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Did Hillary Clinton support a “white supremacist” crime bill?

My colleague Andrew Prokop has an absolute must-read analysis of Hillary Clinton's meeting with Black Lives Matter activists in New Hampshire last week (a video of which was published online yesterday). But to my mind, the heart of the conflict between the activists and Clinton in the video — and their less than enthusiastic reaction afterward — wasn't about approaches to politics in the present. It was about the 1994 crime bill that Clinton enthusiastically supported and her husband signed — and how Clinton views that bill now.

The crux of the conflict is this: The activists see the 1994 crime bill, and the "tough-on-crime" agenda more generally, as "extensions of white supremacist violence against communities of color." Clinton agrees with them that the criminal justice system needs to be reformed, but refuses to accept that characterization of the bill.

At first, she characterizes it as something that made sense at the time but might not make sense anymore — a position her husband has also taken in offering a partial apology for signing the bill.

Clinton denies any racist intent in her crime policies

But when one activist associates the bill with a project of "white supremacist violence," Clinton buckles. She takes it as a statement about intent: that laws like the 1994 crime bill were deliberately passed out of malice toward black communities. And so she counters that she and her husband were deeply concerned about black victims of crime, and were simply acting out of a desire to protect them:

there was a very serious crime wave that was impacting primarily communities of color and poor people. And part of it was that there was just not enough attention paid. So you know, you could argue that people who were trying to address that—including my husband, when he was President—were responding to the very real concerns of people in the communities themselves.

This is an important point: Many black Americans, including black leaders, welcomed "tough-on-crime" policies as a way to protect their communities. A majority of the Congressional Black Caucus voted for the 1986 law that created the sentencing disparity between crack and powder cocaine. And in 1994, it was the CBC that saved President Clinton's crime bill after an unexpected loss on a procedural vote.

This is a history that's been largely forgotten, partly because many of these leaders regret their positions now or — like former Rep. Kweisi Mfume — deny that they supported the bill at all. And in fairness, there was plenty of black opposition to tough-on-crime policies. There are probably good questions to ask about who is trusted to speak for black communities, and whether black leaders felt politically pressured to denounce the crime in their midst as a condition of being taken seriously.

But they certainly weren't white supremacists. Clinton was correct. Yet it's not clear that she was answering the right question.

Consequences matter more than feelings

The problem is that the conversation isn't clear whether "extension of white supremacist violence" is about the intent of these policies or their consequences. This is a common problem with discussion of racism: Structural racism isn't about feelings in individuals' hearts, it's about systems and outcomes. But it's easy to slip from talking about systems to talking about people, and that's what happened here.

Personally, I think the intent simply doesn't matter. Clinton herself said, "You don't change hearts. You change laws." What matters is the external reality, not the feelings of the people who create it; caring about people will not save you from making policy choices that will hurt them. And — especially with hindsight — it's possible to see that the consequences of the 1994 crime bill, as well as the tough-on-crime laws it encouraged states to pass or keep, were part of a system that has created widespread immiseration in black America.

Those consequences may have been intended or unintended. But people often confuse "unintended consequences" and "collateral damage," and the damage done by the bill wasn't collateral. By 1994, the crime wave had already peaked; the crime rate was starting a quarter-century of decline. Increased incarceration is responsible for a small fraction of that — but by 1994, the people being put in prison, on the margin, had long since stopped being the people who posed a serious threat. The suffering caused by the bill wasn't a caveat, it was the primary consequence of its passage.

The question: What has Clinton learned?

When Clinton asked the activists to put forward policies of their own that they could demand she and other politicians get on board with, they refused. Because they want Clinton (as well as Bernie Sanders, who voted for the 1994 crime bill, and Martin O'Malley, who built a tough-on-crime regime as mayor of Baltimore) to show that she has educated herself about the problem. Dismantling mass incarceration won't just take reforms (not all of which make for politically appealing talking points); it will need a resistance to making the same sort of mistakes over again in the future.

As far as I'm concerned — and the activists who confronted Clinton might disagree — Clinton doesn't need to show she's changed her heart. But she does need to show that she has learned, and changed her mind.