One of Rand Paul’s emerging angles in his hoped-for race against Hillary Clinton is to put the former Senator and Secretary of State on the line for her husband’s role creating the system of mass incarceration which many on both sides of the political spectrum now believe was either a mistake or at least should be reined in. “I’ll ask Hillary Clinton,” he said earlier this week, “what have you done for criminal justice? Your husband passed all the laws that put a generation of black men in prison. Her husband was responsible for that.” I think as a practical matter it will be a tricky and perilous proposition to hold Hillary Clinton responsible for things her husband did more than 20 years ago. (Husband being a different person from her and Clinton being a man she is somewhat demonstrably not able to control, etc.) But as Ed Kilgore rightly notes here, this is an almost comical distortion of the history of the last forty-plus years in the United States, one which he seems to be banking on a younger generation not remembering and reporters being either to lazy or stupid to contradict.
Let’s start with some basic history.
I’ve written a lot over the last two or three years on the massive effect on the nation’s politics and culture brought about by the late 20th century crime wave which began in the early 1960s and then unexpectedly crested and fell in the mid-1990s. It began unexpectedly and dissipated even more unexpectedly. Even now we have very few good explanations for why either happened, though I think it is increasingly difficult to ignore at least some significant role for lead poisoning as a driver of the mayhem. Fear of violent crime, melded together with urban riots and changing cultural mores was a key driver of the backlash politics of the early 1970s and increasing conservative and Republican dominance of US politics through the 1980s and 1990s.
Though we like to think of the Supreme Court as immune from the swirls of public opinion, probably nothing better captures the whipsaw in the public mood than what turned out to be the Court’s temporary abolition of capital punishment in the mid-1970s. So why did we end up with a massive prison population in the US? The simple answer is two or three decades of populist law and order politics which drove the state and federal governments to the right and led them to pass legislation which tightened drug laws, lengthened sentences, expanded the scope of the death penalty and increasingly restricted judges’ sentencing flexibility. The main action was always at the state level – since that’s where the overwhelming number of crimes are prosecuted and where the overwhelming number of prisoners are incarcerated. Saying that mass incarceration is something that Bill Clinton did is about on par with claiming that Richard Nixon founded the environmental movement because, in an effort to gain freedom of action on other issues he cared about, he did sign many of the cornerstone pieces of environmental legislation in the early 70s.
Kilgore captures the essence of the 1994 crime bill here …
Really? Was Bill Clinton governor of all the states that enacted “three strikes” laws or abolished parole (a big GOP fad in the 1990s) or enacted other types of mandatory minimum sentencing laws?
As for Bill Clinton’s responsibility for the 1994 crime bill, which federalized a lot of drug offenses and set up a federal (not national, but federal) “three strikes” law, the bill was one of those unwieldy compromises that also included an assault weapons ban, the Violence Against Women Act, and funds to promote community policing. Was this somehow Bill Clinton imposing his will on a reluctant Congress? Since the 1994 crime bill originally passed the House on a voice vote and passed the Senate 95-4 (the final conference committee reports hung fire mainly because of GOP opposition to the assault weapons ban and “social spending” for things like midnight basketball), I don’t think so.
More to the point, while there’s evidence for and against Bill Clinton’s partial responsibility for the mass incarceration wave that began in the 1980s and spread in the 1990s, you’d be hard-pressed to find more than a few Republicans who were not loud, avid, jumping-up-and-down cheerleaders for the trend. So if Rand Paul wants to play the blame game instead of praising and encouraging a bipartisan movement for criminal justice reform, there are going to be a lot of his fellow Republicans in the dock.
As I said, as a political matter, I don’t think Rand’s going to make much headway with this argument, given the dynamics of the Clintons’ relationship and the fact that these are things that happened twenty-years ago and which Clinton himself now says were bad policy. Just as importantly, Clinton does bear a measure of responsibility for the current state of mass incarceration in America. But maintaining some semblance of an accurate history of the era trumps all these points.
Much of Clinton’s presidency was built on triangulation and coopting or going along with various Republican policy initiatives in his quest to maintain his own political viability – in order to get reelected. This is the origin of his signing the Defense of Marriage Act, his decision to sign the far more punitive welfare reform bill passed through the Republican Congress and a lot else. This is the main reason why he was always at best tolerated on the left during his presidency. In the late 80s and early 90s support for the death penalty was the signature way for Democrats – particularly those who had national political ambitions like Clinton – to signal they were tough on crime. And in the lead up to his nomination in 1992 he went out of his way to make clear he supported capital punishment and that he had overseen executions in Arkansas. But anyone who was around in the 90s remembers the 1994 midterm where Republicans around the country railed against Clinton and the Dems for “midnight basketball” welfare for gangbangers and all the rest.
Indeed, what makes Paul’s nonsense so maddening is that it really amounts to the same people who were banging drums for what we now call mass incarceration in the 1980s and 1990s now banging the drums to blame someone else. A critical issue to understand about the transformative role of criminal justice politics in the late 20th century is that it was based on a crime wave that was quite real. It was inflated by demogography and racialized fear-mongering but it was based on a hard, statistically demonstrably reality which had a profound effect on Americans sense of safety and their beliefs about the well-being and stability of the society they lived in.
This simple chart plotting the rise and fall of the rate of murder – the ultimate crime – makes the point quite clearly.
It is equally true however that it was a cudgel employed overwhelmingly by Republican to press a highly racialized scare-mongering which was the prime cause of the mass incarceration boom. Let’s look no further than Paul’s biological and ideological father Ron Paul and the notorious newsletter he published during the key period in question.
Some samples: A December 1989 newsletter quoted by Jamie Kirchick in the New Republicpredicted “Racial Violence Will Fill Our Cities” because “mostly black welfare recipients will feel justified in stealing from mostly white ‘haves.’ “
Another letter said “I think we can assume that 95 percent of the black men in that city [Washington] are semi-criminal or entirely criminal.”
An August 1992 edition of the Ron Paul Report labeled former Rep. Barbara Jordan (D) of Texas “the archetypal half-educated victimologist,” according to the Houston Chronicle.
No doubt, Bill Clinton has much to answer for.
The history of mass incarceration in the United States came from a generation of law-and-order populist politics from the right, overwhelmingly from Republicans but eventually joined by many Democrats, pushing longer sentences and more automatic sentencing. Many Dems went along with it. And they should answer for that. But it was a cudgel Republicans used to win elections and grow their majorities at the state and national level. The 1994 Crime Bill was an important but relatively small part of the overall story. At most it helped accelerate a trend that had been galloping along since the 80s and mainly happened at the state level. Clinton’s responsible for his signature. But Paul’s ridiculous distortion of history – palpably bogus for anyone who had their eyes open in the 80s and 90s – still shouldn’t be allowed to stand. Give him credit for pushing criminal justice reform in a party that is still largely hostile to it. But his distortions of history, even recent history, are on par with the conspiracy theories he’s also notorious for spreading.