Hillary Clinton and Bernie Sanders on Criminal Justice: The Past, Present, and Future

“Life must be lived forward but it can only be understood backward”—Soren Kierkegaard

The issues of race, income inequality, mass incarceration, and criminal justice reform are playing a major role in this year’s Democratic primaries and caucuses. Both Vermont Senator Bernie Sanders and former Secretary of State Hillary Clinton are campaigning passionately about criminal justice reform and in so doing are fiercely competing for the African-American vote. With her overwhelming victory in South Carolina, her win in the Iowa caucus, as narrow at it was, and her win in Nevada, Mrs. Clinton has so far demonstrated her clear advantage with African-American voters. Mr. Sanders’ impressive victory in New Hampshire, his competitiveness in Iowa, and strong showing among Latinos in Nevada have kept him in the running. Super Tuesday and the other upcoming contests in larger urban areas in March could generate significant if not insurmountable delegate strength for Mrs. Clinton.

Given the critical importance of the African-American vote in the Democratic nomination process, it is reasonable to ask what roles these two long-time public servants have played in dealing with the race and incarceration issues that plague our country today, and what impact income inequality has had in bringing about present conditions.

When he left the presidency in 2001, Bill Clinton opened an office in Harlem, a symbolic gesture to be sure, but how good was the Clinton presidency for African Americans?

Following his party’s resounding defeat in the mid-term elections of 1994, President Clinton signed into law two structurally devastating criminal justice and civil rights bills. The first was the Prison Litigation Reform Act of 1995 (PLRA), which significantly altered Reconstruction-era civil rights legislation by imposing restrictions on state prisoners, the majority of whom are black, Hispanic or poor, regarding access to the federal courts to sue for abuses while in state custody. Then came the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), which essentially suspended the right to federal habeas corpus relief for state prisoners (again, the majority of whom are black, Hispanic, or poor) who were convicted as a result of violations of their federal rights. This has been proven to be especially inimical to African-American, Hispanic, and low-income people who have been convicted of capital crimes and sentenced to death.

Even before the 1994 mid-term elections, President Clinton proposed and eventually signed into law the Violent Crime Control and Enforcement Act of 1994, which has been credited with, among other things, incentivizing the states to adopt truth-in-sentencing laws that dramatically lengthened prison sentences. The act funded the construction of numerous prisons and set conditions for federal criminal justice funding to the states, requiring that convicted persons serve at least 85 percent of the state sentences imposed on them.

Reports from the Bureau of Justice Statistics confirm that by virtue of these Clinton Administration standards the average sentence served for violent offenders increased from 45 months to 88 months, and the overall rate of incarceration increased by 7 percent annually between 1990 and 1997. The new law also expanded the use of the death penalty and decreased the minimum age for minors to be tried as adults.

In addition to his evisceration of federal habeas corpus and civil rights laws for incarcerated poor people and people of color, and the pronounced expansion of the law enforcement model of America’s criminal justice system, there was President Clinton’s Welfare Reform law in 1996. It greatly diminished the economic safety net for African Americans and poor people, the first such step since Lyndon Johnson’s Great Society and Richard Nixon’s New Federalism expanded on New Deal domestic initiatives in an effort to reduce American poverty levels.

At the time, as First Lady, Mrs. Clinton spoke out in support of these Clinton Administration policies and laws, and in 1996 she referred to some teenage offenders as “super predators” who were beyond rehabilitation and needed to be brought to “heel.” In a campaign stop in South Carolina just this past week, where she pointed out her pragmatic “I can get-it-done” progressive agenda and contrasted it to Mr. Sanders’ more idealistic and activist-like approach, Mrs. Clinton said that the 1960s ideals and activism of Dr. Martin Luther King Jr. and others of the day would have had little impact for change without President Lyndon Johnson’s passing and signing the Civil Rights Act of 1964 and the Voting Rights Act of 1965, which, according to Mrs. Clinton, made implementing these principles and ideals possible.

As a U.S. representative from Vermont, prior to his election to the Senate in 2007, Bernie Sanders was an uncompromising opponent of early 1990s Republican get-tough-on-crime legislation. His speeches on the house floor created serious tension and called out the clear connection between racism, income inequality, and mass incarceration. In 1994 during a floor debate on the Violent Crime Control and Law Enforcement Act of 1994, then Representative Sanders was strenuous in his opposition.

Mr. Sanders, an Independent, then decided to join the Democrats in supporting the Clinton Administration’s tough-on-crime criminal justice initiatives. He voted for President Clinton’s Violent Crime Control and Law Enforcement Act of 1994, even though he had steadfastly opposed it a week earlier. Mr. Sanders also voted for the Clinton-era Prison Litigation Reform Act of 1995 and the Anti-Terrorism and Effective Death Penalty Act of 1996. His explanation for supporting the proposed laws was that they had been sufficiently modified to warrant his vote.

Mr. Sanders did, however, vote against the 1996 Clinton welfare reform legislation. That legislation in many ways worsened the lot of low-income people, which would only serve to further foster the inequality of the criminal justice system. In 2005 Mr. Sanders co-sponsored a bill that would have repealed the Anti-Terrorism and Effective Death Penalty Act of 1996.

As a U.S. Senator from New York, Mrs. Clinton also supported the proposed repealing of the Anti-Terrorism and Effective Death Penalty Act, but unfortunately the repeal bill never saw the light of day. President and Mrs. Clinton have both since expressed regret for the Clinton-era criminal justice policies and have recognized that they are in large part to blame for the present day African-American and mass incarceration crisis. However, the former President and Mrs. Clinton have steadfastly stood behind the welfare reform policies and laws.

Mr. Sanders also has expressed regret for his votes on these measure and has explained that he strongly opposed portions of the bills and voted for the final versions only because more favorable provisions, such as a ban on assault weapons and additional content regarding prevention of violence against women, had been added to the legislation.

Mr. Sanders continues to see the issue of race and incarceration as inextricably connected to income inequality. Mrs. Clinton disagrees and classifies Mr. Sanders as a one-issue candidate. She sees mass incarceration as a derivative of systemic American racism. Both of these positions have merit. A full 80 percent of all persons accused of crimes in the United States cannot afford a privately retained lawyer and are forced to rely on the nation’s constitutionally inadequate state public defense systems. An astounding 97 percent of these defendants enter into prosecutor-driven plea bargains and 60 percent or more of those who plea bargain are African American or Hispanic.

So while Mr. Sanders may be a one-issue candidate, he seems to have identified the right issue. Race and incarceration are in fact driven by income inadequacy. If more African-American and poor people had good paying jobs, decent homes, adequate healthcare, a good education, sufficient food and clothing, and access to a robust criminal defense, fewer would get arrested, plead guilty, and go to prison.

Mrs. Clinton’s explanation is equally valid. From the very inception of the Republic, African Americans have not only been distanced from the economic life of the country but from the whole mainstream of society. In addition, persistent generational mass incarceration has systematically operated to try to destroy the African-American family unit by removing fathers from the kitchen table and placing them in jail cells, leaving family gatherings and parenting for prison visiting rooms.

To witness this devastation firsthand, one would need only to pay a visit to a state prison law library, where prisoners, most of whom are African American, Hispanic, and low-income, are trying pro se (representing oneself) to overturn their state convictions and vindicate their federal civil rights and habeas corpus claims. It’s difficult to fathom the hardship caused to these individuals and their families when they try to undo the damage and injustices resulting from ineffective trial counsel, overreaching unjust plea agreements, wrongful convictions, and unresponsive and procedurally insulated state appellate and post-conviction mechanisms. Once placed in a prison facility, they either continue to be represented by lukewarm public defenders or are, as in most cases, left to challenge their convictions and conditions of confinement pro se from prison law libraries.

Thanks to Clinton-era habeas corpus and civil rights litigation “reforms,” a state prisoner who can clearly demonstrate that his or her state conviction was based on violations of the individual’s federal rights in existence at the time has little or no chance of having the writ of habeas corpus issued, and a person who has made a colorable claim (a claim with reasonable chance of being valid) of a civil rights violation usually cannot even have a complaint served on the state-actor defendants. The Clinton-era habeas corpus law gives almost absolute deference to state court decisions and imposes thoroughly subjective, convoluted, “objectively unreasonable” and “contrary to” standards that effectively remove the matter from the jurisdiction of the federal judge assigned to the case. This requires the typically under-educated pro-se state prisoner seeking relief to establish by a preponderance of the evidence that essentially no “fair minded” jurist in the country would have decided the issues in his case the way the state trial judge did.

The Anti-Terrorism and Effective Death Penalty Act of 1996 is a procedural landmine that even many experienced attorneys have difficulty navigating, and yet we expect pro se state defendants with a limited education and no legal experience to litigate through it. AEDPA also imposes arbitrary formalistic deadlines for filing a petition that are so inflexible that they prevent a federal judge from granting relief to an unlawfully imprisoned or condemned person, even in the face of compelling evidence of wrongful conviction and even, actual innocence. Except for death penalty cases, a state prisoner is not entitled to a public defender in federal habeas corpus, and the vast majority of these prisoners must proceed self-represented if they cannot afford a private lawyer.

On top of all of this, what most people do not realize is that the so-called Anti-Terrorism and Effective Death Penalty Act has little or nothing to do with preventing terrorism. In order to get this measure passed by the Congress, Clinton-era criminal justice strategists used the April 1995 Oklahoma City bombing, which tragically left 168 people dead and hundreds injured, as a “prop” and branded the legislation as an anti-terrorism and pro-death penalty bill. In fact, AEDPA directly affects all prisoners who collaterally challenge their convictions in federal habeas corpus, regardless of the nature of their conviction or underlying offense.

Prior to the enactment of the law, a prisoner in state custody could fill out a petition form, have the filing fee waived, and mail it from the prison law library to the clerk of the federal district court in the district where the convicting court or the prison was located. At that point the petition—limited as it might be by a pro se prisoner’s level of experience and education—would be assigned to a district court judge whose clerk would routinely “scour the record” to ascertain if the conviction was based on the violation of any of the prisoner’s federal rights. If such a violation were found, the judge could issue the writ and order a new trial. In short, these federal judges were considered  “guardians” of prisoners’ rights.

In like manner, an indigent, pro se state prisoner who has been abused by guards or denied medical care or had his or her rights to litigate his conviction improperly interfered with or experienced some other federal civil rights violation while in custody and who attempts to bring a federal civil rights action, now does so at the complete sufferance of the federal district court judge assigned to the case who, thanks to Clinton-era civil rights litigation “reforms” contained in the Prison Litigation Reform Act of 1995, has the sole and unfettered discretion to dismiss the action without even serving the complaint or requiring that the state actor defendants interpose an answer. Prior to the enactment of PLRA, a state prisoner had the same access as any other plaintiff to the federal courts to vindicate civil rights claims, and once the issue was joined (each party has been served and ready to proceed on the docket), the state court defendants were required to answer the complaint and the prisoner was given his or her day in court. An indigent state prisoner who cannot afford a private lawyer is not entitled to the appointment of counsel when litigating a federal civil rights claim.

It is indisputable that the primary objective of the Anti-Terrorism and Effective Death Penalty Act and the Prison Litigation Reform Act was to restrict access to federal Article III courts, especially for poor people and people of color.

To summarize, the Great Writ of Habeas Corpus, which dates back to the Magna Carta and was once regarded as the ultimate federal safeguard against wrongful state imprisonment, has been reduced to its nuisance value and has been essentially suspended for our nation’s state prisoners, 60 percent of whom are African American, Hispanic or poor. The Civil Rights Act of 1866, the centerpiece of Reconstruction-era federal anti-slavery legislation, has been so carefully circumscribed as it concerns state prisoners that it denies them free access to the federal courts as they seek justice for actual and often egregious violations of their civil rights while in state custody.

Both Mrs. Clinton and Mr. Sanders should be given the opportunity to openly and candidly discuss their records on these issues in a forum dedicated exclusively to a conversation about the relationship of race-based mass incarceration and income inequality. Each candidate should be given time to present in detail how they would undo the damages done and reform our criminal justice and incarceration practices going forward.

Passionate campaign speeches on the subject and endorsements from prominent African-American leaders and references to the candidates’ early career activism and advocacy are all well and good. What we really need to understand at this critical point in the primary process is what caused each of them to take the positions that they did on 1990s criminal justice policies, what brought them to the realization that they were wrong, and what they are now proposing to fix these very broken systems that have had a devastating effect on African Americans and people of color and created serious hardships for poor people.

Francis Zarro is responsible for strategic planning and project coordination at First Fairfield Associates, a private social enterprise firm located in Saratoga Springs, N.Y. He helped to create the Skidmore College Restorative Justice Project and serves as the project’s director of legislative initiatives and civic education programming. Mr. Zarro has taught administrative law at Pace University and a legal research and law library clinic to incarcerated individuals. He has taught additional courses in the prison system in such fields as literature, history, government, and business to incarcerated veterans of the U.S. Armed Forces. He has held positions with the New York State Unified Court System and with the New York State Defenders Association, where he helped to create the Veterans Defense Program.

Mr. Zarro received a master’s degree in public administration from the Robert F. Wagner Graduate School of Public Service at New York University and a juris doctorate from Seton Hall University School of Law.