How the ‘80s and ‘90s Broke our Criminal Justice System

by Brendan Kennedy

With prisons filled beyond capacity, America’s incarceration rate dwarfing all other countries, and a national movement for minority justice in policing, criminal justice reform has become a bipartisan focus. These problems didn’t just appear, however. The headaches and injustices in our criminal justice system can be linked directly to policies implemented in the 1980s and ‘90s. At the time, no one seemed interested in social solutions or rehabilitation. Instead, America responded to crime by effectively declaring war on its own citizens.

The headaches and injustices in our criminal justice system can be linked directly to policies implemented in the 1980s and 1990s.

After an uptick in crime and the expansion of civil rights in the 1960s, white conservatives mollified their base by explicitly linking the two and calling for a “war against the criminal elements.” This push in the ‘70s involved increasing prison sentences, founding the DEA to begin the War on Drugs, and ballooning federal spending on law enforcement. Nixon’s political momentum dwindled with his scandals, and his successors, Gerald Ford and Jimmy Carter, were more preoccupied with economic issues than crime. But when crime once again came to the forefront in the ‘80s, it was no longer simply an ideological issue. Stricter sentencing and increasingly punitive justice, the War on Drugs, and militarized policing became part of a nationwide bipartisan push that expanded under the Reagan, George H.W. Bush, and Clinton administrations. Each administration faced increasing crime rates and drug use, and sought various remedies to the problem. While they each differed in approach, the consistent theme of their policies was a push for retribution of criminals over rehabilitation.

Punitive Justice

One of the most consistent themes of the era was the recognition of the justice system as a form of punishment rather than rehabilitation. The prevailing mentality was that the only way to prevent crime was to dissuade criminals with longer jail sentences. This push was mainly implemented at the state level, where sentencing and parole stipulations could be more easily controlled. Mandatory minimums, where legislation sets fixed prison terms for specific crimes and severely limits judicial discretion, exploded in the 1980s. By 1994, all fifty states had adopted some form of mandatory minimum sentencing.

Parole after good behavior would have been viewed as a success in a rehabilitative system, but with the push for punitive justice, releasing prisoners early was seen as a failure.

States also moved to address parole through “truth in sentencing” laws. These laws took power away from parole boards and set harsh legislative restrictions on the possibility for parole. These laws denied parole until enough of the sentence was served (usually 85%), and sometimes did away with good-behavior credits or other ways for parole boards to monitor improvement. Parole after good behavior would have been viewed as a success in a rehabilitative system, but with the push for punitive justice, releasing prisoners early was seen as a failure.

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The federal government had an important role in pushing states toward these punitive laws. The Comprehensive Crime Control Act of 1984, under President Reagan’s administration, expanded mandatory sentencing and other guidelines at the federal level.  And the Violent Crime Control and Law Enforcement Act of 1994, written by then-Senator Joe Biden and signed by President Clinton, widely expanded financial incentives for states who restricted parole through “truth in sentencing” laws. (7) On top of that, three-strikes laws worked to expand conditions for mandatory life sentences.

With this type of rhetoric, attempts at prisoner re-entry or rehabilitation were quickly dismissed as attempts to loose a flood of murderers onto the streets.

These policies- truth in sentencing, mandatory minimums, and three-strikes- were all based on the idea that unbending state or federal legislatures had better judgment than judges or parole boards who analyze individual cases and mitigating factors. Reduced sentences were simply viewed as weakness with no justification. The infamous Willie Horton ad is a fantastic example of this attitude- the ad, through a combination of racial dog-whistling and scare tactics, allowed George H.W. Bush to paint Michael Dukakis as a weak liberal who allowed inmates weekend passes to commit rape and murder sprees. With this type of rhetoric, attempts at prisoner re-entry or rehabilitation were quickly dismissed as attempts to loose a flood of murderers onto the streets.

This all boils down to the notion of retribution over rehabilitation- an idea that makes a nifty political narrative without actually being very effective in crime prevention. Punitive laws came at the state and federal level, supported by both conservatives and liberals- and the increased sentences that resulted were a key part of the mass incarceration problem we face today.

The War on Drugs

The national anti-drug push, unlike changes in sentencing and parole, came almost entirely from the federal government. The CCCA of 1984, mentioned above, pushed tougher sentences for drug crime, as did the Anti-Drug Abuse Act (ADAA) of 1986. That law’s follow-up, the ADAA of 1988, established new agencies and a “drug czar” specifically tasked with fighting the War on Drugs. These policies were a part of Reagan’s massive anti-drug push, with a pointed focus on crack cocaine.

As part of this effort, drug use was portrayed as criminal and dangerous rather than being addressed as addiction with chance for recovery. In 1996, three criminologists, Bill Bennett (Reagan’s Secretary of Education and official drug czar), John Walters (Bennett’s chief of staff), and John Dilulio (an advisor to Presidents Clinton and George W. Bush) published their plea for punitive sentencing and a war on drugs in Body Count. This book introduced the notion of “super-predators” to the nation. They described this group as “inner-city youth”, mainly minorities, and continued the notion of black criminality by specifically pointing to Marvin Wolfgang’s theory that black people harbor a culture that embraces violence. However, the book also goes a step beyond, linking the criminality of “super-predators” to not only race, but drug use. “Drug use,” they said, “fosters moral poverty and remorseless criminality… it destroys the bonds between the user and his friends, his community, his understanding of right and wrong, his God, and his common sense.” The book argued that addicts should not be pitied or helped, since drug use essentially made them evil. The only answer to drug addiction, then, was harsh punishment, never treatment.

The War on Drugs is another cause of mass incarceration, and has also led to racial disparities in sentencing. For example, distribution of just five grams of crack cocaine, more commonly used by poor black citizens, required a 5-year minimum sentence. For powder cocaine, more popular among white citizens, a 5-year minimum is triggered for distribution of five hundred grams. Numerous studies have shown that discrepancies such as this one are a pattern in drug policing. The War on Drugs has been a main cause of perceptions that criminal justice is racially biased.

Militarization of Police

Finally, the era’s attitudes toward drug users and “super predators”, as well as Nixonian ideas of social control, meant that police became increasingly authoritarian and militarized. In order to carry out the War on Drugs, specialized SWAT units proliferated. SWAT unit presence grew by 92% between 1980 and 1984, and increased 107% on top of that between 1985 and 1990. Programs to re-distribute military armor, weapons, and vehicles also increased police militarization in this era.

This racialized mindset, combined with the increase in police militarization, resulted in brutal police raids and crackdowns on minority communities.

These militarized units were not used cautiously, since the notion of “super predators” established a battle mentality for police. Bill Bennett, Reagan’s drug czar and the Body Count contributor, summed this attitude up by entertaining the idea of “beheading” drug dealers and saying that “it’s kind of a funny war when the ‘enemy’ is entitled to due process of law and a fair trial.” In the eyes of leaders like Bennett, criminals and addicts weren’t citizens who could be morally saved. Instead, they were the menacing enemy in a war. His attitude, combined with his demonization minorities as inherently violent, set a dangerous precedent. This racialized mindset, combined with the increase in police militarization, resulted in brutal police raids and crackdowns on minority communities. One such effort, LAPD’s Operation Hammer, resulted in police destroying homes and arresting thousands of innocent residents. The operation ruined community relations and was a major cause of the 1992 Los Angeles riots.

The Effects

Through the 1980s and 1990s, federal and state governments increased sentences, limited parole, expanded the War on Drugs, and militarized the police. The predominant attitude, held by both conservatives and liberals, was that criminals and addicts were an enemy who needed punishment instead of rehabilitation.

We can connect today’s calls for criminal justice reform directly to these policies. Jails are desperately crowded, far beyond the level of any other nation, as a result of longer sentences and reduced parole. Drug laws ensure that minorities have faced a statistically heavier burden from incarceration. And police departments in places like Ferguson and Chicago still struggle with a culture that makes citizens the enemy in a total war. Starting the path to criminal justice reform will require us to grapple with our failures as well as the racist application of the criminal justice system. In order to do that, we have to address how disastrous the anti-crime push of the ‘80s and ‘90s was.