The "New" Criminal Justice System:
Consider again the numbers: in the last twenty years the Justice Department's budget grew by 900 percent; over 60 percent of all prisoners are in for non-violent drug crimes; an estimated one-in-three Black men between the ages of twenty and twenty-nine are under some type of criminal justice control or sought on a warrant; nationwide some 6.5 million people are in prison, on parole, or probation. From the Left it is clear that the United States is an over-policed, surveillance society that uses prison as one of its central social institutions.
But how are we to understand this? A common explanation, that spans the spectrum from the radical activists to the mainstream scriveners at the Wall Street Journal, portrays the prison boom as driven by direct and specific economic interests. For example we hear much about private prisons or prison labor. This economistic analysis is attractively simple, all one has to do is connect the dots: bad corporation here, human rights violations there. Unfortunately explaining prison in "anti-corporate" or other directly economic terms requires ignoring the facts. Private prisons are in crisis and losing money, prison labor is not profitable nor widespread, and most guards are not well organized or pushing their agenda on legislators. Nor do prison architects and medical providers, for the most part, mount huge lobbying operations that can be said to control policy. In short, prison is not profitable.1
Does this mean prison growth is simply irrational, with no coherent causal link to class exploitation and racism? Hardly. The new criminal justice system has every thing to do with the needs of capital and the ideology of white supremacy. More specifically, this repression is about two things: creating political obedience and regulating the price of labor. That is what the repression of the capitalist state has always been about, from the enclosures and the Atlantic slave trade, to the many bloody wars against organized labor, to the militarized ghetto of 2001. Capitalism was born of state violence and repression will always be part of its genetic code.
To understand the wider political effects of state violence it's worth contemplating the opposite: state assistance for poor and working people. As Frances Fox-Piven and Richard Cloward wrote in the New Class War "the connection between the income-maintenance programs, the labor market and profits is indirect, but not complicated." Too much social democracy, and people stop being grateful for poorly paid, dangerous work. So too with the converse: the link between state repression and labor markets and profits is indirect but not complicated. Repression manages poverty. Poverty depresses wages. Low wages increase the rate of exploitation and that creates surplus value, which is what it is all about... at least at one level.
This dynamic works at a macro-scale upon the society and economy as a whole. Policing and incarceration -directly profitable or more likely not-are thus part of a larger circuitry of social control. Incarceration is the motherboard but other components include county jails, INS detention centers, the militarized border, psych wards, halfway houses, hospital emergency rooms, homeless shelters, skid row, and the ghetto. All of these locations share populations and all serve to contain and manage the social impacts of poverty. But what is the specific history of the current crackdown and how does the central question of class struggle shape the story of the new criminal justice system? Answering that question requires a trip back to the late 1960s, because the current build up started then, plateaued briefly in the late seventies, and then began a second phase in the early 1980s, which has carried on into the present.
During one of the mid-sixties "civil disturbances," an intrepid reporter, wanting to know why Black people were looting, burning stores, and fighting cops, asked a young rioter: "What do you want?" "More ammunition," came the response. Imagine the terror of U.S. elites with riots every summer in hundreds of cities from 1964 through the early seventies. But the riots-just one part of a sustained revolt by African Americans-formed the ideological backdrop for a much larger general crisis of disobedience. Elements of this gathering storm included civil rights, Black Power, Vietnam, the anti-war mobilizations, poor peoples movements, wild cat labor strikes, feminism, a sagging dollar, and, by the early seventies, slow growth and plunging profits.
In response to this panorama of mayhem, a new round of law and order politics began. The opening move was President Johnson's Omnibus Crime and Safe Streets Act of 1968, a bill that Congress debated just after the assassination of Dr. Martin Luther King. As the lawgivers toiled, smoke billowed up from D.C.'s bitterly poor Shaw district a mere two miles from the Capitol. From this crucible emerged a new super agency, the Law Enforcement Assistance Administration (LEAA), which over the next ten years spent billions of dollars rationalizing and retooling American law enforcement.
Johnson laid the initial groundwork for new criminal justice but Sunbelt Republicans, like Senator Barry Goldwater, were the first to supply the rhetorical fuel for the long crackdown. As the Senator said during his 1964 presidential campaign, "Security from domestic violence, no less than from foreign aggression is the most elementary form and fundamental purpose of any government."2 Nixon noted the power in Goldwater's script, and in 1966 told U.S. News and World Report: "the deterioration [in respect for law and order] can be traced directly to the spread of the corrosive doctrine that every citizen possesses an inherent right to decide for himself which laws to obey and when to disobey them."3 As Dan Baum pointed out in Smoke and Mirrors (1996), Nixon was conflating street crime with civil disobedience, the left, and the larger question of resistance. Likewise, Goldwater linked the redistributive efforts of the war on poverty to criminal violence: "If it is entirely proper for the government to take away from some to give to others, then won't some be led to believe that they can rightfully take from anyone who has more than they? No wonder law and order has broken down, mob violence has engulfed great American cities, and our wives feel unsafe in the streets."4
At the heart of this new politics was an old trope--white racism and the need for an internal enemy. As Nixon's Chief of Staff, H. R. Haldeman, put it: "[The President] emphasized that you have to face that the whole problem is really the Blacks. The key is to devise a system that recognizes this while not appearing to."5
At the same time police began openly discussing their work as "counterinsurgency." Law enforcement trade journals ran articles such as the September 1966 piece in The Police Chief entitled "Police-Military Relations in a Revolutionary Environment," authored by an instructor from the U.S. Army War College, "It is now generally agreed among counterinsurgency experts that one of the most important aspects of counter-insurgency operations is the control of population and resources....Techniques to control the people include individual and family identification, curfews, travel permits, static and mobile checkpoint operations, and the prevention of assemblies or rallies." The article went on to describe rising crime rates as a precursor to revolution, and to laud the "value of an effective police organization-both civil and military-in maintaining law and order, whether in California, Pennsylvania, Mississippi, or the rice paddies and jungles of Viet-Nam."
Overseeing this techno-political revolution in U.S. policing was the federal government, particularly the LEAA. As Tony Platt and other radical criminologists of the 1970's detailed at the time, the LEAA provided local cops with money, military weaponry, communications gear, and special training and forced them into new interagency forms of co-operation. Under LEAA guidance, police first started using helicopters, SWAT teams, body armor, computers, and shoulder radios; they also instituted literacy requirements and basic competency tests.
Eventually this first phase of the build-up plateaued. By the late seventies even many mainstream, middle-class, White Americans began to tire of government repression, as a series of scandals great and small exposed the seamier side of politics and policing. As the 1975 Congressional Quarterly Almanac noted, "It was an ironic twist on the 'law and order' theme of the first years of the Nixon administration: the crimes which drew the most attention in the administration's last years were those committed by or charged against the men who held some of the highest offices, including Nixon himself." After Watergate came the Knapp Commission hearings exposing New York Police Department corruption, the Church Committee's findings on domestic spying, and from other quarters came more revelations about the brutality in Southern prisons. All of this caused a momentary pause in the otherwise forward momentum of the criminal justice juggernaut.
The lull was short lived. By the early-mid eighties President Reagan's men had started escalating domestic repression once more. But this second stage of the build up was not about crushing rebellion; that job had been done. There were no more riots; the mighty Black Panther Party was long gone; the antiwar movement dead; and even many radical community organizations had been domesticated, their rank and file demobilized, their leaders reduced to funding addicts, living obediently from one Ford Foundation grant to the next.
Instead, this second stage of repression was about "order maintenance" in an epoch of harsh economic restructuring; it was an attempt to physically contain and politically "explain away" (via racist and often sexist victim-blaming) the seismic dislocations of the Reagan-Bush-Clinton era of neo-liberal economic restructuring. But why the economic restructuring, was it simple greed or something deeper? Ultimately, the neoliberal offensive of the eighties was a response to the end of the post-war boom and to the economic stagnation and weak profits of the seventies. It was "creative destruction" designed to end a crisis of overaccumulation. By the late sixties, it was clear the recovery of the post-war era had finally played itself out and there was just too much capital, too much stuff, and not enough profitable outlets for investment-not enough consumption to keep the colossus moving.
Reagan's response was a class war against labor. Between 1979 and 1982, the real average weekly wage fell more than 8 percent. As Bennett Harrison and Barry Bluestone put it in The Great U-Turn, ".with wage growth arrested by unemployment, what growth occurred during the Reagan period rebounded mostly to the profits side of the capital-labor ledger" (p. 92). Between 1980 and 1985, the Department of Labor estimates that some 2.3 million manufacturing jobs disappeared for good. As industrial jobs evaporated, so too did attendant retail jobs, the local tax base, and much municipal employment.
This was accompanied by a right-wing assault on the disadvantaged and dispossessed. Labor unions, which had maintained some power in the 1970s and whose members had been extremely troublesome (wildcat strikes, absenteeism, and the like), were subjected to a vicious frontal assault. In 1982 alone the Reagan administration cut the real value of welfare by 24 percent; slashed the budget for child nutrition by 35 percent; reduced funding for school milk programs by 78 percent and urban development action grants by 35 percent; shrank educational block grants by 38 percent; and simply abolished the Comprehensive Employment and Training Act which had employed four-hundred thousand.
This multifaceted society-wide class assault from above had a single unifying aim: discipline for the laboring classes. Neo-conservative "theorist" George Gilder summed it up nicely: "The poor must work hard, and they must work harder than the classes above them."6 The policy package known as "Reaganomics" was an effort to boost profit margins by increasing the rate of exploitation. And by the mid-late eighties profitability was recovering, but with enormous social costs. Chicago saw its number of ghetto census tracts increase by 61.5 percent between 1980 and 1990; cities like Cleveland, Philadelphia, and Boston saw similar changes. Overall, the number of African Americans who found themselves living in "ghetto" census tracts, due to middle class flight, job loss etc., grew by one third. So, too, did homelessness make a dramatic comeback.
Enlarging the industrial reserve army of labor-the unemployed-brought with it serious political problems. Simply stated, capitalism always needs poverty and creates poverty, but is simultaneously always threatened by poverty. The poor keep wages down, but they also create trouble in three ways. First, their presence calls into question capitalism's moral claims (the system can't work for "everyone" when beggars are in the street). Second, the poor threaten and menace the moneyed classes aesthetically and personally simply by being in the wrong spaces. (Gourmet dining isn't quite the same when done in the presence of mendicant paupers.) And finally, the poor threaten to rebel in organized and unorganized ways. This simple fact punctuating every moment in history is systematically expunged from official texts. Yet the past is full of poor and working peoples' rebellions, from the United Mine Workers dropping dynamite on the West Virginia state militia, to the National Welfare Rights Organization flipping desks in welfare offices across the county, to the Teamsters bringing the United Parcel Service to its knees. Thus the poor and working classes must always be physically controlled.
The mechanism of the second phase of the criminal justice escalation was, of course, Reagan's vicious and hyperbolic War on Drugs. The reengaged buildup began quietly: at first FBI funding was doubled; wiretap laws were loosened; and more money was doled out for the U.S. Bureau of Prisons. Meanwhile, Reagan's Chief of Staff, Ed Meese, and his Attorney General, William French Smith, started demanding changes in the criminal code that would increase the power of the prosecutors.
Aiding that effort came a battery of new right-wing federal judges. And from the U.S. Supreme Court came several crucial decisions, notably Gates v. Illinois, which made it easier for police to obtain search warrants based on anonymous tips, and United States v. Leon, which allowed police to use defective and partially false warrants in obtaining evidence.
But the buildup really took off with the Federal Crime Bill of 1984. This created the assets forfeiture laws enabling police to keep as much as 90 percent of all the "drug tainted" property they could seize. Nationwide, the total amount of all seizures grew from about $100 million in 1981 to over $1 billion by fiscal year 1987. Thus did the feds entice local police into their plans for total war at home. The next congressional election brought another massive crime bill. Only eighteen lawmakers voted against the catch-all Anti-Drug-Abuse Act of 1986, which imposed twenty-nine new mandatory minimum sentences, among them the notoriously racist disparity in the penalties for crack and for powder cocaine. This bill also shifted official rhetoric from hunting "king pins" to rounding up "users."
The escalating repression hit people of color hardest, and Black people hardest of all. In 1980, African Americans made up 12 percent of the nation's population and over 23 percent of all those arrested on drug charges. Ten years later, African Americans were still 12 percent of the total population, but made up more than 40 percent of all people busted for narcotics. Still more remarkable, over 60 percent of all narcotics convictions were (and are) for African Americans. Overall, drug arrests almost doubled in the late eighties: 1985 saw roughly eight hundred thousand people taken down on drug charges; by 1989 that number had shot up to almost 1.4 million.
By the late eighties, lawmakers and the media were locked in a symbiotic hysteria-a political perpetual motion machine-and the drug war juggernaut was steaming ahead at full throttle. The racist PR of this onslaught reached it zenith with the Hill & Knowlton produced TV ads featuring convicted rapist-murderer Willie Horton who escaped prison while Michael Dukakis was governor. (As Alexander Cockburn and Jeffrey St. Clair remind us, it was Al Gore who first deployed the Willie Horton story during the Democratic primaries.) The 1988 crime bill emerging from this most grotesque of planned panics created, among other things, the cabinet level "drug czar" and pumped millions more in federal funds to police and prison construction. The bill also created a "one strike" policy for public housing. Any tenant caught with even a tiny amount of drugs or paraphernalia is now subject to automatic eviction. One recent victim of this policy was seventy-five-year-old Herman Walker of Oakland, California. A home-care attendant was caught with drug paraphernalia in Walker's apartment so the old man was "kicked to the curb."
The Clinton presidency brought new heights of viciousness. The specter of the Los Angeles riots-which were for the ruling class a frightening psychedelic blast from the past-spurred the New Democrats on in their design and implementation of the most racist and merciless policies yet. Their magnum opus was the 1994 Violent Crime Control And Law Enforcement Act, which offered up a cop's cornucopia of $30.2 billion in federal cash from which we got Clinton's one hundred thousand new police officers, scores of new prisons, and SWAT teams in even small New England towns.
Two years later, with another election on the way, Clinton gave us the Anti-Terrorism and Effective Death Penalty Act, which massively expanded the use of the death penalty and eviscerated federal habeas corpus. If this law had been in effect years earlier, one of Clinton's favorite movies, Hurricane, would never have been made because Rubin "Hurricane" Carter would have been denied his exonerating retrial. And for the people "inside," that same election year delivered the Prison Litigation Reform Act. This little examined law barred many prisoners from access to the civil courts; helped eliminate prison law libraries; kept liberal judges from imposing meaningful penalties on abusive prison administrators; and stripped lawyers of their ability to receive legal fees when handling prison civil rights suits. The sad election year of 1996 also delivered the ideologically named "Illegal Immigration Reform and Immigrant Responsibility Act," which eliminated the undocumented person's right to due process and helped bring Immigration and Naturalization Service (INS) funding up to four billion annually. These were the Clinton administration's demolition devices, strategically placed to take out what little remained for prisoners in the Bill of Rights. The damage from this mid-nineties frenzy of hate is so massive that a full accounting is as yet impossible.
Coinciding with these federal laws came a tsunami of state laws. California made over a thousand changes to its criminal code during the eighties and nineties. Looking back we can see clearly the effects-intentional or otherwise-of this generalized project of repression: racialize the discussion of poverty via the code of crime and then hound the victims with police narc squads, SWAT teams, and "zero tolerance" enforcement; send the INS to raid their homes; and lock up as many as possible for as long as possible.
To recap, criminal justice regulates, absorbs, terrorizes, and disorganizes the poor. At the same time it promulgates racism; demonizing, disenfranchising, and marginalizing ever-larger numbers of brown working-class people; and in so doing it creates pseudo explanations and racialized scapegoats with which to delude downwardly mobile voters; this after all is the very lifeblood of American electoral politics! And most important, prison allows for the economically heuristic effects of mass unemployment without the political destabilization mass poverty can bring. Nor does the new model of control let loose dangerous Great Society style notions of "racial equality" and "social inclusion." These ideological side effects from controlling the poor via co-optation (welfare) were almost as bad as the economic support once offered by the insipient, inadequate, but real American welfare state to the restive working classes. As Reagan's first Attorney General, William French Smith, put it, "The justice department is not a domestic agency....It is the internal arm of national defense."7
Today, the poor are thoroughly locked-down. Law enforcement has moved to the center of domestic politics; state violence is perhaps more than ever a constant, regular and normal feature of poor people's lives. Police, private security, and closed circuit television secure revitalized city centers; while American ghettos are in political disarray, wracked by poverty, disease, addiction, and engineered illiteracy. When the best and the brightest in the 'hood do organize, the state comes down fast and furious. Take for example, the gang truce movements in Chicago, New York, and Los Angeles. In each case the political leaders were framed, busted, and replaced by apolitical thugs. This was true for the Vice Lords and the Latin Kings, as well as for the Crips and Bloods.
Thus the new criminal justice system does an excellent job of destroying the social fabric upon which any future political rebellion would rely for coherence at the same time as it has created a system of surveillance and repression that is already being used against a new protest movement. The courts-retooled by a generation of conservative judicial appointments and crazed case law-now function as social abettors, in which the poor and the dark skinned are shunted off to a concrete hell with industrial efficiency. Left behind are broken families, more addiction, more disease, more illiteracy, and thus a more docile society. All this for the political security of capital. This is how class struggle is waged from above.
1. For a full version of this argument see the last chapter in, Parenti, Christian. 2000. Lockdown America. Verso.
2. "Goldwater's Acceptance Speech to GOP Convention," New York Times, July 17, 1964.
3. Nixon, Richard. 1966. "If Mob Rule Takes Hold in the US: A Warning from Richard Nixon," U.S. New and World Report, August 15, 1966.
4. Quoted in Beckett, Katherine. 1997. Making Crime Pay: Law and Order in Contemporary American Politics. Oxford: Oxford University Press, p. 28.
5. Haldeman, H. R. 1994.The Haldeman Diaries: Inside The Nixon White House. New York: P. G. Putman's Sons, p. 53; quoted in Baum, Dan. 1996. Smoke and Mirrors. New York: Little, Brown and Company.
6. Gilder, George. 1981. Wealth and Poverty. New York: Basic Books, p. 82.
7. Quoted in Baum, op. cit., pp. 137-138