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The Armed Career Criminal Act and the Puzzle of Federal Crime Control in the Reagan Era: “It’s at the state and local levels that problems exist”

Published online by Cambridge University Press:  01 March 2023

CHARLOTTE E. ROSEN*
Affiliation:
Northwestern University

Abstract

This article examines how Pennsylvania Senator Arlen Specter’s Armed Career Criminal Act attempted to respond to the 1980s crisis of state prison overcrowding while also maintaining a political commitment to get tough on crime. Although commonly thought of as a straightforward punitive sentencing bill, this article shows that the Armed Career Criminal Act was also a desperate attempt to navigate a national crisis of state prison overcrowding in the 1980s that threatened to undercut racialized “get tough” politics and the burgeoning carceral state. In doing so, this article reshapes scholarship on the history of the United States carceral state by demonstrating that the United States’ decentralized political structure and federal government hostility toward funding state correctional expansion created significant gaps between a national discourse of law and order and actual anticrime policy making in the Reagan era, suggesting a far more contested development of the United States prison nation.

Type
Article
Copyright
© Donald Critchlow and Cambridge University Press, 2023

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Footnotes

Article made possible in part through the Arlen Specter Center Research Fellowship at Thomas Jefferson University.

References

Notes

1. The hearings also discussed S. 1689, which would have authorized the life imprisonment of “habitual criminals” in federal prisons, and S. 1690, which would have required states to ensure imprisoned people had a marketable job skill and basic literacy before they released them on parole. Although S. 1689 was “carried along for a while as a useful adjunct to the main bill,” neither of these two bills went very far, and Specter himself appears to have seen S. 1688 as the primary legislation to pursue. As Richard Fenno reported, by the end of October 1981, Specter was expressing “privately” that “The only part of the package that has any chance of passing is the first part.” See Fenno, Richard, Learning to Legislate: The Senate Education of Arlen Specter (Washington, DC: Congressional Quarterly, 1991), 47 Google Scholar.

2. Career Criminal Life Sentencing Act of 1981, Hearings Before the Subcommittee on Juvenile Justice of the Committee on the Judiciary of the United States Senate, 97th Cong. 154–162 (1981) (testimony of Chuck Stone, columnist at the Philadelphia Daily News).

3. Career Criminal Life Sentencing Act of 1981, 154–162 (testimony of Chuck Stone, columnist at the Philadelphia Daily News).

4. See Agyepong, Tera Eva, The Criminalization of Black Children: Race, Gender, and Delinquency in Chicago’s Juvenile Justice System, 1899–1945 (Chapel Hill: University of North Carolina Press, 2018)CrossRefGoogle Scholar; Haley, Sarah, No Mercy Here: Gender, Punishment, and the Making of Jim Crow Modernity (Chapel Hill: University of North Carolina Press, 2016)CrossRefGoogle Scholar; Hinton, Elizabeth, From the War on Poverty to the War on Crime (Cambridge, MA: Harvard University Press, 2016)CrossRefGoogle Scholar; Forman, James, Locking Up Our Own: Crime and Punishment in Black America (New York: Farrar, Straus and Giroux, 2017)Google Scholar; Muhammad, Khalil Gibran, The Condemnation of Blackness: Race, Crime and the Making of Modern Urban America (Cambridge, MA: Harvard University Press, 2010)CrossRefGoogle Scholar; Gottschalk, Marie, The Prison and the Gallows: The Politics of Mass Incarceration in America (Cambridge: Cambridge University Press, 2012)Google Scholar; Kohler-Hausmann, Julilly, Getting Tough: Welfare and Imprisonment in 1970s America (Princeton, NJ: Princeton University Press, 2017)Google Scholar; Lynch, Mona, Sunbelt Justice: Arizona and the Transformation of Punishment (Palo Alto, CA: Stanford University Press, 2009)Google Scholar; Lytle-Hernandez, Kelly, City of Inmates: Conquest, Rebellion, and the Rise of Human Caging in Los Angeles, 1771-1965 (Chapel Hill: University of North Carolina Press, 2017)CrossRefGoogle Scholar; Manion, Jennifer, Liberty’s Prisoners: Carceral Culture in Early America (Philadelphia: University of Pennsylvania Press, 2015)Google Scholar; McLennan, Rebecca, The Crisis of Imprisonment: Protest, Politics, and the Making of the American Penal State, 1776-1941 (Cambridge: Cambridge University Press, 2008)CrossRefGoogle Scholar; Murakawa, Naomi, The First Civil Right: How Liberals Built Prison America (New York: Oxford University Press, 2014)Google Scholar; Oshinsky, David, Worse Than Slavery: Parchman Farm and the Ordeal of Jim Crow Justice (New York: Free Press, 1996)Google Scholar; Schoenfeld, Heather, Building the Prison State: Race and the Politics of Mass Incarceration (Chicago: The University of Chicago Press, 2018)CrossRefGoogle Scholar; Thompson, Heather Ann, “Why Mass Incarceration Matters: Rethinking Crisis, Decline, and Transformation in Postwar American History,” Journal of American History 97, no. 3 (2010): 703–34CrossRefGoogle Scholar.

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6. Guetzkow, Joshua and Schoon, Eric, “If You Build It, They Will Fill It: The Consequences of Prison Overcrowding Litigation,” Law & Society Review 49, no. 2 (2015): 402 CrossRefGoogle Scholar.

7. For example, Jonathan Simon argues that beginning with Nixon, presidential administrations easily pursued wars on drugs because the “interstate and international commerce” element justified federal intervention. See Simon, Jonathan, Governing through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear (New York: Oxford University Press, 2006), 30 Google Scholar.

8. Campbell and Schoenfeld, “The Transformation of America’s Penal Order, 1375–1423, 1377.

9. See Feeley, Malcolm M. and Rubin, Edward L., Judicial Policymaking and the Modern State: How the Courts Reformed America’s Prisons (Cambridge: Cambridge University Press, 1998)Google Scholar; Schlanger, Margo, “Civil Rights Injunctions over Time: A Case Study of Jail and Prison Court Orders,” New York University Law Review 81, no. 2 (2006): 550630 Google Scholar.

10. Here I offer a play on Heather Schoenfeld’s conceptualization of “carceral capacity.” In her study of Florida’s post-WWII crime and penal politics, Schoenfeld importantly contends that the story of mass incarceration needs to be told through the lens of a “state capacity to punish,” or “carceral capacity,” which moves beyond an analysis of political rhetoric and instead interrogates the actual “bureaucratic structures, new frontline and administrative positions, new staff training, and new protocols across the institutions of the criminal justice system” that concretely expanded the state’s ability to punish and incapacitate so many people. This article shows that just as significant are the moments of carceral incapacity, where the state struggled to create the capacity necessary to detain the masses of people being sent to prison by increasingly punitive policing practices and sentencing policies. See Heather Schoenfeld, Building the Prison State, 16.

11. Rubin, Ashley T., The Deviant Prison: Philadelphia’s Eastern State Penitentiary and the Origins of America’s Modern Penal System, 1829-1913 (Cambridge: Cambridge University Press, 2021), 12–13, 16, 19, 22CrossRefGoogle Scholar. Rubin also details how overcrowding frequently beset Pennsylvania’s Eastern State Penitentiary, built in 1829, with a notable spike after the Civil War; see 303–18. For other discussions of pre-1960s prison overcrowding see Rebecca M. McLennan, The Crisis of Imprisonment; Berger, Dan and Losier, Toussaint, Rethinking the American Prison Movement (New York: Routledge, 2018)Google Scholar; David J. Rothman, “Perfecting the Prison: United States, 1789-1865”; Rotman, Edgardo, “The Failure of Reform: United States, 1865-1965,” in Morris, Norval and Rothman, David J., eds. The Oxford History of the Prison: The Practice of Punishment in Western Society (New York: Oxford University Press, 1995), 169–97Google Scholar. Bright, Charles, The Powers That Punish: Prison and Politics in the Era of the “Big House,” 1920-1955, (Ann Arbor: University of Michigan Press, 1996)CrossRefGoogle Scholar.

12. “Report on Penal Institutions, Probation, and Parole,” in U.S. Wickersham Commission Reports U.S. National Commission on Law Observance and Enforcement (Washington, DC: US Government Printing Office, 1931), 231–34.

13. See Berger and Losier, Rethinking the American Prison Movement and Heather Ann Thompson, Blood in the Water: The Attica Prison Uprising and Its Legacy (New York: Vintage Books, 2016).

14. Law Enforcement Assistance Amendments: Hearings Before the Subcommittee No. 5 of the Committee on the Judiciary on HR 14341, HR 15947, and Related Proposals to Amend the Omnibus Crime Control and Safe Streets Act of 1968, 91st Cong. (1970); Departments of State, Justice, and Commerce, the Judiciary, and Related Agencies Appropriations for Fiscal Year 1977: Hearings Before a Subcommittee of the Committee on Appropriations on H.R. 14239, 94th Cong. (1976); The Problem of Prison Overcrowding and Its Impact on the Criminal Justice System, Hearing Before the Subcommittee on Penitentiaries and Corrections of the Committee on the Judiciary, 95th Cong. (1977); Restructuring the Law Enforcement Assistance Administration, Hearings before the Subcommittee on Crime of the Committee on the Judiciary, 95th Cong. (1977).

15. The Problem of Prison Overcrowding and Its Impact on the Criminal Justice System, Hearing Before the Subcommittee on Penitentiaries and Corrections of the Committee on the Judiciary, 95th Cong. 2 (1977) (statement of Joe Biden, Chairman of the Subcommittee on Penitentiaries and Corrections of the Committee on the Judiciary in the US Senate).

16. Caplow, Theodore and Simon, Jonathan, “Understanding Prison Policy and Population Trends,” Crime and Justice 26 (1999): 74 CrossRefGoogle Scholar; Guetzkow and Schoon, “If You Build It, They Will Fill It: The Consequences of Prison Overcrowding Litigation.” Indeed, state prison populations actually decreased during the mid-1960s and into the early 1970s but spiraled upward beginning in 1973 and then quickly surpassed prior state prison population records in 1974. See Langan, Patrick A., Fundis, John V., Greenfield, Lawrence A., and Schenider, Victoria W., Historical Statistics on Prisoners in State and Federal Institutions, Yearend 1935-1986 (Washington DC: US Department of Justice, Bureau of Justice Statistics, 1988)Google Scholar.

17. Between 1925 (when the Bureau of Justice Statistics began gathering data on state and federal prison populations) and 1975 prison population rates generally trended upward, but significant drops in prisoner populations during World War II and the Vietnam War disrupted this unfettered growth such that in 1968 the prison population was at its lowest rate since the 1920s (188,000). Beginning in 1974, state and federal prisoner populations began skyrocketing dramatically, with nearly 300,000 prisoners added to the population and the highest ever recorded incarceration rate in US history by 1985. From 1973 to 2009, state and federal prison populations grew from 200,000 to 1.5 million people, not including an additional 700,000 people imprisoned in jails. Although prison and jail populations declined somewhat in the past decade—notably declining from 2.1 million in 2019 to 1.8 million by mid-2020 due to the pandemic—the United States is still the world’s leader in incarceration, imprisoning nearly 25% of the world’s prisoners despite containing only 5% of the world’s population. See “Prisoners 1925-1985,” Bureau of Justice Statistics Bulletin (Washington, DC: US Government Printing Office, October 1986), 2; Kang-Brown, Jacob, Montagnet, Chase, and Heiss, Jasmine, People in Jail and Prison in 2020 (New York: Vera Institute of Justice, 2021)Google Scholar; Travis, Jeremy, Western, Bruce, and Redburn, Steve, eds. The Growth of Incarceration in the United States: Exploring Causes and Consequences (Washington, DC: The National Academies Press, 2014)Google Scholar.

18. “Prisoners in 1986,” Bureau of Justice Statistics Bulletin (Washington, DC: US Government Printing Office, May 1987), 5. Beginning in 1983, the growing problem of prison overcrowding prompted the Bureau of Justice Statistics to ask jurisdictions to report capacity estimates. As the Bureau of Justice Statistics notes in their reports, the concept of prison capacity contains within it many potential definitions such that “capacity may reflect both available space to house inmates and the ability to staff and operate an institution. The Bureau of Justice Statistics asked states to provide them with three measures to determine prison capacity: rated (“number of beds or inmates assigned by a rating official to institutions within the state”), operational (“number of inmates that can be accommodated based on a facility’s staff, existing programs, and services”), and design capacities (“the number of inmates that planners or architects intended for the facility”). Reporting jurisdictions, however, did not all provide each of these reports or reported imprecisely, choosing to submit only one capacity measure or gave the same figure for each capacity measure they reported. Given these data issues, the Bureau of Justice Statistics measured prison overcrowding by assessing a state’s prison population compared with both their “highest capacity” and “lowest capacity,” pulling from the high and low ends of capacity measures provided by the states. Moreover, even among corrections professionals, guidance and standards regarding correctional space varied. For example, in 1980 the American Correctional Association recommended that adult correctional institutions maintain “one inmate per room or cell … of at least 60 square feet” and the US Department of Justice recommended that “all cells and detention rooms rated for single occupancy house only one inmate,” with these cells having “at minimum, 50 square feet of floor space.” Capacity measures were generally determined by state correctional officials “using whatever criteria they believe to be most appropriate” and without meaningful federal oversight. See “Prisoners in 1983,” National Prisoner Statistics Bulletin (Washington, DC: US Government Printing Office, April 1984); “Prisoners in 1986,” Bureau of Justice Statistics Bulletin (Washington, DC: US Government Printing Office, May 1987); “Prisoners in 1987,” Bureau of Justice Statistics Bulletin (Washington, DC: US Government Printing Office, April 1988); “Prisoners in 1988,” Bureau of Justice Statistics Bulletin (Washington, DC: US Government Printing Office, April 1989); “Prisoners in 1989,” Bureau of Justice Statistics Bulletin (Washington, DC: US Government Printing Office, May 1990); Mullen, Joan and Smith, Bradford, American Prisons and Jails, Volume III: Conditions and Costs of Confinement (Washington, DC: National Institute of Justice, 1980), 4042 Google Scholar.

19. “Prisoners in State and Federal Institutions,” National Prisoner Statistics Bulletin (Washington, DC: US Government Printing Office, December 31, 1977), 1; US Department of Justice, “Prisoners in 1989,” Bureau of Justice Statistics Bulletin (Washington, DC: US Government Printing Office, May 1990), 5.

20. Mumola, Christopher J. and Beck, Allen J.Prisoners in 1996,” Bureau of Justice Statistics Bulletin (Washington, DC: US Government Printing Office, June 1997), 6 Google Scholar.

21. More specifically, following the Commission on Accreditation for Corrections and Department of Justice’s standard of 60 square feet minimum for prisoners who spend less than 10 hours per day in their cells, the researchers determined all confinement units with less than 120 square feet of floor space to have capacity for just one prisoner, given that more than one person in those cells would result in each individual having less than 60 square feet of space. When they applied the 60 square feet uniform standard to the cell spaces reported by the states, researchers found “substantial discrepancy between state definitions of capacity and the study’s uniform definition based on square footage,” resulting in the “loss of one-quarter of the spaces reported.” If cells with less than 60 square feet were removed from the calculation of usable cells, the reported capacity of federal, state, and local correctional facilities was sliced in half. See Joan Mullen and Bradford Smith, American Prisons and Jails, Volume III: Conditions and Costs of Confinement, 41–56.

22. Gottfredson, Stephen D. and Taylor, Ralph B., The Correctional Crisis: Prison Populations and Public Policy (Washington, DC: National Institute of Justice, 1983)Google Scholar; Carla Rivera, “Rapid Overcrowding of Prison Predicted,” The Los Angeles Times, December 12, 1985.

23. “State Prisons around Nation Scramble for Relief as Overcrowding Mounts,” New York Times, September 29, 1983.

24. Leslie Maitland Werner, “Overcrowding Spreads to Jails in US,” New York Times, November 23, 1983.

25. “Holmesburg Prison Tour, Conditions Shock Specter, State Briefs Pennsylvania,” Associated Press, August 23, 1984.

26. Robert E. Taylor, “More Riots are Feared as Overcrowding Fuels Tensions Behind Bars,” Wall Street Journal, August 18, 1981.

27. Cynthia Gorney, “The Festering Storage Bin in New Mexico,” Washington Post, February 10, 1980.

28. “Crowding in Prisons Worrying Officials,” The New York Times, February 10, 1980.

29. Al Kamen and Ed Bruske, “Overcrowding in DC Jail Again an Issue,” Washington Post, July 6, 1983.

30. Federal Assistance to State and Local Law Enforcement—Prisons: Hearing Before the Subcommittee on Juvenile Justice of the Committee on the Judiciary, 98th Cong. 2 (1983) (testimony of Senator Al D’Amato).

31. Governor James Thompson to Senator Arlen Specter, November 14, 1983, folder 5: “Prison Overcrowding,” 1983, box 146, Arlen Specter Senatorial Papers, Group 2. Legislative Files, 1965-2011, TJU.2010.01.02, Thomas Jefferson University (managed by the University of Pittsburgh Library System; hereafter cited as Spector Papers).

32. Federal Assistance to State and Local Law Enforcement Systems, Hearing Before the Subcommittee on Juvenile Justice of the Committee on the Judiciary, 98th Cong. 40–44 (1983) (testimony of Pennsylvania Bureau of Corrections Commissioner, Ronald Marks).

33. On The Status of Our Nation’s Prisons with a Focus on the Appropriate Role of the Federal Government in Building and Supporting the Prisons, Hearing Before the Subcommittee on the Juvenile Justice of the Committee on the Judiciary, 98 Cong. 19, 48 (1983) (statements of Robert Landon, Director of Corrections for the Commonwealth of Virginia and Anthony Travisono, Executive Director of the American Correctional Association).

34. Between 1969 and 1977, Congress appropriated a total of $5.9 billion to the agency. See Hinton, From the War on Poverty to the War on Crime; Murakawa, The First Civil Right; Schrader, Stuart, Badges without Borders: How Global Counterinsurgency Transformed American Policing (Berkeley: University of California Press, 2019)Google Scholar; Overview of Activities Funded by the Law Enforcement Assistance Administration (Washington DC: General Accounting Office, 1977).

35. Hinton, From the War on Poverty to the War on Crime, 161.

36. In 1969, 79% percent of Law Enforcement Assistance Administration (LEAA) block grants went toward funding state and local police, whereas only 13% went toward corrections. Overview of Activities Funded by the Law Enforcement Assistance Administration, 11.

37. Overview of Activities Funded by the Law Enforcement Assistance Administration, 11 16, 129. Initially, the LEAA’s funding for state and local corrections came under Part C funds and was extremely minimal. In 1969, 79% percent of LEAA block grants went toward funding state and local police, whereas only 13% went toward corrections. However, a round of amendments to the Safe Streets Act passed by Congress in 1970 increased LEAA funding for state and local corrections. Specifically, the passage of a “Part E” amendment set aside funds for the acquisition, construction, and rehabilitation of correctional institutions, resulting in a significant increase in LEAA funding for state corrections. Part E offered to pay for 75% of corrections projects with federal funds and required states to segment 20% of discretionary and block funds for corrections. It also stipulated that the funds could not replace other corrections spending, ensuring that the funds would be directed toward developing new facilities and programs. The jump in federal spending on corrections triggered by the Part E amendment was dramatic; the amount of LEAA funds used for corrections increased by a whopping 12,400% between 1969 and 1972, from just 2 million to almost $250 million. Between 1970 and 1979, nearly $800 million LEAA funds went toward “corrections-related activities.” Despite this seemingly robust investment in corrections, however, a slim portion ultimately ended up funding correctional construction, suggesting a striking deficit in federal funding for carceral capacity. See Overview of Activities Funded by the Law Enforcement Assistance Administration, Safe Streets … the LEAA Program at Work (Washington, DC: US Government Publishing Office, 1971); Feeley, Malcolm and Sarat, Austin, The Policy Dilemma: Federal Crime Policy and the Law Enforcement Assistance Administration, 1968-1978 (Minneapolis: University of Minnesota Press, 1980), 59 Google Scholar; Elizabeth Hinton, From the War on Poverty to the War on Crime, 170–77; Merriman, Robert E., Safe Streets Reconsidered: The Block Grant Experience 1968-1975 (Washington, DC: Advisory Commission on Intergovernmental Relations, 1977)Google Scholar; Moore, Charlotte, Prison Reform: The Federal Role (Washington, DC: Congressional Research Service, 1981), 5 Google Scholar; Weaver, Vesla, “The Significance of Policy Failures in Political Development: The Law Enforcement Assistance Administration and the Growth of the Carceral State,” in Jenkins, Jeffrey A. and Patashnik, Eric, eds. Living Legislation: Durability, Change, and the Politics of American Lawmaking (Chicago: University of Chicago Press, 2012), 238 Google Scholar; Congressional Budget Office, Federal Law Enforcement Assistance: Alternative Approaches (Washington, DC: US Government Publishing Office, 1978)Google Scholar; Hearings Before a Subcommittee on Appropriations, 92nd Cong. 344 (1970) (Part E—Grants for Correctional Institutions and Facilities); Correctional Reform: Hearings Before the Subcommittee on National Penitentiaries of the Committee on the Judiciary, 91st Cong. 14 (1970) (statement of Richard Velde, Associate Administrator, Law Enforcement Assistance Administration); Restructuring the Law Enforcement Assistance Administration, Hearings Before the Subcommittee on Crime of the Committee on the Judiciary, 95th Cong. 54–55 (1977) (testimonies of Richard Wertz, Executive Director, Governor’s Commission on Law Enforcement and the Administration of Justice and US Representative John Conyers).

38. Hinton, From the War on Poverty to the War on Crime; Vesla Weaver, “The Significance of Policy Failures in Political Development,” 238.

39. In fiscal year 1977, federal government funding accounted for only $150 million of the $2.4 billion spent on adult correctional facilities across all levels of government. More specifically, the federal government’s expenditure on capital outlays for the purposes of constructing adult correctional facilities was only $185 million, compared with $1.3 billion from states and $1.009 billion from local governments. Mullen and Smith, “American Prisons and Jails,” 127, 137.

40. Zimring, Franklin E. and Hawkins, Gordon, The Scale of Imprisonment (Chicago: University of Chicago Press, 1991), 139–40Google Scholar.

41. See Hinton, From the War on Poverty to the War on Crime, 276–306; Feeley and Sarat, The Policy Dilemma; Gest, Ted, Crime & Politics: Big Government’s Erratic Campaign for Law and Order (Oxford: Oxford University Press, 2001), 1747 CrossRefGoogle Scholar.

42. Gest, Crime & Politics; Guetzkow and Schoon, “If You Build It, They Will Fill It: The Consequences of Prison Overcrowding Litigation.”

43. William F. Woldman, “Prison Conditions: Congressional Response,” April 6, 1989, folder 25, box 449, Spector Papers.

44. Ted Gest, Crime & Politics, 44. On the Reagan administration and federal government’s reticence to fund state and local prison construction despite knowledge of worsening problem of state prison overcrowding, see Attorney General’s Task Force on Violent Crime: Final Report (Washington, DC: U.S. Department of Justice), xiii; Mullen and Smith, “American Prisons and Jails,” 145.

45. “The Case for Federal Assistance to States for Prison Construction,” January 1985, folder 8: “Prisons, 1985-6,” box 619, Spector Papers.

46. Internal memos between Specter and staffers who looked into potential budget cuts Specter could offer in exchange for his prison construction amendment reveal the extent of Specter’s pursuit, as well as the challenges of making a case for federal funding for prison and jail construction during the Reagan years. See Joe Kurylak to Senator Specter re: Budget Cuts that You Could Support, April 2, 1985; Eric L. Richard to Senator Specter re: Budget Cuts to Compensate for Prison Program, August 22, 1985, folder 8: “Prisons, 1985-6,” box 619, Spector Papers.

47. Although the passage of the 1986 Anti-Drug Abuse Act offered additional federal assistance for state and local law enforcement, albeit with more targeted focus on drug control versus crime generally, it too did little to respond to the states’ prison overcrowding crisis. The Act allocated a sparse $456,777 for prison capacity discretionary grants and provided funds to 14 state and local governments. Even so, the program primarily provided “technical assistance, training, and financial support to state legislatures, departments of corrections, and special policy commissions or task forces dealing with state prison capacities”—that is, not new construction or renovation. Despite having a line item for “prison capacity” in the Act’s 1987 budget, no funds were allocated for prison construction. Corrections funding for state and local governments increased with the passage of the 1988 Anti-Drug Abuse Act, and $181 million was allocated between 1989 and 1994. However, auditors of the program noted that “it is rare for this [funding] to translate into support for new beds that are in demand due to increased conviction rates for drug offenders,” in part because “the funding of beds is generally not done on a small programmatic basis.” See Justice Assistance Act of 1983, to accompany H.R. 2175, 98th Cong. (1983); Jones, Arnold P., Administration of Justice: Assistance to State/Local Governments for Fiscal Years 1986 and 1987 (Washington DC: United States General Accounting Office, 1988), 8, 6365 Google Scholar; Dunworth, Terence, Haynes, Peter, and Saiger, Aaron, National Assessment of the Byrne Formula Grant Program: A Policymakers Overview (Washington DC: National Institute of Justice Research Report, 1996), 64 Google Scholar; “Statement of Senator Arlen Specter, Emergency Prison Expansion Act, 1987,” folder 11, box 222; “Specter Prison Initiatives,” folder 8, box 619; William F. Woldman, “Prison Conditions: Congressional Response,” April 6, 1989, 7, folder 25, box 449, Spector Papers.

48. “Crowding in Prisons Worrying Officials,” New York Times, February 10, 1980; “Prison Bond Issue Appears Defeated in New York State,” Wall Street Journal, November 11, 1981; Kevin Krajick, “The Growing Crisis in Prison Overcrowding,” The Boston Globe, June 13, 1982; “State Prisons around Nation Scramble for Relief as Overcrowding Mounts,” New York Times, September 29, 1983. On the Reagan-era economy and antitax populism, see Baker, Dean, The United States Since 1980 (Cambridge: Cambridge University Press, 2007)CrossRefGoogle Scholar; Martin, Isaac William, The Permanent Tax Revolt (Palo Alto, CA: Stanford University Press, 2008)CrossRefGoogle Scholar.

49. Campbell and Schoenfeld, “The Transformation of America’s Penal Order”; Feeley and Rubin, Judicial Policy Making and the Modern State; Guetzkow and Schoon, “If You Build It, They Will Fill It; Margo Schlanger, “Civil Rights Injunctions over Time”; Sturm, Susan, “The Legacy and Future of Corrections Litigation,” University of Pennsylvania Law Review 142, no. 2 (1993): 639738 CrossRefGoogle Scholar.

50. John Herbers, “Lawsuits a Growing Burden for Prison Authorities,” New York Times, June 1, 1980.

51. Assertions that crime was rising during the late twentieth-century period require critical examination. Numerous scholars have demonstrated that sensationalized and racialized claims about rising crime ignored the fact that crime rates were at their lowest during the interwar period and that crime rates actually worsened after the nation began to invest in carceral state building. Apparent escalations in crime rates during the post-1960s period also ignored advances in crime reporting that likely increased the number of crimes reported and the presence of a high population of young adults as the result of “baby boomers’” maturation from children to young adolescents, who tend to commit the majority of offenses. See Thompson, “Why Mass Incarceration Matters,” 727; Hinton, From the War on Poverty to the War on Crime; Weaver, Vesla, “Frontlash: Race and the Development of Punitive Crime Policy,” Studies in American Political Development 21 (2007): 230–65CrossRefGoogle Scholar.

52. Federal Assistance to State and Local Law Enforcement Systems, Hearing Before the Subcommittee on Juvenile Justice of the Committee on the Judiciary, 98th Cong. 40–44 (1983) (testimony of Pennsylvania Bureau of Corrections Commissioner, Ronald Marks).

53. As Richard Fenno reported, there was not a clear constituency calling for Specter’s brand of sentencing reform captured by the ACCA—it was “one man’s home-grown, pet policy initiative.” See Fenno, Richard, Learning to Legislate: The Senate Education of Arlen Specter (Washington, DC, Congressional Quarterly, 1991), 45 Google Scholar.

54. See Arlen Specter, “District Attorney Report to the People of Philadelphia, 1970-1971,” folder 13, box 2, Spector Papers; Municipal Court Study,” 1977, Philadelphia Commission for Effective Criminal Justice, folder 163, box 17, Philadelphia Commission for Effective Criminal Justice Archives, Temple Special Collections Research Center, Temple University, Philadelphia, PA; Andrew Geller, “A Day in Court,” The Philadelphia Inquirer, July 24, 1983; 98 Cong. Rec. S3090 (daily ed. February 23, 1984); “An Oral History of Arlen Specter,” The Philadelphia Magazine, November 30, 2007, https://www.phillymag.com/news/2007/11/30/the-full-specter/.

55. “Rizzo Insists Cause of Riot Was Racial,” July 7, 1970, The Philadelphia Evening Bulletin.

56. Jon Katz, “14 Months after Holmesburg Riot, Time Bomb Still Ticks,” September 14, 1971; “No Deals with Cons—Specter,” September 14, 1971, Philadelphia Daily News.

57. Com. ex rel. Bryant v. Hendrick, 444 Pa. 83, 280 A.2d 110 (1971).

58. “D.A. Squad to Hunt 4500 Bail Jumpers,” September 23, 1970, The Philadelphia Inquirer.

59. “Prison System Blasted,” Associated Press, April 13, 1972; “Arlen Specter Files Suit against Pa,” Associated Press, December 20, 1972.

60. To be sure, Specter was not alone in his desire to federalize crime control. As Ted Gest notes, the “creeping federalization of local crime control,” had been underway since the 1970s. Often out of a political desire to appear tough on crime, federal legislators had been steadily adding more federal criminal offenses. But Specter’s Armed Career Criminal Act marked him as a “leader in the federalization trend.” See Gest, Crime & Politics, 63–68.

61. Specter, Arlen and Michel, Paul, “The Need for a New Federalism in Criminal Justice,” The ANNALS of the American Academy of Political and Social Science 462, no. 1 (1982): 6061 CrossRefGoogle Scholar.

62. Specter and Michel, “The Need for a New Federalism,” 62.

63. “The Need for a New Federalism,” 63.

64. “The Need for a New Federalism,” 60. Specter’s strategy of targeting “armed career criminals” was not an entirely novel idea. Concern for “repeat offenders” of violent crimes dates to President Gerald Ford, whose administration sought to equip court systems with the legislative power and administrative resources to quicken the trial process and harshen the sentences for defendants who had a history of repeated offenses. Compelled by “evidence” that a small group of individuals in primarily segregated Black urban neighborhoods committed the majority of crimes, Ford’s administration used the LEAA’s $150 million in discretionary funds to specifically fund “career criminal programs” in various cities. Once selected to be prosecuted through a city’s Career Criminal program, defendants, who tended to be Black, single, and young men, faced an onslaught of prosecutorial efforts and resources to expedite the trial process. Government officials routinely named the program the LEAA’s “most successful program,” and by 1980, 145 cities across the country had career criminal units. However, the termination of LEAA funding meant that by the early 1980s local career criminal programs could rely only on scarce state and local funds. Because of the popularity of career criminal programs, states and localities did often scrape together enough for these programs to continue. But the loss of federal funding streams pushed many career criminal programs into an era of funding precarity, leading many to eventually phase out, downsize, or face ongoing threats of potential defunding. See Hinton, From the War on Poverty to the War on Crime, 258; Hearings Before the Subcommittee on Criminal Laws and Procedures of the Committee on the Judiciary, Session on S. 28 and S. 3216, 95th Cong. 8 (1978) (statement of Charles R. Work, Esquire, Peabody, Rivlin, Lambert, and Meyers; Dick Parsons to Jim Cannon, Subject: Crime, September 13, 1976, folder: “Presidential Handwriting, 9/18/1976,” box C49, Gerald R. Ford Presidential Library, Grand Rapids, MI, https://www.fordlibrarymuseum.gov/library/document/0047/phw19760918-02.pdf; Hearing Before the Subcommittee on Juvenile Justice of the Committee on the Judiciary, Oversight Hearings on Proposed Legislation Providing Federal Financial Assistance to State and Local Law Enforcement Agencies, and to Review the Effects of Budgetary Reductions for Criminal Justice Assistance Programs and on HR 4481, 97th Cong. (1982).

65. Specter and Michel, “The Need for a New Federalism,” 64.

66. “The Need for a New Federalism,” 64–65. Specter developed his reasoning regarding federal prosecution of “felons” caught in possession of a firearm on a “little-noticed recommendation” of the 1981 report of the Attorney General’s Task Force on Violent Crime, Recommendation 21. Recommendation 21 called for “increased federal prosecutions of convicted felons apprehended in possession of a firearm.” The Recommendation noted that federal penalties for gun possession were often harsher than state penalties for the same offense. Perhaps highlighting the federal government’s wariness about federal intervention into crime control, the report did caution that state and local authorities have “primary jurisdiction” over such offenses and that any federal prosecution needed to be pursued in close collaboration with state and local prosecutors. The federal government’s role was not to constitute wholesale takeover of firearm possession cases but rather to insert its prosecutorial resources when “more severe penalties” for the “most serious offenders” are able to be obtained. See Attorney General’s Task Force on Violent Crime: Final Report (Washington DC: US Department of Justice, 1981), 30.

67. Specter and Michel, “The Need for a New Federalism,” 70.

68. “The Need for a New Federalism,” 69–70.

69. Reagan’s administration and congressional leaders on both sides of the aisle followed Specter’s lead in working to expand the federal government’s power to punish, most visibly through the expansion of the federal government’s role in drug policing and prosecution and toughening of the federal criminal code. Years later, Specter noted that he was “glad to accept the responsibility” for “escalating the trend” of federalizing local crime control. Ted Gest, Crime & Politics, 49, 68. See also Beckett, Katherine, Making Crime Pay: Law and Order in Contemporary American Politics (New York: Oxford University Press, 1997)Google Scholar; Hinton, From the War on Poverty to the War on Crime.

70. Specter and Michel, “The Need for a New Federalism,” 70.

71. “The Need for a New Federalism,” 64.

72. For example, Specter faced resistance from powerful archconservatives, like Senate Judiciary Chairman Strom Thurmond, on the basis that the ACCA flagrantly extended federal criminal legal jurisdiction and violated states’ rights. See Fenno, Learning to Legislate, 120–22; Gest, Crime and Politics, 68; John East, “Debate and Discussion: Armed Career Criminals,” The Baltimore Sun, March 19, 1983.

73. Armed Career Criminal Act of 1982 Report to Accompany S. 1688, Committee on the Judiciary, 97th Cong. 8 (1982).

74. Flanagan was also the president-elect of the National District Attorneys Association.

75. Career Criminal Life Sentencing Act of 1981, Hearings Before the Subcommittee on Juvenile Justice of the Committee on the Judiciary of the United States Senate, 97th Cong. 141 (1981) (testimony from Suffolk County, Massachusetts District Attorney Newman Flanagan).

76. Armed Robbery and Burglary Prevention Act, Hearing Before the Subcommittee on Crime of the Committee on the Judiciary of the House of Representatives, 97th Cong. 39–41 (1981) (testimony of Assistant Attorney General in the Criminal Division of the Department of Justice Roger Olsen).

77. Armed Career Criminal Act of 1982 Report to Accompany S. 1688, Committee on the Judiciary, 97th Cong. 20 (1982).

78. Hearing Before the Subcommittee on Juvenile Justice of the Committee on the Judiciary, Oversight Hearings on Proposed Legislation Providing Federal Financial Assistance to State and Local Law Enforcement Agencies, and to Review the Effects of Budgetary Reductions for Criminal Justice Assistance Programs and on HR 4481, 97th Cong. 101 (1982).

79. Report to Accompany S. 1688: Armed Career Criminal Act of 1982, 97th Cong. (1982). Regarding the ACCA’s effects on plea bargaining, the report states that S. 1688 is expected to “discourage plea bargaining” because prosecutors would be incentivized not to reduce second offenses to misdemeanors, which would make it more difficult for an offender to be prosecuted under the ACCA if they were to reoffend (p. 41).

80. Armed Robbery and Burglary Prevention Act, Hearing Before the Subcommittee on Crime of the Committee on the Judiciary of the House of Representatives, 97th Cong. 3–6 (testimony of Senator Arlen Specter).

81. Armed Robbery and Burglary Prevention Act, Hearing Before the Subcommittee on Crime of the Committee on the Judiciary of the House of Representatives, 97th Cong. 16–17 (testimony of Hon. Ron Wyden, Representative from the State of Oregon). It’s worth noting that local district attorneys were not consistently unified in their support of the ACCA, and so Wyden’s concern about their support is understandable. Although the National District Attorneys’ Association had initially supported the legislation “in principle” in 1981, they pulled back their support when they had not secured the “mutual consent” language that would protect, in their view, their local discretionary power over where criminal offenders got prosecuted. Their opposition helped push some other prominent senators who had once backed the bill against it, such as the powerful Senator Edward Kennedy. Only after the ACCA integrated the National District Attorneys Association’s “mutual consent” stipulation did the bill pass in the Senate. The refusal to engage on the question regarding outlawing plea bargaining may have stemmed from similar concerns. Fenno, Learning to Legislate, 68, 100–2.

82. As Ted Gest argues, Reagan likely felt that vetoing the first major crime bill to come across his desk was safe given that it occurred after the 1982 congressional elections, giving his administration time to develop crime legislation that aligned more with their interests without sacrificing electoral votes. See “Specter Says President Reagan Supports His Career Criminal Bill”; Ronald Reagan, “Memorandum of Disapproval,” in folder 15, box 65, Spector Papers; Fenno, Learning to Legislate; Gest, Crime and Politics, 49.

83. See Fenno, Learning to Legislate, 115.

84. The new Senate bill included language that assuaged both Reagan’s Department of Justice officials and Senators with constituents worried about federal takeover. The bill limited federal intervention into career criminal cases to “situations where the local district attorney requests or concurs in the action by the US attorney” but also placed this language about concurrence in the bill’s section on intent rather than the jurisdictional section, which assuaged Department of Justice officials worry about limiting federal power. See Armed Career Criminal Act of 1983, Hearing Before the Committee on the Judiciary of the United States Senate, 98th Cong. 120 (1983).

85. Fenno, Learning to Legislate, 120.

86. United States Senate Congressional Record, January 26, 1983, 599.

87. Federal Assistance to State and Local Law Enforcement Systems, Hearing Before the Subcommittee on Juvenile Justice of the Committee on the Judiciary of the United States Senate, 98th Cong. 33 (1983) (testimony of District Attorney for Dauphin County Richard Lewis).

88. Federal Assistance to State and Local Law Enforcement Systems, Hearing Before the Subcommittee on Juvenile Justice of the Committee on the Judiciary of the United States Senate, 98th Cong. 42 (1983) (testimony of Pennsylvania’s Bureau of Corrections Commissioner Ronald J. Marks.

89. Federal Assistance to State and Local Law Enforcement Systems, Hearing Before the Subcommittee on Juvenile Justice of the Committee on the Judiciary of the United States Senate, 98th Cong. 33 (1983) (testimony of Dauphin County District Attorney Richard Lewis).

90. Armed Career Criminal Act, Hearing Before the Subcommittee on Crime of the Committee on the Judiciary in the House of Representatives, 98th Cong. 40–46 (1984) (testimony of Hon. Albert Gore, Jr., Representative in Congress from Tennessee).

91. See Armed Career Criminal Act of 1983, Hearing Before the Committee on the Judiciary in the United States Senate, 98th Cong. 2, 13 (1983) (opening statement of Senator Arlen Specter and testimony of Hon. James Knapp, Assistant Attorney General, Criminal Division, US Department of Justice); Fenno, Learning to Legislate, 120–21.

92. 98 Cong. Rec. S3090–3099 (daily ed. February 23, 1984); Fenno, Learning to Legislate, 120–24.

93. Fenno, Learning to Legislate, 123.

94. The ACCA did result in some federal convictions of repeat offenders. Deputy Assistant Attorney General James Knapp reported at the 1986 Senate hearing on the expansion of the ACCA that there were just 14 people serving sentences in federal prison as armed career criminals as of May 8, 1986. Knapp does suggest that those estimates may be low due to lack of sufficient reporting mechanisms, and later in the hearing, Deputy Assistant Secretary for Enforcement in the US Department of Treasury David Dart Queen reported that Bureau of Alcohol, Tobacco, and Firearms, which was running task forces in select cities to procure ACCA convictions, reported that the ACCA had obtained 40 convictions since the law’s passage. By 1991, the BATF reported convicting 471 people under the statute. When considered against the broader increase in state prison populations, however, the numbers appear strikingly meager. In 1991, state prison and jail population at the time was a staggering 751,806 people. Against this context, 471 ACCA convictions appears trivial, and certainly not a meaningful strategy for reducing state prison overcrowding. See The Armed Career Criminal Act Amendments, Hearing Before the Subcommittee on Criminal Law of the Committee on the Judiciary United States Senate, 99th Cong. (1986) (testimony of James Knapp, Deputy Assistant Attorney General), at 8–9, (testimony of David Dart Queen, Deputy Assistant Secretary for Enforcement in the US Department of Treasury), at 21; (testimony from Edward S. G. Dennis, Jr., US Attorney and Ronald D. Castille, District Attorney for Philadelphia, Pennsylvania); Protecting America: The Effectiveness of the Federal Armed Career Criminal Statute (Washington, DC: Bureau of Alcohol, Tobacco, and Firearms, 1991), 5; Snell, Tracy L. and Morton, Danielle, Prisoners in 1991 (Washington DC, Bureau of Justice Statistics, 1992)Google Scholar.

95. “Sen. Specter Introduces Legislation that would Broaden His Armed Career Criminal Act to Include Violent Felons and Serious Drug Criminals, As Well As Robbers & Burglars,” Press Release from US Senator from Pennsylvania Arlen Specter in folder 15: “Armed Career Criminal Act, 1981-88,” box 65, Spector Papers.

96. “Prisoners in 1988,” Bureau of Justice Statistics Bulletin (Washington, DC: US Government Printing Office, June 29, 1989), 4; Prison Overcrowding: Issues Facing the Nation’s Prison Systems (Briefing Report to Congressional Requesters, United States General Accounting Office, November 1989, 29).

97. See Gilmore, Ruth Wilson, Golden Gulag: Prisons, Surplus, Crisis, and Opposition in Globalizing California (Berkeley: University of California Press, 2008)Google Scholar; Lynch, Sunbelt Justice; Guetzkow and Schoon, “If You Build It, They Will Fill It”; Schoenfeld, Building the Prison State.

98. Specifically, the 1994 Crime Bill included a “Violent Offender Incarceration and Truth-in-Sentencing Incentive Grants Program,” which authorized $12.5 billion in grants for expanding state prison capacity for states who had sufficiently “toughened” crime control of so-called violent offenders and adopted “truth-in-sentencing” laws that reduced use of parole.

99. It is important to note that although a substantial amount of funds for prison construction to confine “serious and violent offenders” were authorized, actual appropriations were much less. See Turner, Susan, Fain, Terry, Greenwood, Peter W., Chen, Elsa Y., and Chiesa, James R., National Evaluation of the Violent Offender Incarceration/Truth-in-Sentencing Incentive Grant Program (Washington, DC: Rand, 2001)Google Scholar; “Violent Offender Incarceration and Truth In Sentencing Incentive Grant Program: Interim Final Rule,” Office of Justice Programs, Department of Justice, February 15, 1995.

100. See Turner et al., National Evaluation of the Violent Offender Incarceration/Truth-in-Sentencing Incentive Grant Program, 76.

101. Gilmore, Golden Gulag; Hinton, From the War on Poverty to the War on Crime; Kohler-Hausmann, Getting Tough; Murakawa, The First Civil Right: How Liberals Built Prison America; Thompson, “Why Mass Incarceration Matters; Wacquant, Loïc J. D., Punishing the Poor: The Neoliberal Government of Social Insecurity (Durham, NC: Duke University Press, 2009)Google Scholar.

102. Campbell and Schoenfeld, “The Transformation of America’s Penal Order,” 1395.

103. Between 1982 and 1991, 20% of the total corrections costs for 32 states were expended on capital outlays for one year or more. See Kyckelhahn, Tracey, State Corrections Expenditures, FY1982-2010 (Washington DC: Bureau of Justice Statistics, 2014), 3 Google Scholar.

104. Guetzkow and Schoon, “If You Build It, They Will Fill It”; Lynch, Sunbelt Justice; Schoenfeld, Building the Prison State.

105. Kyckelhahn, State Corrections Expenditures, FY1982-2010, 2; Stephan, James J., Census of State and Federal Correctional Facilities, 1995 (Washington, DC: Bureau of Justice Statistics, 1997), iv Google Scholar.

106. Mumola, Christopher J. and Beck, Allen J., “Prisoners in 1996,” in Bureau of Justice Statistics Bulletin, (Washington DC: US Government Printing Office, June 1997), 78 Google Scholar.

107. Schlanger, “Civil Rights Injunctions over Time”; Heidel, Anne K., “Due Process Rights and the Termination of Consent Decrees under the Prison Litigation Reform Act,” Journal of Constitutional Law 4, no. 3 (2002): 561–85Google Scholar.

108. Schlanger, “Civil Rights Injunctions over Time.”

109. Mayeux, Sara and Tani, Karen, “Federalism Anew,” American Journal of Legal History 56, no. 1 (March 1, 2016): 128–38CrossRefGoogle Scholar.

110. Hinton, From the War on Poverty to the War on Crime, 307.

111. Hinton, Elizabeth and Cook, DeAnza, “The Mass Criminalization of Black Americans: A Historical Overview,” Annual Review of Criminology 4 (2021): 126 CrossRefGoogle Scholar.