Liberal Punishment

Liberal Punishment

The number of prisoners in the United States,” by Sabrina Jones, adapted from Race to Incarcerate: A Graphic Retelling by Sabrina Jones and Marc Mauer (The New Press, 2013).

The First Civil Right:
How Liberals Built Prison America

by Naomi Murakawa
Oxford University Press, 2014, 260 pp.

Between the late 1970s and the mid-2000s, the percentage of Americans in prison quintupled. It is well established that a resurgent conservative movement was responsible. Michelle Alexander’s The New Jim Crow demonstrated how conservative politicians—starting with Barry Goldwater, expanding with Richard Nixon’s 1968 campaign, and culminating with the election of Ronald Reagan in 1980—used a fear of black people and the call for civil rights to solidify Southern support for the right. Implicit in this story is the idea that liberals were either well-meaning losers who were outmaneuvered by conservatives, or that they were hammered into acquiescence to the new carceral regime by electoral losses.

Naomi Murakawa’s The First Civil Right: How Liberals Built Prison America dismantles these explanations. Her book is a remarkable investigation into the historical relationship between postwar liberalism and the growth of mass incarceration. Through a detailed analysis of several key Democratic crime bills, she demonstrates how the ideology of liberalism played a role in the growth of the carceral state. And though Murakawa isn’t fully convincing that liberal law and order was necessary for mass incarceration, she makes a strong case that liberalism is unlikely to undo the prison state.

Murakawa argues that liberal law and order contributed to the rise of prison America with a distinct set of ideas and solutions, forged and tested during three waves of riots: white riots against the black population in the 1940s, both in Northern cities and in the South; urban riots by the black population in the 1960s; and prison riots throughout the 1970s. At each step liberal lawmakers developed theories about criminality, racism, civil unrest, and the state. Each theory, in turn, fueled the growth of the carceral state and created persistent roadblocks to reform.

In 1943 alone, forty-seven cities experienced 242 violent racial battles, largely initiated by white Americans against minorities. This includes the famous “Zoot Suit Riots” in Los Angeles, where white people attacked Mexican Americans while cops either participated or looked the other way. At this time, Detroit’s white and black communities were in open conflict and lynchings continued throughout the South.

Though these riots were largely ignored by the Roosevelt administration, Truman would later try to address this urban crisis. Truman’s efforts culminate in the 1947 report To Secure These Rights, which Murakawa argues is one of the first statements of liberal law and order. According to Truman’s vision of liberal law and order, says Murakawa, racial violence is a result of individual prejudice and too much local discretion. The solution is greater federal management and training, which is believed to reduce prejudice and fix the procedures that allowed for violence against black citizens. This fairer system, in turn, would reduce what was presented as black lawlessness.

Liberal law and order expanded during the urban riots of the 1960s. President Johnson and other Great Society liberals led a second attempt to increase the professionalization and accountability of local police through federal efforts. This built on the theories developed in the 1940s. As one senator put it, police professionalization would teach “slum children [to] have respect for the law” because the police would in turn be responsible and attentive to their needs. But liberals like Johnson warned of the “destructive rebellion against the fabric of society” caused by black unemployment and, echoing the Moynihan report, “the breakdown of the Negro family structure.” Arguing that “a rioter with a Molotov cocktail” was just as much of an enemy of progress as “a Klansman with a sheet on his back,” Johnson failed to adequately critique structural white supremacy. Black rioters were not the same as white terrorists.

This culminated in President Johnson’s 1968 Omnibus Crime Control and Safe Streets Act, which increased federal involvement in criminal justice, normally the province of states and municipalities. The New Yorker described the bill as “a piece of demagoguery devised out of malevolence and enacted in hysteria,” though Murakawa emphasizes its consistency with the thinking of the 1940s. Here, however, the system starts to break down—money meant for specific training programs was suddenly turned into block grants for local police to do whatever they felt would advance a law and order agenda.

During the prison riots of the 1970s, the liberal law and order regime continued to view crime as a reaction to an unjust system, rather than as the product of inequality. In 1971, 1,200 prisoners revolted at a prison in Attica, New York, taking hostages for a four-day standoff. When state police and the National Guard took control of the prison, intense fighting led to forty-three deaths. Ignoring the prisoners’ own demands, which included proper medical care and edible food, the subsequent investigative committee concluded that prisoners were angry that the criminal justice system was inherently unfair, and that riots resulted when it “fails to dispense justice and impose punishment fairly, equally and swiftly.”

Liberals, lead by Senator Ted Kennedy, proceeded to overhaul sentencing. Senator Kennedy introduced several sentencing reform acts in the late 1970s designed to reduce the exercise of discretion in sentencing and parole. His efforts, however, were increasingly pulled to the right by the new political environment and ended up playing straight into the conservative revolution. By the time the Sentencing Reform Act was passed in 1984, instead of just reducing discretion in order to mitigate arbitrary sentencing, it also permitted consistently longer and harsher sentences, leaving the most vulnerable even worse off.

Things went from bad to worse in the 1990s. The First Civil Right is particularly brutal on the Clinton years and his passage of the Violent Crime Control and Law Enforcement Act in 1994. In the Clinton years we see the liberal law and order narrative begin to fracture. Here, the driving ideological forces are a punitive response to the black “underclass” combined with Clinton’s efforts to “reinvent” government along more neoliberal lines.

Democrats were trying to take the issue of crime away from Republicans by emphasizing how punitive they could be. As one staffer noted, “[Senator Joe] Biden strongly believes that the Administration needs to seize control of the issue by upping the ante.” Even though crime began its long decline at this time, Clinton infamously funded police and prisons with the money “saved” by firing 252,000 federal employees. Here we can see how vicious and long-lasting the “triangulation” of the 1990s turned out to be.

From the Truman era forward, liberal law and order thinking saw racist outcomes as the result of locally-based, individualized racism, and attempted to fix this with professionalization of the system and federal money. Murakawa identifies three mutually reinforcing problems with this approach.

The first is that by trying to build a “neutral” state capable of carrying out fair procedures, liberals are simply feeding a beast that will always be one step ahead of reformers. Reforms give resources and credibility to a system that simply adopts an even more punitive stance. Calls for more modernization of the system, for example, end up directing more resources to local officials who inevitably use it to advance a more punitive law and order agenda.

Murakawa explains how many of the most important reforms tend to increase the power of the state. Miranda warnings (“the right to remain silent”), for instance, are nominally intended to protect people being interrogated from incriminating themselves under duress. However, in cases where the warnings have been waived, they allow police officers a free hand to engage in coercive interrogations. A reduction of sentencing discretion just transfers power to prosecutors, because the initial charges that are filed matter much more in determining what the final sentences are.

This adds to another problem, which is how the notion of black criminality becomes entrenched. Law and order conservatives see black criminality as civil rights gone too far, while law and order liberals see it as not going far enough. Both assume black criminality in the first place, leaving the entirety of the debate between liberal and conservative law and order thinkers focused on what causes black criminality, rather than how to address the actual conditions of black Americans in society.

The last problem with liberal law and order is its preference for technocratic solutions—it simply sees racial violence as an administrative problem. This means that the debate becomes focused on how to improve the system and make the process fairer—what are the best kinds of prisons to build?—rather than undertaking major social reform and rethinking what the actual scope of criminal justice should be. Alternatives to policing and incarceration, for instance, disappear entirely when the debate is focused on how to be the fairest kind of jailer.

It’s a remarkable story. However, there are problems with Murakawa’s analysis. The first is that it doesn’t deliver on the title. The real story isn’t how liberals built prison America, but how liberals justified prison America. The text of the book is more careful than the title on this point, and it emphasizes the role of liberals in providing legitimacy for mass incarceration. The book ultimately doesn’t convince that liberal law and order was responsible for creating either the necessary or sufficient conditions for the massive and sudden build-up of the prison system that began in the late 1970s.

This is especially true since incarceration exploded as the liberal order collapsed. The late 1970s, when incarceration started to skyrocket, also marked the triumph of both neoconservative and neoliberal ideological movements. Conservatives succeeded in tying the urban crisis not just to the expansion of civil rights, but also to the entire social-democratic project. Scholars Alice O’Connor and Jamie Peck have argued that right-wing think tanks like the Manhattan Institute formulated a theory that applying the discipline of the market to social life—by privatizing schools and municipal functions, and dismantling welfare—would complement zero-tolerance policing and sentencing.

This in turn means that it’s harder to draw Murakawa’s straight line from Truman and Johnson to Clinton. Their liberalisms were different. The first two were distinctly part of a project to expand the federal state against the Jim Crow South, which clearly prompted a more bureaucratic and federal law and order solution. Clinton, on the other hand, fought in an era where he conceded that the “era of big Government is over.”

Clinton’s strategy of embracing mass incarceration was designed to wrest the issue away from conservatives. But he was also trying to find a place for the state at a time when its very legitimacy as an agent of the public good was collapsing. It was then that pure police power stepped into place. As Clinton’s staff noted at the time, “there is a natural link between reinventing government and fighting crime” and that the administration “should steer government away from things it doesn’t know how to do, into things government can do best”—like policing and punishment. As law professor Bernard Harcourt has noted, during the two periods when the carceral state was rapidly expanding—the 1820s and the 1980s—the ideology of the marketplace did too.

Beyond these points about liberalism, The First Civil Right, like The New Jim Crow, doesn’t offer a convincing explanation for the violent crime wave of the 1970s. Violent crime did go up in this era, and while both books argue that this was largely a mechanical result of the baby boomer generation aging, they don’t explain how this scrambled political coalitions.

As James Forman Jr. argues in Racial Critiques of Mass Incarceration: Beyond the New Jim Crow, many black communities in the late 1960s themselves called for punitive anti-drug measures; Harlem activists called for what would become the Rockefeller drug laws and the NAACP Citizens’ Mobilization Against Crime demanded “lengthening minimum prison terms for muggers, pushers, [and first] degree murderers.” Both Murakawa and Alexander would argue that communities with higher rates of violent crime don’t approve of the punitive tactics that dominate policing today, measures like mandatory minimum sentencing and aggressive quality-of-life policing; but this doesn’t explain how these communities themselves contributed to building prison America.

Indeed, the remarkable thing about mass incarceration is how locally driven it is. Eighty-five percent of those incarcerated are in local or state prisons. Groups like the American Legislative Exchange Council (ALEC) pushed standardized bills designed to scale up punitive sentencing in one of the most effective state-by-state campaigns of the past several decades. Meanwhile, conservative think tanks pushed the “broken windows” theory by stressing the importance of aggressive arrests for the most minor infractions, and so helped build prison America from the bottom up. Missing this history leads us to absurd situations where libertarians like Kentucky senator Rand Paul blame the federal government for the death of Mike Brown and Eric Garner, when what’s really terrifying about these deaths is the sheer banality of local beat cops killing young black men.

Even if we cut the prison population in half, it would still be two and a half times greater than it was in the 1970s. And the goal of cutting prison America in half is difficult given the current state of politics. But even if there is a wave of reform, Murakawa shows that liberalism, with its focus on procedural accountability, will be unable to challenge our system of mass incarceration. We can see this with initiatives like police officers wearing body cameras. Abuses are already setting in, with police simply turning them off before shootings or using them to further monitor communities. Our new goal should be to focus on decriminalization, to find alternatives to current regimes of policing and jails, and to scale back prison America. Unlike the liberal reformers of the past sixty years, we should be thinking not about how to make the system better, but about how to take it apart.

Mike Konczal is a fellow with the Roosevelt Institute and a contributing editor at Dissent.

Blind Injustice [Advertisement]