Over the past four decades, Democrats and Republicans have agreed on almost nothing beyond their ménage à trois love affair with Wall Street. One notable exception was the bipartisan fervor for crime policy “reform” that could be condensed into a campaign-ad bromide: lock ‘em up and throw away the key.

“The two parties started trying to out-tough each other,” says William R. Kelly, a University of Texas-Austin criminologist. “Once it became bipartisan, there was no slowing it down. There’s no foil. There’s no one to argue with.”

A popular American lament rues the lack of political cooperation in Washington and in statehouses. But be careful what you wish for. Bipartisanship in the 1980s and ‘90s sowed the seeds for today’s mass incarceration crisis as pols cultivated crime platitudes over thoughtful analysis. And undoing this now-codified, multibillion-dollar political botch-job won’t be easy, despite the kumbaya incantations coming from both the Right and Left.

"This is an important thing to keep in mind when you’re talking about where we are today with mass incarceration,” Paul Wright, editor of Prison Legal News, told me. “For the past 40 years, virtually every politician—Democrat and Republican, federal and state—has voted in favor of virtually every imaginable tough new crime law that made sentences longer and imprisoned more people in worse conditions. There was no dissent and often no discussion. I think there was more dissent in the Soviet Union’s Supreme Soviet under Brezhnev when laws were debated."

Nixon Paved the Way

The political roots of contemporary mass incarceration reach back to the 1960s, when escalating crime, race riots, campus protests and shocking assassinations fed a sense of growing lawlessness. Richard Nixon seized upon the attendant fear, wielding the crime issue in his presidential campaign of 1968 as a white-vs.-black counterpoint to poverty, the keystone issue of his Democratic opponent, Hubert Humphrey.

“Nixon really was the first major national figure who embraced the loss of law and order as the problem and mass incarceration as the solution,” says Kelly, author of the newly published Criminal Justice at the Crossroads: Transforming Crime and Punishment(Columbia University Press).

In a sense, bipartisan reform began as a political mashup. Both parties supported revamped sentencing in the 1970s. Conservatives wanted longer, tougher prison terms. Liberals, vexed by wildly variable punishments for the same crimes across the 95 federal districts, wanted more standardized sentences.

Ronald Reagan capitalized after his 1980 election, forging a bipartisan coalition fronted on the Left by Sen. Ted Kennedy, the Massachusetts Democrat. The result was creation of the U.S. Sentencing Commission, tasked with creating a “rational sentencing system.” After more than two years of work, the commission presented Congress with 800 pages of new sentencing guidelines in 1987.

For decades, U.S. courts had used a system of indeterminate sentencing, which allowed a broad range of punishment for a particular crime—five to 10 years, for example. The new guidelines assigned a much narrower, determinate sentence—70 months to 85 months, say. A judge’s latitude was clipped.

When the guidelines took effect on Nov. 1, 1987, Congress included a proviso that any mandatory minimum sentence introduced by congressional amendment would override the punishment decreed in the guidelines. Congress immediately began using that power, and state legislatures copied the intensely politicized federal system. Elected officials co-opted the roles of judges and other criminal justice professionals, decreeing thousands of mandatory minimums. Many were based upon emotional, ripped-from-the-headlines anecdotes. Many abhorrent crimes became political theater in statehouses, with podium-pounding legislators passing laws with an implied promise that a tougher sentence could somehow ensure that such an atrocity would never happen again.

It was nonsense, of course.   

Clinton Takes Ownership of Crime

“A lot of it has been really sick or perverse,” says Wright. “One guy says, hey, let’s do a mandatory minimum on this crime, whatever it might be. Let’s make it 20 years! And another legislator says, well, let’s make it 40 years! They were just making up random numbers, pulling them out of thin air.”

Kelly says Bill Clinton’s campaign for president in 1992 was the “switch moment” of crime policy bipartisanship.

“Much of the political leverage on crime control had been owned by the Republican Party since the 1960s,” he says. “Clinton helped the Democratic party realize that it had to try to take ownership away from the Republicans.”

And he did just that, says Marc Mauer, executive director of the Sentencing Project. “While on the campaign trail in 1992 and just after returning to Arkansas (where he was governor) to oversee the execution of Ricky Ray Rector, a mentally impaired black man, Clinton had famously remarked, ‘I can be nicked on a lot, but no one can say I'm soft on crime.’"

Clinton was cheerleader-in-chief for the now-infamous federal crime bill of 1994, which authorized $33 billion to build prisons and hire more law enforcers. (It also eliminated education funding for inmates, the most reliable remedy against recidivism.) In that same era, two dozen states followed the lead of California and Washington by adopting three-strikes laws that imposed long mandatory sentences on repeat offenders, flooding prison systems with lifers.

“The policies were established in states with both Democratic and Republican leadership,” says Mauer, “and often with little analysis of their impact or wisdom in comparison with existing sentencing policy at the time.”

It’s All About the Votes

Clinton was not the only politician who used crime rhetoric as political ear-candy. In my book Scooped, published in 1998, I quoted Sen. Orrin Hatch, the Utah Republican, who said, “Mandatory minimums are a political response to violent crime. Let’s be honest about it. It’s awfully difficult for politicians to vote against them.” And Sen. George Mitchell, the Maine Democrat, said tough-on-crime laws had “little to do with reducing crime and everything to do with increasing votes.”

Reagan and Clinton often get blamed for mass incarceration. But others deserve a share.

“The ‘tough on crime’ movement and the development of the ‘war on drugs’ in the 1980s and 1990s was very much a bipartisan initiative,” Mauer says. “The war on drugs was formally launched by Ronald Reagan in 1982 by an administration seeking to expand the federal role in crime policy. Under the administration of George Bush Sr. the tough on crime rhetoric reached its peak under the leadership of Attorney General William Barr, who frequently framed the problem as ‘more prisons or more crime.’ And Bill Clinton, with strong support from then Sen. Joe Biden, pushed the 1994 crime bill, even highlighting its ‘three-strikes’ provision in his State of the Union address that year.”

Barr, who had a privileged childhood in New York as the son of Columbia University academics, was particularly intractable. He insisted it was “simply a myth” that prisons held “sympathetic people” and “hapless victims of the criminal justice system.”