Better Shaq than Crack – Never mind that in a $33 billion crime bill, heavily tilted toward prisons, cops and death penalties, midnight basketball is a mere $40 million item. That’s 12 cents for every $100 in the bill. Never mind that Republicans, despite the elephant as party symbol, are suffering from amnesia. They forget that on April 12, 1991, their man George Bush took a helicopter ride to the Hyattsville gym and raved about midnight basketball as a social marvel. – Sandy Grady (1994)
1994 Crime Bill
Operating in the centrist mode that had brought them Congressional victories and the White House two years earlier, the Democratic leadership had produced a bill designed to appeal to all the key interests and interest groups. On the one hand, the omnibus, $33 billion bill spoke to traditional Republican concerns about “law and order” with its calls for 100,000 new police officers, more prisons, and an expansion of the death penalty. At the same time, the bill also shored up core Democratic support with its long-sought ban on assault weapons and a massive collection of social programs aimed at crime prevention and social intervention.
In April of 1994, the bill sailed through the House of Representatives, and the Senate followed suit shortly thereafter. All that remained was for the two versions to be reconciled in conference committee over the summer recess – and because the differences were relatively minor (they centered largely on the Racial Justice Act ratified in the House but rejected in the Senate), passage seemed all but assured.
The Violent Crime Control and Law Enforcement Act of 1994 (PL 103-322) was ultimately ratified and signed into law in early September, but not before roughly $3 billion of spending was cut from it, almost all at the expense of its most liberal prevention-oriented components. In its final form, the 1994 federal crime bill, the single most important piece of criminal policy legislation of our generation, ended up being more slanted toward the “new penology.”
Midnight Basketball: The midnight basketball concept was initiated by G. Van Standifer, a retired systems analyst and town manager in Glenarden, Maryland in the late 1980s. Standifer had become convinced that key to the problems of poor, inner-city young men was the absence of safe, constructive activities during what he believed to be the high-crime, late-night hours. His solution was to organize a basketball league that would operate in his Washington, DC area community between 10:00 p.m. and 2:00 a.m. Standifer’s basketball-based programme was intriguingly simple and inexpensive. It operated only during summer months and had three core components: (1) that the target participant group was young men between the ages of seventeen and twenty-one; (2) no game could begin before 10:00 p.m.; and (3) that two uniformed police officers had to be present and visible at each game. The basic idea was that a sports programme would provide an alternative to the non-productive or even destructive activities of ‘the street’. – Douglass Hartmann
- Bill Clinton’s support for midnight basketball marked an important turning point in midnight basketball history. What is crucial about 1994 is not just that midnight basketball became the ‘darling’ programme of another American President but that that President was a Democrat and that this Democrat touted midnight basketball as part of his larger push for new federal crime and criminal justice policy. Used as such and situated in a highly partisan context, the bipartisan support midnight basketball had enjoyed earlier in the decade broke down.
- In fact, even as Clinton was mentioning midnight basketball as a symbol for prevention-oriented aspects of the crime bill, conservative Republicans – including radio talk show host Rush Limbaugh – began to hold up midnight basketball as an example of everything that was wrong with Democratic crime policy.
- Race was the key to midnight basketball’s prominence in the legislative debates and that its introduction ultimately reduced prevention-oriented provisions included in the final legislation.
- The final result of all this on criminal justice policy was significant. By the time the crime bill was passed in autumn 1994, $3 billion dollars worth of programming, almost all of it prevention-oriented, had been eliminated. In other words, debates about this small, experimental sports-based programme had a clear and decisive impact on the federal legislation that still governs American criminal justice policy now, a criminal justice regime that is among the most racially biased and punitive in the industrialized world today.
- Critics of the crime bill seized on cultural stereotypes about sport as frivolous, trivial and unimportant to denigrate prevention-oriented approaches to criminal justice; literally, they used midnight basketball to poke fun at prevention. On the other hand, as soon as conservative attacks on midnight basketball took hold, Democrats were put in the position of either having to acknowledge the racial underpinnings of their rhetoric and policy (something quite taboo in American politics – indeed, why the racially coded midnight basketball was embraced in the first place) – or soften all of their claims about what made the leagues (and prevention more generally) so innovative and potentially effective. It was an incredibly difficult and ultimately untenable position.
- Midnight basketball appeared in media coverage and commentary, it was associated with three distinctive patterns in the framing of federal criminal justice policy. First, it allowed racial images and threats to be more explicit and concrete. Second, pieces that included references to midnight basketball exhibited heightened fears of crime and more threatening portrayals of criminals and would-be criminals than others. Third, when midnight basketball appeared, the more liberal, prevention-oriented aspects of the bill tended to receive more criticism.
- Midnight basketball programmes were used by political elites at both national and local levels to publicize and promote their policy reforms, programme initiatives and general, overarching approaches to government intervention.
- New York’s adoption of the Rockefeller Drug Laws in 1973, at the urging of Governor Nelson A. Rockefeller, symbolizes the beginning of the massive surge in incarceration in America.
- The Children’s Defense Fund (2003) issued a report that reveals states spend three times more on the average per prisoner than they spend per public school pupil.
- Midnight basketball and race are inextricably linked. These programs were intended to address inner-city crime and violence for young African-American men. In fact, it is difficult, if not awkward, envisioning a comparable program for other racial groups with respect to either basketball or midnight, thus lending greater credence to our position that it served as a powerful and clearly understood code for young African-American men.
- Senator Gramm’s “three-strikes” proposal also counted felony drug offenses as a strike towards automatic life imprisonment. Thus, pursuant to this proposal, a person convicted of two separate offenses involving simple possession of 5.1 grams of crack cocaine (the weight of two pennies), with an approximate value of $125, who thereafter takes a bicycle from someone in a national park, would spend the rest of his life in prison without parole. Although “three-strikes” sponsors claim that their purpose is to protect society from only the most dangerous felons, these early congressional proposals were overly broad, encompassing a broad range of criminal conduct from murder to minor assaults and offenses against property.
- Racially coded references to midnight basketball exerted their impact on the political process through the discursive framing of the bill. We find that while midnight basketball directly increased attention to race in the debates, its real impact was more indirect, serving to heighten fears of crime and produce images of criminals that made prevention appear misguided.
- Although the 1994 Omnibus Crime Control Act does have what could be called social service programs, the largest portion could be considered as a crime control bill. When you allocate more monies to build more prisons, mandate longer prison terms, and increase the number of capital crime offenses, surely this deals with crime control.
- Midnight basketball was consistently presented and championed in race-neutral, color-blind language, there is abundant evidence that midnight basketball was understood in race-specific terms, as an outreach to inner-city African-American young men. That is to say, midnight basketball was clearly coded for race.
- The Republicans were opposed to crime prevention programs and wanted to emphasize stiffer prison sentences as punishment for violating the law and the building of more prisons for offenders convicted of a crime. They also advocate that illegally obtained evidence be permitted to obtain a conviction against a suspect of a crime and a decrease in the number of appeals death row inmates can make.
- Title II, “Prisons,” has a requirement that states adopt as policy “truth in sentencing” laws, to obtain any federal funding. These laws would ensure that violent offenders, including juvenile violent offenders, would serve a substantial portion of their sentences. Monies were also available to states for the construction and expansion of correctional facilities.
- “Violence Against Women” comprises Title IV of the 1994 Omnibus Crime Control Act. This section of the law includes mandatory restitution for sex crimes, new evidentiary rules pertaining to a victim’s sexual behavior, assistance to victims of sexual assault, creating a national domestic violence hotline, community programs on domestic violence and family violence prevention and services.
- “Mandatory Life Imprisonment for Persons Convicted of Certain Felonies”— Title VII—deals with defendants who have been convicted of two or more serious violent felonies or one or more serious violent felonies and one or more drug offenses. If found guilty these defendants will serve a life imprisonment.
- Title X—”Drunk Driving”—deals with drunk driving when a child is present. An additional term of imprisonment and an additional fine can be levied when defendant has been driving intoxicated with a child present.
Example: An 18-year-old high school senior pushes a classmate down to steal his Michael Jordan $150 sneakers-Strike One; he gets out of jail and shoplifts a jacket from the Bon Marche, pushing aside a clerk as he runs out of the store-Strike Two; he gets out of jail, straightens out, and nine years later gets in a fight in a bar and intentionally hits someone, breaking his nose-criminal behavior, to be sure, but hardly the crime of the century, yet it is Strike Three. He is sent to prison for the rest of his life.
- Midnight basketball accounted for $50 million of the original $33 billion bill, barely a tenth of a percentage point of the funding, a mere fraction of a fraction. Even in terms of the dollars dedicated strictly to prevention programs ($6.9 billion) the amount to be spent on midnight basketball was negligible, little more than half of a percentage point. This tiny uncontroversial program was suddenly a central part of the debate involving the largest and single most important criminal justice legislation of our era.
- In response to outcries that mandatory life imprisonment would keep people in prison well beyond the age of criminal activity and result in increased costs for care of elderly prisoners, the federal law includes a “geriatric exception” which allows for a seventy-year-old prisoner who has served at least thirty years under such a sentence to be released if the Bureau of Prisons determines that the prisoner is not a danger to the safety of any other person or the community.
- The requirement of mandatory life imprisonment thus raises serious constitutional problems of proportionality where neither the final crime nor the preceding two crimes would otherwise be serious enough to justify a life sentence. Individuals should not be executed for burglarizing a house nor incarcerated for life for committing relatively minor offenses, even when they commit several of them.
- Led by the National Rifle Association (NRA), the powerful gun lobby waged war on the bill during the decisive summer weeks for its proposed ban on assault weapons.
- The most prominent race-related element of the crime bill was the aforementioned Racial Justice Act. The Act, resurrected from a failed proposal in 1991, contained provisions to minimize racial disparities in death-penalty sentencing and was strongly endorsed by the Congressional Black Caucus (CBC) and by other liberal members of the House.
- It was not conservative politicians but ostensibly liberal ones who were the first to employ midnight basketball as a racial code during the legislation process. Their goal was to use midnight basketball to mobilize public support for crime prevention and subsequently the crime bill itself.
- President Clinton’s first public mention of midnight basketball came during his weekly radio address on April 16, 1994, when, after talking about problems of crime, he outlined a plan whereby Housing Secretary Henry Cisneros would be provided with emergency funds for “enforcement and prevention” in gang-infested public housing in Chicago. As part of this package, the president assured, “. . . we’ll provide more programs like midnight basketball leagues to help our young people say no to gangs and guns and drugs.
- Clinton spoke about midnight basketball on June 17 at a housing project in Chicago where he told his predominantly African-American audience that midnight basketball was a program designed to assist “people just like you.”
- Clinton gave one of his most aggressive public defenses of the crime bill – again replete with an extended discussion of recreation and midnight basketball – in front of an all-Black American Methodist Episcopal (AME) Gospel Church in Atlanta, Georgia.
- Under a “three-strikes” law, trials will be more frequent and longer. Faced with a mandatory life sentence, repeat offenders will most likely go to trial, which is costly and time-consuming, rather than agree to plea bargaining. In the state of Washington, normal felonies resolved by a plea bargain cost about $600 to defend.26 In contrast, defense in a full-blown criminal trial could cost as much as $50,000 per case.
- At stake in the discussions of midnight basketball were two different visions of criminal justice policy – a Republican one that emphasized crime control, and a Democratic alternative that emphasized (or at least added) more crime prevention into the mix.
Stereotypes about African-American young men being particularly dangerous or threatening, particularly at risk for criminal involvement, played into the conservative argument perfectly. If this population was already predisposed to criminal behavior, the conservative argument went, would it not make more sense to control and contain these groups rather than to try to prevent the inevitable? The Republican attack on prevention was made more effective with racial imagery because it rendered the Democratic defense of prevention an idealistic contradiction. It is thus our contention that midnight basketball impacted the crime bill discourse not only by heightening the threat of crime (which would have, if anything, served to buttress arguments to increase criminal justice funding generally), but also by transforming images of crime and criminals in a way so as to make the bill’s prevention-oriented components seem ill-conceived and unlikely to deter criminals or lessen crime rates.
Michael J. Palmiotto (1998) The 1994 violent crime control and law enforcement act: An evaluation, The Justice Professional, 10:4, 407-414, DOI: 10.1080/1478601X.1998.9959479
Packer, Herbert (1979). Two models of the criminal process. In Joseph E. Jacoby, Classics of Criminology. Prospect Heights, IL: Waveland Press.
Marion, Nancy E. (1994). A History of Federal Crime Control Initiatives, 1960-1993, Westport, Conn: Praeger.
Violent Crime Control and Law Enforcement Act of 1994. The Criminal Law Reporter. Washington, D.C.: The Bureau of Public Affairs, Vol. 55, No. 21.