Vision For Justice: The ’94 Crime Bill

Episode Transcript

Vanessa: Welcome to “Pod for the Cause,” the official podcast of the Leadership Conference on Civil and Human Rights and the Leadership Conference Education Fund, where we expand the conversation on the critical civil and human rights issues of our day. I’m your host, Vanessa Gonzalez, coming to you from beautiful Washington, D.C. Thanks for joining us today for this special episode that is a part of our series, “Vision for Justice.” Today, I am joined by two special guests, co-host Jesselyn McCurdy, and the Nkechi Taifa.

The leadership conference, in partnership with the Civil Rights Corps, released “Vision for Justice 2020 and Beyond,” a new paradigm for public safety, which is a comprehensive platform that provides actionable policies aimed at transforming our criminal legal system and changing the way we approach public safety in this country. “Vision for Justice” has been endorsed by 117 civil and human rights and social justice organizations, a number worth noting because of the reach it represents. The platform offers critical policy guidance for drafting robust criminal justice reform, such as amending the pre-trial process, public defence, prosecution, policing, and the criminalization of poverty. Please welcome my special co-host for today, Jesselyn McCurdy, interim executive vice president of government affairs for the Leadership Conference on Civil and Human Rights. Hey, Jesselyn.

Jesselyn: Thank you, Vanessa, for having me today. We’ll be discussing the 1994 Crime Bill, which contributed deeply to our current crisis of mass incarceration and criminalization, de-stabilizing an entire generation of families in the United States with an especially destructive impact on Black and brown communities. In order to right the wrongs that have come as an effect of this bill, “Vision for Justice” seeks to transform the criminal legal system away from a paradigm of punishment, decarcerate the United States, and redirect billions of dollars into the communities most impacted by policies of mass criminalization and mass incarceration. On today’s episode, we’ll be joined by Congressman Bobby Scott, who has represented Virginia’s 3rd Congressional District since 1993. And in full disclosure, I have to say that I am a former staffer of Congressman Scott’s, worked with him on the House Judiciary Committee, and we work together on the Fair Sentencing Act of 2010, which is the bill that reduced the disparity between crack and powder cocaine. And so I am a fan of representative Scott and will always forever be Team Scott. So thank you, Congressman Scott, for coming on the podcast today.

Bobby: Thank you, it’s good to be with you.

Vanessa: Since you all work together, I expect some good stories. Let’s hear ’em.

Bobby: Nice try.

Jesselyn: Right. Never, never. That’s part of being Team Scott, really, no stories.

Vanessa: So let’s talk about the ’94 Crime Bill, big one. It’s one that everybody hears in the news. The ’94 Crime Bill, Mr. Scott, was passed during your first term as congressman, and you voted against it. But the vote was really popular. So it was 95 yaes, 4 nos, and 1 person not voting. Can you tell us why you voted against it? And why do you think at that time there was so much support for this Crime Bill?

Bobby: The Crime Bill fit nicely into the paradigm, when you deal with prime policy, that you have to really start with a choice. And that’s the purpose of the legislation. Are you trying to reduce crime and save money by following the evidence and research, or are you trying to codify a bunch of simple-minded slogans and soundbites to try to help politicians get elected? What do you do the slogans and soundbites? You end up doing nothing about crime, wasting the taxpayer’s money, and increasing incarceration to the point where you’ve got mass incarceration. And regrettably, most of the people, when the dust settled, chose to follow the slogans and soundbites because the evidence that research was clear, this bill wasn’t designed for evidence and research, it was just poll-tested slogans and soundbites. I think most people knew it, but that’s the choice people were making.

I mean, if you look at some of the provisions, Three Strikes and You’re Out.” You were told the Three Strikes You’re Out was the number one best vote-getting slogan or soundbite you could blurt out in the ’94 election cycle. It’d beat anything you could say about Social Security, health care, the environment. Three Strikes and You’re Out, life without parole, got you more votes than anything else. But if you look at the policy, you’re spending money, incarcerating senior citizens, some of whom are so old they can’t get up and down the cellblock without their walker, spending all that money on them, and what effect does that have on crime in the street? And this just made no sense to begin with. I asked one witness…if it’s to have any effect, it’s to incapacitate somebody who would otherwise be committing a crime. That is, someone who got caught committing a crime, went to jail, got out, got caught again, went to jail, got out, committed another crime, got caught, went to jail a third time, and rather than serve life without parole under three strikes, they got out and committed another crime. By having life without parole, you avoid that last crime. My question to the witness was, “How many people have been convicted for a third offense, got out under the present system, and committed another crime?” Okay. They said they’d get back to me. I’m still waiting.

Vanessa: I bet.

Bobby: We know from the evidence that the likelihood of recidivism is more a function of age of release than it is on length of the sentence anyway. I mean, if you’ve been busted and you’re a three-time loser, you’re gonna get some time. But the age of release is more of a factor than the length of the sentence. If you’ve served time, got out, serve time, got out, served time, got out, you are probably at the age where recidivism isn’t much of a factor. And so this thing could not have made sense on any level. And yet it was the number one vote-getting slogan of the ’94 election cycle.

That was in there, 66 new death penalties. We know the death penalty has been studied and shown it have no effect on crime. Mandatory minimums, we know they’ve been studied. They have shown to do nothing to reduce crime, waste of taxpayer’s money and discriminate against minorities, and from time to time, required judges to impose sentences that violate common sense. There was nothing in there that made much sense on the criminal law side. We did get in there significant authorization for prevention programs. Well, that’s also when we learned the difference between authorization and appropriation. They authorized about $5 billion in prevention programs. I don’t think we got much more than a couple hundred million actually appropriated. And that kind of dissolved over the years.

But nobody had much confidence in doing anything other than being a political vehicle. I mean, right now, it was the Clinton Crime Bill, and President Clinton doesn’t even try to defend it. It was supposed to be one of the first bills he signed, but there were a handful of us on the Judiciary Committee, handful of Democrats, that wouldn’t vote for it. All Republicans were voting against it because it was a democratic initiative, and they needed virtually unanimity on the democratic side. There were handful of us that wouldn’t vote for it, and they couldn’t get it out of committee. So instead of being one of the first bills, it was well into the next year before they could figure out how to get it to the floor because we just wouldn’t vote for it. You know, the choice of politics over substance was something we just weren’t going for.

Vanessa: That is, I think, an excellent point. It would be great for people to remember that in recent days and recent votes. You talked about the age of recidivism and when that is a factor. In the last “Vision for Justice” episode that we did, we talked about the intersectionality and the need to respect people as people. And that this is not just laws written in black and white, and it goes away, this has a detrimental impact, particularly on the Black community and generations of the Black community and the brown community to some extent. But what we laid into was that folks who are incarcerated, whether it’s under the three-strike rule or other reasons, when they come back out, because we as a country have not invested in them as a human, as the potential that they hold, and as a community, it continues this intersectional landslide. It’s very difficult to recoup from that. So can you tell us a little bit about that age of recidivism, and what you think we should be doing better?

Bobby: Age, as a factor for recidivism, means the older you are, the less likely you are…you get to an age where you just don’t have the energy to go out gangbanging. And after a while, it just occurred to you that the life of crime just didn’t pay. And so you’re less likely to be recidivous. Young people get in, get out and, you know, just join the gang again, and they’re back in trouble. But one of the problems, if you have somebody in jail on one of these long mandatory minimums, after a while, it seems to me that the person being released ought to be better educated, better ready for employment than they went in. But when they essentially abolished parole, you know the day you’re gonna get out. The day you walk in, you know the day you’re gonna get out. You do not improve your chances of getting out early by getting job training. You do not reduce your sentence significantly by doing any of the things that you would want done. That’s under the old parole system.

You can get a little bit of credit, but not nearly as much as you could under the old system where if you went right to it and got a good education and some job training and presented a good release plan where you’ve got a job lined up, you’ve got somewhere to be, you’ve got a support network where you’re much more likely to make parole, you could get out significantly earlier than others that didn’t go through all that. If you leave better educated than you went in, the chance of you coming back are much less. But again, we fell victim to slogans by eliminating the opportunity for prisoners to get Pell Grants to go to college.

Vanessa: Wow.

Bobby: It used to be, yeah, you know, you got a Pell Grant. You don’t have any income, so you obviously qualify, you can get the local college to come in, teach college courses, or if you can figure out a way to do distance learning, you could get a college education. I mean, you’re there 5, 6, 7, 10 years full time, but what did we do? We fell victim to the response, “If my child can’t get a Pell Grant, the prisoner shouldn’t get a Pell Grant.” Well, that makes sense. There goes the Pell Grant. Notwithstanding the fact that you reduce crime so much by getting a college education that you save more money and reduce future prison costs than you spend on a Pell Grant. Plus you reduce crime. So you increase crime and you waste money. But like I said, it’s the choice you make. You know, you go with the slogan and soundbites. That was one of the casualties. We finally, just last year, got Pell Grants for prisoners reinstated. That’s, you know, almost 25 years later, finally got it reinstated. You know, when you become chairman, the things you can do.

Vanessa: Elections matter, elections matter.

Bobby: If you stay around long enough. So we just put it in the legislation. It’s kinda hard to argue that an initiative that reduces crime and saves money is a bad idea.

Vanessa: Right.

Bobby: So it’s stayed in there and now our prisoners can have access to Pell Grants and reduce the chance that they’re gonna come back after they’re released.

Vanessa: Wow. Well, thank you for that. I know my co-host has a question all lined up for you and some history she could probably share in her own. Jesselyn?

Jesselyn: So, Mr. Scott, I just wanna ask you about this. We’re seeing, at least if you listen to the news, a rise in crime. Like what happened in the 1994 Crime Bill, politicians often have a knee-jerk response to a rise in crime. Can you talk to us a little bit about how we don’t make the same mistakes that we did in 1994 and how we address this potential rise in crime and not do it in a way where we create this generation of mass incarcerated Black and brown people?

Bobby: Okay. If the crime is increasing, the first question ought to be, why, you would find out, and then what are the evidence-based ways of reducing it, cost-effective ways of reducing it? If crime is going up, evidence shows that a summer jobs program will reduce crime, so much so than in the Chicago study, I think they saved more money in reduced anticipated criminal justice expenses, they saved more money than they spent on the jobs program. Now, who would be against an initiative that reduces crime and saves more money than you spend? I mean, the alternative would be to spend money in order to increase crime. Well, actually, if you follow the evidence and research, you eliminate most of the debate. I’ve seen some analysis where you go to great lengths to debate whether the initiative did anything at all.

We keep hearing about Project Exile up in Richmond for five years mandatory minimum for using a gun in a crime, and at least five years in prison. Well, they point out that the crime rate in Richmond went down after they did it. Okay. They don’t say that in Norfolk, Chesapeake, and other cities in Virginia, similarly situated, the crime rate went down more. So, I mean, if you’re gonna be honest with the numbers, the fact that you had five years mandatory actually increased the crime rate. But you’re arguing whether it made any difference. In the entire analysis, in the entire debate, you don’t hear a word about how much it costs. Everybody’s gonna wait for 5 years mandatory and $50,000 each is $250,000. You know, how many people are you sending away before you can argue that you had an impact on crime?

And what else could you have done with that money? I mean, you could have had a jobs program, you could have had a summer recreation program, you could have had all kinds of other uses for that money, unlimited money, if it made any difference at all. And it’s debatable whether you increase crime or decrease crime, people are promoting that initiative and ignoring all of the initiatives where the crime rate could have actually gone down, you could have saved money, a much better cost-benefit analysis. But the problem that we have when crime is on the increase, you never stop to analyze, what is the most cost-effective way to reduce crime?

Texas went through this process. One of the things that’s helping us out of the argument is that some of this foolishness just costs too much. Texas legislature appropriations committee was having a little hearing and they were told by the experts that they would have to appropriate $2 billion as one state, $2 billion for prison expenses to keep up with their growing prison population, $2 billion. And somebody said, “Well, maybe if we spend about 10% of that intelligently, maybe we wouldn’t have to spend all $2 billion.” So they put the money into prevention, early intervention, and rehabilitation. And after a little while, they looked up, they reduced crime so much they didn’t need to build any new prisons. In fact, they were able to close some of the prisons they had. That creates an interesting coalition, all the people that like an intelligent crime policy and people that like to save the better part of $2 billion.

They have cut out the foolishness in terms of massive mandatory minimums and life without parole, and Three Strikes You’re Out, and all the foolishness that helps people get elected. And they’re using an intelligent approach and just simply reducing crime and saving money. If there is an increase in crime, and there is debate about that, you have to look and see, what are the root causes? Why is it going up? And what intelligently can be done effectively to reduce the crime rate? Once you get to evidence and research, and if you can agree upfront, well, let’s just follow the evidence and research and do something intelligent, then there’s not much debate because all of the simple-minded foolishness like mandatory minimums, life without parole, and all this other stuff, it never sees the light of day because it never made any sense to begin with.

Vanessa: So, Congressman, thank you for that. I think you’re really leaning in on if you do follow research, if you do look at the data, it’s very clear what the answer is. But I wanna ask Jesselyn as well because a lot of the stuff, for those of you who have not had the chance to work on Capitol Hill, a lot of the work is also done by staff who are experts in their area and who are working to move some of these historical pieces forward. And throughout this period of time, we think we’ve seen a change. I think, now, I can speak for myself. Sometimes you see the facts and the numbers in black and white, and you’re like, “Why would someone choose another direction?” On this podcast, we talk a lot about white supremacy being the foundation for our history, our country, and many of the systems which are impacted. We continue to have that conversation. Even the most recent conversation, education around critical race theory, itself is based in that lens, right? So, Jesselyn, can you tell us a little bit about what it was like to be on the Hill during this time and what some of those conversations were?

Jesselyn: So when I was on the Hill, it was right after the Democrats…maybe a year after the Democrats took back control of the house in ’07, and I came in ’08. And so one of the things to me that was very striking about being on the Hill during that time was there were a lot of staff of color. I think that made a difference there. Obviously, there were a lot of members of color, but particularly the CDC and some of the other caucuses, but there were a lot of staff of color, particularly on the house judiciary. And that made a difference also in terms of moving forward some of these policies. And members like Mr. Scott, who as, you know, we have acknowledged has spent his whole career trying to end the policies that have resulted in mass incarceration. So that’s important too. But I think what we see now. And it’s interesting how the pendulum has shifted so dramatically, just honestly, in the past 10 years, but probably maybe even starting 15 years or so ago. And the pendulum has shifted so dramatically to how…For example, if you watch a House Judiciary Committee hearing or markup, just how contentious it is.

Vanessa: Yes.

Jesselyn: And really that is around definitely the white supremacy, kind of, hold that has gotten infiltrated into some members of Congress. Also, it is about the politics have really gotten so toxic. And I’ve seen the shift over the past so many years, and it’s really clear to me about one party trying to hold onto power and doing anything they can to hold onto power. Part of that is pandering to a base of people who are, in many cases, steeped in white supremacy theory and white supremacy actions. And that’s the biggest difference that I’ve seen. For example, I left the Hill and the Republicans took over control of the House. You even saw the difference in what the staff looked like. A lot of the staff of color had disappeared at that point and very much white staff there. And that makes a difference in terms of the policies that are put forward.

Bobby: You know, I think one of the things…Jesselyn mentioned, the change in attitude. I think one of the things that happened was that Jim Sensenbrenner, a Republican from Wisconsin, he was chair of the committee, I was the ranking member on the crime sub-committee, got together and put together a one-year study on the criminal justice system generally and came up with a lot of conclusions and then put a bill together called the SAFE Justice Act, which was evidence-based, start to finish. It eliminated a lot of mandatory minimums and took the evidence-based approach to crime. It actually received tremendous positive response, and that changed people’s attitudes because prior to that, it was considered dangerous to do anything intelligent about crime. You’re afraid of the 30-second commercial that you wouldn’t have the ability to respond to the Willie Horton kind of ad. And so if you did something intelligent, people would just assume, follow the slogan to soundbites and then move on to healthcare or some other issue, just don’t worry about crime. But I think that bill showed such phenomenal support. I remember going to a discussion, 700, maybe 1000 people in the audience, and the podium had a logo on it that flipped back and forth from one sponsor to the other, the ACLU, and then it would flip back to the Koch brothers.

Vanessa: Oh, wow.

Bobby: It showed that they had wide broad-based support. I mean, it covered everything from prevention, early intervention, a little policing, sentencing, prison reform, more services in the prison, second chance, from start to finish, all evidence-based. It was frankly so popular that I got caught up in politics. Everybody wanted to be in front of the line and just kind of…Well, it didn’t pass. But the First Step Act took some of it, and that did pass. And I’m no longer on the Judiciary Committee because I chaired the Education Labor Committee. My leadership isn’t there because I was insisting on evidence and research. And sometimes it’s tough. There’s old adage that no good politician votes against a crime bill named after somebody. Well, they’ve come up with name something after somebody, it doesn’t make any sense, I’m voting against it. I could be the only one voting against it, but you need somebody with that kind of nerve to be in the leadership if you’re gonna stick to evidence and research.

But I think that kinda let people know that it was safe to support legislation that was following evidence and research. The slogans and soundbites are now vulnerable to criticism for being the foolishness that it is, particularly in light of the expense that you might be incurring just locking people up without any regard to effect on crime. And too many jurisdictions have gotten to the point where they just cannot afford the foolishness. They have to do something to actually reduce crime. And people are talking about it. I mean, in the wake of the George Floyd, people are talking about allocation of money with criminal justice and prevention. That, unfortunately, has gone into a slogan, “Defund the police,” and people start debating the slogan rather than the substance. Are you gonna address the root causes or not? And that kind of thing.

I think we’re at the point now where we can actually follow the evidence and research without people feeling endangered. And that is a huge change, and the pendulum has gone, I think, in our direction where people could feel secure following evidence and research rather than being compelled to follow simple-minded slogans and soundbites just for political survival.

Jesselyn: I’m glad you reminded me of that collaboration between you and Representative Sensenbrenner. Would you say that was a turning point in discussions in Congress about reform of the criminal legal system? Because I know, again, when I first started working on this with the ACLU before I joined you, I spent like all day every day almost opposing bills that had new mandatory minimums. And now we’ve gotten to a point with your leadership that you’re hard-pressed to find a bill that proposes new mandatory minimums. Do you think the turning point was the collaboration between you and Mr. Sensenbrenner?

Bobby: During the years I was chair of the crime subcommittee, it was well known that if you wanted a bill to be heard, you better take all the mandatory minimums out of the bill. I mean, that was just…

Jesselyn: Wow.

Bobby: I mean, you weren’t even gonna get a hearing if you had mandatory minimums. And so that took care of that. But I think the really surprising and almost explosive positive support that the SAFE Justice Act was getting throughout the spectrum, the liberals, the conservatives, everybody was for it. Let people know that the times have changed, that coming up with a poll-tested slogan was not criminal justice policy anymore, that you had to follow the evidence and research. And I think that really set a new day. That’s where a lot of the policy right now is coming from. There’re not enough initiatives, and my judgment from the Judiciary Committee, we ought to be doing more and getting rid of the mandatory minimums.

It’s kind of difficult now, we’re just coming out of the pandemic. So the Judiciary Committee is just really beginning a lot of the work. Now, a lot of the work is not even in judiciary, it’s in education and labor, where we’re improving education, we’re trying to fund after-school programs and get people focused on job training. Those are the kinds of initiatives that steer people away from crime. If you can increase the graduation rate, the challenge in crime policy is to get somebody to graduate from high school and get into college or on the job. Because if they’re in college or on the job, the crime rate plummets. If they get out of high school, don’t have anything to do, that’s not a good sign. And so dropout prevention programs, summer jobs, summer activities are the kinds of things in the Education and Labor Committee that we’ve been focused on. Those are the kinds of things that actually make the difference.

People, we’ve got to recognize that the criminal justice system can respond to crime, but it doesn’t really have a good track record of reducing crime. You reduce crime by addressing the root causes. And you gotta respond to crime. When crime’s happening, you gotta have the police come in, you gotta have criminal justice system and all that. But if you really want to reduce crime, you have to address the root causes. And the challenge is to get young people graduating from high school either on the job or in the college.

Vanessa: We have these nice questions laid out, and you’re just hitting all the points before we even ask the question. But I do wanna talk about the beauty and the intersectionality of having you now over labor and ed. When you have the opportunity to link these things together, right, because again, to your point, research shows if you invest in communities in these programs, crime goes down, recidivism goes down, right?

Bobby: And you save money.

Vanessa: And you save money. Are you having a challenge getting your colleagues in Congress to understand these connections?

Bobby: We’re doing better. I think the appetite for foolishness in the criminal justice system…the appetite is just diminishing. The long mandatory minimums, people have figured out that’s a waste of money and it’s not doing any good. Before you even get to the racially discriminatory part, it doesn’t reduce crime and it wastes money. And to add insult to injury, it discriminates against minorities. In the United States Congress, the Juvenile Justice and Delinquency Prevention Act is in the jurisdiction of the Judiciary Committee in the Senate, but the education and labor committee in the house, which suggests that in the House, we think of a young person who’s getting in trouble, they must not be getting enough education, in the Senate, they must not be getting enough jail time. The fact that it’s in ed and labor in the House gives you an idea of what our focus is on reducing juvenile crime. We wanna get them on the right track and keep them on the right track with education and job training. That’s how you actually reduce crime on any kind of sustained basis.

Jesselyn: Mr. Scott, one of the things that the 1994 Crime Bill did was provide a lot of money to local jurisdictions to hire more police officers. You talked about the Defund movement. Had the 1994 Crime Bill never passed, what do you think the criminal legal system would look like today? And how do we, again, resist that knee-jerk response to respond to crime and really focus on re-imagining the justice system in America and not hire as many law enforcement officers like we did in 1994 and really look to creating a new vision for justice?

Bobby: Well, one of the things that the policing money was trying to do is to get localities to hire community police officers that were in the community, on the beat, getting to know people, rather than driving by and just responding to crime. We would like to have seen some of them used for PAL, Police Athletic Leagues and things like that, where they’re really working in the community on a positive basis. Defund the Police, I mean, if you get into the discussion, the words “defund the police” have meaning within the English language, you can’t have much of a discussion if you start with the slogan. But if you actually fund police appropriately and fund other programs, I mean, if you have a summer jobs program, you don’t need as many police, or if you hire police, have them run a summer recreational program, Police Athletic League.

You know, they talk about police in schools, all of the evidence shows that that is a major stimulus for the school to prison pipeline. They keep talking about, well, they shouldn’t be policing, they ought to be doing counseling, this kind of thing. Well, that’s what you want, then hire a counsellor. There was a major push in the ’94 Crime Bill to have community police officers be in the community. And I think they would have done a little bit to reduce crime because they’re in the community proactively working with people rather than just responding to crime.

But the problem with police, generally, is that they’re responding to crime. You want to reduce crime, you have to address the root causes. That’s how you reduce crime. You have to use the money effectively to address the root causes. When we know it’s a continuum of services, starting with teen pregnancy prevention so fewer babies are born into dysfunctional families, prenatal care reduces mental retardation and learning disabilities, nurse home visits right after birth, early childhood education has been shown to help young people get on the right track, keep them on the right track, positive education all the way through, after-school programs. Everything to get them on the right track and keep them on the right track have all been associated with lower crime rates. Waiting for kids to get in trouble and think the police and the criminal justice system can help you, it’s just not an effective strategy.

Vanessa: I want to be mindful of your time, sir, and respectful of your time. Mr. Scott, anything else that you want to leave us with?

Bobby: Like I said, you got to have police responding to crime, but most of the money needs to go in getting young people on the right track and keeping them on the right track, it’s a strategy that will reduce crime and save money. So you would think that wouldn’t be as much of a problem, but the slogans and sound bites and the poll-tested rhetoric usually carry the day. You know, no good politician votes against a crime bill named up to somebody, and so we have to keep pushing the idea that you address the root causes of crime, and that is the effective cost-effective way of actually reducing crime and usually saving money in the process. You have to have courage of your convictions because a lot of people think it’s dangerous to be intelligent with crime policy. I think you have to be simple-minded and follows the slogans and sound bites, but I think the response to the SAFE Justice Act, the response to the First Step Act have shown that an intelligent cost-effective approach to crime, where we reduce crime and save money, can be a nice place for politicians to land. We have to keep up the work because there’s the tendency to slip back into the slogans and sound bites, but with the help of a lot of organizations, like the leadership conference, we should be able to stay on the right track.

Vanessa: Oh, thank you, thank you, thank you, Mr. Scott. Thank you so much for not only your time today. Thank you for an entire career connecting to taking care of our communities and connecting the dots. And making sure people actually believe in science. Science and numbers and research, these are good things. And we can only hope that we will see a change in that many of your colleagues will agree with you and continue down that pathway. So thank you again, Congressman Scott, we’re appreciative of your leadership and advocacy in this space. And of course, thank you to my amazing colleague, Jesselyn.

Jesselyn: Thank you for having me, Vanessa.

Vanessa: We are now pleased to turn it over to our special co-host who’s joining us for this important conversation, Nkechi Taifa.

Nkechi: Greetings, everyone. My name is Nkechi Taifa and I am the principal and the CEO of the Taifa Group. Thank you. Thank you for joining us. I’m one of the guest hosts of the special series “Pod for the Cause: Vision for Justice,” where we will be digging deeper into how to reimagine our criminal legal system. We will be discussing the 1994 Crime Bill. On today’s episode, we will be joined by none other than Anand Subramanian. How you doing, my brother?

Anand: I’m doing well, Nkechi. Thank you for having me.

Nkechi: Managing director at PolicyLink. As well as Kumar Rao, senior director of Policy & Strategy, the New York Working Families Party. Hello, Kumar. How are you doing

Kumar: Great. So good to see you and be here.

Nkechi: Absolutely. Well, let’s get this ball rolling. So I’m gonna start with you, Kumar, if I may, because I just wanna know, just what is it about the 1994 Crime Bill that was so harmful? I mean, why didn’t the elected officials who wrote and passed the bill, why didn’t they foresee these ramifications, this mass incarceration that we are confronted with today?

Kumar: In terms of harm, it’s really tragically so much, right? And I think we also just need to break it out into the different types of harm that the ’94 Crime Bill imposed on communities and our country. So I think everyone is sort of, like, familiar with some of the policy and statutory and budgetary harms of the ’94 Crime Bill and kind of the impact of the written text of the bill and the entire package, which is quite large and sweeping and complicated. But there’s also other types of harms I think that are in some ways equally important, maybe even more important, which were the social-political and cultural harms, and I think we need to acknowledge both. Statutorily, we know that the bill really increased the number of new crimes and the types of penalties and the increased sentencing for people facing certain charges, increased the number of drug offences, it expanded the death penalty and the list really goes on and on in terms of statutes.

In terms of policies, you know, there was incredible amounts of money, billions of dollars, in fact, incentives for states to increase imprisonment, to actually incentivize states and localities around the country to literally lock up more people, you know, through things like truth and sentencing and other forms of policy reforms. And of course, budgetarily, the bill spent a lot of money. It directly spent billions of dollars, handed it over to states and localities to construct prisons and jails, to arrest and incarcerate more undocumented immigrants in the criminal justice system, and of course, the hire and endlessly expand police forces across the country through things like the COPS program, which fueled the school to prison pipeline. So the list of statutory policy and budgetary harms, I think, are really dense and widely analyzed.

But the other piece I would just mention, which is the cultural and kind of political harms. You know, the ’94 Crime Bill really put a federal, presidential, and liberal or democratic party endorsement and solidification of incarceration, criminalization, and policing, as the means in which we as a society should advance public safety, falsely, I would say, and I know Anand agrees as well, but really this was a democratic bill, right? It was passed along democratic party vote. That party moved the ’94 Crime Bill. And I think the ramifications of that were really quite significant. Obviously, the bill was drafted by a leading senator of the democratic party, now President Joe Biden, signed and championed by President Bill Clinton, and voted on by countless numbers of democratic leaders. So the ramifications of that, I think we’re still dealing with today in addition to so much the kind of policy and budgetary implications.

Nkechi: Yes, Kumar, you’re right. The ramifications are still going on today. Anand, I want to hear your take on this because, you know, we’re still grappling with all of this right now. So what is your take on why that 1994 Crime Bill was so harmful?

Anand: Everything Kamar said, definitely agree in terms of sort of the statutory harms. And then picking up on the, sort of, cultural harms, I think what we saw in many policies, including the 1994 Crime Bill from the Clinton administration and from the Democratic Party at the time was that moving to sort of a neoliberal stance meant we could, kind of, out-Republican the Republicans and we can be as conservative. We can be tough on crime, we can dismantle welfare as we know it, for example. And what happened was the Republicans went further right. And so I think we’re seeing something very similar now where Democrats are trying to move to the center, trying to be bipartisan. And what we’ve seen over the past decade-plus now is that the Republicans are moving to the right as opposed to meeting the Democrats where they’re trying to offer, sort of, these centrist policies. And so I think there are a lot of lessons from that time that we should be applying now and not actually moving to the center, but actually trying to be more progressive in how we think about the criminal legal system.

Nkechi: So actually, I’m glad you brought up those comparisons between then and now. I’m just curious, just what circumstances, in your opinion, led to the drafting in the past, you know, the 1994 Crime Bill…I mean, you know, like what pushed Congress to pass something like a bill like this that was just so, so very deeply rooted in punishment?

Kumar: I think it’s related to the second half of the question you raise, which was why didn’t elected officials who wrote the bill or who voted on the bill foresee what happened? And the truth is that I think many of them did and went in knowingly writing this bill, right? And to be sort of clear, there were many members of Congress, advocates, members of the media who actually did sound the alarm around this bill at the time, right? I think of representative Bobby Scott, who’s been a long-standing opponent of the ’94 Crime Bill, including in 1994, afterwards, when asked about the ’94 Crime Bill, in his words, was actually not aimed at crime policy or reducing crime and saving money. It was actually aimed more at helping people get elected. So from the start, this was a political effort. It was a political calculation. There was poll testing at the time done around certain slogans and policies and messages around crime and arresting and policing that polled well. And so the Democrats, as Anand mentioned, saw an opportunity or at least believed that there was an opportunity for them to try to deal with the supposed vulnerability that they had on crime and being tough on crime and posturing vis-a-vis the Republicans.

Anand: You know, I think Nkechi, you’re one of those advocates who, kind of, pointed out some of the potential ramifications at the time, and want to just honor your work to highlight some of these challenges and a lot of things that could have been and were foreseen, to Kumar’s point. I would just add too that I think in terms of the cultural aspects of it, some of the rhetoric and rationales presented by both now President Biden and folks like the Clintons at the time, that’s really where you hear the language about super predators and Black children being super predators. There was a speech that Biden gave on the floor that we like to share with other advocates as we recruit them to, sort of, our campaign to repeal and replace the 1994 Crime Bill that just shows Biden using very stark, very anti-Black language. It’s coded, so it really is more along the dog whistle side of things, but, you know, they’re basically acknowledging that they created the social conditions for crime and violence to be high and rather than address the root causes of those conditions, what they needed to do is to cage folks, to punish that. You know, in this speech, Biden even suggests that policy was why we had the problems that the ’94 Crime Bill were attempting to address, but that the solution was to further punish the folks who had been disinvested from. And that’s really what we’re trying to really get away from now and shift the paradigm 180 degrees.

Nkechi: It’s like it was an environment…okay, because I was around during that time, it was an environment where there was no difference between the Democrats and Republicans when we were talking about crime policy. In fact, the Democrats are trying to out-tough the Republicans because I a member candidate Bill Clinton, on the campaign trail, left the campaign trail to go back to Arkansas to oversee the execution of a mentally challenged person. So as you all said, Bobby Scott said it was all about votes. It was all about helping people to get elected, but everybody wasn’t on the same platform. Bobby Rush stood out very starkly against the Crime Bill. Congressman Frank Washington of Texas introduced the alternative Congressional Black Caucus Crime Bill that sought to mitigate some of the damages from that thing.

So I’m just wondering, you know, since ’94 Crime Bill we’ve had the Prison Rape Elimination Act in 2002, we had the Second Chance Re-entry Bill in 2008, we had the first Fair Sentencing Act, which reduces the disparity between crack and powder cocaine. In 2010, we had the Obama administration’s Clemency Initiative. We had the First Step Act, which I know a number of organizations worked to get sentencing provisions included in it. I’m just curious, how has the movement moved the general public away from supporting bills like the Farm Bill in ’94 in the past to much more of a widely accepted approach where we have these other pieces of legislation that have passed across political ideologies? I mean, these things would not have passed without bipartisan support. What has happened in the movement?

Anand: Quickly before I jump into this question, part of what I think compelled some folks who were concerned about the ramifications of the 1994 Crime Bill to vote for it ultimately were the inclusion of things like the Violence Against Women Act and the Assault Weapons Ban, which weren’t necessarily perfect policies. And I think there’s a lot of work happening now to improve how we do address violence against women and address assault weapons, but that was compelling, I think, to some folks at the time who against their better judgment voted for it because they were concerned about those issues as well.

But turning to the current state of things, I think that there has been a lot of work done to research, identify, and describe the throughline, I think, from slavery to our current criminal legal system. The work of Michelle Alexander and “The New Jim Crow,” the work of Ava DuVernay explaining what the 13th Amendment is all about in her documentary “The 13th” has really highlighted how elements of slavery and social control are incredibly entrenched in our criminal legal system. It’s very apparent that punishment and incarceration are indeed throughlines from slavery and a way to maintain that system of social control. Once that analysis went mainstream, I think folks have been applying it now to our entire criminal legal system.

Understanding that this country is a leader worldwide in how many people we choose to imprison, understanding that those people are vastly disproportionately Black and other people of color, that we have to do something about it. And I think there’s been some good consensus-building around the fact that we do have an incarceration problem. I think the question is, what do we do about it? Is it the problem that we have too many people in prison and we just need to, sort of, shave at the edges and address this in a incremental way? Or do we need to look at the root causes of why we incarcerate in the first place, whether incarceration works, what the drivers of incarceration are, including policing, how much money we spend on all of this, and whether it’s an effective use of that money or whether that money could be better served by investing in communities, addressing the root causes of harm and violence, including providing basic needs, creating alternative systems of accountability and approaching things from a trauma-informed lens, understanding that trauma is what drives violence?

And so I think we’ve seen those shifts across our sector, which has been great to see and really understanding how it all applies and what we can do to shift the paradigm, including repealing and replacing the 1994 Crime Bill is really been picking up steam, which we’re really gratified to see

Nkechi: Excellent points. Kumar, Talk to us.

Kumar: You named a series of, kind of, reforms and additional bills that passed after ’94, even up to the last couple of years. But I think as Anand laid out, we’re still kind of stuck in the same muck of criminalization of policing and of incarceration as either necessary or simply systems that we can’t actually truly address and dismantle. Like the bills that we’re talking about for step-back really are dealing with reducing the excesses in harms of some decisions we’ve made in the past, but not really advancing, kind of, a new vision or what I would say is a more fair and common sense approach to public safety. And I think that’s where we really still need to continue to, kind of, use the momentum of the last year, in particular, I think, following last year’s uprisings and the movement that we’ve seen against police violence and really thinking about the idea of defunding police and investing in communities and the idea that the path to really advanced public safety is through short-term and long-term investments in housing, health care, employment education.

But ultimately, Congress, in particular, the federal, sort of, system, I think continues to be stuck in the paradigm of policing, incarceration as necessary or effective tools or systems that just need to be tinkered around the edges, to use Anand’s phrase. And I think it’s really important for us to begin, or not even begin, but to really elevate the more transformative approaches that many of our peer organizations and groups and the folks that we work with, the coalitions we’re engaged in are trying to advance.

Nkechi: So we can have someone sitting in the White House right now who was the chief architect behind the Crime Bill of ’94, who was quite proud of it, you know, at the time. His flagship was the Violence Against Women Act, which many of us did support, but there was so, so, so, so many other harmful measures that you all pointed out that was within that Crime Bill. So what are some immediate actions today, right now, that that president, i.e. President Biden, and our Congress can take to address the harm that was done back then and helped to restore the communities that were just so negatively affected? What can Congress and the White House do?

Anand: Kumar, you mentioned some of the organizations and coalitions we work with. That I think, one, first step is really to support the People’s Coalition for Safety and Freedom, which is a national coalition made up of about 20 organizations and more, and it’s growing. And that really came together to address the 1994 Crime Bill, to address the role that the federal government plays in entrenching and growing mass incarceration, funding to police, and to undo that. And so I think President Biden, the rest of the federal government has an incredible opportunity to actually support what the People’s Coalition is doing. The People’s Coalition is designing and implementing a revolutionary new participatory democracy method called the People’s Process, where we are going to cities and states around the country and really trying to organize folks who were most impacted by the 1994 Crime Bill, by the harms of their Crime Bill, to let us know how they were harmed and what solutions they think can address that harm and how the federal government can better invest in communities to increase safety and to create the structures of accountability that we know that the criminal legal system doesn’t actually provide.

And so I think supporting the legislation that will come out of the People’s Process, supporting the People’s Coalition for Safety and Freedom, and then supporting a lot of these other amazing pieces of legislation that are coming through right now that were developed by folks who were most impacted by some of the harms and violence we’ve seen from the approach of the ’94 Crime Bill, including things like the Breathe Act, including things like the People’s Response Act, which will be introduced shortly, and so these are a number of things that could happen immediately. Not to mention dismantling certain aspects of the 1994 Crime Bill, I’m gonna pass to Kumar, who worked diligently on some of the research around what it would take to actually end the COPS program, that is the Community Oriented Policing Services program that’s housed in the Department of Justice.

Nkechi: All right, Kumar.

Kumar: Yeah. As Anand said, one of the most, I think, clear and ongoing harms and impacts of the ’94 Crime Bill is the COPS program has been in effect for now 27 years, has thrown something like $20 billion of federal funding to local police departments across the country to hire, train, retain police officers, which, of course, is a compounding set of harms and of problems that creates. Obviously, there is the federal outlay of money to local police departments that frankly don’t need that money. We’re already spending 30%, 40%, 50% of local budgets on police departments alone. There’s really no need for additional funding from the federal government. That money should have been spent on providing alternative safety mechanisms and programs like violence interruption, supported housing, mental health care, the types of basic needs that communities have long been denied and starved of. And then, of course, giving upfront money to cities for hiring police officers, maybe sort of seen as free money in the first year, but once you hire police officers, you have to maintain those budgets. And that money comes out of local budgets. Giving money over to a city to hire police [inaudible 00:51:57] in one year forces that city to bear the burden of maintaining those payrolls indefinite following that. So the ramifications are really significant.

Joe Biden campaigned on dealing with the crisis of policing and racial injustice. He called last year in October the Crime Bill a mistake. I think it’s really important for this administration for this Congress, this Democrat Congress, to address that. And one clear way they can do that is to not perpetuate and continue the most, I think, significant aspects of ’94 Crime Bill, which is the COPS program. And this year President Biden’s budget, I believe, tripled the funding for the COPS program, even compared to Donald Trump and Bill Barr’s COPS office, which was quite awful in its impact. There’s ways that, obviously, if the president is committed to reforming our system to addressing the ’94 Crime Bill, which he called a mistake, that I think essentially ending the COPS program and reinvesting those resources into other alternative programs is a clear way that they can demonstrate that. Now, if the administration is unwilling to do that, then Congress obviously has the power of the purse, and I think the onus clearly is on them to address that issue. And they can, through the budgetary process, through the appropriations process, actually end that program and really respond to the calls from across the country to advance different visions of public safety outside of policing.

Nkechi: So, Kumar, you took us through some of the importance of dismantling the COPS program. Anand, you spoke about the People’s Process. And I really like that because it is remedies coming from the bottom-up as opposed from the top-down. People’s Process is very pertinent, and I know out of that People’s Process came what you told us about, the Breathe Act, in which I’m waiting to see come off the drawing board any day now, that people’s response to that. Can you just tell us what people can find…if they want to learn what the Breathe Act is about or this People’s Process is about, where can they go to see language of these pieces of visionary transformations?

Anand: Just to be very clear, the Breathe Act came out of the movement for Black lives and is a piece of legislation that is drafted. And the People’s Process through the People’s Coalition for Safety and Freedom is in the late stages of being designed and it’ll be implemented shortly. So we have yet to see what will come out of People’s Process, what people will be sharing. It’ll start with a political education piece throughout this year. And then I think early next year, we’ll start our first People’s Movement Assemblies, and we’re really excited to see what comes out of that. I think in terms of what folks can do right now, the Breathe Act is absolutely something that should be supported. Folks can go to m4bl.org to check that out. To check out more about the People’s Process, please go to safetyandfreedom.org. That’s the People’s Coalition for Safety and Freedom’s website. And I know there are a number of advocates working on the Counselors Not Cops Bill. I know that Center for Popular Democracy is a champion of that. And so they likely have some information about that on their website. And I know that that was reintroduced in the middle of last week as well. So we’re excited to see what comes of that.

Kumar: One hundred percent I think the focus of the public support and involvement should be engaging with grassroots organizations, groups that are organizing in communities across this country, get connected, right? There are hundreds, thousands of groups across the country that are fighting this fight in their localities across the country and are connected in with many of the organizations and groups and movements that Anand referenced. I also think it’s important for us to support and have the back of members of Congress who are leading on this effort and who campaigned on it, who took, I think, risks, political risks in being truthful, honest, bold, courageous in their approach to issues of policing and public safety, and who really are working closely with social movements to advance a lot of this legislation.

Folks like representative Ayanna Pressley, Cori Bush, Jamaal, Bowman, Ilhan Omar, and many others who are championing the types of legislation that we’re talking about today that would actually address the ’94 Crime Bill, that would actually posit a new vision of public safety, that would actually create common sense, smart sound policy, that would actually support communities, not tear them down. The organizing element is, I think, fundamental, but obviously, legislation advocacy is political and we need to make sure we’re supporting our champions as well.

Nkechi: Absolutely. You know, back in the day, the few advocates that were out there, we were talking about reform. We were talking about reforming the criminal justice system, reforming the criminal punishment system, but the movement has moved far from that. Now, we’re not just talking about reform, now we’re talking about transformation. So, my brothers, I want to hear from you about just how do we reimagine justice in America? We’re not just talking about reform now, we’re talking about…Let’s reimagine just what justice can look like. So how would you reimagine it?

Anand: And just so folks know, Kumar and I have worked together for years now on these issues. And so definitely appreciate Kumar as well and his leadership in both this 1994 Crime Bill campaign, but just in the space writ large. You know, I was talking to my colleague Sarah about this the other day. And it’s very clear to me that when we think about addressing the root causes of harm and violence, people get overwhelmed. I just co-facilitated this Reimagining Public Safety Task Force in Oakland where the task force had a mandate to develop recommendations to invest funding that would have ordinarily gone to the police department. We had an Addressing the Root Causes of Harm and Violence working group, and they came up with some great recommendations.

What this whole Defund movement has brought to light, what efforts like the task force is brought to light is what we already know is that throughout all of our systems, not just the criminal legal system, there has been an acceleration of disinvestment from Black communities. And that disinvestment directly has led to less safety in communities to more reasons to need to commit crimes if folks are in poverty or aren’t economically secure, has led to more violence because of the stressors of those conditions and the lack of infrastructure to address mental health challenges and other social challenges. And so we absolutely need to reshape all of our systems to be honest about how they were built on anti-blackness and to become anti-racist. So we need anti-racist systems of government that acknowledge our history and proactively center the folks who have been most disinvested for generations and funnel federal dollars and other public dollars into those systems. So those…Kumar mentioned some of these earlier.

So outside of our criminal legal system there, you know, obviously education, jobs, transportation, healthy food, other infrastructure and neighborhoods, the list goes on. And without that sort of comprehensive, dedicated attention to all of these systems and understanding the links between them and how they all lead to increased safety, we just don’t have a shot to actually achieve these thriving neighborhoods that we’re all really fighting for. And so we have to look beyond the silos of our work, of our issues, of our systems, and really start to work together. Housing advocates need to come up with the recommendations for these task forces. What’s a pilot project that we can invest in the demonstrates that? Investing in this type of affordable housing actually increases safety, for example.

Outside of that, I think we need to lean in more on transformative justice efforts, which have been, I think, the most successful to actually repair harm for folks who are injured and to hold folks accountable for committing harm. Sarah and I were talking about this as in harm is going to happen. Even in our wildest dreams, we will always have interpersonal harm. And so what is the way that we can create a system and a process to address that harm that doesn’t completely destroy families and communities, and actually helps repair that harm and keep communities whole? And I think transformative justice is a huge part of that.

Nkechi: All right. Thank you. Kumar, how do you reimagine justice in America?

Kumar: I, you know, obviously agree with the recommendations and suggestions of Anand. I think we need to kind of shift the entire paradigm of how we think about issues of safety, of our concept of who and how we invest our public resources and the public good in. So I think it’s really a very dramatic kind of shift in how we need to think differently as individuals and to push policymakers to think very differently as well. I do think the framing, you know, of reimagining justice, of reimagining public safety, that we also need to be kind of cautious and careful about allowing those phrases and those kind of slogans to be co-opted. And I think we’re starting to see, unfortunately, a little bit of that. So I think this conversation is really critical and the question you raise, Nkechi, is like very, very important because without a deep understanding of what we actually mean by reimagining justice and safety, we may well find ourselves perpetuating the same systems that we find ourselves in today.

So I think, first and foremost, we need to do things we began doing in this podcast, in this conversation, which is to really acknowledge the harms of things like the ’94 Crime Bill and the status quo and acknowledging how much of a disaster this status quo has been. We spend now upwards of, I think, $250 billion every year on policing and incarceration in the United States, yet we still have rampant gun violence. It feels like we have mass shootings on a daily basis. Gender violence continues, I think, unabated generations of families being separated, communities being traumatized, left unstable due to incarceration. Of course, we have such a epidemic of police violence. The system is, you know, not just failing, not just working, it’s really just a disaster. Crime victims are unsatisfied. The system is just not tenable. And I think that is important for us to kind of acknowledge that, and when we discuss the idea of safety to kind of ensure that we’re thinking of a new system, of a new approach, one that we have sadly not taken in the United States, but one that really centers the health and well-being of people and of our neighbors and our families, and is not centered around retribution and punishment. And I think that’s ultimately, kind of, where I think we need to go when we think about reimagining safety or and reimagining justice.

Nkechi: Wow. You all raised some really, really pertinent things from changing the anti-racists system of justice that we have, looking beyond the silo, seeing the interconnectedness, and most importantly being very cautious that others don’t co-opt the slogans and take away everything that we’re doing. I know I look forward to a system where there is compassion rather than criminalization and prevention rather than punishment. I just want to really thank the two of you, Anand Subramanian and Kumar Rao. We are so, so very appreciative of your time, your voice, your advocacy in this space. And we wanna thank you, community, for listening to this special “Vision for Justice” edition of “Pod for the Cause,” the official podcast of the Leadership Conference on Civil and Human Rights and the Leadership Conference Education Fund. Thank you, until next time.