By Alan Bean
The first branch of reformers is best represented by Michelle Alexander’s “New Jim Crow” thesis. Alexander sees the war on drugs as primarily an assault on poor people of color. Reformers, she argues, have either avoided racial arguments altogether, or have focused on Rosa Parks-type defendants who transcend racial stereotypes. Consider this quote from her book, The New Jim Crow: Mass Incarceration in the Age of Colorblindness:
Challenging mass incarceration requires something civil rights advocates have long been reluctant to do: advocacy on behalf of criminals. Even at the height of Jim Crow segregation—when black men were more likely to be lynched than to receive a fair trial in the South—NAACP lawyers were reluctant to advocate on behalf of blacks accused of crimes unless the lawyers were convinced of the men’s innocence . . . outside of the death penalty arena, civil rights advocates have long been reluctant to leap to the defense of accused criminals. Advocates have found they are most successful when they draw attention to certain types of black people (those who are easily understood by mainstream whites as ‘good’ and ‘respectable’) and tell certain types of stories about them. Since the days when abolitionists struggled to eradicate slavery, racial justice advocates have gone to great lengths to identify black people who defy racial stereotypes, and they have exercised considerable message discipline, telling only those stories of racial injustice that will evoke sympathy among whites.
Alexander argues that reform strategies that deflect attention from the real purpose of mass incarceration are futile:
We can continue on the well-worn path. But if we do so, we should labor under no illusions that we will end mass incarceration or shake the foundations of the current racial order . . . We must face the realities of the new caste system and embrace those who are most oppressed by it if we hope to end the new Jim Crow.
Most mainstream reformers, especially those with libertarian leanings, want to move in a quite different direction. Real political change, they argue, depends on convincing mainstream voters, most of them white, that mass incarceration was an expensive mistake. Explicit references to race, social class, or social justice should be avoided, moderate reformers insist, because they hook the white resentment that sparked mass incarceration in the first place.
The moderate view is well represented by the Pew Center’s Public Safety Performance Project, an outfit so non-ideological that conservative politicos in Texas have no problem working with them. According to an informative article in today’s Los Angeles Times:
Reform in Texas has been relatively well received among conservatives, in part because of the results, and in part because of a good sales job. Texas is among a number of states that have received guidance from the Pew Center’s Public Safety Performance Project, which promises that reforms will be data-driven and not affect public safety.
In March, two research companies polled 1,200 U.S. voters and conducted focus groups for Pew, then suggested “effective messages” for lawmakers interested in reform. Among the tips: Focus on the success in Texas, given its “strong law-and-order reputation.” And avoid arguments based on “racial justice concerns.”
Radical reformers are pleased to see decelerating incarceration rates, but doubt that fiscal arguments will have a lasting effect. Michelle Alexander believes that real reform will require the establishment of a new moral consensus in America that acknowledges the existence of a new Jim Crow and consciously chooses a better path.
Moderate reformers are far more hopeful about the Right on Crime movement which has been endorsed by conservative heavyweights like former House Speaker Newt Gingrich, former Education Secretary William J. Bennett, and Grover Norquist of Americans for Tax Reform.
The Right on Crime movement, as Doug Berman correctly points out, is driven by two concerns not cited in the Los Angeles Times article: “(1) after the 2010 election, Republicans are in firm governing control in many states with the biggest prison budget problems, and thus this movement helps provide political cover for those Republican leaders who (sensibly?) prefer cost-cutting prison reforms to tax increases, and (2) Newt Gingrich has taken up this issue at the same time he seems to be talking serious about making a run for Republican nomination for President in 2012.”
But social and fiscal conservatives have a problem. Mass incarceration (and lavish military spending) were part of a package of initiatives embraced by movement conservatives in the 1980s because they inevitably directed public finances away from social programs that benefited poor African-Americans into policy priorities designed to damage and humiliate poor people of color.
Small government conservatives want to scale down the size of government by consciously embracing extravagantly expensive policies like sending military commanders weapons systems they don’t want and locking up over two million people. The goal was to create deficits at both the state and federal levels so immense that only the virtual elimination of most social programs could stop the bleeding. As Grover Norquist famously opined: “I don’t want to abolish government. I simply want to reduce it to the size where I can drag it into the bathroom and drown it in the bathtub.”
Moderate reformers have good reason to be afraid of hooking white racial resentment.
Many commentators feel it is unfair to apply 21st century sensibilities to police procedures in the 1980s. Actually, public concern about the civil rights of criminal defendants was much stronger in the 1960s and 1970s than it is today. It is no coincidence that the most flagrant abuses in Chicago took place in the early years of the Reagan administration when racial resentment was white-hot.
In the course of Jon Burge’s perjury trial, dozens of victims related chilling stories and this testimony was corroborated by medical personnel and other public figures who couldn’t conceivably have participated in a conspiracy to smear law enforcement (as many Chicago police officers have suggested).
Judge Joan Lefkow used Mr. Burge’s sentencing to chide the defendant for refusing to admit his key role in Chicago’s reign of terror, ending with a passionate defense of the American legal system. This extended quotation is taken from the transcript of her remarks and provides an effective summary of her remarks:
I have read letters and statements from many individuals who were not called to testify at trial but wanted to be heard. Those statements, and they have all been made available to you, of course, those statements describe brutality at your hands or those under your supervision or command, some even more appalling than the torture the witnesses here have testified about.
One remarkable thing about the statements was how many came from outside the Chicago area. These people say they had to leave Chicago because they were terrified that the police would do this to them again.
One statement from a prisoner, however, will probably haunt me the longest. This man reports that he has been in prison for 30 years. He stated he was 17 when he was arrested while walking down the street and brutally tortured until he confessed to a murder. He said, I had the body of a man but I was a child inside.
He remains in prison for a crime he insists he did not commit, being abandoned by family and friends who trusted that the police would not have charged him had he not done the crime.
The grandmother, who stood by him, died while he was in prison, a graying, middle-aged adult. Imagine the loss.
I also point out the statement Mr. [Anthony] Holms made yesterday as particularly moving. He said, I remember looking around the room at the other officers, and I thought one of them would say, “that’s enough,” but they didn’t.
Now when I hear your attorney implying that if someone did the crime, no harm, no foul, they deserved it, I am frankly shocked. Even if counsel only means to say that none of these people can be believed because they are criminals, the mountain of evidence to the contrary completely belies that position.
So what does all of this have to do with the crimes of conviction, you ask? It demonstrates at the very least a serious lack of respect for the due process of law and your unwillingness to acknowledge the truth in the face of all of this evidence.
The freedom that we treasure most of all in this country is the right to live free of governmental abuse of power. Those who represent the government and hold power over other citizens are the embodiment of the principle that we live by — the rule of law. The rule of law holds us together as we live out our great social experiment known as the United States of America.
But although the vast majority of Burge’s victims were African-American, Judge Lefkow blithely dismissed the suggestion that Burge and his associates were motivated by racial animus.
As for implications of racism, I hear you, and I know that those hurt you. I do not believe that anyone in this courtroom believes you are the cause of the racial divisions that plague our community — nor should you. I kept evidence of racism out of the trial because I believe everyone must be judged by their conduct, not their feelings or beliefs.
There are those who believe you are deeply racist, and there are those who believe you could not possibly have tortured suspects. I doubt that my opinion or what happens here will change anyone’s views. You are the person you are, neither all good nor all evil, just like the rest of us. (emphasis mine)
First, Judge Lefkow explains that she kept allegations of racism out of the courtroom because conduct, not motivation was legally at issue. Then, she gives her own theory about officer Burge’s motivation:
I have asked many times what motivated you. My best guess is ambition. Euripides was quoted as saying long ago, ambition drove many men to become false, to have one thought locked in the breast, another ready on the tongue.
Does Judge Lefkow really believe that dozens of police officers operating over a period of almost three decades were all motivated by a desire to get ahead? The scandal in Chicago has never been about one isolated man. A long list of officers have made sweeping denials about the existence of torture in the Chicago Police Department, and some of them may too see their day in federal court. Were all these people merely ambitious? Why then did they have so many black victims and so few white victims?
Judge Lefkow doesn’t tell us why she dismissed the suggestion that racism contributed to the use of terror in police interrogations, so I will offer my opinion. The judge knows that the Burge case has divided Chicago along racial lines for decades. This explains her weird assurance to the defendant that he was not solely responsible for the racial divide in the Windy City. Lefkow doesn’t like race talk because it makes people mad, and when people are mad they are unreasonable, and when everyone is unreasonable the political machinery gets fouled up. So, in the interest of racial harmony, she declares from the bench that Jon Burge is NOT a racist and strongly suggests that the Chicago PD isn’t racist either. In other words, the civil rights community can be discounted.
How are African-American opinion leaders in Chicago supposed to respond to this kind of provocation?
Here is the fatal weakness of the moderate approach to criminal justice reform strategy–it pretends that people of color don’t exist.
You can’t blame policy experts for behaving as if all Americans were white. For generations, the Democratic Party maintained political power, at the national level and throughout the South, by ignoring people of color. When the Democrats decided to quit their race-baiting ways, the Republicans picked up the ball and ran with it. The politics of racial resentment shaped 20th century politics from beginning to end.
This being the case, it is natural that criminal justice reformers would devise strategies that sweep the feelings and concerns of African-Americans and Latinos off the policy table with one cavalier wave of the hand.
But it won’t work. Mass incarceration was created by the politics of racial resentment and will not end until a new, and better, political consensus comes into being. Michelle Alexander gets the last word:
Today, no less than fifty years ago, a flawed public consensus lies at the core of the prevailing caste system. When people think about crime, especially drug crime, they do not think about suburban housewives violating laws regulating prescription drugs or white frat boys using ecstasy. Drug crime in this country is understood to be black and brown, and it is because drug crime is racially defined in the public consciousness that the electorate has not cared much what happens to drug criminals—at least not the way they would have cared if the criminals were understood to be white. It is this failure to care, really care across color lines, that lies at the core of this system of control and every racial caste system that has existed in the United States or anywhere else in the world.”