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«This PDF is available from The National Academies Press at The Growth of Incarceration in the United ...»

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Although rising crime rates are a key part of this story, it is only by examining those trends within their social, political, institutional, and historical context that one can understand the underlying causes of the steep increase in incarceration rates. Most other Western countries experienced rising crime rates beginning in the 1960s. However, because of underlying differences in the social, political, economic, and institutional context, other Western countries did not respond to increased crime by adopting markedly harsher policies and laws.1 This chapter examines the conditions for the emergence of a criminal justice system characterized by harsh policies, practices, and laws and unprecedented high rates of incarceration: the beginnings in the 1940s of efforts made at the federal level to change criminal justice policies and practices nationally; a growing federal role in crime policy, the political impact of rising crime rates after 1961, the subsequent political and electoral realignment triggered by the civil rights movement, the wars on drugs declared by President Nixon and his successors, rising public anxiety about crime and the influence of racial factors on those attitudes, U.S. political 1 As discussed in Chapter 2, the U.S. incarceration rate is approximately 5 to 12 times the rates in other Western countries and Japan. That said, some Western countries have embraced harsher policies in recent years, but nowhere near the extent of the United States (Tonry, 2007a).

Copyright © National Academy of Sciences. All rights reserved.

The Growth of Incarceration in the United States: Exploring Causes and Consequences

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THE POLITICS OF CRIME AND CRIMINAL JUSTICE

FROM THE 1940S TO THE EARLY 1960S Concerns about crime and criminal justice have surfaced periodically as major issues in U.S. politics at the national, state, and local levels, dating back to the nation’s founding. While the committee members varied in their views on the weight to be given to the political origins of crime policy before the 1960s, it is clear that the poor and racial and ethnic minorities often were associated with the problem of crime in policy debates and popular culture throughout the nation’s history.

The problem of crime has been central to discussions of a number of leading issues, including the meaning and significance of the American Revolution, the rise and fall of slavery and the convict-leasing system, Reconstruction, the modernization of the south, economic development, and race relations. In the late nineteenth and early twentieth centuries, national campaigns were waged against specific categories of crimes and types of lawbreakers, including family violence, prostitution, alcohol, gangsters, ransom kidnappings, marijuana use, sexual psychopaths, juvenile delinquents, and organized crime. These highly publicized campaigns often marked certain groups as inherently “criminal,” including, depending on the moment, the Irish, Mexicans, African Americans, and single women (Gross, 2006; Hicks, 2010, Chapter 7; Muhammad, 2010; Chávez-Garcia, 2012; Blackmon, 2009; Stewart-Winter, forthcoming; Gottschalk, 2006,

Chapter 3; Musto, 1999).

The country’s criminal justice apparatus developed fitfully in the course of these intense and often morally and racially charged campaigns. These efforts typically produced at most a relatively small rise in the incarcerated population—not the very large and sustained shift toward harsher penal policies and consequences of the sort witnessed since the 1970s. Nevertheless, they left increasingly fortified law enforcement institutions in their wake (McLennan, 2008; Blue, 2012; Janssen, 2009; Murch, 2010, Chapter 3; Gottschalk, 2006). This proved important in the second half of the twentieth century as a growing number of politicians, policy makers, and other public figures chose to respond to the social and political turmoil that gripped the country from the 1940s to the 1970s and to the rise in crime rates in the 1960s by greatly expanding the nation’s penal capacity.

How issues of crime and disorder were framed and debated in the context of this turmoil helps explain why the United States embarked on an unprecedented prison expansion that has lasted for four decades. The country had experienced crime waves prior to the 1960s, but they did not Copyright © National Academy of Sciences. All rights reserved.

The Growth of Incarceration in the United States: Exploring Causes and Consequences

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result in a sustained and increasing reliance on incarceration in criminal justice policy. Furthermore, these earlier crime waves did not spur sustained and wide-scale political attacks on judges, other public figures, and experts who sought to stem crime by addressing its structural causes and who emphasized the rehabilitation of lawbreakers rather than increased incapacitation and retribution.

There is a long history in the United States of debates over criminal justice policy, often in relation to the issues of race and civil rights. To many African Americans and Mexican Americans, dramatic, often violent confrontations in the years immediately after World War II illustrated serious problems of bias on the part of police forces. These confrontations included the lynching of black veterans returning home to the south after World War II; the numerous clashes between long-time white residents and new black and other migrants in U.S. cities, notably the infamous “Zoot Suit Riots” in Los Angeles in 19422 and the 1943 race riot in Detroit; and rising urban-suburban tensions with the rapid expansion of suburbia after the war (Sugrue, 1996; Murakawa, forthcoming; Mazon, 1984; Kruse and Sugrue, 2006; Theoharis and Woodard, 2003). These developments led many to demand that more attention be paid to episodes of police brutality as well as to police inaction in the face of organized and wide-scale white violence.





During this period, whites in the south and increasingly in the north also demanded that greater attention be paid to problems of crime and disorder. Many of them believed that these problems could be solved only with tougher laws; tougher sanctions; and tougher police, prosecutors, and judges. They sought greater protection from what they perceived to be disorderly protests by blacks and their allies seeking to desegregate U.S.

society. Arguing that integration breeds crime, they sought an expanded criminal justice apparatus as a way to stem what they perceived as the increased lawlessness of blacks and their supporters who were challenging the Jim Crow regime (Sugrue, 1996; McGirr, 2002; Biondi, 2006; Countryman, 2007; Thompson, 2001; Jones, 2010; Murakawa, forthcoming; Weaver, 2007).

In response to this unrest and other political pressures at home and abroad, President Harry S. Truman and his supporters invoked the need for more “law and order” as they sought a greatly expanded role for the federal government in the general administration of criminal justice and law enforcement at the local and state levels and in the specific prosecution 2 Inthe Zoot Suit Riots, Mexican American youths became the targets of violence by rioting white sailors following the release of inflammatory reports by government agencies suggesting that Mexicans had a greater propensity to crime because of their cultural inferiority and certain psychological characteristics (Grebler et al., 1970).

Copyright © National Academy of Sciences. All rights reserved.

The Growth of Incarceration in the United States: Exploring Causes and Consequences

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and punishment of civil rights crimes.3 They introduced a flurry of bills in the 1940s and 1950s aimed at offering federal assistance to improve local and state police forces by making them more professional and providing them better equipment and training. They also proposed numerous measures to expand the federal role in areas that historically had been almost exclusively within the purview of states and municipalities, such as regulation of police brutality, antilynching measures, and anticonspiracy statutes (Murakawa, forthcoming).

Most of these bills were not enacted. However, all this legislative activity in the 1940s and 1950s deeply influenced how future discussions of law and order, crime, and the federal role in law enforcement would unfold. In advocating these measures, Truman and his allies helped establish a federal role in state and local law enforcement. They also hoped that greater procedural protections would ensure that members of minority groups would be treated fairly in the criminal justice system. By rendering the criminal justice system more legitimate in the eyes of minority groups, such protections, in their view, would eliminate a main source of protests and political discontent and also an important cause for criminal behavior on the part of groups that did not view the system as fair and legitimate (Murakawa, 2008).

The American Bar Foundation’s expansive research agenda in the 1950s and 1960s on the problem of discretion and arbitrary power also was a contributing factor to the political push for more uniformity, neutrality, and proceduralism in law enforcement and sentencing. Two other key factors were the American Legal Institute’s project to devise a Model Penal Code (to guide sentencing policy) and the Warren Court’s series of decisions expanding the procedural rights of suspects, defendants, and prisoners (Stuntz, 2011, pp. 266-267; Murakawa, forthcoming).

This was the context in which Barry Goldwater, the Republican presidential nominee, ran a stridently law-and-order campaign in 1964 that sought white electoral support through explicit and implicit race-based appeals and denunciations of the civil rights movement.4 From then on, the law-and-order issue became a persistent tripwire stretching across national and local politics. Politicians and policy makers increasingly chose to trigger that wire as they sought support for more punitive policies and for expansion of the institutions and resources needed to make good on promises to “get tough.” In the past, crime and punishment concerns would burst on 3 In signing the executive order creating the Presidential Committee on Civil Rights in December 1946, Truman lamented how in some places “the local enforcement of law and order has broken down, and individuals—sometimes ex-servicemen, even women—have been killed, maimed, or intimidated” (President’s Committee on Civil Rights, 1947, p. vii).

4 See Appendix A for a supplementary statement by Ricardo Hinojosa on this sentence and

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Copyright © National Academy of Sciences. All rights reserved.

The Growth of Incarceration in the United States: Exploring Causes and Consequences

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the scene and then usually recede without leaving behind a massive increase in the state’s penal capacity. After 1964, however, the issue of law and order did not ebb, for several reasons discussed below.

THE JOHNSON ADMINISTRATION AND THE WAR ON CRIME

The social, political, and economic pressures that northern and southern whites felt from the Second Great Migration and from the civil rights movement persisted and intensified in the 1960s and 1970s. Leading public figures and their supporters—including mayors of large northern cities, such as Frank Rizzo of Philadelphia and Richard J. Daley of Chicago, and conservative southern Democrats, such Sen. Sam Erwin and Sen. Strom Thurmond—began calling for even more law enforcement power in response to rising crime rates and the demands of blacks for greater rights in the cities to which they had migrated. In response to these pressures, the Johnson Administration reformulated the law-and-order problem and expanded federal support for crime policy. Because Johnson-era initiatives expanded the role of the federal government in state and local crime policy but did not directly promote harsher penal policy, there are a variety of views on the significance of these measures for later policy. For some of the committee members, Johnson’s initiatives laid some of the most important foundations for the “war on crime.” When President Johnson launched the war on crime,5 he linked it to his war on poverty and to the need to address the “root causes” of crime. This approach suggested investing more in education, health, welfare, and other social and economic programs, not just law enforcement. Numerous presidential and other national commissions assembled in the late 1960s and early 1970s also highlighted the social and ecological dimensions of crime prevention.6 But the root causes approach lost out for several reasons.

While conservatives fashioned a coherent point of view on the crime and punishment issue during these years, liberals had trouble finding a clear voice on the issue (Flamm, 2005, p. 124). As mentioned earlier, some liberals had been arguing since the 1940s for greater investments in law enforcement. They also had been arguing for more neutral procedures to 5 See http://www.presidency.ucsb.edu/ws/?pid=27478 [February 2014] for President’s Johnson’s “Special Message to the Congress on Crime and Law Enforcement” in 1966.

6 The President’s Commission on Law Enforcement and Administration was convened in March 1965 and issued its report in 1967; the National Advisory Commission on Civil Disorders—known more frequently as the “Kerner Commission” or the “Riot Commission”— was formed in the summer of 1967 and issued its report in 1968; the National Commission on the Causes and Prevention of Violence was formed in 1968 and issued its report in 1969 (Haney, 2010; Flamm, 2005); and the National Advisory Commission on Criminal Justice Standards and Goals was created in 1971 and issued six reports in 1973.

Copyright © National Academy of Sciences. All rights reserved.

The Growth of Incarceration in the United States: Exploring Causes and Consequences

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