included three Democrats and a Republican. The lead sponsor was none other than Joe Biden (DE).

It is difficult to overstate the amount of support these policies had. The original bill passed the House by voice vote and passed the Senate 95 to 4, with two Democrats and two Republicans voting against. The final vote taken occurred in the Senate in August 1994, when the measure passed 61 to 38. After 10 months of wrangling things had become much more partisan, but contrary to what you might guess based on current thinking, this was because conservatives had stopped supporting it. Of the 38 senators voting against the bill, only two were Democrats, one of whom is the still serving Alabama Republican Senator Richard Shelby. Aside from Biden, noteable Democratic “Ayes” included John Kerry (MA), Paul Wellstone (MN), as well as the “Lion of the Senate”, Ted Kennedy (MA). It also included Carol Moseley-Braun (IL), who was then only the second black senator elected since Reconstruction (and to date the only black woman elected to the Senate) and Bill Bradley (NJ) who went on to become the liberal darling alternative to Al Gore for the 2000 presidential nomination. [2]

In the final House vote a few days prior, the measure also passed largely on party lines, with roughly 75 percent of Democrats voting for and 75 percent of Republicans voting against. Lest you think that the defecting Democrats en masse represented some cinematic liberal stand, those numbers include a who’s who of the members who would switch to the Republican Party in 1995 or who that same year would go on to form the conservative Blue Dog Coalition. [3]

It’s worth taking the time to pull out the votes of the Congressional Black Caucus members, since if anyone was going to rail against something that would be so damaging to the black community, one would think it would be the members of the CBC. Of them, two thirds voted for the act, 24 for and 12 against. I pulled up the Congressional Record from the 103rd Congress to find out why. In short, people were concerned about crime, and felt it was something the federal government needed to address.

Among the 12 CBC members who voted “No”, most of them who spoke about it referred to their strict opposition to the death penalty, which the act expanded to dozens of other crimes, with a few members also referencing that the Senate had stripped out the Racial Justice Act, which would have allowed defendants to influence their own sentencing by using statistics showing racial bias in sentencing. These members were clearly not prescient of the fact that this act would combine with state factors to more than double the U.S. incarcerated population, from just over 1 million in 1995 to 2.2 million in 2014.

Interestingly, the CBC member who showed the most foresight in her speeches on the House floor also voted for it. Cardiss Collins (D IL) stated, “I have serious concerns about this bill that invests more of our scarce Federal dollars to build and fill prisons rather than to effectively address the problems that necessitate their construction, this bill that creates more ways to punish rather than to provide,” but noted, “there are a number of very beneficial provisions included in this conference report that I strongly support and that can help my constituents.” [4]

Republicans voted against the bill not just because it contained the ban on assault weapons, which the NRA had excoriated, but also because, as outlined by then-House Republican Leader Bob Michel, it contained “more than $9 billion in social welfare spending” (the school and community programs) as well as required “hiring quotas and other bureaucratic conditions” on grants for hiring police, because it did not expand the death penalty enough, and it did not do enough to build more prisons. In other words, the Republicans opposed it because the bill was seen as a big liberal sop to Democratic constituencies. [5]

But the vote I’ve waited to get to is the one you probably guessed at from the headline — the vote of Bernie Sanders, who was then in his second term in the House. Sanders voted “Aye” to the Violent Crime Control and Law Enforcement Act of 1994.

Why?! Why did he vote for something my Facebook feed believes is so abhorrent, so damaging, so deranged that it could have only come from the blackest, most purposeful hearts (the Clintons’, in case you lost track)? In his own words, “because, on balance, its positive initiatives to control crime outweigh the negatives.” [6]

So, am I saying that my hope is for everyone to flip around and start scorching earth against Sanders because of this, that his vote single-handedly caused this crisis, and that it defines him and what he stands for? No, because that’s idiotic. But the fact remains: Bernie Sanders voted for this act and Hillary Clinton did not. Sanders has as much responsibility for the current state of mass incarceration as anyone directly involved, in fact more responsibility than Hillary Clinton does.

My point is that all of the hatred and anger directed at the Clintons in general and Hillary Clinton in particular is largely based on convenient fictions and truly indicative of how mindless much of the Sanders surge has become. You don’t see these hate filled analyses directed at Joe Biden over his role as sponsor, nor at John Kerry or James Clyburn or anyone else for their votes.

Further, taking this attack’s logic to its conclusion while knowing any bare minimum of the facts would force the conclusion that there was a conspiracy by Democrats to injure an entire generation of black Americans. Oh, and that the CBC was in on it. I guess there might be Sanders supporters who would buy it — “something something, the Establishment!” And I don’t doubt that there are plenty of Republicans who would love for them to. But the idea that everyone saw or should have seen the repercussions of the crime bill back in 1994 is a giant pile of revisionist garbage.

The fact is, policy is complicated. It’s even tougher when you add politics, which are ever present in elected office, to the mix. Things aren’t easily accomplished and the consequences are not always clear. The one thing you can be sure of is that it’s going to continue to be that way. Don’t let magical thinking about Sanders’ simplistic policy pronouncements fool you into believing otherwise.

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[1] U.S. Department of Justice Fact Sheet, Violent Crime Control and Law Enforcement Act of 1994, Oct. 24, 1994. https://www.ncjrs.gov/txtfiles/billfs.txt

[2] Senate Roll Call Vote 295, 103rd Congress 2nd Session, Aug. 25, 1994

[3] House Roll Call Vote 416, 103rd Congress 2nd Session, Aug. 21, 1994

[4] Cardiss Collins (IL). “Waiving Points of Order Against Conference Report on House Amendments to Senate Amendment to H.R. 3355, Violent Crime and Control and Law Enforcement Act of 1993.” Congressional Record 140 (Aug. 11, 1994) p. H7956 (thomas.loc.gov)

[5] Newt Gingrich (GA). “Legislative Program.” Congressional Record 140 (Aug. 11, 1994) p. H7961 (thomas.loc.gov)

[6] Bernie Sanders (VT). “The Crime Bill Conference Report.” Congressional Record 140 (Aug. 11, 1994) p. H7909 (thomas.loc.gov)