“Life Should Be Life”

The most familiar of the policies all three men worked on was the 1994 crime bill, the harsh, take-no-prisoner legislation (literally, in the case of its death penalty provisions) passed during a years-long frenzy to “convince the public that legislators are tough on criminals,” as the Washington Post put it. The bill, by putting tens of thousands more police on the streets, billions of dollars more into building prisons, encouraging harsher sentencing laws at the state level, and creating a federal “three strikes” sentence, fueled the United States’ current issues with policing and mass incarceration. It also became a major issue in the later presidential campaigns of Hillary Clinton, whose husband signed it into law, and Joe Biden, who worked with the White House to shepherd it to passage.

But the damage the bill would wreak on Americans’ lives wasn’t part of its calculus. Its passage, instead, was motivated entirely by politics, electioneering, and fear of the Right, as laid out repeatedly in memos.

In early June 1993, Emanuel laid out the thinking and motivation behind the bill to now–ABC News anchor George Stephanopoulos, who was then serving as White House communications director and was soon to become senior advisor to the president, and Mark Gearan, White House deputy chief of staff for policy, who was soon to take his spot. The administration, Emanuel explained in the memo, had to “bridge that gap between the budget and health care” in its policy agenda.

“If we do not fill the gap ourselves, it will be inevitably be [sic] filled by issues like gays in the military and abortion,” he wrote. Crime, he argued, “could serve as an effective counterweight” to what he termed those two “cultural/values-related issues,” and was one that “speaks to the general public and presents him as strong and moderate.” (Biden similarly urged Clinton to “seize control of the issue” and rush the bill through to “maintain crime as a Democratic initiative”).

“Democrats have a rare opportunity to seize this issue,” argued a research paper sent to Emanuel just days earlier, drawing on public polling that showed Democrats had an “edge” on crime over the GOP for the first time in twenty years.

Emanuel had extremely high ambitions for the crime bill. As he and Reed laid out to Clinton in a February 1994 memo, his goals included “to cement public perception of you as tough on crime,” to “improve the Democratic Party’s standing with regard to crime,” and to “help House Democrats in particular identify themselves with the issue of crime.” With midterms and gubernatorial races coming, they argued, its passage would “have an inevitable ripple effect and will not only benefit your image, but also that of the Democratic Party, which lost almost every major race in 1993 on the crime issue.”

Emanuel, Reed, and Klain (as well as Stephanopoulos) all ended up on the crime bill working group that would meet every ten days, and they worked closely with Biden in June 1994 on the conference report for the legislation. The collaboration “has been very successful for us,” they reported in a memo to White House chief of staff Mack McLarty, managing to fit in all of Clinton’s initiatives, including harsher punishments for violent criminals like three strikes and an expanded federal death penalty, and more prisons “to lengthen sentences for violent criminals.” In an earlier memo, Klain had laid out the administration’s three strikes proposal to then–attorney general Janet Reno, providing her with a list of “likely questions and answers.”

“Won’t your proposal lock up geriatrics?” went one. “For deterrent purposes, life should be life — we do not want to bet innocent lives on a criminal becoming ‘safe’ at some specific age (i.e., age 55 or age 60),” went Klain’s suggested reply.

A Campaign Myth

The memos also show something else: that the argument trotted out by both the Biden campaign and Democratic-aligned news outlets as cover for the law’s racist outcomes had little basis.

Both in 2016, when the crime bill reared its head in Hillary Clinton’s run, and throughout Biden’s campaign of 2019–20, news outlets and pundits again and again excused both candidates’ roles in the bill by pointing to the backing it got from the Congressional Black Caucus (CBC), who supposedly viewed it as “an imperfect solution to unbearable levels of urban crime.” As Biden said on the trail, “The Black Caucus voted for it.”

But, as the documents show, the CBC’s unhappiness with the bill was one of the administration’s chief obstacles to getting it passed, and Klain, Emanuel, and Reed spent months figuring out how to get the caucus’s support without making any meaningful concessions. This was made particularly complicated by the Racial Justice Act (RJA), a provision in the crime bill slipped in to make its harsher measures more bearable.

The RJA would have allowed those being put to death to challenge and even block the carrying out of their sentence if they could show that, statistically, the death penalty was being applied in a racially discriminatory way. Klain and the rest of the administration feared it would lose them support for the bill from some senators, from district attorneys, and from attorneys general from death penalty states (while noting that they had the support of some from non–death penalty states).

Having fretted from the beginning that the GOP would look for ways to divide Democrats “along racial and ideological fault lines,” they feared the RJA would frame the bill as a “dispute about racial justice.” Biden himself pushed for its exclusion, telling Klain and other staffers that the bill would be successfully filibustered if it stayed in.

On the one hand, as a May 1994 memo from the three men stated, leaving it out would “give us a product easier to defend from Republican attacks.” On the other, there were perils with this approach, as Klain and Pat Griffin, assistant to the president for legislative affairs, laid out to Clinton before ultimately pursuing that strategy. “This course will produce severe [emphasis in original] damage to our relations with the CBC — which is already incensed about the Crime Bill’s ‘tough’ provisions,” they wrote. “This damage is almost certain to have long-standing political and legislative ramifications.” They passed on the warnings of House leaders, that dropping it “will produce large-scale conflict with the Congressional Black Caucus” and bleed voters from liberals and the CBC.

This wasn’t a one-off fear. In a later July memo, Emanuel and Klain floated that “if CBC resentment of the absence of racial justice is a firestorm, they could keep the bill deadlocked in Conference for some time.” Two weeks later, owing to the fact that “some members of the CBC feel very strongly that the CBC should not support the crime bill” because “the CBC has not been shown proper respect by the administration,” Clinton’s staff set up a call with the caucus to persuade them to vote for it anyway.

How did they convince them? The talking points fed to Clinton for the CBC call included not just the single sentence, “We need this bill for the kids,” and that support from black mayors meant “they will not be alone,” but fear of the GOP: “If they throw all this away, there is a very good chance the Republicans will offer a bill in October with all the tough measures and none of the preventive measures — and there is no way we will be able to defeat that bill just before the election.” If it went down, according to the talking points, “the bill won’t move further to the left, but rather, inevitably — as we get closer to an election — further to the right.”

“Just an Arbitrary Goal”

The exact policy details of the crime bill, for all the ways they would be used to tear American communities apart in subsequent years, were sometimes an afterthought for those involved. Take habeas corpus reform, the measure pushed for years by Biden and finally passed in an unrelated bill two years later, which aimed to severely limit federal death penalty appeals. The measure one conservative judge would later call “a cruel, unjust, and unnecessary law that effectively removes federal judges as safeguards against miscarriages of justice” was, for Klain, just one more speed bump to roll through on the way to getting a bill on the president’s desk.

“Our goal should be to get a fast and plausible resolution of this troublesome issue, and move ahead on a Crime Bill that advances those matters that are at the heart of your anti-crime agenda [emphasis in original],” Klain wrote in June 1993. “Thus, we should be looking for the resolution that gets us out of this issue as quickly and simply as possible.” Klain urged Clinton to adopt the version worked out between Biden and prosecutors, which barred multiple appeals and put a six-month time limit on them.

Or take what was, for Clinton, the bill’s most important provision: one hundred thousand new police on the street. Upon being informed in 1997 that, due to waning interest at the local level, that number may not ever actually be deployed, Klain wrote back: “Well, of course, this was just an arbitrary goal that some campaign guys set. And besides, America doesn’t really need the police.”

Needed or not, the American people got them, and Emanuel got the game-changing piece of triangulation he had been after. The crime bill’s impending passage, he wrote in August 1994, was “one of the best things we have been able to do to both the president and Democratic candidates in ’94,” and would “change the political environment in which candidates are running.” Its signing “should be seen as the beginning of a campaign through the November elections,” he wrote.

Instead, only two months after Clinton signed the crime bill into law, the Democrats suffered a historic drubbing, losing the House, the Senate, a net ten governor’s mansions, and control of twenty state legislative chambers.

Heard This One Already

The story of the 1994 crime bill is a well-worn one, including its role in producing, under Clinton’s watch, “the largest increases in federal and state prison inmates of any president in American history,” in the words of the Justice Policy Institute.

The point isn’t to relitigate what’s now widely acknowledged as a terrible piece of legislation, but to look at what revisiting its creation can tell us about the men set to, for the third consecutive time, play leading roles in a Democratic administration.

The memos reveal the callousness and cynicism involved in the pursuit of power for its own sake, with Klain in particular casually justifying state brutality in service of a political win. They show a group of people so concerned with political attacks from the Right that they would gladly sacrifice human lives and even relationships with loyal allies to their left. And they remind us of the moral and political bankruptcy of this approach, whose failure to secure for the party the one single thing that justified in their minds all manner of overreach — electoral victory in the short term — wouldn’t stop that strategy or its progenitors from being tapped again and again to lead the country, including today.

After an exhausting year, millions of Americans are hoping for a new administration that will make a sharp break from what came before. You can’t help but feel you’ve heard this story once or twice before.