MLK Day: Mass Incarceration and How White Liberals Helped Create It

Much attention, and rightly so, has been given to Michelle Alexander’s thesis of the New Jim Crow. She is the author of the book, The New Jim Crow: Mass Incarceration in the Age of Colorblindness. Basically she makes two critical observations. First, a large percentage of African-Americans are under the control of the criminal justice system today and, second, when a person is under felony status it is legal to discriminate in housing, education, employment and voting rights.

Ms. Alexander goes further, noting that more blacks are under the control of the criminal justice system today than were enslaved. And because so many people of color are made felons, de facto racial discrimination remains as powerful as it was under slavery or under the post-slavery era of Jim Crow segregation. She argues this is an intentional arrangement, where mass incarceration today serves the same purpose as pre-Civil War slavery and the post-Civil War Jim Crow laws: to maintain a racial caste system.

“Today,” writes Ms. Alexander, “a criminal freed from prison has scarcely more rights, and arguably less respect, than a freed slave or a black person living ‘free’ in Mississippi at the height of Jim Crow.”

But this thesis, while compelling at some levels, implies that the current system was intentionally constructed to re-create a racial caste system rather than being a natural but unintended outcome of a series of laws that were politically motivated to get tough on crime and had the unfortunate consequence of entrapping the very people they were attempting to help.

I often refer to Ms. Alexander’s thesis because I believe we do have a New Jim Crow system where black people – and, in fact, poor people in general – get trapped in the poverty-crime-incarceration cycle that we have made impossible to break out of because felony status prevents people from breaking out of poverty.

However, the intentionality portion of the thesis does not seem accurate and, in fact, I was reading an article in The Nation by Willie Osterweil who reviews a new book by historian Naomi Murakawa, The First Civil Right: How Liberals Built Prison in America.

Mr. Osterweil’s article, “How White Liberals Used Civil Rights to Create More Prisons” offers us a good snapshot of the argument. He writes that Ms. Murakawa argues that the American prison state did not emerge out of “race-baiting states’-rights advocates nor tough-on-crime drug warriors but rather from federal legislation written by liberals working to guarantee racial equality under the law.”

She writes, “The prison industry, and its associated police forces, spy agencies and kangaroo courts, is perhaps the most horrific piece of a fundamentally racist and unequal American civil society. More people are under correctional supervision in the United States than were in the Gulag archipelago at the height of the Great Terror; there are more black men in prison, jail or parole than were enslaved in 1850. How did this happen?”

The commonly believed answer is “that launching the war on drugs during the backlash against civil-rights struggles encouraged agents of the criminal-justice system to lock up black people for minor infractions.”

Mr. Osterweil writes, “Ronald Reagan’s infamous Sentencing Reform Act of 1984, which established federal minimums (aka sentencing ‘guidelines’) and abolished parole in the federal prison systems, did lead to an explosion in the number of federal prisoners, particularly drug offenders. It was one of the pivotal moments in the production of the prison-industrial complex (PIC)—the overlapping sphere of government and industrial activity that employs hundreds of thousands of guards, cops, judges, lawyers, bail-bondsmen, administrators and service employees and which sees millions of prisoners performing barely paid production labor to generate profit.”

However, as Professor Murakawa demonstrates in her book, “The Sentencing Reform Act has a ‘liberal core,’ and is built on the technical and administrative logic of racial fairness that structures all federal civil-rights legislation.”

I think there is a good point here, but I think it is born of political expediency and perhaps plays on the fears of the voting public. Emerging out of the 1960s is the framework of the backlash – the Nixon strategy for emphasizing law and order which emerges from the perceived lawlessness of the period.

Indeed, the crime rate continued to rise until nearly the end of the 1970s. President Reagan’s 1984 legislation came out of the drug scare that was renewed in the 1980s with the innovation of crack – seen by many as the black menace.

Liberals came into play here by the late 1980s. In 1988, Michael Dukakis was crucified with the Willie Horton ad and perhaps just as fatally his insensitive answer to a question on the death penalty about a hypothetical incident involving his wife. By 1992, Bill Clinton was committed to not getting killed by George Bush on crime or the death penalty – he actually interrupted his campaign activities to travel to Arkansas where he rejected a last minute plea for a condemned inmate.

Even before Democrats were routed in 1994, they were attempting to co-opt Republicans on the crime issue. The Marshall Project has an interview by Dana Goldstein with Professor Murakawa.

Along these lines, Professor Murakawa notes the role that Joe Biden played “in leading the Senate in worsening all of the provisions of Clinton’s 1994 omnibus crime act, which expanded the death penalty and created new mandatory minimum sentences. Biden was truly a leader and worked very closely and very happily with conservative senators just to bid up and up and up.”

She writes, “That 1994 act is overwhelmingly, incredibly punitive. One of the ways Biden brokered it was by making it such a huge bill that it had something for everyone. It provided political coverage for everyone who wanted to vote for it. There were certain liberal members who might have been opposed to mandatory minimums, but they were also getting the Violence Against Women Act. The Congressional Black Caucus opposed the death penalty expansions, but the bill also did include some modest money for rehabilitation programs. Everyone got goodies through the criminal justice system.”

Mr. Osterweil notes, “Democrats, afraid of being seen as soft on crime, mercilessly raised federal sentencing minimums.”

Professor Murakawa calls this time “a really dangerous moment of liberal reforms with regard to policing.” She writes, “What’s so troubling about this focus on body cams is this idea that somehow we need more evidence of what police are doing. When really, the data we see in terms of racial disparities in arrests, summonses, and who’s incarcerated is the evidence of racism. The idea that we need to pull out a microscope to find the racism in the system is utterly insane and utterly a legacy of racial liberalism.”

Instead, she argues, “We need to ask ourselves basic questions about not just the manners and technicalities of policing, but the big numbers of who is being policed and what they’re being policed for.”

She notes that, in 2011, “there were about 75,000 arrests of black children on charges of disorderly conduct, vandalism, loitering, and violating curfew. These were children under age 18. And these were their most serious charges.”

The professor argues, “We have to ask ourselves, if every one of these arrests was made by a perfectly courteous police officer following the most pristine protocol and adherence to due process rights, and if we had recordings of these arrests, would it be okay? And I think the answer has to be no. Once we say out loud, ‘No it’s not okay,’ this is about the core of police power.”

Willie Osterweil is a critic of the Professor’s account: “By ignoring intentions, Murakawa’s account can observe precisely how certain bipartisan outcomes are achieved, but the method also sometimes misses the way liberals and conservatives collude due to a shared class interest in stability.”

This is the heart of where I would put my critique of white liberal upper middle class attitude toward race.

—David M. Greenwald reporting

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