Beyond Criminal Justice Reform

Beyond Criminal Justice Reform

Real criminal justice reform demands profound social change. The fixation on severe sentences and police brutality masks harder truths.

With a counter-argument by Marie Gottschalk.

Sussex State Prison, home to Virginia's death row (Bill Dickinson / Flickr)
This article is part of  Dissent’s special issue of “Arguments on the Left.” To read its counterpart, by Marie Gottschalk, click here.

We’ve entered a new age of reform—criminal justice reform, that is. In late April 2015 Hillary Clinton, in one of the first formal addresses of her presidential campaign, declared, “It’s time to end the era of mass incarceration.” This policy speech on criminal justice reform signaled a personal transformation. In 1994 Clinton applauded as her husband Bill Clinton signed into law the Violent Crime Control and Law Enforcement Act, a critical episode in the expansion of the prison system. Clinton’s conversion is not unique; she is one of many.

Like the age of reform profiled by historian Richard Hofstadter, which shaped U.S. politics from the 1890s through the 1930s, this one has enlisted figures in both parties, including previous proponents of punishment. Individuals as ideologically opposed as Eric Holder and Rand Paul have found common ground on overhauling sentencing guidelines. Several states have placed moratoriums on executions. In May 2015 Nebraska’s legislature—no bastion of radicalism—overrode a governor’s veto to repeal the death penalty, becoming the seventh state since 2007 to do so.

Though propitious, this moment may never fulfill its promise. Unlike other reform eras, such as the Progressive Era, the New Deal, and civil rights and the Great Society, this one is modest in scope: today’s reformers are preoccupied with police and penitentiaries, and blind to the painful experiences that gave punitive approaches purpose and urgency. The penal policies and law enforcement practices that doomed many black males to lives behind bars or under police surveillance arose in part at the behest of black populations and their political leaders who sought a reprieve from the violence and disorder precipitated by urban decline. Today’s reformers are valiantly attacking the policies punishing people of color. But they have yet to couple this activism with a robust program targeting the social conditions that undermined public safety and prompted working and middle-class African Americans to turn to police and prisons for relief.

This neglect is not accidental. It is a logical implication of dominant theories of mass incarceration. Michelle Alexander’s best-selling book The New Jim Crow, which should be credited for propelling this latest reform movement, insists that modern crime policies were enacted to restore a racial status quo upended by civil rights victories rather than to meet legitimate concerns. Others have claimed that Republican political elites employed “law and order” rhetoric to manipulate working-class white voters and dislodge them from the New Deal coalition. Some have updated this analysis, implicating Democrats and liberals in mass imprisonment. According to this striking account, liberal state-building supplied the foundation for the carceral state, and left-of-center politicians raced to ensnare blacks within its tentacles to win favor with resentful whites departing the Democratic fold.

While these bold narratives have incited energetic activism and have stimulated needed policy change, they have also obscured much. They have unnecessarily downplayed the effects of crime. They have disregarded the agency, voice, and suffering of many black people. As Yale Law School professor James Forman, Jr. has cautioned, “The Jim Crow analogy encourages us to understand mass incarceration as another policy enacted by whites and helplessly suffered by blacks. But today, blacks are much more than subjects; they are actors in determining the policies that sustain mass incarceration in ways simply unimaginable to past generations.”

Black civic leaders and city residents—caught in the despairing nexus of deindustrialization, residential segregation, white flight, and social disorder—aggressively mobilized on behalf of punitive approaches from the late 1960s until the late 1980s. The New York City story is instructive. Starting in the 1960s, Harlem and other black neighborhoods suffered the tragic consequences of a heroin epidemic. Not only did addiction take the lives of users, but related crimes, such as muggings and burglaries by addicts seeking to finance their next fix, made residents prisoners within their own homes and curtailed church life and commerce. Desperate for calm in their communal spaces, civil rights leaders, clergy, community activists, and residents turned to law enforcement. Repurposing strategies perfected in the struggle for civil rights, they marched, held rallies, circulated petitions, and testified at hearings to publicize their grievances and compel local and state authorities to increase the police presence in their neighborhoods and impose harsher penalties for drug crimes. In 1973, Governor Nelson Rockefeller exploited these fears to pass his draconian drug laws, which mandated hefty sentences for narcotics offenses. In 1976, at the urging of African American politicians, New York City mayor Abraham Beame assigned a 170-man police task force to increase arrests in Harlem. After the crack epidemic hit the streets almost a decade later, local black leaders held vigils and rallies to demand government action. Charles Rangel, U.S. Representative from Harlem, and other black representatives brought the desire of black residents for greater public safety in their neighborhoods to the attention of their white peers, and white Democrats and Republicans wanting to appear tough on crime obliged, passing the Anti-Drug Abuse Act of 1986—the policy keystone of Ronald Reagan’s war on drugs.

Recent horrors speak to these complexities. In New York, the spot in Staten Island where a police chokehold killed Eric Garner was the subject of 646 calls to 911 and nine complaints to 311 from people who lived in the neighborhood. One caller complained “after physically fighting with the men on the block who sold drugs,” and noted that the cigarette sellers “provided cover for more illicit activities.”

In Baltimore, Maryland, State’s Attorney Marilyn Mosby heroically filed charges against the police officers who detained and transported Freddie Gray, who died in their custody. Mosby, who is African American and whose husband City Councilman Nick Mosby represents the district where this tragedy began, had also asked the chief of her Crime Strategies Unit to look into “community concerns regarding drug dealing” and to give “enhanced” prosecutorial and police attention to the area in which cops encountered Gray. Deploying fewer police officers or cutting the number of arrests won’t fix the larger structural challenges—concentrated poverty, chronic joblessness, and the absence of a vigorous and sustained federal response to these problems—that engender violence and upbraid public safety. When they feel threatened or endangered, the only option for people who live in impoverished areas is to call armed agents of the state, who are trained to use force.

Real criminal justice reform demands profound social change. The fixation on severe sentences and police brutality masks a hard, uncomfortable truth: our modern criminal justice system was produced by a cynical white elite, with the support of a large swath of the black population. The fear mongering used by the former is bound up in the genuine grievances and fears of the latter. Harsh statutes can be amended, and law enforcement can be retrained, monitored, and denied military-style weapons and equipment. But violence and disorder will persist. And they will continue to devastate communities subject to the worst effects of unbridled capitalism, the conservative assault on redistributive schemes, and frequent progressive quiescence in the face of the two.

While the residents of poor and working minority neighborhoods should not have to endure discourteous, harassing, and reckless policing, neither should they have to brave the perpetual disquiet of urban decline. Disadvantaged citizens deserve equality and security, civil liberty, and public safety. Curbing excessive patrolling of low-income areas and taming extreme punishments for minor offenses will partly resolve our new American dilemma. But true reform requires policies that will also guarantee public safety for all the families of color that are forced to endure the daily terror of urban crime.

Michael Javen Fortner is Assistant Professor and Academic Director of Urban Studies at the CUNY School of Professional Studies, Murphy Institute. He is the author of Black Silent Majority: The Rockefeller Drug Laws and the Politics of Punishment (2015).

This article is part of  Dissent’s special issue of “Arguments on the Left.” To read its counterpart, by Marie Gottschalk, click here.

Join us on December 10 at the Murphy Institute in New York City for a live version of this debate.