On December 10, 1981, Philadelphia Daily News columnist Chuck Stone took the stand at the Subcommittee on Juvenile Justice’s hearings on Pennsylvania Senator Arlen Specter’s Career Criminal Life Sentence Act (later Armed Career Criminal Act [ACCA]).Footnote 1 The bill was ostensibly concerned with toughening sentences, thus lengthening imprisonment, for “violent career criminals.” In particular, it sought to impose life imprisonment in federal prison for anyone convicted for a third time of armed robbery or burglary. Yet, Specter invited Stone to testify about his recent role in negotiating the safe surrender of hostages being held by prisoners at Pennsylvania’s Graterford State Correctional Institution. In reflecting on his experience, Stone pointed to prison overcrowding as a central catalyst for the unrest. “As you know … Pennsylvania prison systems are bulging at their population seams,” he said, “some of the prisons are so overcrowded that inmate tensions are being exacerbated to a boiling point, capable of endangering prison security … and endangering human lives.” Stone then described the “inhuman conditions” he saw at Graterford: rats and cockroaches running around cells, food so bad prisoners would skip meals, overcrowded cells that were “barely large enough for one,” and “unfair treatment” and “racist practices” that led to the disproportionate and harsh disciplining of Black prisoners. He quoted one of the leaders of the uprising, Jo-Jo Bowen, as telling him, “The conditions here sum up to dying.”Footnote 2
Why did Specter have Stone testify on state prison overcrowding at a hearing on toughening sentencing against “career criminals”? At first, the passage of the Armed Career Criminal Act appears to straightforwardly deal with prosecution and sentencing at the apogee of the 1980s law-and-order era. But as this article will show, the ACCA also represented an attempt to navigate a national crisis of state prison overcrowding that threatened to undercut “get tough” politics and the burgeoning carceral state. Stone admitted that the bill might not “precipitate massive reductions” in state prison populations. But he noted that the bill would “help to decrease critical overcrowding and correspondingly help increase state prison budgets.” In “these difficult economic times” Stone saw such measures as a necessity, given that Americans then had little interest in appropriating more tax dollars for costly prisons.Footnote 3
This article examines how Senator Specter’s Armed Career Criminal Act and his broader effort to expand the federal government’s jurisdiction over the typically state and local realm of crime control developed out of a little-acknowledged crisis of state prison overcrowding that created significant challenges for lawmakers seeking to sustain political commitments to get tough on crime. Passed as part of the 1984 Comprehensive Crime Act and expanded under the 1986 Anti-Drug Abuse Act, the ACCA initially sought to make both the sentencing of “repeat offenders” and their incarceration a federal responsibility, an unprecedented move in US criminal legal policy making that reflected the gravity of the prison overcrowding crisis. Specter took that dramatic step in part because he knew that Ronald Reagan and members of the GOP would not support federal spending for state prison construction. So, he tried to shift the responsibility for prosecution and incapacitation of such “dangerous” career criminals to the federal criminal legal system.
In recent years, historians of the United States’ carceral state have challenged explanations of the rise of racialized mass incarceration that place sole blame on a Republican-led, white conservative backlash to civil rights. In the process, they have located the carceral state’s origins in earlier eras and expanded the range of participants and factors driving it forward.Footnote 4 But these important efforts to uncover the deeper roots of mass incarceration have also led historians to deemphasize the mechanics of carceral state building in the Reagan era. In cutting their analyses artificially short, this scholarship gives the impression that by the time of Reagan’s election, retributive criminal legal policy making had become fully normalized and high functioning across a vast and decentralized territory. Historical scholarship on the carceral state has only just begun to grapple with the diffuse nature of American governance, where crime control in the United States is not dictated solely by top-down federal directives but rather is dependent on political arrangements and decision making at the state and local levels.Footnote 5
The scholarship has also not contended with the fact that the Reagan administration and GOP-dominated Congress did not meaningfully fund the state correctional systems responsible for detaining the masses of individuals sent to prisons and jails, leaving the substantial task of prison construction largely up to states and localities themselves. As Joshua Guetzkow and Eric Schoon have written, “putting people in prisons was easy, building them was not.”Footnote 6 Contrary to scholarly claims that the politics of federalism did not hamper the government’s ability to “govern through crime,” the Reagan-era federal government’s fiscal abandonment of states sprinting to expand their correctional capacity threw penal politics into considerable disarray during an era normally considered the apex of law and order.Footnote 7 Examining this more complex “federal–state interaction,” where the development of the modern carceral state occurred through the United States’ distinctly decentralized political structure, thus reveals critical points of contestation, limitations, and paths not taken that disrupt the otherwise tidy tale of ascendant, uninterrupted punitive politics.Footnote 8
This article demonstrates that the federal structure and the GOP’s initial hostility toward funding correctional expansion in the states created significant gaps between a national discourse of law and order and actual anticrime policy making in the Reagan era. Central to this dilemma was a crisis of state and local prison overcrowding, which triggered a stream of prisoner lawsuits, fueled prisoner uprisings and disturbances, and strained shrinking state budgets.Footnote 9 Despite Reagan and Republicans’ rhetorical endorsements of carceral politics, their distaste for massive government expenditures on state corrections prevented significant allocations of federal funding for building more state and local prisons. This wave of carceral incapacity in the states at just the moment that tough sentencing policies and policing practices were causing prison populations to skyrocket caused policy makers committed to getting tough on crime to puzzle through a mass imprisonment regime that appeared unsustainable.Footnote 10 Specter’s Armed Career Criminal Act, and the political debates and conundrums it raised, highlights this far more complex development of the United States carceral state, which was marked more by a process of fits and starts rather than unfettered or uniform growth.
“Everybody is Unhappy”: State Prison Overcrowding and the 1980s Carceral Crisis
Prison overcrowding has plagued prisoners, correctional administrators, and legislators since the dawn of the United States penitentiary. Considered the first prison in America, Philadelphia’s Walnut Street Prison faced debilitating overcrowding crises throughout the nineteenth century.Footnote 11 In 1931, President Herbert Hoover’s National Commission on Law Observance and Enforcement lamented overcrowding in “some prisons” where the “population is more than double what it ought to be.”Footnote 12 Severe prison overcrowding at New York’s Attica Prison played a significant role in catalyzing the 1971 Attica Rebellion.Footnote 13 Attica’s bloody conclusion alarmed federal legislators, who began raising concerns about prison overcrowding and explored ways to “prevent future Atticas” without backing down from a tough-on-crime approach.Footnote 14 As Senator Joe Biden (D-DE) lamented in a 1977 hearing before the Senate Committee on the Judiciary on state prison overcrowding, “We cannot have sure and swifter sentences and people in jail and not have more prisons.”Footnote 15
State prison overcrowding reached crisis levels, however, during the height of the incarceration boom in the late 1970s and 1980s, becoming “endemic” by the 1990s.Footnote 16 The escalation of prison overcrowding during this period developed alongside the unprecedented explosion in incarceration rates; as more and more people were confined in state and local correctional systems, a proliferation of overcrowding crises logically followed.Footnote 17 The number of sentenced state prison admissions grew by 17.5% between 1980 and 1981, compared with 8% between 1979 and 1980, and it continued to grow throughout the decade save for a slight dip in 1984. By the end of 1986, a striking 41 state prison systems were operating at approximately 100% or higher of their lowest capacity and 32 states contained prison populations that met or surpassed their highest reported capacity.Footnote 18 The number of state jurisdictions forced to detain state prisoners in local jails also drastically increased during the 1980s. In 1976, 7,725 state prisoners were held in local jails due to overcrowding, and in 1989 this number had jumped to 18,326, constituting 2.6% of the total state prison population.Footnote 19 Although state prisons did increase their capacity throughout the decade and into the 1990s, in 1996 27 states still reported holding a total of 31,508 state prisoners in local jails or other facilities because of overcrowding.Footnote 20
Even these measurements likely did not capture the full extent of the prison overcrowding crisis unfolding in the 1980s. In a 1980 report on US prisons and jails, the National Institute of Justice asked jurisdictions to report the physical dimensions of all “confinement units” and then assessed these units against a long-accepted “uniform” standard of 60 square feet of living space. When the researchers applied this standard to states’ reported cells, they found that many of the state’s confinement units failed to meet the uniform standard, meaning the nation’s actual prison capacity was only half of what states reported. In other words, state prison overcrowding was far, far worse than the official numbers revealed.Footnote 21
Even when states did allocate the substantial funds necessary to build more prisons, the new institutions almost immediately became overfilled.Footnote 22 A 1983 New York Times investigation found that that in at least 18 states, prisoners were “sleeping on floors” in chapels and gymnasiums. “We’ve been cramming beds into almost every space we can find,” lamented Kenneth Robinson, the press secretary for Pennsylvania’s Bureau of Corrections.Footnote 23 This mounting incapacity crisis raised alarm for legislators, who worried that overcrowding undermined anticrime efforts by making judges hesitant to sentence harshly, bail commissioners reticent to detain accused individuals in jail pretrial, and parole boards pressured to let prisoners out early. Anecdotes from the local level appeared to confirm their fears. Edward Koren of the American Civil Liberties Union’s National Jail Project reported that Louisiana judges placed a sign on the court room wall that listed the court-ordered capacity of the jail “so they know how many people they can place in the jail each day.”Footnote 24 Prison overcrowding plagued Specter’s home state as well, especially in Philadelphia, where he had served as District Attorney. On a 1984 tour of Philadelphia’s Holmesburg Prison, Specter called the overcrowded facility’s conditions “deplorable.” “There were three men to a cell, a stopped toilet,” he reported, complaining that the three Common Pleas judges appointed to oversee improvements had been “lax” in enforcement.Footnote 25
Prison overcrowding also made prisons more susceptible to disturbances.Footnote 26 When imprisoned people at New Mexico’s State Penitentiary took control of the prison for three days, leading to the death of 33 people, many cited the prison’s overcrowded conditions—what one report called a “festering storage bin”—as a central catalyst.Footnote 27 Indicative of the truly national character of the crisis, a Wyoming state prison warden responded to the violence at New Mexico by warning, “It’s only a matter of time before we’ll have the same thing.”Footnote 28 In Washington, DC, frequent disturbances broke out at Lorton Jail, where in 1983 more than 2,400 prisoners were “stacked two each in 7- by 10-foot cells” in an institution built for only 1,355 prisoners. After Lorton’s prisoners set fire to mattresses and prompted the evacuation of 430 prisoners, a jail administrator called the institution a “ticking bomb.”Footnote 29
Amid the proliferation of state and local correctional disasters, state policy makers repeatedly pleaded with the federal government to help states improve and expand their correctional systems.Footnote 30 In 1983, Illinois’s Governor James Thompson wrote Specter to express support for federal assistance for prison construction, which Specter had been championing. “As you know, Illinois is continuing to experience significant shortfall in prison bed space,” he wrote, “We are clearly finding that with recent court decision and sentencing patterns our prison population will continue to outrun capacity.” Even though the state “embarked upon an ambitious building program,” he worried “state resources will likely be inadequate to meet our continuing incarceration needs.”Footnote 31 That same year, the Commissioner of Pennsylvania’s Bureau of Corrections, Ronald Marks, testified that his agency also “felt the burden” of what he called “tougher justice.” He listed numerous strategies his Bureau had deployed to try to reduce overcrowding—adding cells, improving classification, and placing eligible prisoners in community service centers—but noted “in spite of all these efforts to improve conditions and relieve prison overcrowding, the Bureau’s overcrowding problems continue to escalate.” He implored the government to provide financial assistance for prisons, which he deemed necessary “if any progress is to be made.”Footnote 32 The director of the American Correctional Association, Anthony Travisono, also expressed his frustration with federal government indifference to state and local prison overcrowding. “To hold correctional leaders and inmates hostage until we resolve the question of whether or not to continue building,” he wrote in his statement, “is in itself a crime.”Footnote 33
The mismatch between accelerating prison populations and insufficient state prison capacity developed in part from the federal government’s comparatively minimal investment in state and local corrections during the 1970s heyday of federal law enforcement assistance. The creation of the Law Enforcement Assistance Administration (LEAA) in 1968 catalyzed an explosion of federal funding for state and local law enforcement in the 1970s. Created as part of President Lyndon Johnson’s War on Crime in the 1968 Safe Streets Act but significantly expanded under President Richard Nixon, the LEAA became one of the fastest-growing agencies in the federal government.Footnote 34 The LEAA made funds available to states for planning agencies (Part B); for block action grants (Part C); and as “seed money” for training, equipment, research, and professionalization.Footnote 35 Funding for state and local corrections came under Part C funds.Footnote 36 Yet between 1969 and 1977, the LEAA disbursed just over $75 million total for construction of corrections institutions, or just 1.7% of its total disbursements during this period.Footnote 37
This is not to suggest that the LEAA played only a small role in laying the groundwork for the late twentieth-century US carceral state. The LEAA’s unprecedented allocations for state and local law enforcement materially expanded the state’s capacity to punish and created momentum for states and localities to invest even greater sums of public funds into crime control.Footnote 38 But the agency’s sparse disbursements toward state prison construction left states and localities to fend for themselves when dealing with the influx of prisoners that tough on crime policies produced.Footnote 39 As Franklin Zimring and Gordon Hawkins mused, “unlike education and highway building, where state administrative responsibility has been accompanied by substantial federal financial aid” when it came to constructing and managing prisons, “state governments in the United States pa[id] the overwhelming majority of all bills.”Footnote 40
The discrediting of federal assistance for state and local law enforcement intensified the federal government’s unwillingness to fund state prison construction. Reports that the LEAA failed to decrease crime, produced bureaucratic waste, and facilitated corruption tarnished its reputation, and President Jimmy Carter cut the program entirely in 1980.Footnote 41 Fresh off the LEAA’s shuttering, the Reagan administration refused to prioritize federal funding for state and local corrections.Footnote 42 Ironically, given Reagan’s reputation for loudly supporting tough-on-crime policies as a means of telecommunicating anti-Black politics to his base, the 1980s saw a decrease in federal funding for state corrections. Between FY1980 and FY1983, no federal funds were authorized for state prison construction despite the fact that these years saw the largest increase in prisoner populations in United States history.Footnote 43 As journalist Ted Gest writes, although the majority of the Republican Party during the 1980s “favored more incarceration,” their leaders “were even more emphatic about not spending federal tax dollars to help states do the job.”Footnote 44
Not all GOP congressional leaders thumbed their nose at the idea of federal assistance for state prisons. Senator Specter was one of the more vocal politicians fighting for federal funding in a post-LEAA landscape. He believed that state prison overcrowding prevented states from incapacitating individuals convicted of violent crimes, which he believed was necessary to protect public safety. In a 1985 fact sheet entitled “The Case for Federal Assistance to States for Prison Construction,” Specter warned that over 21,000 prisoners were “released from state prisons in 15 states because of overcrowding,” along with thousands more released pretrial from overcrowded jails. “A federal commitment of $200 million, on a 4:1 matching basis, could lead to additional state and local construction expenditures of $1 billion, adding 25,000 new beds each year, for a total of 100,000 by 1990,” the fact sheet proposed.Footnote 45
Throughout the 1980s, Specter repeatedly sought to allocate more federal funds for the construction of state prisons and jails in the federal budget.Footnote 46 For FY84 and FY85, Specter introduced amendments to budget resolutions that would have allocated additional $700 and $200 million for state prisons and jails respectively, but both additions were defeated. Specter also attempted to pass omnibus legislation in the 98th and 99th Congresses to implement a National Violent Crime Program that would direct $1 billion annually for state prison construction. With Senator Bob Dole (R-KS), Specter did secure $25 million to support federal matching grants for new prison construction, a comparably small but still notable replacement to the lost LEAA funds. Accordingly, the 1984 Omnibus Reconciliation Act (Pub. L. 98-473) authorized $25 million each year from FY1984 through FY1988 for state prison construction. However, the administration never requested funds for the program, so none were appropriated. In 1986 and 1987, as state overcrowding crises raged on, Specter attempted but failed to pass an Emergency Prison Expansion Act, which would have authorized $500 million annually to alleviate state prison overcrowding for a five-year period.Footnote 47
For state policy makers invested in getting tough on crime but concerned about strained correctional capacity, the dearth of federal funding for prison expansion could not have come at a worse time. Despite the clear ascension of a law-and-order politics committed to retributive incapacitation, the early 1980s economic recession and mass popular politics against taxation and government spending initially stifled states’ efforts to allocate funds for prison construction. When states did manage to fund new prisons, voters’ hostility toward tax increases meant they financed new correctional construction through long-term, high-interest bonds that deepened states’ economic precarity.Footnote 48 Making matters worse, the federal judiciary handed down numerous rulings throughout the 1970s and 1980s that deemed overcrowded, antiquated, and abusive prisons to be unconstitutional, sometimes even placing entire correctional systems under federal court receivership.Footnote 49 By the early 1980s, the entire penal systems of eight states had been ruled unconstitutional by federal courts due to overcrowding and poor conditions, causing one commentator to characterize corrections in the United States as “a city under siege.”Footnote 50
With federal funding for state and local law enforcement not forthcoming, correctional officials, politicians, and criminal legal experts predicted a worsening prison overcrowding crisis unless state legislators relaxed sentencing laws or raised funds for prison construction. Given the political popularity of punitive sentencing policies and the dire fiscal straits of states and localities, neither of those options appeared likely. How to continue cracking down on apparently rising crime without exacerbating correctional catastrophe for the states tasked with detaining skyrocketing numbers of imprisoned people was a central dilemma for lawmakers of all political stripes during the Reagan era.Footnote 51 Save for the abandonment of punitive anticrime policy making—a pathway that no federal legislator appeared interested in seriously considering—or for a major shift in political attitude toward expanding federal funding for state corrections, the future of corrections looked grim. Was it possible, federal legislators wondered, to meet what Commissioner Marks called the apparent “mood … for ‘tougher justice” as prison overcrowding accelerated and federal funding for prison construction remained scant?Footnote 52
Specter’s New Federalism
With his Armed Career Criminal Act, Specter thought he knew an answer. Newly elected to the US Senate in 1980, Specter was especially eager to fix the “problem” of judges failing to sentence “career criminals” to long prison terms, and he saw prison overcrowding as one significant barrier to such harsher sentencing.Footnote 53 As Philadelphia District Attorney from 1965 to 1973, Specter had been plagued by what he viewed as too-lenient sentencing practices—namely through the use of plea bargaining—and attempted to implement reforms to encourage “appropriate sentences imposed with recalcitrant judges.” One piece of the problem, Specter observed, was that more professionalized and aggressive policing had overloaded the system and caused court backlogs, creating a need for relief in the form of plea deals or other arrangements.Footnote 54 Specter had also seen firsthand how Philadelphia’s overcrowded prison system generated crises for criminal legal bureaucrats that could encourage prisoner releases and/or greater leniency in the use of detention. While Specter was district attorney, a prisoner uprising broke out at Philadelphia’s Holmesburg Prison on July 4, 1970, that resulted in 103 people being injured. The institution had crowded 1,310 prisoners, 85% of them Black, into just 684 cells. Turner DeVaughn, an imprisoned person at Holmesburg, likened it to a “plantation in the old South” and described how cells built only to hold one person crammed in “two to three dudes in a cell.” Reporters also found that prison inspection a year prior “concluded that overcrowded conditions and deteriorating buildings were endangering the health and welfare of the inmates.”Footnote 55
In the aftermath of the uprising, Specter agreed that “that over-crowding was a definite factor” in the disturbance and routinely spoke out against overcrowded conditions in the city an across the state. But he also struggled with the limitations that prison overcrowding posed on his power to fight crime via incapacitation.Footnote 56 Immediately after the uprising, a three-judge panel of the Common Pleas Court ruled in habeas corpus suit Commonwealth ex rel. Bryant v. Hendrick (1970) that conditions at Holmesburg constituted cruel and unusual punishment, leading to the release of two imprisoned petitioners.Footnote 57 Later that year, Common Pleas Court President Judge Vincent A. Carroll directed Specter to “review the bail status of all defendants in custody every 30 days” and to make recommendations for individuals to be released so that they “do not crowd the city’s prison facilities.” Even more worrisome than court-ordered releases were the practical barriers overcrowding posed to aggressive crime fighting endeavors. When asked about a new unit Specter formed to seize individuals who fail to show up in court after paying bail, Specter admitted that if the unit was successful, it would so overload the city’s prisons with “fugitives” that his office would “have to disband the unit.”Footnote 58 Amid such pressures to limit tough justice as a means of remedying prison overcrowding, Specter called Philadelphia’s prison system a “total failure” and even filed a suit against the Governor for not building a new prison, demonstrating the extent of Specter’s perceived powerlessness.Footnote 59
With prisons bursting at the seams and state and municipal agencies apparently riddled with structural barriers to tough sentencing, Specter searched for a federal solution to the prison overcrowding, plea bargaining, and judicial leniency that he felt hindered effective criminal justice administration at the state and local levels.Footnote 60 He knew that more funds for state and local courts and prisons would not be forthcoming from the GOP-controlled Senate. So, despite being a junior Senator without many connections, Specter got to work developing an alternative federal response to crime control focused on the interlocking problems of plea/judge bargaining and state correctional incapacity.
Specter outlined his vision for a more robust federal government intervention into crime control in an article he published in The ANNALS of the American Academy of Political and Social Science with Paul R. Michel, Specter’s counsel and administrative assistant. They began by acknowledging the central tension embedded in the federal government response to rising crime: the public wants bold action on crime control, but because crime control and penal management are under the jurisdictions of states and municipalities, sweeping federal intervention into anticrime efforts threaten to run afoul of federalism. Specter and Michel argued that past approaches to federal anticrime intervention, such as the LEAA, had generated waste and failed to curb crime.Footnote 61 The LEAA’s problem, however, was not its raison d’etre of federal assistance to state and localities, but rather its failure to privilege the speediest and most cost-efficient solutions. A better federal crime policy, Specter and Michel argued, would concentrate its resources more strategically by focusing on what most prominent criminologists at the time deemed “the most dangerous and determined criminals—armed, violent, repeat offenders” who committed the “most dangerous crimes—robbery, rape, kidnapping, contract, murder, and residential burglary” on a habitual basis.Footnote 62 At the same time, Specter and Michel reported that the “current difficulties of the economy” meant “additional funds are simply not available now,” and so “many reforms must wait.”Footnote 63 What was needed, then, was a fiscally lean and purposeful crime control program that imprisoned criminal offenders for long periods.
Specter and Michel’s remedy was a “federal prosecutions” approach that would “remove armed career criminals from society quickly and surely” without straining federal resources.Footnote 64 They acknowledged that crime is largely a state and local responsibility but insisted that “states alone cannot do an adequate job of protecting the public from violent career offenders.”Footnote 65 So they urged the federal government to reconceptualize its jurisdiction by expanding federal enforcement in prosecuting career criminals. Crimes already covered by federal law, such as commercial robberies, could be more readily enforced, and those not covered by federal law, such as residential robberies and burglaries, could be brought under federal jurisdiction. Specter and Michel pointed out that many of the latter crimes contained elements that justified federal enforcement. Burglaries, they reasoned, affected interstate commerce because “professional burglars” often traveled or sold stolen goods across state lines. Similarly, the possession of a firearm by someone who has been convicted of a crime violated federal law under the 1968 Gun Control Act.Footnote 66 The federal government could use those powers to expand its prosecutorial reach over those who repeatedly committed violent crimes. Such a strategy would not violate federalism, Specter and Michel argued; in fact, it followed the interpretations of numerous federal laws, such as the Racketeering Influenced and Corrupt Organization statute, that justified federal intervention into the prosecution of so-called violent street crimes.
At the center of Specter and Michel’s new federalism was its proposal to flex federal prosecutorial power over burglaries and robberies, which “go to the heart of the street crime problem” and thus required, in their view, particular targeting by the federal government. This deployment of federal prosecutorial power would ease the burden on states and localities drowning in court backlogs and overcrowded prisons. Specter sought to transform that principle into policy with his S. 1688, the Armed Career Criminal Act. The law would make the commission of armed robbery or a burglary by someone with two or more prior convictions a federal offense that carried a 15-year mandatory sentence in federal prison. In addition to slapping a lengthy sentence on such offenses, Specter and Michel reasoned that the federal court system moves more swiftly than state courts, thus eliminating delays from backlogs or overcrowding.Footnote 67 This was the beauty of S. 1688: it could bring prosecutions forward “without increasing the resources materially at any stage of the criminal process.” Specter acknowledged that federal prisons might be affected by increased populations. But he argued that federal prisons were less overcrowded than state prisons and that prosecuting “armed career robbers and burglars” should be the priority of limited federal resources.Footnote 68
In devising the ACCA, Specter was at the “vanguard” of new federal approaches to crime control in the 1980s.Footnote 69 For Specter, the federalization of crime control reflected both his frustrations as a district attorney stymied by carceral crisis and a pragmatic assessment of the core political tension around crime control in Washington, where Reagan and some GOP lawmakers desired the political payoff of tough-on-crime policies but recoiled at the costs of implementing those policies on the ground. With municipal and state budgets facing “reductions” in funding under the Reagan administration’s call for more “restraint,” Specter and Michel lamented that state and local governments could not meet those material costs on their own.Footnote 70 “Perhaps over a period of twenty years, the criminal justice systems in … large cities can be improved to the point that they are fully effective and need no federal help against career criminals,” they wrote, “But society cannot wait that long.”Footnote 71 In Specter’s estimation, federalizing crime control was not about implementing a federal power grab, although some legislators certainly saw it this way.Footnote 72 Rather, it was a response to an urgent carceral crisis that threatened to thwart his and his colleagues’ efforts to get tough on crime.
Specter certainly did not see the ACCA purely as a way to ease the crisis of state prison and local jail overcrowding. As he said when he introduced the bill, he wanted to “employ federal prosecutorial forces against violent crime” in the hope that those forces could more effectively prosecute the people he thought most responsible for rising violent crime rates.Footnote 73 Yet the idea of leveraging federal prosecutorial power to prosecute so-called career criminals developed out of Specter’s acute awareness of the carceral crisis of prison overcrowding and court backlogs that, in his estimation, prevented states and localities from properly attending to violent crime. The ACCA’s potential for mitigating these crises by taking the most dangerous offenders out of the hands of local criminal legal systems ill-equipped to sentence them quickly and sufficiently was central to its appeal, particularly for state and local officials who might otherwise resist such sweeping federal intervention into the decentralized realm of crime control.
As Specter attempted to move the legislation through committees, the ACCA’s capability for easing the problem of state prison overcrowding and court backlogs became a recurring theme. At the same hearing in which Chuck Stone spoke of Graterford’s hostage crisis, the District Attorney of Massachusetts’ Suffolk County, Newman Flanagan, celebrated S. 1688’s accelerated and mandatory sentencing and its transfer of offenders from overburdened state correctional institutions to less crowded federal ones.Footnote 74 Many jurisdictions faced court orders to reduce their prison populations, he said, and in others “prisons are so overcrowded that judges are reluctant to sentence a convicted felon to a long term sentence.”Footnote 75 A year later Deputy Assistant Attorney General Roger M. Olsen described Specter’s bill as a “safety valve to relieve some of the pressure from the State systems with a minimum use of Federal resources.” When pushed by Congressman William Hughes about whether expanding federal jurisdiction over repeat offenders was the best strategy, Olsen again pointed to state and local prison overcrowding. “I think the idea is that States now have prisons that are overcrowded, that cause early release of offenders, that their courts are more crowded than the federal system is,” Olsen contended, suggesting that the ACCA was “perhaps one way of reevaluating that and providing direct assistance to States and locals.”Footnote 76 The Committee on the Judiciary’s 1982 Report on the Armed Career Criminal Act of 1982 similarly emphasized the legislation’s benefits for reducing state and local prison overcrowding. Speaking about the crisis, the report noted that the “greatest insufficiency in resources is in the area of corrections” and that “severe overcrowding of many state prison systems and the county jails in urban counties has caused great pressure on state judges against imposing appropriately lengthy sentences for violent and repeat offenders.”Footnote 77
Carceral Crisis, Still: The Armed Career Criminal Act and the Failure of Specter’s New Federalism
Federalizing the incarceration of “career criminals,” however, was easier said than done. Although Specter and others stressed how the ACCA would respond to the problem of state prison overcrowding, they immediately came up against resistance from local prosecutors who saw the ACCA as threat to their jurisdiction over the control of violent criminals. “One of the issues which has been very troublesome and really the heart of the problem,” Specter explained at a 1982 hearing, “turns on our ability to formulate a program which leaves local autonomy in the vast majority of cases.” Although he insisted the ACCA sought to “supplement” local prosecution by creating a “category of assistance where resources are not sufficient or patterns of sentencing are insufficient,” skepticism and hostility from local district attorneys put pressure on Specter and his allies to weaken the bill’s federal reach into crime control and instead promote its potential utility at the local prosecutorial level. Footnote 78
In fact, although Specter and other legislators’ wanted the ACCA to disrupt the process of plea bargaining—thus allowing the federal government to harshly punish individuals who might otherwise receive more lenient sentencing in crisis-riddled states—they ultimately avoided adding provisions that would prevent the ACCA from enhancing local plea bargaining arrangements.Footnote 79 In his remarks on the bill’s introduction in 1982, Specter detailed how a core benefit of the ACCA was merely the threat of federal prosecution of a 15-year mandatory sentence, which would discourage defendants from “manipulating the State court system through judge shopping.”Footnote 80 Republican Congressman Harold Sawyer (R-MI) pointed out this discrepancy when he noted that other federal laws are “used for plea bargaining purposes,” and that he assumes the ACCA would do the same. When Sawyer suggested putting in some “teeth” to the legislation to ensure it “cannot be used for plea bargaining,” which he said “defeats the intent of the law,” the bill’s primary sponsor in the House, Ron Wyden (D-OR) suggested that eliminating District Attorney’s ability to use the federal law as leverage in plea bargaining would kill the bill. Wyden admitted that his reluctance to restrict plea bargaining stemmed from the sponsors’ desire to maintain the support of local officials, who were primarily attracted to its plea-bargaining possibilities despite the ACCA’s original intention to reduce them. “Local law enforcement officials around the country are coming out for this, and coming out strongly,” he noted, “that is why I would like to keep this close to what we have got now and attack the plea bargaining issue in a separate legislative initiative.”Footnote 81
In September 1982, the Senate passed S. 1688 with only one “no” vote and six abstentions. Specter secured verbal approval for the bill from President Reagan, Attorney General William French Smith, Counselor to the President Edwin Meese and, after some persistence, from key bureaucrats in the Justice Department. But Reagan vetoed the crime bill on January 14, 1983.Footnote 82 Ironically, his veto stemmed from the main compromise Specter had made to get the bill passed through committees: local prosecutors would have veto power over US attorneys, a change that the National District Attorneys Association and their powerful legislative backers Sen. Strom Thurmond (R-SC) and Edward Kennedy (D-MA) had demanded.Footnote 83 Reagan considered that restraint on federal prosecutors unacceptable.
Specter reintroduced the ACCA, now S. 52, to the Senate just 12 days later.Footnote 84 Even in the face of considerable roadblocks encountered in securing the bill’s passage, Specter maintained his belief that the ACCA was a “magical solution,” as one staffer put it, and doubled down on his efforts in 1983.Footnote 85 As he urged his peers to “retake the ground lost in our fight against crime and recapture legislative momentum,” the bill’s potential to ease state and local carceral crises remained central to Specter’s pitch.Footnote 86 In his reintroduction speech, Specter emphasized that “criminal justice systems are so severely overloaded as to be incapable of effectively deterring or punishing career criminals” because of court backlogs and prison overcrowding, both of which “encourage excessive plea bargaining and unduly short sentences.” “Consequently,” Specter added, “career criminals remain at liberty to continue their crime sprees.” At a hearing held that April in Pennsylvania, attendees again contextualized S. 52 as a remedy to overcrowded prisons and jails, which they identified as the number one crisis confronting law enforcement in the state. Dauphin County District Attorney Richard Lewis found S. 52 “attractive” because it would impose a tough sentence that “would be served in a federal institution and not in an overcrowded state prisons.”Footnote 87 Pennsylvania’s Bureau of Corrections Commissioner, Ronald Marks, agreed, noting “the ability to have people committed to the Federal prison system versus the State system looks very appealing.”Footnote 88
At the same time, Specter’s desire to keep local district attorneys supportive of the bill led him to increasingly frame the ACCA as beneficial to local criminal prosecution. Sometimes, Specter used this framing even alongside mention of the legislation’s role in reducing state prison overcrowding, even though the former dynamic negated the latter. At the same 1983 hearing where Marks celebrated the ACCA’s benefits for circumventing overcrowding, Dauphin County District Attorney Lewis stated that the ACCA would give his office “a great amount of leverage” in processing cases.Footnote 89 Based on his experience as district attorney, Specter estimated the legislation would send roughly five out of 500 career criminals to Federal prosecutors while the other 495 would stand trial or accept plea bargains. “They would not have gotten 15 years in our State system, but they might have gotten 5 or 10,” he explained. Similarly, even as Congressman Al Gore (D-TN) state the ACCA “may be useful as a way of dealing with the state prison overcrowding problem” that “reduces the possibility that overload in the corrections system will diminish the severity of punishment,” he also saw it as a “another weapon in their arsenal” in securing tough sentences at the state level. At the time, Tennessee’s state prisons were operating at 122% of capacity.Footnote 90
The persistent tensions within the ACCA came to a head when the powerful Chairman of the Senate Judiciary Committee and virulent states-rights champion Strom Thurmond presided over hearings on the ACCA. Thurmond used this forum to raise constitutional concerns that had bubbled up in the discussion of the bill from local prosecutors and the National District Attorneys Association. The crux of the issue was technical—to ensure that the bill did not offend the Justice Department’s objections that local prosecutors would have veto power over US attorneys. To address those objections, Specter had put language into the bill about local district attorney needing to “request or concur in the action by the US attorney.” At the May 1983 hearing Specter explained that his intention remained to “limit” the federal government’s reach. Thurmond wasn’t mollified. “I’ve studied the Constitution all my life,” he said, “we should keep the Federal Government out of the State’s business, and the State out of the Federal government’s business… . We’re making an exception here, and frankly, I am very dubious about the constitutionality of it.”Footnote 91
As the district attorneys and their congressional allies gained steam, Specter’s goal of creating a new federal crime that would justify federal jurisdiction over local crime control quickly slipped away. Once the bill reached the Senate floor in February 1984, Senators Kennedy and Thurmond introduced an amendment that would have greatly limited the bill’s scope by requiring that the prior burglary or robberies committed by an offender must have fallen within federal jurisdiction (i.e., the burglary or robbery must have been committed against federally insured banks or post offices). The amendment passed 77-12. Once the bill was before the House Judiciary Committee, Specter was able to reextend its scope by focusing on gun possession by a convicted felon, which was already a federal crime and thus did not violate federalism concerns. The House version then toughened the sentence for gun possession to mirror what had been included in the ACCA—requiring a sentence of a minimum 15 years to life—making it so that anyone who was convicted for possession of a gun who had also been previously convicted of three felony convictions for robberies or burglaries would be eligible for prosecution under the ACCA. In other words, the “triggering offense” was now gun possession, and not prior conviction of a robbery or burglary, which meant that it “permitted no federal prosecution of anyone who could not be prosecuted under existing federal law.” This version of the bill, now called the Armed Career Criminal Act of 1984, was attached to the omnibus Comprehensive Crime Control Act, which Reagan signed into law on October 12, 1984.Footnote 92
Although it restored some of the power that had been stripped by Kennedy and Thurmond, the change represented a “more restrictive” compromise that limited the bill’s ability to remove criminal offenders from state criminal legal systems.Footnote 93 The complaints from local prosecutors and their allies ensured that the ACCA did not ultimately create a new federal crime but rather only extended the sentence of an already existing federal offense. In practice, the ACCA operated less as a means for transferring the prosecution and imprisonment of so-called violent criminals to the less burdened federal system and more as a leveraging tool for local district attorney’s to procure tougher plea deals from criminal defendants.Footnote 94 As a result, the ACCA likely exacerbated state prison overcrowding crises by giving district attorneys’ the upper hand in extracting harsher sentencing deals from defendants. Specter himself came to tout the leveraging aspects of the ACCA as the “most important aspects of the statute” for its ability to procure “guilty pleas and stiff sentences,” perhaps because in a roundabout way this leverage fulfilled Specter’s goal of securing tough prosecution no matter how crowded state prisons or clogged local courts might be.Footnote 95 Ultimately, the multilayered and diffuse points of decision making in the federalist system mixed with the unwillingness of politicians to reconsider the costs of their commitment to law and order governance produced a criminal legal system riddled with crises of carceral incapacity. Despite Specter’s attempts to construct a federal solution to this crisis without either expending federal funds or worsening the calamity of state prison overcrowding, his ACCA ultimately stoked rather than ameliorated the problems of carceral crisis he hoped to help solve.
Conclusion
Specter’s ACCA, and his broader vision of federalizing crime control on a budget, failed to meaningfully address state prison overcrowding disasters rapidly advancing across the country. By 1988, 34 state prison systems operated at 100% or more of their highest reported capacity, and by 1989, 35 states and the District of Columbia faced court orders or consent decrees due to prison overcrowding.Footnote 96 Eventually, even state legislators who had resisted allocating more funding for prison construction increased their spending on prison construction due to the unrelenting crises of overcrowding, prison conditions litigation, the popularity of law-and-order politics, and the emergence of what Ruth Wilson Gilmore calls the “prison fix” for rehabilitating rural economies ravaged by deindustrialization.Footnote 97 But it wasn’t until the passage of President Bill Clinton’s 1994 Crime Bill that substantial federal funding for state prisons became available.Footnote 98 Yet, even this new federal funding stream for prison construction had only a marginal influence on helping states increase their prison capacity.Footnote 99 A RAND evaluation of the Violent Offender Incarceration/Truth-In-Sentencing Incentive (VOI/TIS) Grant Program authorized by the 1994 Crime Bill reported that the program’s accomplishments were “modest,” with the “median number of beds completed or under construction … a small fraction of capacity.” In over half of the states, prison capacity funded by the VOI/TIS program amounted to “less than 4%.”Footnote 100
At no point in the long history of state prison overcrowding crises did federal or state legislators see carceral incapacity as a reason to reconsider their pursuit of anti-Black, tough-on-crime policing and punitive sentencing policies. In line with the broader retributive shifts in sentencing and penological practice in late twentieth-century penal administration, the warehousing of primarily racially marginalized and poor people deemed irreparably criminal was very much the point.Footnote 101 But the problem of prison overcrowding that law-and-order politics produced was not so easily managed by legislators and correctional bureaucrats who wrestled with escalating and locally sustained correctional costs, federal court mandates to decarcerate and/or reform their overpopulated prisons, and prisoner unrest, all of which threw state and local correctional systems into disarray and placed the central infrastructure of the carceral state into question. Even as a bipartisan bloc of legislators, researchers, and bureaucrats embraced increasingly punitive forms of governance, the tenets of US federalism made the process of implementing this carceral future fraught and unstable. This “frenetic and confused” period of carceral state development, driven by the crisis of prison overcrowding and the dilemmas of funding and governance they provoked, suggest that the rise of mass criminalization and incarceration was less a tale of inexorable and unmitigated carceral expansion than is commonly understood.Footnote 102 Rather, the carceral state ascended through a more contingent and fractured process wherein federal policy makers, the judiciary, and state and county policy makers had to navigate the considerable limitations of decentralized crime control to construct the mass imprisonment behemoth that exists today.
This is neither to contest the reality of the late twentieth-century carceral leviathan nor to diminish the unprecedented racialized and gendered state violence that it normalized and unleashed. More state prisons and local jails were eventually built, even without extensive federal government support.Footnote 103 Moreover, as numerous scholars have detailed, many federal court consent decrees seeking to address prison overcrowding paradoxically fueled prison construction, thereby facilitating the growth of the carceral state.Footnote 104 In 1991, state expenditures on capital outlays for corrections peaked at $4.6 billion. Between 1990 and 1995, the number of state and federal correctional facilities in operation increased 17%.Footnote 105
But the crisis of overcrowding had not been quashed. Despite the increase in prison capacity, 40 out of 50 state prison systems remained at capacity or overcrowded in 1996.Footnote 106 The federal government’s response, however, was neither to incentivize decarceration and sentencing reform nor to drastically increase federal expenditures for prison construction. Rather, Congress sought to limit imprisoned people’s power to bring forward federal suits challenging unconstitutional and overcrowded prison conditions. Passed by a Republican-controlled Congress and signed into law under Clinton, the 1996 Prison Litigation Reform Act made it extremely difficult for prisoners to bring lawsuits against prison systems and substantially limited the ability of federal courts to impose and uphold court orders to reduce overcrowding.Footnote 107 In other words, rather than assisting states in building their way out of the crisis of carceral incapacity with federal dollars, the federal government instead helped them reduce their liability for overcrowded and inhumane prison conditions. This approach was cost effective for the federal government, requiring no new expenditures for state prison construction, while still helping state policy makers maintain carceral politics no matter the enormity of their prison overcrowding crises.Footnote 108 For federal policy makers, it seemed the best remedy for state prison overcrowding was simply normalizing its existence and, in turn, the political project of racialized mass imprisonment, by restricting prisoners’ access to federal courts and raising the threshold for proving prison overcrowding’s unconstitutionality.
The history of the federal nonresponse to state prison overcrowding and Specter’s failed attempt at addressing it through the ACCA offer several insights for the history of the United States carceral state. First, historians have not yet grappled with how a mixture of American federalism’s decentralization of criminal legal administration, the dissolution of the LEAA, and Reagan-era fiscal conservatism created a massive crisis of state prison overcrowding. Historians have thus overlooked how the state prison incapacity required federal and state policy makers to make often-contested decisions regarding the construction and administration of a tough-on-crime criminal legal system. To be sure, the federal government’s power over crime control did substantially grow in the late twentieth century. But it did not do so evenly.Footnote 109 Although it is true that the racialized carceral state is in many ways the “culmination of” a “long mobilization … against crime,” the construction of the actual administrative structures and capacity of the prison nation—literally, the prison beds in question—was a far more uneven and fraught process, forged in spite of near-total federal state absence.Footnote 110
Although it ultimately contributed to state prison overcrowding rather than addressing it, Specter’s ACCA must be understood as an attempt to respond to a broader crisis of carceral incapacity in the states by scrambling to preserve it through controversially federalizing crime control. Examining these political decisions against a broader context of carceral incapacity and crisis of state prison overcrowding helps clarify both the political contingencies of racialized mass incarceration’s development and, perhaps more importantly, the political pathways ignored or closed off by legislators committed to law and order. The late twentieth-century crisis of prison overcrowding demonstrates that despite clear evidence of the carceral state’s administrative unsustainability and production of mass racialized state violence, federal legislators were unable—or more accurately unwilling—to envision policy alternatives outside of the retributive politics of mass criminalization, or what Elizabeth Hinton and DeAnza Cook have termed America’s enduring “antiblack punitive tradition.”Footnote 111 The result was the continued growth of a United States anti-Black carceral regime. But this growth was not foretold by the ghosts of policies past. Instead, expanding the carceral state under the United States’ diffuse system of federalism provoked ongoing crises of capacity that required active carceral reimagination by state and federal policy makers repeatedly confronted by mass imprisonment’s political instability and strain on state resources, along with increasing and inconvenient evidence of mass incapacitation’s ineffectiveness in decreasing crime.
