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January 15, 2015

Political scientist highlights how Ted Kennedy and Joe Biden helped produce modern mass incarcertation

Murakawa2014I first spotlighted in this prior post the fascinating new book by Princeton Professor Naomi Murakawa titled The First Civil Right: How Liberals Built Prison in America.  I now see that The Marshall Project has published this great piece by Dana Goldstein with a brief overview of the book and a potent Q&A with its author.  Here is how the piece starts and some of my favorite excerpts:

Are liberals as responsible for the prison boom as conservatives?

That’s the thesis of a new book, The First Civil Right: How Liberals Built Prison America.  It has begun to attract reviews and debate from across the political spectrum.  Princeton political scientist Naomi Murakawa seeks to upend assumptions about the politics of crime and punishment.  She argues that conservatives, playing the politics of racial animus, helped quadruple the incarceration rate, but they were not alone.  Rather, she points to “liberal law and order” ideas first expressed by Harry Truman, Lyndon B. Johnson, and even the NAACP.  These liberals believed that federalizing crime policy would “professionalize” the justice system and prevent racial bias.  But in fact, federal funding and federal oversight of courts, sentencing, and policing helped build what Murakawa calls a “carceral state” that disproportionately punishes people of color.

Murakawa and I talked about her book and its implications for criminal justice reform today, especially the #BlackLivesMatter movement and the Obama administration’s policing reforms....

Q: Your book aims to expose the liberal roots of the prison boom.  But Democrats did not create the Willie Horton ad.  It was Richard Nixon who expanded the drug war by claiming that drug use was “the common denominator” that explained lawlessness among hippies, inner-city blacks, and antiwar protestors.  Is it important to distinguish between the different motives of conservatives and liberals?

A: I think it’s important to stay focused on outcomes in terms of how they affect people’s day-to-day lives. I do discount stated intentions quite a lot.  I do this in part because I have a feeling that for those being sentenced under punitive sentencing guidelines it doesn’t make a difference to them that Sen. Ted Kennedy was liberal and overall had a good voting record.  It doesn’t make the brutality of living in a cage any less violent.

Kennedy promulgated this idea of sentencing guidelines.  It was his baby.  He ushered it through the Senate at first as guidelines that were rigid but would have been somewhat anti-carceral.  They became guidelines that were rigid and more carceral.  And Reagan signed this legislation, in 1984. Kennedy had the rest of his life to say, “The sentencing guidelines have had a terrible impact. This is not what I meant.”  Not once did he introduce legislation to reform the guidelines.  Not once did he apologize or try to change it.  When I look at that kind of history, that’s where I feel like it’s fair to hold liberals responsible.

Q: Joe Biden played an interesting role in what you call Democrats “upping the ante” to outbid conservatives on being tough on crime.  Can you talk about Biden’s history?

A:  He was really pivotal 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.  There’s a tendency now to talk about Joe Biden as the sort of affable if inappropriate uncle, as loudmouth and silly.  But he’s actually done really deeply disturbing, dangerous reforms that have made the criminal justice system more lethal and just bigger.

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.

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January 15, 2015 at 09:35 PM | Permalink


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"There’s a tendency now to talk about Joe Biden as the sort of affable if inappropriate uncle, as loudmouth and silly. But he’s actually done really deeply disturbing, dangerous reforms that have made the criminal justice system more lethal and just bigger."

I would say that these two ideas are not at odds with one another but properly understood are the flip side of the same coin.

"These liberals believed that federalizing crime policy would 'professionalize' the justice system and prevent racial bias".

What happened was the the Democrats were determined, especially after Willy Horton, to not be on the wrong side of the criminal justice pendulum. Elections have consequences and losing hurts.

The net result is I feel squeamish about her thesis. There is no doubt that the Democrats have never been as "soft on crime" as they have been painted. However, I think it is a more open question as to whether they were the drivers of that cultural situation or merely went along for the ride. The idea that the party should have scarified themselves on the funeral pyre of Willie Horton just to prevent a "carceral state" is naive.

Posted by: Daniel | Jan 15, 2015 9:53:11 PM

The high crime rae of the Eighties caused the increase in incarceration.

Posted by: Supremacy Claus | Jan 16, 2015 8:09:21 AM

As the opening Q&A question suggests, and Daniel underscores in his comment, the Willie Horton ad may well have been the turning point on the road from prevailing notions of simple justice to the police/surveillance state that's come to be known as Incarceration Nation.

The political success of that ad unleashed the demagogic genius of Republican politicians. Democrats -- even ostensibly real ones such as Kennedy and Biden -- defaulted to the political survival mode.

Posted by: John K | Jan 16, 2015 8:15:16 AM

John K,

Umm, with Ted Kennedy at least the most complained of item (the SRA) occurred well before the Willie Horton ad.

Posted by: Soronel Haetir | Jan 16, 2015 9:59:14 AM

"But Democrats did not create the Willie Horton ad."

True. Al Gore did criticize Dukakis in a debate for having a furlough program, calling it "weekend passes for convicted criminals." Sure, he didn't mention Willie Horton by name, but I suppose it's perfectly okay to support the same tough-on-crime policies so long as you don't sell it via distasteful means.

And don't forget the 1987 Ebony article "Charles Rangel: The Front-Line General in the War on Drugs," talking about the need to get tough on crack, and blasting Presidents Reagan and Bush and the DEA for not treating it enough like a war: https://books.google.com/books?id=3NQDAAAAMBAJ&pg=PA130&lpg=PA130&dq=charlie+rangel+crack+epidemic+ebony&source=bl&ots=0RLhmgnq6Q&sig=c3gxmn8oSX5PXAu-JhuJ-lMAjGw&hl=en&sa=X&ei=mCm5VNbRFMnkoAT_roDoAw&ved=0CDwQ6AEwBA#v=onepage&q=charlie%20rangel%20crack%20epidemic%20ebony&f=false

"Ironically, says Rangel, the White House called press conferences to announce that Congress had passed drug bills in 1986 and 1988, even though it was the Rangel legislation it has fought from conception to passage....

While he credits Nixon for taking positive steps to deal with the problem at the time,..."

So Rangel took credit for increased mandatory minimums and for the crack / powder cocaine disparity, because he believed that crack was a problem.

Yes, Rangel wanted education and assistance to help both Americans and foreign farmers out of poverty, which is what makes him a liberal, but he certainly believed that heavier sentencing and prosecution was part of the solution, and took credit for the steps taken to increase sentences and faulted Republican Presidents for not going far enough. And Rangel was never, ever in any danger of losing his seat to a Republican.

Posted by: John Thacker | Jan 16, 2015 10:19:09 AM

(Err, 1989 Ebony article, not 1987. There were earlier Ebony articles about Rangel and the Drug War, but the 1989 one is the most notable from a sentencing and incarceration perspective.)

Posted by: John Thacker | Jan 16, 2015 10:20:00 AM

John T., 1989 would be several years after the guidelines were enacted. The federal drug reform and sentencing guidelines were enacted in the early 80s and Kennedy and Biden had been pushing for sentencing guidelines for a long time before the bill finally passed (Kennedy since the early 70s when Nixon was president).

Daniel and John K, the desire for uniformity in the federal system (the guidelines) is a separate issue from the federalization of crime. While there was some federalization in the Sentencing Reform Act (because in the 80s most legislation passed in omnibus bills), most of the federalization occurred in other bills over the 70s, 80s, and 90s.

To the extent that the sentencing guidelines are unnecessarily punitive, it is because the underlying sentencing laws are unnecessarily punitive (and would still be punitive even if the guidelines were abolished tomorrow).

Posted by: tmm | Jan 16, 2015 2:20:50 PM

She is just talking about the federal system though, and that is a small fraction of the overall "carceral state." I do not understand this academic obsession with just focusing on the federal sentencing guidelines and federal criminal law. The states are where the great majority of the action is.

Posted by: academic lawyer | Jan 17, 2015 4:24:51 PM

"Murakawa calls a “carceral state” that disproportionately punishes people of color."

That one has been checked, over and over, and is settled. The punishment is proportional to the number of crimes blacks commit, especially vicious violent crime, 90% against black people. Murakawa devalues the injury to black victims. Indeed, the racial disparity is that their predators are punished less than those who offend against whites. When it comes to violent inter-racial crime. For every crime whites commit against blacks, such a police homicide, there are 50 black committing violent crimes against white. This feminist will not say, 30,000 white females were raped by blacks, and no black woman was raped by any white. She is biased.

If this were a high school paper, I would send it back for redoing before giving it an F for incomplete research.

Posted by: Supremacy Claus | Jan 18, 2015 5:10:38 AM

Any Catholic understands what Mass incarceration is. Many have left the church over this issue.

Posted by: Liberty1st | Jan 22, 2015 11:58:50 PM

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