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If Democrats want to repent for the 1994 crime law, here's one way to do it

Hillary Clinton last week repeated what's become a bit of conventional wisdom on mass incarceration: There's really not much the federal government can do, since states are to blame for most of the incarcerated population.

"We have to change what are the vast majority of decisions being made in local jails and state prisons in order to move this agenda forward," Clinton told BuzzFeed. "And the federal government can provide some incentives, like put more money into drug courts, put more money into services for people, so that you can then move states in the right direction, but states control their prison system."

Clinton is right: States house more than 86 percent of the prison population, so they are to blame for most of the problem.

But Clinton's comments also highlighted the role incentives can play in the criminal justice system. Of course, this is something Clinton should be acutely aware of: The 1994 crime law she supported and her husband signed into law provided financial incentives for states to build more prisons and impose longer prison sentences, showing the direct role the federal government can play. And now, one prominent criminal justice group is calling for the reverse: financial incentives to undo mass incarceration.

The plan, released Monday by the Brennan Center for Justice, a criminal justice think tank, has been dubbed the "reverse crime bill" and the Reverse Mass Incarceration Act. The plan comes at a very good time in the debate over mass incarceration: Since the two Democratic primary frontrunners — Clinton and Bernie Sanders — supported the now-controversial 1994 crime law, asking them about the Brennan Center's proposal in the first Democratic presidential debate could be one way to test how serious they are about undoing their contribution to making America the world's leader in incarceration.

How the Brennan Center for Justice's Reverse Mass Incarceration Act works

Although the prison population has generally declined in the US, not all states have seen equal declines — nearly half, in fact, have seen significant increases.
Although the prison population has generally declined in the US, not all states have seen equal declines — nearly half, in fact, have seen significant increases.
Brennan Center for Justice

The Brennan Center's Reverse Mass Incarceration Act takes a few big steps:

  • A new federal grant program that would provide $20 billion over 10 years to states to reduce their prison populations
  • A requirement, attached to the grant program, that states reduce their prison populations by 7 percent every three years without an increase in crime
  • A clear methodology based on state population size and other factors that could help determine how much money each state gets
  • A requirement that states invest these funds in evidence-based policies that have effectively reduced crime and incarceration

The Brennan Center characterizes these policies as a counterpoint to the past 50 years of federal policy, which has largely awarded local and state governments for longer prison sentences, more prisons, and more arrests. For example, the infamous Violent Crime Control and Law Enforcement Act of 1994 — which many Democrats, including Clinton and Sanders, supported — authorized $12.5 billion ($19 billion in today's dollars) in grants to fund or offset the cost of incarceration — nearly 50 percent of which went to states that adopted "truth-in-sentencing" laws that required offenders serve at least 85 percent of their sentences before they were eligible for parole, according to the Brennan Center.

One caveat is the Brennan Center's proposal provides incentives, not a mandate. A $20 billion grant program is a very powerful incentive, but if a state genuinely doesn't want to reduce its prison population, it probably won't. But if a state does want to act, the vague incentive structure also allows the state to take up various options — such as reclassifying some felonies to misdemeanors, mandating non-prison alternatives for certain crimes, and flatly reducing the length of prison sentences.

The Reverse Mass Incarceration Act would send a powerful message: It would be a direct acknowledgment that decades of tough-on-crime policies failed, as the research shows, to significantly combat crime — even as the US prison population exploded.

It also comes at a very critical time. Although the overall prison population has fallen in the past few years, the 2014 report from the Bureau of Justice Statistics indicates that many states are beginning to see their prison populations grow again or remain relatively flat — California in particular saw its overall prison population rise, although its incarceration rate dipped slightly, from 2013 to 2014. And there are many states, as the map above shows, that have seen their prison populations grow over the past three years. So new federal incentives could keep the trend toward de-incarceration going at a time when there are signs of slowdown.

But the plan also comes at a critical time in the political debate, given that there's a presidential race underway.

If Clinton and Sanders truly want to repent for the 1994 crime law, this is how

The podiums for the first Democratic presidential debate.
The lecterns for the first Democratic presidential debate.
Joe Raedle/Getty Images

Both Clinton and Sanders have indicated that they believe the 1994 crime law went too far, helping fuel a wave of mass incarceration. But both of them backed the law when it came to a vote in the 1990s.

Clinton has faced particular criticism for the bill, since she lobbied for it in the 1990s, and her husband signed it into law. "We need more and tougher prison sentences for repeat offenders," she said in 1994. "We need more prisons to keep violent offenders for as long as it takes to keep them off the streets."

Ironically, Sanders is the only Democratic presidential candidate who actually voted for the crime law in Congress, but he hasn't faced as much scrutiny for it. That's partly because almost everyone supported the law at the time. But Sanders was also quite critical of the bill's tougher measures, ultimately deciding to support the bill because it included some parts he liked — such as the Violence Against Women Act, which encouraged prosecutors and police to take domestic abuse and rape cases more seriously.

"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," Sanders said in 1994. "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."

Whatever Sanders and Clinton's reasons were for supporting the 1994 crime law, the point is they backed a law that helped lead to mass incarceration — which has now become a bit of a national crisis, making it one of the few issues that Democrats and Republicans are working together to fix.

But if all these lawmakers, including Clinton and Sanders, really want to repent for the federal government's past policies, the Brennan Center proposal offers a direct way to do just that.

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