Enacted in the wake of historic peaks in violence and public fear of crime, the Violent Crime Control and Law Enforcement Act of 1994 (Crime Bill)1 included provisions to directly and indirectly affect the size and composition of state and federal prison populations. Among these were measures that expanded the federal death penalty to cover roughly 60 offenses, authorized federal adult prosecution of persons age 13 and older charged with certain violent crimes, required mandatory life imprisonment without the possibility of parole for people in the federal system with three or more convictions for serious violent felonies or drug trafficking crimes (“three-strikes” cases), required registration of sexually violent offenders upon their release from state prison, and authorized funds to reimburse states for incarcerating illegal criminal aliens.

The provisions most directly related to state prison populations were those authorizing the creation of the Violent Offender Incarceration and Truth-in-Sentencing (VOI/TIS) Incentive Grant Programs. These provided funds to states and U.S. territories to increase their capacity to incarcerate people convicted of violent offenses.2 The VOI/TIS programs were based largely on two crime control ideas: that a large gap between imposed sentences and actual time served undermined the deterrent effects of imprisonment, and that actual time served for violent offenders was not long enough to adequately punish or incapacitate them.

Belief in the need for and efficacy of more incarceration of people convicted of violent crimes and greater certainty in sentencing was widespread in the run-up to the Crime Bill. These ideas may have been rooted in “law and order” responses to civil disorder of an earlier decade,3 but national political discourse in the early 1990s strongly advocated harsher punishments for violent offenders. Members of Congress of both parties advocated taking more violent offenders off the streets for longer periods of time, by “locking them up and throwing away the key.” Terms such as “superpredators,” coined by academics but used by politicans to evoke fear of, particularly, young, black men, were used to support the view that more incarceration was essential to produce greater public safety. The clear message from the federal government that accompanied the launch of the VOI/TIS programs was that incapacitating violent offenders for longer and more certain prison terms was a necessary and effective crime control strategy.

The VOI/TIS grant programs, therefore, aimed to support the expansion of prison capacity. Under VOI/TIS, grants were awarded to states to enable them to incarcerate more violent offenders for longer periods, either by building or modifying facilities. The programs also permitted the use of funding for alternative facilities, such as boot camps, if their construction or expansion freed up conventional prison space for people sentenced for violent crimes.

The VOI/TIS grants were both need-based and merit-based.4 States could receive funding through either one or both of the programs, and both used formulas based on violent crime rates to set grant amounts. Because of the need base of the programs, more populous, higher crime states generally received more funding than smaller states. For example, a state with a high rate of violent crime that did not adopt TIS legislation could receive more funding than a smaller or even comparably sized state that adopted TIS legislation.

To receive VOI grants, states were not required to demonstrate that people serving prison terms for violent crimes served a specific percentage of the imposed sentence. Instead, states were required to provide assurances that they had implemented, or would put in place, policies ensuring that violent offenders served a substantial portion of their “sufficiently severe” imposed sentences, and that prison time served was “appropriately related” to the person and long enough to protect the public.

By contrast, under the TIS program states could receive grants only if they enacted – or already had adopted – laws or policies that either required people convicted of violent offenses to serve 85% of their court-ordered sentences or that had the same result.5 For states with an indeterminate sentencing structure, the 1996 Appropriations Act defined the baseline for determining the 85% of sentence served as the “prison term established under the state’s sentencing and release guidelines.”6

The remainder of this paper examines the observable effects of the federal funding on state prison populations. The extent to which the political rhetoric of national leaders shaped attitudes, policies, and practices in the states in ways that affected their responses to VOI/TIS, and their sentencing and corrections policies more generally, is not discussed in this report. It is plausible that, being aware of national-level debates, state legislatures enacted laws in anticipation of the VOI/TIS provisions and funding. On the other hand, it is plausible that congressional deliberations reflected sentiments and practices already in place in the states and found their rhetorical safe spaces within the confines of the tougher sentencing laws that already had been enacted.

Many States Had Adopted Tougher Sentencing Standards Prior to Crime Bill Enactment

By limiting grants to states with sentencing laws incorporating an 85% rule, the TIS program was designed to encourage states to increase the percentage of imposed sentences to be served by violent offenders. The extent to which the TIS grant program influenced states to adopt TIS sentencing laws appears to be limited. One reason for this is that from the mid-1980s through the mid-1990s, sentencing reforms in the states already had focused on increasing the certainty and severity of sentencing, and many states had adopted or were adopting such reforms before or at the time the Crime Bill was passed:7

• According to a RAND Corporation evaluation of the TIS program, 24 of the 31 jurisdictions receiving TIS funding between 1996 and 1999 had enacted “TIS-qualifying” legislation in the years prior to the grant program’s launch in 1996. Thirteen of these enacted TIS legislation before or during 1994, 11 in 1995, and seven in 1996 or later.8
• An Urban Institute study showed that 34 states had some form of TIS provisions in place by 1994, the year the Crime Bill was passed. Some of these states made modifications to their statutes to align them more closely with TIS’s 85% rule. The study also found that nine additional states introduced TIS legislation after 1994, but some of these launched their legislative efforts before the Crime Bill’s enactment.9
• Based on its survey of the 27 states that had received TIS funding by the second year of the grant program (1997), the Government Accountability Office (GAO) reported that four states said that the federal grant funds were a major factor in passing TIS laws. Twelve states reported that the grant program was not a factor; in these states, TIS laws were enacted before 1995 or the legislative activity resulting in their TIS law began before the Crime Bill. Eleven of the TIS-funded states described the TIS grant program as a partial factor, but not the major factor.10 States that had not received funding by 1997 reported that high prison construction and operating costs, along with existing sentencing practices that were working well, were the primary reasons they had not sought TIS grants.

The state legislative activity occurred during a period of increasing crime and at a time when more than half of Americans ranked crime as the nation’s most pressing challenge. The public concerns, coupled with the rising crime rates of the late 1980s and early 1990s, were reflected in “get tough” pronouncements emanating from the Clinton Administration, messages that reinforced the political context in the states.

Most states that received TIS funding had passed their TIS legislation before the Crime Bill or had already begun legislative activity to modify their sentencing laws. The grant program contributed to legislative changes in some states, but where it was a partial contributor, it was not reportedly the primary reason for changing legislation. In a minority of states, the grant program provided the inducement to change sentencing laws and align them with the federal TIS provisions.

The VOI/TIS Grant Programs Were Funded at a Lower Level Than Authorized