A surprising result of the increased attention that Democratic candidates for president are giving criminal justice reform is renewed interest in the Violent Crime Control and Law Enforcement Act of 1994. The sprawling crime bill included funding for 100,000 new police officers, slightly more than $10 billion for prisons, an assault weapons ban, and the Violence Against Women Act.
In a Vox explainer published in June, German Lopez wrote that the law “remains a big topic of debate in 2020.” Progressives argue that the law significantly contributed to mass incarceration, and for years they have attacked Joe Biden’s role in the legislation. In the 2016 presidential race, criticism of the 1994 crime law was also central to progressive criticism of Hillary Clinton. It even shaped how Democrats, including U.S. senator and presidential hopeful Cory Booker, drafted a bill in 2017 called the Reverse Mass Incarceration Act.
Yet although it is widely accepted that the 1994 crime law was a major driver of mass incarceration, that does not appear to be true—and for reasons that matter greatly when thinking about how the federal government can best influence local criminal justice policy.
The short explanation for why the 1994 crime law was mostly a bust is that neither the president nor Congress can tell state and local governments how to run their criminal legal systems, so they instead must rely on incentive grants: “Do this, and we will give you billions, or don’t do that and we’ll take billions away.” But these financial carrots just aren’t big enough to have much of an impact.
Critics of the 1994 crime law point to a grant program that offered states over $10 billion over six years to adopt tougher sentencing laws. That sounds like a lot of money, but states were spending about $28 billion per year on corrections; at about 6 percent of that spending, the grant program wasn’t enough to move the needle on mass incarceration. Nearly all of the states that received the grants acknowledged that the grants either had no impact on policy decisions or minor ones at best. In the end, states claimed less than $3 billion (or only about 2 percent of their total correctional spending), leaving about $7 billion on the table.
State and local governments spend about $200 billion per year on criminal justice, while the entire budget of the Department of Justice—the Bureau of Prisons, the FBI, and other agencies— is about $25 billion. So even though many Democratic presidential candidates are pledging to use incentive grants to reshape state and local criminal justice policy, the money most likely won’t do much.
The biggest federal impact on state and local punishment comes not from the legislative or executive branch, but from the judicial branch. Litigation in federal courts has played an important role in changing the criminal legal system, far more than any other federal policy. Courts, for example, have shaped how we administer the death penalty, and decades of litigation over conditions of confinement have improved our prisons and jails.
This highlights a second real cost to the focus on the 1994 crime law. Not only does it push us to wrongly believe that incentive grants can greatly impact local criminal justice practices, it also distracts from two major pieces of legislation, both passed after the crime law, that significantly curtail the ability of federal courts to take on criminal justice cases.
The first, the Antiterrorism and Effective Death Penalty Act (AEDPA), puts limits on habeas corpus claims—the ability of people in prison to challenge the soundness of a state conviction in federal court. The details of the AEDPA are complex (Radley Balko does a great job discussing it here), but its impact has been severe and often unjust, both in capital and non-capital cases. To her credit, Senator Elizabeth Warren, another presidential candidate, has explicitly stated that she would seek to repeal the AEDPA.
I want to focus on the second, and far less appreciated law, the Prison Litigation Reform Act (PLRA). The PLRA is several small, scattered sections of code that greatly restrict the ability of people in prison to argue that their conditions of confinement violate their constitutional rights.
This sort of litigation is historically important. In a review of the confinement litigation that arose in the 1960s, Margo Schlanger, a professor of law at the University of Michigan, points out that the resulting federal consent decrees improved conditions not just in the prisons subjected to the orders, but in other facilities hoping to avoid oversight. These orders led to expanded budgets (and thus upgrades in conditions), as well as to the professionalization of the prison system bureaucracy. However miserable and violent our prisons remain, they were once far worse.
But in 1996, Congress passed the PLRA, which imposed a series of complex restrictions on the ability of prisoners to bring litigation. It insisted that prisoners had to exhaust all institutional and state remedies before bringing their complaint to federal court, which led to states adopting Byzantine complaint systems. New York State, for example, has a multitiered system of complaints, each with specific forms; one judge called it “Kafkaesque” as he pointed out that some units don’t even have access to the specific forms the people confined in those units need.
The PLRA also limited the sorts of remedies that courts could impose and required that they be as narrowly tailored as possible, and it made it easier to terminate the orders. It required that incarcerated people demonstrate physical harms—emotional and psychological harm alone were no longer sufficient. One badly written provision of the PLRA has been interpreted, most likely incorrectly, to cap attorney fees at 150 percent of the damages, which can discourage lawyers from taking on cases that may result in only minimal damages (such as, for example, a symbolic $1 judgment, which would produce $1.50 in attorney fees).
The PLRA thus limits the types of harms that inmates have to show, substantially increases federal administrative hurdles that people in prison have to clear to get their complaints about state prisons into federal court, increases the penalties for making administrative errors and improperly filing federal complaints, reduces attorney fees, limits the sorts of remedies that judges can impose, and makes it easier for states to end those remedies.
Unsurprisingly, the PLRA led to a decline in judicial oversight of prisons and jails. Schlanger notes that although there had been a trend away from broad court orders even before the PLRA’s passage, its adoption led to a noticeable decline in open orders and new orders that subsequently arose. Moreover, the orders that did get imposed post-PLRA were often much narrower than those that predated it (although that trend had also started pre-PLRA).
While there appears to be little to no research on the PLRA’s impact on conditions of confinement (as opposed to its impact on litigation and litigation outcomes), it is easy to see how the PLRA almost certainly made prisons worse.
For example, by the mid-2000s, California’s prison system was bursting at the seams, operating at about 200 percent of capacity. Conditions were bad enough that prisoners were able to overcome the PLRA’s various hurdles and get into federal court. In 2009, three years after lower courts asked the Ninth Circuit to intervene (and nineteen years after the litigation began), the Ninth Circuit instructed California to cut its prison population to 137.5 percent of its capacity. In a bitterly split 5-4 opinion, the U.S. Supreme Court upheld the order over objections that, among other things, the remedy did not comply with the PLRA’s limitations.
Perhaps the most critical detail of the California case is that the state acknowledged that its inability to provide adequate physical and mental health care to its overwhelmed institutions led to one preventable death approximately every six days, or about 60 such deaths every year. During that time, around 30 people were being executed annually in the U.S. California might not have executed anyone since 2006, but its prison conditions are effectively killing people at a far greater rate. Yet the PLRA permitted the state to nearly evade meaningful court oversight of such abysmal conditions.
As reports of intolerable conditions continue to increase—a recent DOJ report described horrific conditions in Alabama—it’s worth considering how the PLRA has played a substantive role in allowing states to incarcerate cheaply. States can force more and more people into inadequate, pre-existing facilities to avoid large capital-expansion costs. And they can cut back on upkeep, programming, staffing, and everything else that would make our prisons at least less inhumane than they already are (“better” seems inept here). All of which leads to harsher, more violent, more deadly facilities.
The catch is that the PLRA is difficult to rally around, even in a presidential campaign in which criminal justice issues are often at the fore. Although the story behind the 1994 crime law is easy to describe and grab onto—“the feds offered billions of dollars, and states locked more people up!”—the PLRA is inherently technocratic and complex.
Its technocratic design is also partly what makes the PLRA so nefarious: It operates in the hard-to-describe and hard-to-get-impassioned-about shadows. And it perseveres doing substantial harm while being mostly overlooked by the public and reformers, because it’s in those shadows.
Any attack on the PLRA, then, should perhaps focus less on its technical aspects and more on the fundamental dehumanization in which it is rooted. That dehumanization is readily apparent in an anecdote that helped build political support for the PLRA in the mid-1990s. An incarcerated person, the story went, sued in federal court that receiving the wrong sort of peanut butter from the commissary constituted cruel and unusual punishment. How frivolous! Cruel and unusual peanut butter!
Of course, the reality was far more complex. He had received the wrong peanut butter and the correctional officer who took it away promised to refund his money. But the man was transferred to another facility shortly after and never received his money, and he had no other way to try to get it back. The peanut butter cost about $5 in today’s dollars, which might not seem like much—but to people who come from impoverished backgrounds and work in prison jobs that might only pay pennies (or nothing!) per hour, $5 is a real loss.
Perhaps this anecdote, like the notorious “welfare queen” story, worked because we generally view those in prison as schemers and malingerers and liars, not as complex people who have done something wrong but who are also just struggling to get by, often in brutal and traumatic environments.
Nearly 25 years later, the PLRA survives for the same reason. People in prison are not viewed as fully human, so we tolerate the abhorrent conditions in which they are held and make it hard to challenge them.
Although there is surely frivolous prison litigation, just like there is in all areas of law, much of prison and jail litigation we see most likely arises in no small part because the library is often the safest, least-miserable part of the prison. Moreover, research and filing briefs give those in prison something to do to offset the stultifying boredom and tediousness that we have chosen to make hallmarks of our prisons. And even if there is frivolous conditions of confinement litigation, the PLRA is a gross over-corrective.
If we are going to relitigate criminal justice policy of the 1990s, we should focus on the AEDPA and the PLRA, not on the 1994 crime law. Most of the 1994 law’s provisions have expired, but AEDPA and the PLRA remain fully in effect. And we need to attack them for what rests at their hearts: not their legalistic restrictions, but how they reflect, embody, and encourage us to view those in prison not as people, but as something sadly far less.