DOUGLAS A. BERMAN


Tough and Smart:

Federal Sentencing Provisions of the 1994 Crime Bill

When President Bill Clinton signed the Violent Crime Control and Law Enforcement Act of 1994 (the Crime Bill), he called it the “toughest and smartest crime bill in our history.”

Enhancing penalties across a wide range of offenses, the Crime Bill included many provisions that not only justified the “tough” label, but also fueled “get-tough” rhetoric and behavior by federal, state, and local officials nationwide. This well-known legacy, however, obscures what may be one of the most consequential sentencing provisions in this massive law – a “smart” sentencing section that has allowed tens of thousands of people convicted of drug crimes to avoid certain severe mandatory minimum terms enacted by Congress in the 1980s.

Perspectives


CCJ leaders weigh in on the legacy of the 1994 Crime Bill

Tough and Smart


Tough Sentencing


National Context

Historically, severe mandatory minimum penalties were relatively uncommon for classes of federal offenses, and Congress had previously repealed most mandatory minimum provisions for drug offenses in 1970.1 But sharply rising crime in the 1970s and 1980s led to criticism of rehabilitation-oriented sentencing practices and to calls for new criminal sentencing law that were more rigid and punitive. In the 1980s, nearly every state enacted new mandatory minimum sentencing provisions, and some created comprehensive sentencing guideline structures that included requirements for judges to impose longer prison terms in more cases.


The federal sentencing system reflected this important shift in attitudes and laws. In 1984, Congress passed the Sentencing Reform Act which, among other things, established the United States Sentencing Commission (Sentencing Commission) and required judges to impose sentences within newly created federal sentencing guidelines. Through the rest of the 1980s, Congress also enacted a series of severe mandatory sentencing provisions applicable to a variety of drug and violent crimes.2


Stiffer Penalties

By the time the Crime Bill was enacted, nearly every U.S. legal system was already embracing harsh and rigid sentencing laws – and the Crime Bill continued the national trend of addressing any and all crime concerns with “tough-on-crime” rhetoric and lawmaking. The highest-profile tough sentencing provisions in the Crime Bill appear in Titles VI and VII, under the headings “Death Penalty” and “Mandatory Life Imprisonment for Persons Convicted of Certain Felonies.” Title VI expanded the federal death penalty to cover about 60 offenses, including terrorist homicides, murder of federal law enforcement officers, large-scale drug trafficking, drive-by-shootings, and carjackings resulting in death. Title VII, which was colloquially known as the federal “three strikes and you’re out” law, provided for a mandatory life-without-parole prison term for anyone convicted of a serious violent felony after two prior violent felony convictions or a prior serious violent felony and a prior serious drug offense.


Varied Levels of Impact

Though subject to a great deal of attention from the media and activists, these indisputably tough punishments created by the Crime Bill were applied to relatively few federal defendants. The U.S. Department of Justice reported that, on average, approximately 30 capital charges were pursued each year from 1995 to 2000.3 And the Sentencing Commission reported in 2011 that just 10 defendants in FY 2010 received life sentences under the “three strikes” provision of the Crime Bill.4


Other tough federal sentencing provisions of the bill had a broader and more direct impact on prison time served by federal inmates. Title IX sought to enhance penalties for drug trafficking by directing the Sentencing Commission to amend the federal sentencing guidelines to enhance penalties for drug dealing in "drug-free" zones, and for illegal drug use and smuggling in federal prisons. Title XXXII, titled “Increases in Penalties,” included provisions that increased punishments for a wide range of offenses, including assault of federal and foreign officers, voluntary and involuntary manslaughter, civil rights violations, trafficking in counterfeit goods, conspiracy to commit murder for hire, arson, and drug trafficking near public housing. The Crime Bill also included provisions for enhanced penalties for alien smuggling, illegal reentry after deportation, and other immigration-related crimes. As directed by the Crime Bill, the Sentencing Commission enhanced the severity of the federal sentencing guidelines through a series of amendments.5 Overall, many hundreds of federal defendants each and every year for a quarter century have faced more severe prison terms as a result of statutory and guideline changes flowing from the Crime Bill.6


The federal prison population continued to grow significantly after passage of the Crime Bill; it numbered around 100,000 in 1995 and exceeded 210,000 by 2010. But the rate of growth in the total prison population, both state and federal, actually slowed after 1994. Much of the imprisonment growth is attributable primarily to harsh sentencing statutes and guidelines that were developed in the 1980s and applied more regularly and severely in subsequent decades.7

Tough and Smart


Smart Sentencing


Safety Valve

The primary “smart” sentencing provision of the Crime Bill appears in Title VII under the heading “Applicability of Mandatory Minimum Penalties in Certain Cases.” This provision, commonly known as a safety valve provision, served as a partial response to the Sentencing Commission’s 1991 report documenting the inconsistent and inappropriate application of previously enacted federal mandatory minimum statutes.8 To counteract this misapplication, the safety valve provision authorized sentencing courts to follow applicable sentencing guidelines without regard to more severe statutory mandatory minimum terms for certain less serious drug offenses (e.g., offenses not involving violence or firearms) when a defendant met a series of conditions (e.g., having pleaded guilty and having little criminal history).


The impact of this statutory safety valve grew when the Sentencing Commission in 1995 created a downward adjustment within the drug offense guidelines. The change provided for a two-level reduction in the guideline offense-level calculation for all defendants who met the criteria set out in the bill.9 Consequently, after passage of the 1994 Crime Bill and the guideline amendment it prompted, certain federal defendants who committed lower-level drug offenses could both avoid the application of severe mandatory minimums and benefit from a reduced guideline sentencing range.


These changes have helped shorten the sentences of tens of thousands of people who committed lower-level drug crimes but were subject to harsh drug-offense mandatory minimums enacted in other federal bills. Annual reports from the Sentencing Commission indicate that, in many years, well over 20 percent of federal drug defendants have benefited from the statutory safety valve, allowing them to be sentenced below an otherwise applicable mandatory minimum. In FY 2000, for example, nearly 5,000 of roughly 21,000 federal drug defendants received statutory safety valve relief at sentencing;10 in FY 2010, over 5,500 of roughly 23,000 federal drug defendants secured such relief.11


In addition, all of these defendants and often thousands more benefited each year from the corresponding guideline safety valve provision that serves to lower applicable guideline sentencing ranges. In FY 2010, for example, more than 3,000 additional federal drug defendants benefited from a reduced guideline range.12 Overall, the number of federal drug defendants whose sentences were reduced by these safety valve provisions in the 25 years since the passage of the Crime Bill is now approaching 200,000.


Recent work by Congress has further expanded the impact of the safety valve provision. In 2011, the Sentencing Commission released a report urging Congress to expand the safety valve to people who were convicted of drug offenses and have additional criminal history. The report also suggested that the safety valve should be applicable beyond drug cases.13 Taking partial heed, Congress in the FIRST STEP Act of 2018 14 expanded the safety valve to make federal drug defendants with additional (though still modest) criminal history eligible for relief from otherwise applicable mandatory minimums.


Crack/Powder Disparity

In addition to the development of safety valve provisions, the 1994 Crime Bill also has a legacy in the long-standing controversy over federal law’s disparate sentencing approach to crack and powder cocaine. Federal sentencing laws adopted in response to the crack epidemic in the 1980s punished crack offenses much more severely than cocaine offenses through a 100-to-1 quantity ratio (e.g., statutory and guideline provisions required 100 times less crack cocaine than powder cocaine to trigger lengthy prison terms). One provision of the 1994 Crime Bill directed the Sentencing Commission to study federal sentencing laws and policies relating to crack and powder cocaine. In 1995, the Sentencing Commission responded with a comprehensive and highly critical report of the statutory and guideline provisions that punished crack offenses much more severely than powder cocaine offenses.15 This report noted, among an array of concerns, that the “100-to-1 crack cocaine to powder cocaine quantity ratio [was] a primary cause of the growing disparity between sentences for Black and White federal defendants.”16


For many years Congress failed to alter the crack-powder penalty disparity. But the Sentencing Commission’s report on the issue provided the foundation for persistent criticisms of the 100-to-1 quantity ratio. At the urging of the Obama Administration and based on continued research and advocacy by the Sentencing Commission, Congress ultimately reduced crack sentences to the current 18-to-1 quantity ratio through passage of the 2010 Fair Sentencing Act.

Tough and Smart


Conclusion

Reflecting the “tough-on-crime” attitudes of the times, some federal lawmakers criticized the Crime Bill as not tough enough despite its many punitive elements. Just weeks after passage of the landmark legislation, Republican lawmakers introduced the Contract with America, which included a promise to adopt a Taking Back Our Streets Act within the first 100 days of what signers hoped would be a Republican-held Congress.17 This pursuit of even harsher penalties and even more federal funding for prison construction than what was authorized in the Crime Bill was not surprising; in fact, such calls reflected much of the political and policy thinking of the time – on both sides of the aisle. In this era, talking tough was widely seen not only as essential to success at the ballot box, but also as the sound policy response to all crime concerns.


While the spirit and text of the Crime Bill focused on a tougher approach to crime and punishment, its sentencing provisions with among the greatest tangible impact were those that enabled people convicted of lower-level drug offenses to receive less severe sentences, and laid the foundation for future crack cocaine sentencing reforms. Despite that often overlooked reality, the Crime Bill fostered and reinforced tough-on-crime attitudes in Washington and among state and local criminal justice officials that contributed to historic growth in national prison populations.

Douglas A. Berman is the Newton D Baker-Baker & Hostetler Chair in Law at The Ohio State University Moritz College of Law, where his teaching and research focus on criminal law and criminal sentencing. He is the co-managing editor of the Federal Sentencing Reporter and creator and author of the widely-read blog Sentencing Law and Policy. 

Next chapter coming soon


Notes

  1. See U.S. Sentencing Commission, Report to the Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System 5-7 (1991)
  2. See, e.g., The Comprehensive Crime Control Act of 1984, Pub. L. 98–473, S. 1762, 98 Stat. 1976 (1984); Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, 100 Stat. 3207 (1986); and Anti-Drug Abuse Act of 1988, Pub.L. No. 100–690, 102 Stat. 4181 (1988).
  3. See The Federal Death Penalty System: A Statistical Survey (1988-2000), Table 1A (2002).
  4. See U.S. Sentencing Commission, Report to the Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System, Table D-3 (2011).
  5. See U.S. Sentencing Commission, 1995 Annual Report 5-7 (1995) (detailing numerous amendments that involved sentence enhancement, “most of which respond to the Violent Crime Control and Law Enforcement Act of 1994”).
  6. The U.S. Sentencing Commission, which releases online annual “Data Reports by Guideline,” has reported that key enhancements prompted by the Crime Bill, such as guideline increases for distributing drugs in prison and using a minor in the offense, have regularly been applied more than 100 times per year. See generally USSC data reports.
  7. Sabol, William J., and Thaddeus L. Johnson. The 1994 Crime Bill: Legacy and Lessons – Impacts on Prison Populations. Washington, D.C.: Council on Criminal Justice, September 2019.
  8. See U.S. Sentencing Commission, Special Report To Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System (1991).
  9. U.S. Sentencing Guidelines Manual, § 2D1.1(b)(18).
  10. See U.S. Sentencing Commission, 2000 Sourcebook of Federal Sentencing Statistics, Table 44.
  11. See U.S. Sentencing Commission, 2010 Sourcebook of Federal Sentencing Statistics, Table 44.
  12. See Id.
  13. See U.S. Sentencing Commission, Report to the Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System, Chapter 12 (2011).
  14. See Section 402 of the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194.
  15. See U.S. Sentencing Commission, Special Report to the Congress: Cocaine and Federal Sentencing Policy (1995).
  16. See id. at Chapter 7.
  17. See The Republican “Contract with America” (1994), available at https://global.oup.com/us/companion.websites/9780195385168/resources/chapter6/contract/america.pdf