The First Civil Right: How Liberals Built Prison America, by Naomi Murakawa, Oxford University Press, 280 pages, $24.95
The United States is the undisputed world champion of incarceration. According to the latest accounting by the U.S. Bureau of Justice Statistics, close to 2.3 million adults are held in federal and state prisons and county jails in the United States, which is roughly 1 percent of the country's adult population and 25 percent of the world's prisoners. The U.S. incarcerates a greater percentage of its total population than any other country in the world, including Cuba, Russia, Iran, and, according to some estimates, North Korea. In addition, 4.8 million Americans are on probation or parole, which means that a total of more than 7 million are under correctional control-some 3 percent of the adult population in the United States. Nearly 60 percent of prisoners are black or Latino and roughly half of all prisoners are serving sentences for nonviolent offenses.
Conventional wisdom holds that mass incarceration of American blacks and Latinos is a result of the "scientific racism" that was established as the dominant racial ideology in the 19th and early 20th centuries and which underlay the Republican "law and order" policies of the 1970s that brought us to our present condition. But in her new book, The First Civil Right, Naomi Murakawa upends that narrative, locating the roots of America's "prison state" instead in the progressive reformism that gained ascendancy during World War II. Progressive thinkers overthrew scientific racism as a respectable belief system and replaced it with a set of ideas that were modern and sophisticated but also a more effective rationale for locking up large portions of the population. What Murakawa calls "racial liberalism" was born out of the discourse of ethnic and racial "tolerance" and "equality," which promised liberation but contained a carceral logic.
In prewar America, it was entirely respectable to believe that black people were biologically inferior and inherently prone to criminal behavior. Students in elite universities were assigned Ulrich Bonnell Philips' American Negro Slavery, the leading scholarly text on the subject through the first half of the 20th century, which argued that the plantations were "the best schools yet invented for the mass training of that sort of inert and backward people which the bulk of the American negroes represented." Policy makers and intellectuals generally accepted as fact the claim made in Frederick Hoffman's The Race Traits and Tendencies of the American Negro that "crime, pauperism, and sexual immorality" among blacks were biologically determined. Scientific racism was even extended to many Europeans. The National Origins Act, which severely restricted immigration from southern and eastern European countries as well as from Africa, Asia, and Latin America from 1924 to 1965, was chiefly informed by the work of Madison Grant, an anthropologist who argued that Jews, Spaniards, Italians, Greeks, and northern Africans belonged to an inferior "Mediterranean race."
Murakawa, a professor of African American Studies at Princeton University, argues that during the war against the genocidal Axis this ideology was supplanted by "racial liberalism," an attempt to reform both white racism and black disloyalty with rational, efficient, and coercive state institutions.
The foundational text of racial liberalism was Gunnar Myrdal's An American Dilemma, published in 1944, which argued that black "pathologies" were the product not of biology but of slavery, segregation, and discrimination and could be corrected by treating blacks with "scientific social engineering" instead of scientific racism. Myrdal's study was commissioned by the progressive Carnegie Foundation, whose trustees wished to pre-empt the race wars they feared would result from the influx into Northern cities of "untidy" Southern blacks whose habits "were better adapted to cabin life in the palmetto swamps." Understanding that the application of scientific-racist principles to urban blacks would only provoke an unmanageable rage, Myrdal argued that centuries of brutal exploitation and exclusion caused "American Negro culture" to become "a distorted development, or a pathological condition" that was not only debilitating for blacks but also dangerous for whites: "Not only occasional acts of violence, but most laziness, carelessness, unreliability, petty stealing and lying are undoubtedly to be explained as concealed aggression. … The truth is that Negroes generally do not feel they have unqualified moral obligations to white people. … The voluntary withdrawal which has intensified the isolation between the two castes is also an expression of Negro protest under cover."
By forcing blacks to live in "Negro slums" and excluding them from the civilizing influence of white schools, Myrdal argued, racists had created a population of criminals. Myrdal saw black city dwellers "walking the streets unemployed" and "standing around on the corners." Forced into a hostile relationship with whites, barred from assimilating into the dominant culture, and left festering in their social pathologies, blacks had been made to lead lives of lawless danger: "They have a bearing of their whole body, a way of carrying their hats, a way of looking cheeky and talking coolly, and a general recklessness about their own and others' personal security and property, which gives one a feeling that carelessness, asociality, and fear have reached their zenith."
To Myrdal and a generation of liberals who followed him, the answer was to modernize, centralize, and enlarge the criminal justice system. In 1947, Harry Truman's President's Committee on Civil Rights reported that by following "practices which preserve white dominance," the police and the courts had led blacks to reject the whole system.
"Out of the discriminatory administration of justice has grown a disregard of the law," the Committee declared, echoing Myrdal's claim about the cause of black criminality.
"People who live in a state of tension and suspicion cannot use their energy constructively. The frustrations of their restricted existence are translated into aggression against the dominant group. … It is not at all surprising that a people relegated to second-class citizenship should behave as second-class citizens. This is true, in varying degrees, of all of our minorities. What we have lost in money, production, invention, citizenship, and leadership as the price for damaged, thwarted personalities-these are beyond estimate."
The solution the Committee recommended became the blueprint for the American criminal justice system we know today, including "increased professionalization of state and local police forces" and higher salaries to "attract and hold competent personnel." From this came a flood of Democratic legislation that was intended, as Murakawa puts it, to "build a better carceral state, one strong enough to control racial violence in the streets and regimented enough to control racial bias in criminal justice administration." Discretion was taken from potentially racist judges and police and replaced with rational, consistent, and severe rules.
The Boggs Act of 1952 and the Narcotic Control Act of 1956, both of which passed with overwhelming support from Northern liberal Democrats, imposed uniform mandatory minimum sentences for drug-related offenses. "Little Boggs" laws then spread across the states, instituting mandatory and often lengthy minimum sentences for trafficking and possession of narcotics. The numbers of prisoners serving time for drug offenses increased geometrically over the next two decades. More importantly, the 1950s laws established crucial precedents for the later massive escalation in the war on drugs.
National Democratic legislators of the 1960s are well known for the Civil Rights and Voting Rights Acts, which did serve to equalize treatment of the races under the law. They are less well known for a slew of federal crime laws that put record numbers of black and brown people behind bars. The Interstate Wire Act of 1961 and the Gambling Devices Act of 1962 cracked down on interstate gambling, and the Juvenile Delinquency Prevention and Control Act of 1968 authorized block grants that enhanced the states' abilities to incarcerate youth. The cornerstone crime law of Lyndon Johnson's administration was the Omnibus Crime Control and Safe Streets Act of 1968, which is rarely discussed in textbook accounts of Johnson's "Great Society" programs. It established the Law Enforcement Assistance Administration (LEAA), which "swelled the flow of federal funds to state and local police departments" for recruitment and training of officers and began what we now know as the militarization of the police. The LEAA funded the purchase of helicopters, gas masks, infrared cameras, riot gear, smoke and gas grenades, projectiles, launching cartridges, and flares by police departments.
All this, says Murakawa, was "part of a long-term liberal agenda, one that reflected a belief that federally subsidized police recruitment and training could become racially fair." Ironically, it also followed from the assumption that federalized policing would give blacks reason to identify with law enforcement authorities. Democratic Sen. Birch Bayh of Indiana argued for the creation of the LEAA by declaring that "at no time in our history has disrespect for law and those who administer and enforce it been so general and widespread." Similarly, Sen. Joseph Tydings, a Democrat from Maryland, believed that professionalizing the police would correct the "deep-seated belief amongst our Negro citizens that equal law enforcement in police practices does not exist anywhere in our land" and would teach "slum children [to] have respect for the law."
In 1966, a memo from the Office for Law Enforcement Assistance, another "Great Society" crime agency, explained that the "Purpose and Definition of Good Police-Community Relations" was "To encourage citizens to report crime" or "at least, not interfere with arrests and other police work"; "To achieve adequate financial and other support from legislative bodies"; "To improve recruitment"; "To improve respect for law and law enforcement which has a direct relationship to the amount of crime"; "To remove the incidents which can lead to riots"; "To assist in giving the public confidence that the police will enforce the law and provide effective protection without discrimination"; and "To make the police responsive to the public which is essential in a democracy even aside from other pragmatic advantages." As we know from the record of black distrust and antagonism toward police that followed the 1960s, these dreams of socially engineered assimilation did not come true.
Murakawa acknowledges that conservative Republicans did their part to build the prison state, in particular by prosecuting the war on drugs. She details Reagan's astonishingly punitive Comprehensive Crime Control Act of 1984, which nearly eliminated federal parole and allowed for preventive detention of defendants, and the Anti-Drug Abuse Acts of 1986 and 1988, which instituted more mandatory minimum sentences and created the notorious 100-1 disparity in sentences for crack vs. powder cocaine trafficking. But Murakawa shows that most of the intellectual and legal scaffolding of the contemporary American carceral system was erected by Democrats.
The greatest push to criminalize and incarcerate came under Bill Clinton, who oversaw more expansions of mandatory minimum sentences than any other president. His signature crime bill, the Violent Crime Control and Law Enforcement Act of 1994, funded state prison construction and the hiring of 100,000 new police officers, increased mandatory minimums, and applied the death penalty to 60 crimes. Clinton triumphantly declared that the law was "the toughest, largest, smartest Federal attack on crime in the history of our country."
Democratic Sen. Joe Biden of Delaware used the law to respond to the common and erroneous criticism that liberals were soft on crime: "Let me define the liberal wing of the Democratic Party. The liberal wing of the Democratic Party is now for 60 new death penalties. That is what is in this bill. The liberal wing of the Democratic Party has 70 enhanced penalties. … The liberal wing of the Democratic Party is for 100,000 cops. The liberal wing of the Democratic Party is for 125,000 new State prison cells."
By the time Clinton left office, the number of people under correctional control was seven times greater than at the beginning of the Johnson administration, and the black-to-white ratio for incarceration rates had risen from 3-1 to 6-1.
As Murakawa says, "there is no master narrative of conservative ascendance" in the rise of the American prison state. Indeed, it is a classic story of progressive ascendance: of modern efficiency applied to social problems and errant populations more effectively controlled. Progressives are simply better at getting the job done.