The Carceral State
March 22, 2020
“Nowhere do the smug assumptions which underlie the ideas of white supremacy work more insidiously than among the so-called American liberals,” opined the writer Albert Murray in his The Omni-Americans: Some Alternatives to the Folklore of White Supremacy (1970).[1] “Their methods are rooted in the jargon of social science, their judgments based on tricky statistics, their proposed solutions basically materialistic—and seldom do they stop to consider Negroes as people,” Murray continued. How the so-called American liberals contributed to the rise of the carceral state is the subject of historian Elizabeth Hinton’s From the War on Poverty to the War on Crime: The Making of Mass Incarceration in America (2016) and law professor James Forman Jr.’s Locking Up Our Own: Crime and Punishment in Black America (2017). The works in question reveal how politicians’ punitive anti-crime measures in the wake of the civil rights movement led to the era of mass incarceration. Hinton and Forman detail how American liberals lost their way and, helpfully, provide some guidance for what can be done to deconstruct the carceral state.
Hinton and Forman rightly consider mass incarceration among the most pressing issues in American society today. The U.S. has 5 percent of the world population but 25 percent of its prisoners.[2] Nearly two-thirds of American prisoners are Black and/or Hispanic, although whites, who comprise the majority of the country’s population, use drugs and commit crimes at similar rates.[3] Clearly no one racial or ethnic group is more criminal than any other. But policymakers and politicians would have Americans believe—especially, as Hinton and Forman write, from the 1960s onward—that Black men in urban environments commit the vast majority of crime.
Hinton and Forman examine the origins and long-lasting effects of the War on Crime on Black people in an effort to expose the results of aggressive policing and overly punitive anti-crime measures. The extent to which Americans can remedy this dire situation may be determined by our willingness to confront our implicit biases and address the “root causes” of poverty and crime. Although both Hinton and Forman describe the implementation of racist and classist policymaking, and each spend considerable time discussing “root causes,” they do so with markedly different methods. Hinton, an Assistant Professor of History at Harvard, generally uses a top-down approach to consider how federal policymaking from the Kennedy administration through the Reagan years spurred mass incarceration. Forman, the J. Skelly Wright Professor of Law at Yale Law School and a co-founder of an alternative charter school in Washington, D.C., describes how locals in the majority-Black (and Black-led) D.C. of the 1970s, ‘80s, and ‘90s, advocated for strict anti-crime policies which they knew would disproportionately affect African Americans. The six years Forman spent as a public defender in D.C. in the late ‘90s and early 2000s informs his book’s sensibility and grants readers privileged insights into the politics of punishment in the nation’s capital. Read together, Hinton and Forman’s scholarship provides much-needed perspectival shifts from machinations within the White House to how federal policies and priorities influence local politics and effect communities and families’ livelihoods.
“The issue is to uncover the series of decisions that made contemporary mass incarceration possible in order to discover our own actual history,” Hinton writes.[4] She and Forman repeatedly highlight how individuals’ decisions and actions have led us to this point. As Forman writes, “mass incarceration was constructed incrementally, and it may have to be dismantled the same way.”[5] This is of signal importance as “prisons, jails, and law enforcement institutions function as a central engine of American inequality,” Hinton writes.[6] “It is one of the essential ironies of American history 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 the policies that would fully realize its founding values.”[7] Hinton repeatedly describes how “a racist set of assumptions” about Africans Americans drove the egregious rise in overly punitive policing, sentencing, and the concurrent expansion of the prison system. She trains her gaze on several meddlesome advisors to presidents, including James Q. Wilson, Edward Banfield, and Daniel Patrick Moynihan, to name a few. This veritable rogues’ gallery made their names by peddling racist, unscientific theories about Black people and their supposed penchant for crime. As Albert Murray writes, “Nothing has ever given U.S. Negroes more trouble than other people’s theories, conjectures, and misdefinitions.”[8]
From the wealth of information within Hinton’s book, Moynihan should be singled out. Hinton repeatedly returns to Moynihan as his The Negro Family: The Case for National Action (1965) popularized the idea that Black people are caught in “a tangle of pathology.” Hinton refers to pathologies throughout her work, most often as a way to ironically comment on how Moynihan and others like him were the pathological purveyors of racist propaganda. Moynihan is the representative so-called liberal policymaker/influencer who does nothing so much as foul up most every situation involving Black people that he inserts himself into. Like Wilson, Banfield, and Charles Murray, among so many other advisors on domestic and/or foreign policy, Moynihan was a fixture through several presidential administrations (he was also one of the longest serving senators from New York). Hinton’s work reminds readers of the impact presidential advisors have on policy.
Hinton’s references to Washington, D.C. as a case study are most relevant for any comparative review with Forman’s work. Her research into D.C. is among the most engaging elements of her policy-heavy book. As Hinton notes, “the District had been a federal concern since it assumed a black majority and received a special grant” under President Kennedy in 1961.[9] Given the media attention on urban rebellions and uprisings in the mid-to-late ‘60s, and D.C.’s status as the nation’s capital, President Johnson picked up where Kennedy left off and “set the precedent for the federal government’s explicit focus on law enforcement in the District.”[10] Johnson’s D.C. Crime Control Bill of 1967 imposed mandatory minimum sentences, which were then quickly adopted around the country.[11] But President Nixon ratcheted things to another level by appropriating one-eighth of the Law Enforcement Assistance Agency budget to the District, “resulting in the largest number of police per capita in the world.”[12]
Nixon made the District one of his top priorities. Nixon’s District of Columbia Court Reorganization Act of 1970 “reflected the approach of the most ardent law-and-order policymakers, bureaucrats within the administration, and conservative criminologists, all of whom believed only severe sentences and widespread arrests could make a dent in crime.”[13] The effects were devastating and replicable. “With D.C. as its ‘showcase,’ the [Nixon] administration set a precedent for state and local governments to endorse a more punitive patrol, arrest, and sentencing and the wider adoption of mandatory and preventative detention.”[14] The District was the federal government’s testing ground for overly punitive measures targeting Black men.
Forman’s Locking Up Our Own, which purports to get at the “origins” of things, does not mention either the D.C. Crime Control Bill of 1967 or the District of Columbia Court Reorganization Act of 1970. The absence of any discussion of these two pieces of legislation hints at the shortcomings of Forman’s method. The answer to Forman’s central question—“How did a majority-black jurisdiction end up incarcerating so many of its own?”—is not so difficult to guess. In 1975, as D.C. became a Black-led city with Walter Washington sworn in as mayor, and an 11 to 13 Black-to-white ratio on the city council, federal law enforcement agencies were actively creating crime in D.C.[15] Unemployment was the highest it had been since 1941, yet federal law enforcement sought to court petty criminals, who likely had few or no alternatives to make money, and entrap them in sting operations in D.C. The model was then, once again, replicated elsewhere. In the four years after D.C.’s inaugural cross-agency sting operations begun in 1975, “police went on to issue arrest warrants for a total of 4,222 people on 6,817 separate charges and recovered $114 million in stolen property throughout the United States.”[16] These facts represent how strictures were already in place that would have been nearly impossible for any local government to work around, let alone a brand new government in the nation’s capital which was then facing skyrocketing rates of heroin addiction, a decreasing tax base, the effects of a national recession, staggering unemployment, poor public schools, and myriad other issues. Forman attributes too clean of a slate to D.C.’s leadership in the 1970s.
Where Forman succeeds is when he limns the contours of D.C. residents’ life stories and their entanglements with the justice system. Forman’s ability to empathize and draw the reader into the complexities of mass incarceration is what earned him the Pulitzer Prize for Locking Up Our Own. To return to Albert Murray’s quote which opened this essay, Forman considers these residents “as people,” not numbers, statistics, or as stereotypes. Who could forget how, in the presence of Judge Walker, Mr. Thomas forgave Dante, the 15-year-old perpetrator who robbed him, and thus set him on the road to rehabilitation and redemption? Forman is adept at weaving such stories throughout his narrative to heart-wrenching effect.
Given the magnitude and complexity of the issue, it is beneficial to consider alternatives to the carceral state. At the conclusion of each of their works, Hinton and Forman offer several policy initiatives for readers to consider. Forman asks readers to consider the following:
instituting pretrial diversion programs to funnel people into drug treatment instead of prison, funding public defenders adequately, giving discretion back to judges by eliminating mandatory minimums, building quality schools inside juvenile and adult prisons, restoring voting rights to people who have served their sentences (or, better yet, allowing people to vote while incarcerated), and welcoming— not shunning and shaming— those who are returning from prison.[17]
To this list Hinton would add the demilitarization of local and state police, community review boards, residency requirements for police, and job creation measures outside of the service economy.[18] Everything decent-minded, compassionate, and holistic should be on the table. We must cease casting fellow Americans as the enemy within.
Bibliography
Forman, Jr. James. Locking Up Our Own: Crime and Punishment in Black America. New York, NY: Farrar, Straus, Giroux, 2017.
Hinton, Elizabeth. From the War on Poverty to the War on Crime: The Making of Mass Incarceration. Cambridge, MA: Harvard University Press, 2016.
Murray, Albert. Albert Murray: Collected Essays and Memoirs. Ed. Henry Louis Gates, Jr. and Paul Devlin. New York, NY: Library of America, 2016.
Notes
[1] Albert Murray, The Omni-Americans, in Albert Murray: Collected Essays and Memoirs. Ed. Henry Louis Gates, Jr. and Paul Devlin (New York, NY: Library of America, 2016), 871.
[2] Elizabeth Hinton, From the War on Poverty to the War on Crime: The Making of Mass Incarceration (Cambridge: MA, Harvard University Press, 2016), p. 5.
[3] Ibid.
[4] Hinton, 340
[5] James A. Forman Jr., Locking Up Our Own: Crime and Punishment in Black America (New York, NY: Farrar, Straus, and Giroux, 2017), Kindle Location 4036.
[6] Hinton, 1
[7] Ibid.
[8] Murray, 876.
[9] Ibid., 154
[10] Ibid., 155
[11] Ibid.
[12] Ibid., 156.
[13] Ibid.
[14] Ibid., 158.
[15] Ibid., 209.
[16] Ibid., 215.
[17] Forman, Kindle Location 4012.
[18] Hinton, 339.
