Justice Lab is a column that examines the science, social science and technology of criminal justice

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. This interview has been condensed and edited for clarity.

The “first civil right” refers to the right to live free from violence. Can you summarize how liberals and conservatives have conceived of that right differently?

I selected The First Civil Right as the title because so often when people are thinking about mass incarceration they begin with Nixon’s understanding of “the first civil right.” He made the phrase famous through his 1968 campaign, in which he said the first civil right of every American is the right of freedom from crime and domestic violence. What was so trenchant and disturbing was he was saying, implicitly, that the first civil right is white freedom from black criminality. And it was as if the other civil rights, the Civil Rights Act, had unleashed this criminality.

But “the first civil right” was actually used at an earlier historical moment, by the Truman administration, with their 1947 report [on lynchings and segregation], “To Secure These Rights.” There, “the first civil right” was freedom from violence, which implicitly meant black freedom from white supremacist violence.

From Truman on, Democrats believed police racial bias could be solved through increased federal funding and oversight, which was referred to as “professionalization.” Ultimately, much of that federal funding went to the War on Drugs, which was waged primarily in non-white neighborhoods, leading to arrests and incarceration. Today we’re hearing once again about police professionalization and modernization, from police body cameras to the idea that a more professional police force could train officers not to used excessive force, like the choke hold that killed Eric Garner, and would not have hired an officer who failed a psychological screening, like the officer who killed Tamir Rice. Can police professionalization work better now than it did in the past?

I think we are in a really dangerous moment of liberal reforms with regard to policing. Not just ineffective, but dangerous. The banner call #BlackLivesMatter is grand in scope; not just about spectacular cases of police violence, but really huge critiques of fees and fines and needless warrants. There are critiques of policing in schools and the school-to-prison pipeline. What is so disturbing to me about the scope of liberal reforms on the table is they are taking #BlackLivesMatter and transforming it into legalistic nitpicking and calls for fine-grained evidence. 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.

We have actually been here in analogous forms before. After the brutality of the Rodney King beating1 in 1991, there were calls for dashboard cams and police were initially resistant. One of the major policing unions, the International Association of Chiefs of Police, came to endorse dash cams later on. That organization now endorses videotaping police interrogations. What’s happening is we think we’re using these things to monitor police, but they’re using them to monitor us. Dash cams have been very good in prosecutions and in helping departments deflect lawsuits.

Rodney King beating1 Los Angeles police officers beat Rodney King, a then 25 year old black man, on March 3, 1991. The incident was caught on videotape. After four officers were initially acquitted of all charges, rioting broke out in South Central L.A.

If body cams and police professionalization don’t go far enough, what will?

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. For example, 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.

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.

So how would we reduce those juvenile arrests for petty crimes?

While I was writing the book, I kept thinking about how deep our tendency is to say that racism is somewhere else. For example, that it resides in the south. The popularity of books like The New Jim Crow2 helps us to say racism resides predominantly among conservatives and the Republican party. The debates we’re having about police now are part of this trend of displacing blame. The problems we have with policing are not just with police as people or even policing culture. Police are enforcing a bloated criminal code. We as a polity seem to think policing is the solution to every social problem. We’ve given police so many different loitering statutes, so many different vandalism statutes. Part of the reason we criminalize this way is that we’re putting at the feet of police all of the problems of, say, homelessness and de-institutionalization of the mentally ill and the lack of infrastructure for dealing with drug addiction. And then there’s the fact that schools and school competition and testing create pressures to drive out students who aren’t succeeding, through suspensions and expulsions for little nothing offenses. It’s not the police’s fault. It’s a product of our collective decisions. If we couldn’t just call on the police to deal with all of these things that we think of as tedious or unpleasant, what would we have to build? That’s where we need to take our social reforms.

The New Jim Crow2 In The New Jim Crow , author Michelle Alexander argues that mass incarceration is an extension of the same ideology that perpetrated slavery and southern segregation. The book, published in 2012, was an unexpected commercial success.

In the book, you support free health care that includes drug treatment and mental health treatment, as well as removing police from schools.

Yes. And I think we should ask the question the way Angela Davis asks it: “What do we have to imagine if we abolished the social function of police and prisons?”

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?

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 legislation3, 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.

this legislation3 The 1984 Crime Control Act abolished federal parole and established the United States Sentencing Commission, with the goal of ending "arbitrary" sentencing driven by judicial discretion. That commission established guidelines that created stiffer mandatory minimum sentences.

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?

He was really pivotal in leading the Senate in worsening all of the provisions of Clinton’s 1994 omnibus crime act4, 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.

Clinton’s 1994 omnibus crime act4 The Violent Crime Control Act provided billions of federal dollars to local police forces. It also expanded the federal death penalty, established new mandatory minimum sentences for drug crimes, and contained some gun control measures.

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.

Is Obama a “liberal law and order” president of the type you critique?

I would say that Obama fits squarely within a tradition of liberal law and order that aims to build a more powerful carceral state that may look more proceduralized or rights-laden, but directs its violence most pointedly at black Americans. Look at the pathetic report that his administration released on their view of the transfer of military technologies to local police1. What that document basically said is police are using military technologies very well and we just need to proceduralize the transfer of technologies. The Obama administration went through their review and their proposals were to take better inventory and log what’s being distributed where, and possibly have some type of civilian oversight to talk about what’s working and not working in terms of machinery. So we’re going to be just as lethal, we just want procedures in terms of distributing the Humvees and M-15s.

transfer of military technologies to local police5 The "1033 program" transfers excess Department of Defense equipment to local and state agencies, for use in fighting drug crime.

Look at this new policing commission6 that Holder says, rightly, is the first one in more than 50 years. It claims to be a big systematic national review on policing. We can look to the Katzenbach Commission, called by Lyndon B. Johnson in 1965. In 1967 they advocated more money for policing, more incentives to hire police of color and police with college degrees, and higher salaries. My prediction is that’s what’s going to happen with Obama’s commission. One suggestive piece of evidence is that the International Association of Chiefs of Police is strongly in favor of Holder’s new commision. It suggests the policing unions know the history of liberal reform and that they are likely to get more money and more jobs.