So who’s right?

The Facts
The crime bill had many provisions, such as giving states funds to hire an additional 100,000 police officers, but one part is especially important to this issue. The bill earmarked $8.7 billion over six years for states to build more prisons. About half of that was available to states that enacted “truth-in-sentencing” laws, which curb paroles and required people convicted of violent crimes to serve at least 85 percent of their sentences.

Even at passage, experts said the bill would likely continue a trend of longer prison terms since Justice Department data at the time indicated that people convicted of violent crimes served an average of 55 percent of their sentences.

“While there is no guarantee that the federal government will continue paying for prison construction beyond these next six years, the state sentencing laws will no doubt remain on the books, continuing to increase the prison population,” the New York Times noted when the bill was approved.

Biden’s full remarks are worth quoting in full, though parts are garbled:

“Folks, let’s get something straight. 90/92 of every 100 prisoners behind the bars is in state prison, not a federal prison. This idea that the crime bill generated mass incarceration, it did not generate mass incarceration. The only bill, that bill had $30 — it was $30 billion dollars. $10 billion went to making sure there was rehabilitation, that it was for prevention — that’s what it was about. Secondly, the court, I made sure there was a set up in that law that said there were no more mandatories, except two that I had to accept. One was the President Clinton one of three strikes and you’re out. It was of this entire bill. It included the Violence Against Women Act. It included the gun control efforts, as well as included — anyways I won’t go into it, it’s raining — but here’s the deal. What happened is the mass incarceration incurred by the state setting mandatory sentences.”

 Essentially, Biden’s point is that 1994 law applied to federal crimes — and all but 10 percent of convicts end up in prison on state charges.

But recall that the bill encouraged states to build more prisons — with more money coming to them if they increased penalties. The law was part of a wave of anti-crime measures, which included the 1984 Sentencing Reform Act, which added significant mandatory minimums for many federal crimes and abolished federal parole, and “three-strikes-and-you-are-out” laws for habitual offenders.

The 1994 crime bill included an unusually tough federal “three-strikes” provision that required mandatory life imprisonment without the possibility of parole for those who commit a federal violent felony if they had two or more previous convictions for violent felonies or drug trafficking crimes, even if the first two were at the state level.

In 2016, responding to a protester, Clinton blamed the sentencing provisions in the law on Biden. “Vice President Biden . . . he was the chairman of the committee that had jurisdiction over this crime bill,” he said. “Biden said, ‘You can’t pass this bill. The Republicans will kill it if you don’t put more sentencing in.’” (The Biden campaign provided a news clip from 1994 in which Biden called the three-strikes provision “wacko” and reflective of the “tough-on-crime attitude” of Congress.)

Inimai M. Chettiar, director of the Justice Program at New York University’s Brennan Center for Justice, said there was no single factor that led to an increase in incarceration, but one cannot exclude the impact of the crime bill.

“It’s not helpful to talk about one cause, but it does not mean federal policy does not matter,” she said. “The federal government gives funding to states to get them moving in a certain direction,” such as building more prisons.

“Federal dollars have helped buttress mass incarceration for years, most notoriously through the Violent Crime Control and Law Enforcement Act of 1994,” said a 2019 Brennan Center report. The report also notes that “the 1994 Crime Bill is justly criticized for encouraging states to build and fill new prisons.”

Lauren-Brooke Eisen, also of the Brennan Center, said the federal money galvanized the prison construction boom, with the number of prisons rising 43 percent from 1990 to 2005.

“While the precise impact of the grant program is hard to quantify, the law’s passage, and the concurrent or subsequent passage of at least 20 state ‘truth-in-sentencing’ laws, marked a turning point in the length of sentences served nationwide,” she said, pointing to a 2012 Pew Center study of 36 states that found that the average length of stay for offenders released from prison in 2009 increased 36 percent from 1990, with nine states reporting increases of over 50 percent.

To some extent, then, Biden is erecting a straw man by claiming that people think the crime bill caused mass incarceration. Virtually no expert says that.

“Biden is correct that the crime bill did not cause mass incarceration,” Chettiar said. “But he is wrong that it was not a contributing factor. The way Bill Clinton framed it is more accurate than the way Joe Biden is framing it.”

Indeed, Clinton acknowledged that federal policy set the trend.

“In that bill, there were longer sentences. And most of these people are in prison under state law, but the federal law set a trend,” Clinton told the NAACP. “And that was overdone. We were wrong about that. That percentage of it, we were wrong about.”