Reason
Our cities are saturated with militarized law enforcement officers. An extraordinarily high number of American civilians are killed by police each year. The U.S. prison population is the largest in the world. And we are only beginning to understand why.
In recent years, scholars such as Naomi Murakawa and Marie Gottschalk and activists in the Black Lives Matter movement have broken from the civil rights generation's obeisance to the Democratic Party, and from the left's reflexive assumption that "law and order" Republicans are exclusively to blame for this situation. Instead, they have persuasively argued that much of today's criminal justice regime originated in policies forged by liberal Democrats in the second half of the 20th century, in particular under the presidencies of Lyndon Johnson and Bill Clinton.
Yet even this new and welcome historical analysis of militarized policing and mass incarceration does not go deep enough.
The campaign to criminalize victimless behaviors and then build a carceral system large and efficient enough to contain the criminals it would create began long before the 1960s, with the formation of the political regime we now call liberalism. The intellectuals and policy makers who created the modern wars on drugs and crime were the direct descendants of the original progressives, who emerged at the turn of the 20th century. Those progressives consistently argued that disruptive and marginal populations should be encouraged to assimilate into the formal culture of the country and to adopt the responsibilities of American citizenship, but they also held that individuals who refused to do so should be removed from society. Indeed, it could be said that progressivism was created around those twin projects.
Unlike scientific racists, who were the dominant ideologists of race until World War II, progressives generally maintained that there were no innate barriers in any race of people to acquiring the personality of a "good" American. Progressives believed that certain races and nationalities had not attained the level of civilization of white Americans and northern Europeans, but also thought those peoples could and should be raised to that level. That is, most progressives were simultaneously anti-racist and hostile to cultures other than their own. Immigrants who brought alien ways of living, radical political ideas, and criminal behavior into the U.S. were invited into progressives' settlement houses, where they were given free vocational education, subsidized room and board, and instructions on the proper attitudes and behaviors of Americans. Those who demonstrated a willingness to follow the rules of their new society—even those who were originally believed to be of an inferior race, such as Italians, Jews, and Slavs—were deemed worthy of full citizenship.
Most progressives believed that the culture of blacks was especially retarded, but they nonetheless funded hundreds of settlement houses for blacks and helped establish the first major civil rights organizations, the Urban League and the National Association for the Advancement of Colored People. One mission of those organizations was to eliminate the "pathologies" of native black culture, to "adjust or assimilate" blacks to the dominant culture, and to make them into "orderly citizens." This was a brutal and puritanical assimilationism, but it ran directly counter to the belief of the scientific racists that blacks were biologically incapable of becoming civilized. Nonetheless, progressives acknowledged that some immigrants and blacks and even some native-born whites would choose renegade lives of crime over constrained lives as citizens, and for that eventuality they created the basis of what is now called the carceral state.
Beginning in the late 19th century, progressives waged a successful campaign to replace the police forces that primarily served as social-service providers for urban political machines with "modern," "efficient," trained, and professional police, in departments organized like military units, whose duties were limited to the surveillance and apprehension of criminals. In the early 20th century, progressive reformers invented the category of the "juvenile delinquent" and established juvenile courts and detention centers to remove criminal and "immoral" youth from homes, schools, and the streets.
Progressives also launched the war on drugs with the Pure Food and Drug Act of 1906 that placed the first regulations on opiates, which then were widely used as prescription medicines. The legislation, as well as a series of state laws cracking down on opiates and cocaine that followed, created the black market for drugs that violent criminals have dominated ever since.
Two years after signing the Pure Food and Drug Act, President Theodore Roosevelt and Attorney General Charles Bonaparte, a career progressive reformer, created the first national police force, the Bureau of Investigation, later renamed the Federal Bureau of Investigation. This agency's initial missions were to produce useable information about crime through scientific data collection and to focus law enforcement attention on two crimes in particular: the trade in newly illegal drugs, and prostitution, which had been effectively outlawed through the progressives' anti-brothel "social purity" campaign. In the 1920s, the bureau redirected most of its resources to fighting the crime syndicates that filled the black market created by the greatest progressive accomplishment, Prohibition.
The Harvard historian Elizabeth Hinton's new book, From the War on Poverty to the War on Crime, confirms that today's mass incarceration stems from progressives' ideas and initiatives. Unfortunately, this confirmation comes only from the copious data that Hinton presents, not from the argument she fashions around it.
Hinton places the origins of our criminal justice regime inside the administration of Lyndon B. Johnson, who famously signed into law the Civil Rights Act and the Voting Rights Act and fought a "war on poverty" with the Great Society program, but who also declared a "war on crime" and escalated that war with policies that helped flood cities with police and send unprecedented numbers of people to prison. "It is one of the essential ironies of American history," Hinton writes, "that this punitive campaign began during an era of liberal reform and at the height of the civil rights revolution, a moment when the nation seemed ready to embrace policies that would fully realize its egalitarian founding values."
In fact, it is no irony at all.
Hinton's evidence shows that the policies that produced today's mass incarceration were an extension and expansion of the original progressive "reforms" of the first half of the century. Yet at every turn, her story of the making of the modern carceral state relies on racism, a term she uses with terrible imprecision, as the causal agent. "Racism," she writes, "embedded within federal policy and the social science research that rationalized it encouraged officials to embrace patrol, surveillance, and confinement as means of exerting social control in neighborhoods of segregated poverty." Hinton thinks an even greater tragedy is that racism kept liberalism from becoming fully realized.
This analysis conflates the forms of racism used to justify slavery and segregation with the very different set of ideas about race held by liberal intellectuals and policy makers in the 20th century. It treats racism as an unchanging force independent of historical conditions, a deus ex machina that allows Hinton to resolve the contradictions in her argument and to maintain her own political commitment to ideas at the base of the system she critiques.
The Kennedy and Johnson administrations, she writes, "started out with sincere intentions" to advance the interests of black Americans, but "the notions of black cultural pathology that concealed policymakers' own racism prevented their vision for a more egalitarian America from achieving its larger aims." Had they not been racist, Hinton argues, Kennedy would not have launched his "total attack" on juvenile delinquency, which, in Hinton's words, included programs that "facilitated the influx of social service workers into predominately low-income African American communities" and were designed to "expose them to the values, norms, and ways of speaking in dominant society." Yet this, of course, was the assimilationist paternalism of progressivism, not the scientific racism of segregationists.
Hinton identifies the scholars Edward Banfield, James Q. Wilson, and Daniel Patrick Moynihan as the intellectual founders of the war on crime. All three, whom she describes as "conservative," argued that "cultural pathologies" among many blacks were the immediate cause of crime, and that the existing social welfare regime only deepened those pathologies by reinforcing a dependence on the state. Hinton calls this argument a belief in "crime and violence as somehow innate among African Americans." But Banfield, Wilson, and Moynihan never claimed that the pathologies were biologically determined, and in fact took pains to locate their cause in the history of slavery and segregation. (Hinton later contradicts herself by mentioning that Banfield viewed the problems of black people as "a product not of race, but of concentrated urban poverty." Banfield himself said that if "all Negroes turned white overnight, the serious problems of the city would still exist.")
Nonetheless, Hinton maintains that had the Johnson administration not been informed by Moynihan's "racist -assumptions," Johnson would not have signed the Law Enforcement Assistance Act of 1965 or the Safe Streets Act of 1968, which channeled hundreds of millions of federal dollars to the states for law enforcement. She never mentions that the first proponents of this kind of nationalization of law enforcement were the progressives who pushed for the creation of the FBI.
Though Hinton locates the "seeds" of mass incarceration in the Johnson administration, Richard Nixon and his racism get the lion's share of blame. The "racist intent behind his administration's domestic programs" led to a "punitive counterrevolution" under Nixon "that brought to an end roughly three decades of progressive legislation." Yet Hinton later contradicts this claim with an aside that, "Given the actual similarities between Johnson's law enforcement program and Nixon's own proposals, Nixon's tough-on-crime stance was to a great extent a matter of rhetoric."
Most bizarrely, Hinton suggests that a better "alternative policy path" than that taken by Johnson would have been "the employment and guaranteed income programs Moynihan himself had suggested." But those suggestions became, when Moynihan was serving as Nixon's Counselor on Urban Affairs, the latter's proposals for the Family Assistance Plan and a "full-employment budget." Indeed, federal spending on Aid to Families with Dependent Children, Supplemental Security Income, food stamps, Medicaid, public housing, and public education all increased dramatically under Nixon and his Republican successor, Gerald Ford.
Hinton's assertions that Nixon and his administrators were interested only in "incarcerating as many young black men as possible," that they were "conservatives" who ended the welfare state, and that their "racism" alone was what sent the war on crime to a point of no return, are not only ludicrous but do damage to the project of ending mass incarceration. Nixon indeed committed many monstrous crimes against humanity, not least among them his efforts that led to the imprisonment of hundreds of thousands of young black men. Few will argue strenuously that he was not a racist. But his domestic policies were neither inherently racist nor a departure from progressivism.
Nixon continued Johnson's efforts to nationalize law enforcement with a special emphasis on bringing the progressive principles of scientific management to policing. One of his most ambitious crime control initiatives was the High Impact program, launched in 1971 to expand police surveillance in eight selected cities. More than $20 million in federal funds were provided to the municipalities for the addition of foot patrols and the acquisition of walkie-talkies and helicopters. Nixon also created an army with which to fight the war on drugs. Established in 1972, the Office of Drug Abuse Law Enforcement was the precursor to the Drug Enforcement Administration. As Hinton says, this office "more closely resembled a national police force than any other programs the federal government supported during the wars on crime and drugs."
Oddly, Hinton downplays the drug war. It is scarcely mentioned in the first eight chapters of the book, which cover the period before the presidency of Ronald Reagan, even though a large percentage of those imprisoned in the 1960s and '70s were convicted of drug crimes or of crimes related to illegal drugs, such as larceny to finance the payment of black market drug prices or the assaults and homicides committed by drug running gangs. And it is simply astonishing that the book only briefly references the spread of mandatory minimum sentencing laws in the states, though many scholars identify that as the primary driver of mass incarceration. Hinton devotes only one short sentence to New York's so-called Rockefeller drug laws, passed in 1973, which imposed minimum sentences of 15 years to life for selling two ounces or more of heroin, morphine, opium, cocaine, or cannabis, or for possessing four ounces of the same.
That same year, Michigan passed its "650-lifer" law, which mandated life without parole for drug offenders caught with more than 650 grams of heroin or cocaine. Many other states would enact similar laws delivering medieval punishment to the users and purveyors of illegal substances. The New York legislation was named for Gov. Nelson Rockefeller, who championed it, and the Michigan law was signed by Gov. William Milliken. Both men belonged to the GOP, but they were progressive Republicans—ardent supporters of the New Deal, civil rights, public education, Medicaid, and environmental regulations. And like their progressive forebears, they were willing to use the fullest extent of state violence to stop people from getting high.
Hinton shows that the Nixon administration pioneered practices that came to be known as racial profiling. Funding was given to local police departments for vast data collection projects aimed, in Hinton's words, at "the anticipation of future crime." Police catalogued demographic information on suspects, identified those in groups with high rates of crime, and placed them under special surveillance or arrested them for suspicion. This kind of law enforcement is a grotesque violation of civil rights, but it is neither conservative nor necessarily racist. The collection of crime data for the purpose of directing law enforcement attention to groups most likely to commit offenses requires no belief that those groups' criminal tendencies are innate.
For instance, it was simply a fact—of culture, not race—that a disproportionate number of Italians and Jews in the early 20th century were involved in organized crime and bootlegging. That is why many progressive policy makers and law enforcement officials conducted special surveillance and pre-emptive arrests of Italians and Jews in their war to uphold Prohibition. And it was simply a fact, disputed by no serious scholar other than Hinton, that African Americans at the beginning of the modern war on crime were committing a disproportionate number of crimes. Hinton herself adheres to the common interpretation of crime as a function of poverty, and she is acutely aware that African Americans were far poorer than whites—but she nonetheless contradicts both the scholarly consensus and her own causal analysis of crime by insisting throughout her narrative that the relatively high rates of black criminality were manufactured by policies that put more police in contact with African Americans. More than once, she even suggests crime rates among whites were actually higher.
There is a way to think about the rates of crime among African Americans that is different from Hinton's economic determinism but also rejects the pejorative cast of Banfield and Moynihan's "pathology" thesis.
Several scholars have identified long historical lines of what might be called African-American oppositional culture. W.E.B. Du Bois, Langston Hughes, James Baldwin, and more recent scholars such as Robin D.G. Kelley, David Roediger, Roderick Ferguson, and myself have suggested that the relatively liberated and "non-respectable" character of black working-class culture, which gave us jazz, rock 'n' roll, taboo-smashing comedy, and much of American English, might very well have been the result of the fact that for most if not all of their history, African Americans have been to some degree excluded from citizenship and therefore far less likely to internalize its repression. American citizenship has always come with a heavy price—the price of assimilation demanded by progressives—and it could be that many black people, once given the opportunity, were simply unwilling to pay it.
Hinton's attempt to cast disproportionate black crime as a fiction is part of her broader effort to explain the war on crime and mass incarceration as the result of white men's racism. This flies in the face not only of logic and historical facts but also of the experience of a great number of black people living in American cities. The political scientist Michael Javen Fortner and others have documented the loud and sustained calls by black political leaders, clergy, and ordinary citizens in the 1950s, 1960s, and 1970s for the government to send more police into their communities and lock up more of their criminals. In fact, it was commonly claimed by these black activists that the lack of aggressive policing in black communities was racist—they believed, with quite a bit of justification, that real racists didn't care enough about black people to provide them with adequate security. These groups succeeded in bringing more police into their communities and also in electing black mayors and city council members, who since the '70s have largely controlled the governments and police departments of the cities, such as Detroit, Washington, D.C., Atlanta, Baltimore, Philadelphia, Newark, and Oakland, where a substantial number of the black men who now sit in prison were arrested.
Hinton describes the "unleashing of terror" through no-knock raids on black drug dealers' homes, vast sting operations that entrapped swaths of black petty criminals, increasing occupation of black neighborhoods by militarized police officers, and prisons filling with black men, who now make up 37 percent of the prison population. There is no question that the policies Hinton describes have brought a catastrophe to the black poor. But this is not the only catastrophe.
It is not clear that mass incarceration was driven to any significant extent by racism, but it is clear that it would still exist if we brought about perfect racial justice in the criminal justice system. Many millions of white men and women have been sent to prison as a result of the modern wars on drugs and crime. Today, there are more than 500,000 white inmates in state or federal prisons, and the incarceration rate for whites is 465 out of 100,000—higher than the rates of Russia, China, India, Brazil, Mexico, Rwanda, and Iran. Even if we freed all black and Latino inmates tomorrow, the United States would have the fourth-largest prison population in the world. Hinton's racial reductionism allows no way to understand this—and no way to end it.
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