How did we get here? A far-reaching NAACP study of the criminal justice system released in 2013 revealed that African Americans constitute 1 million of the 2.3 million people behind bars. Black persons comprise 13 percent of the U.S. population yet account for almost half of its incarcerated citizens.
One could reasonably argue that the biggest crime in the American criminal justice system is that it is a race-based institution where Black persons are directly targeted and punished in a much more aggressive way than other citizens. A number of authors and social scientists have suggested that, despite its proclamation of “blind justice,” the American legal system has for 50 years operated specifically to marginalize and control millions of Black persons.
Poverty plus crime equals Black
A series of books have been written on this subject, most notably by authors Michelle Alexander (“The New Jim Crow: Mass Incarceration in the Age of Colorblindness”), Katherine Russell-Brown (“The Color of Crime: Racial Hoaxes, White Fear, Black Protectionism, Police Harassment and Other Macroaggressions”), and recently Elizabeth Hinton’s “From the War on Poverty to the War on Crime: The Making of Mass Incarceration in America” with each author suggesting that federal policymakers since the 1960s have fostered a sociological theorem that “poverty plus crime equals Black.”
The United States has seen a surge in arrests and putting people in jail over the past four decades, with most onlookers associating this with the war on drugs. But this is not entirely true. The subject of mass incarceration of African Americans may be traced to the War on Poverty, President Lyndon Johnson’s noble but failed attempt to carry on the legacy of social uplift within the inner city begun by his predecessor, John F. Kennedy. An even closer look at the convergence of poverty and crime may point to the Law Enforcement Assistance Act (LEAA) of 1965 which expanded police supervision/control of the inner city—or “ghetto”—and which was expanded upon in varying approaches by succeeding presidential administrations.
America houses 25 percent of world’s prisoners
Today, the United States hosts 15 percent of the global population, but houses 25 percent of the world’s prisoners; Blacks and Latinos comprise 59 percent of those Americans behind bars. The carceral state rose as government spent more money on policing, and as more punitive measures began to be introduced into urban policy. Each of the aforementioned authors point to early “social welfare” policies of the Kennedy Administration that, in reality, were nothing more than crime-control measures directed at the inner city. The War on Poverty, in retrospect, became a manifestation of fear about urban disorder, despite the fact that today’s policymakers attest that a staggering $15 to $20 trillion over 50 years was spent solely on alleviating poverty. By 1969-70, most of the money designated for statewide anti-poverty programs was instead distributed as block grants to build prisons. A sizable portion was also redirected to the Vietnam War.
Most of the War on Poverty funds that originally favored vocational training and remedial education were distributed nationally in the absence of job creation measures; the LEAA, essentially born out of the Watts Riots, began to support police training programs in the nation’s inner cities and these urban interventions would quickly give rise to more police patrols, surveillance and, ultimately, mass confinement of Black persons.
Black crime foremost urban issue
The Watts Riots—and succeeding events in Newark, N.J., Detroit and Chicago—in some ways revealed that the federal government’s effort to manage urban crisis via extended punitive measures only intensified problems of crime and poverty. Watts, in particular, encouraged the expansion of both the welfare and carceral states and after the August 1965 uprising, community-based or “grassroots” agencies that addressed poverty took a back seat to crime prevention measures. By early 1966, the Los Angeles Sheriff’s Department had innovated its unique “Project Sky Knight” which resulted in a significant increase in helicopters/aircraft provided through LEAA funding. This period, according to author Hinton, is when the federal War on Crime surpassed the War on Poverty as the foremost urban issue.
“President Johnson saw the urban policeman as the ‘frontline soldier’ of this mission,” Hinton told Time Magazine last year. “As a result of this belief, his administration focused on building the weapons arsenal of local law enforcement.” Hinton pointed to the Omnibus Crime Control and Safe Streets Act of 1968 which gave the Department of Justice a new degree of influence over social policy. “Over time, policymakers retreated from and eventually dismantled many of the social welfare programs of the Great Society; the War on Crime, on the other hand, became the foremost policy approach to the social and demographic challenges of the late 20th century.”
By 1974, a proposed federal employment drive left over from the Johnson Administration never materialized and instead a new Youth Service Bureau was created to identify Black youth “in danger of becoming delinquent” and seen as potentially criminal. Power had now shifted from social workers to police in neighborhoods the Nixon administration considered to be “vulnerable to rebellion.” This bureau quickly became an important route for state and local governments to obtain “anti-poverty” funds which were ostensibly “Delinquency Prevention Grants” designed to supervise Black youth in danger of delinquency. Policymakers determined that this was the best method to intervene into the nation’s inner cities thereby exposing Black youth to an expanded punitive apparatus and criminal justice supervision with the prime objective of early arrest, early jail time and, eventually, longer prison sentences, according to Hinton.
Law enforcement charged with social improvement
By the mid 1970s, the War on Poverty—in its most benign application to inner-city Blacks—had given way to an increased emphasis on law enforcement particularly after the rise of local street gangs such as the Crips, Outlaws and Bishops in South Los Angeles. Ed Davis, former chief of the LAPD, called it a “new phenomenon … juveniles killing strangers” and the rise of these gangs coincided directly with a sharp increase in the federal crime control budget.
Years earlier, the Kerner Commission (established to address the series of urban riots of the late 1960s) recommended 2 million jobs for low-income Americans, a minimum wage … and $50 billion for more police officers. In the end, the commission stated in its report: “It is the policeman who must deal with the consequences of [this] institutional vacuum” basically admitting that only law enforcement can address a “lack of social guidance/modeling” for Black youth. Hinton points to this report as a revelation of a concerted effort by the federal government to divert anti-poverty funds from America’s inner cities which ultimately fostered a criminal element among poor Blacks.
Policymakers in the Nixon administration reportedly saw the “enemy within” and supported the construction of hundreds of new prisons (state and federal) through LEAA block grants. It was widely believed then, that the failures of federal crime control measures was clear evidence that Black urban violence was a foregone conclusion, therefore access to educational and employment opportunities declined further as the federal government withdrew from anti-poverty measures. The absence of such opportunities often determined the likelihood of incarceration for impoverished Blacks. As the Nixon administration slowly eliminated the Office of Economic Opportunity and partnered with the LEAA, community involvement in federal social programs fell largely to law enforcement.
As ghetto grows, so does law enforcement
Federal planners in the mid-1970s became increasingly preoccupied with population projections—specifically in the nation’s ghettos and barrios—and regularly neglected issues such as poverty, schooling and other socioeconomic indicators that often fueled crime and incarceration. Russell-Brown noted that from the Civil War through the 1970s, African Americans accounted for roughly one-third of the U.S. prison population, but when federal policymakers began investing in “anti-crime” measures—along with a monetary incentive to states to build more prisons—Black persons by the early 1980s—would encompass almost half of the nation’s prisoners.
Punishment, in lieu of social programs, steadily became the socio-political mantra through the administrations of Gerald Ford and Jimmy Carter. No institution better demonstrated this aggressive policing philosophy than the Los Angeles Police Department with its introduction of Community Resources Against Street Hoodlums (CRASH), which operated under a set of assumptions that linked teenage Blacks with systemic crime. At its inception, it was not uncommon for the semi-autonomous CRASH personnel to detain a White juvenile classified as “youth in trouble” and release him/her to their parents. Black youth were classified as “delinquent” and jailed for weeks at a time, often for identical misdemeanors (e.g. loitering, truancy, graffiti, etc). CRASH was instituted on strategies developed by the Department of Justice based on how officials there saw Black youth in the inner city, specifically in an evaluation of their morality and character. Such negative classifications marked these Black youth as ostensibly “on the brink” of criminality, but had little to do with whether these teens had ever broken the law.
A long history of the carceral state
Connie Rice, a local lawyer and advocate of police reform, may know more about CRASH than any civilian. Her 2014 memoir “Power Concedes Nothing” provided a glimpse at the controversial police unit as well as mass incarceration. She has a lot to say about the history of the carceral state among African Americans.
“[Carceral state] is part of America’s legacy,” Rice told Tavis Smiley in 2014. “[During] post-slavery, you had to keep Black citizens in check. And there were a lot of schemes to do that. And the Black community, all they know is that they’re experiencing this onslaught of attacks and stops and ‘prone-outs’ (ordered to lay flat on one’s face) and frisks and constant harassment. [Black] persons are so isolated that no one is calling it and saying ‘wait a minute, government, you can’t do that.’ Stop and Frisk is unconstitutional. You have to have probable cause. It’s kind of a preemptive policing that says that we’re going to institute a level of fear so that the [Black] population will anticipate police activity. It’s completely illegal.”
Republican presidential candidate Donald Trump has suggested a return to these policies citing how “successful” they were in New York City.
CRASH had far-reaching implications. The program effectively inspired the Juvenile Justice and Delinquency Act of 1974 which prompted new research on the criminality of urban Black teens. Congress had been allocating money for such studies for some time ($14 million in 1969 for anti-delinquency programs) but the budget for state block grants skyrocketed to $600 million by 1974 in an effort to place more Black youth under the auspices of the criminal justice system.
Remove Black males ages 15 to 24 years
New methods to combat Black crime resonated throughout the nation’s police forces. Alexander suggested policymakers began to stress that the crime problem among Blacks was one of individual behavior and that incarceration was the only reliable solution to continued urban isolation and economic segregation. Congress and the Justice Department acknowledged in a 1978 report that the national war on Black crime only exacerbated segregation and social inequality, but nevertheless decided to embark on a principle to jail even higher numbers of African Americans. Removing the so-called “career criminal,” it was believed, was the most practical way to address the socioeconomic problems of unemployment, failing schools and bad housing. Alexander added policymakers mistakenly believed that removing more Black men between the ages of 15 and 24 years from their neighborhoods could help to solve these issues, and thereby lead to more outside business investment because a “bad element” would no longer be present to discourage productive commerce, educational opportunities and most “quality of life” issues.
At the beginning of the Reagan administration, according to Hinton, the term “domestic tranquility” was aligned with removing inner-city Black men from society who, by then, were assumed to be criminal by nature. The “neo-cons” of the 1980s tended to theorize that the liberal domestic policies of the 1960s were responsible for the decline of morality and defiance of traditional authority within the inner city. By the time of McCleskey v. Kemp (1987 Supreme Court decision that made it virtually impossible to challenge racial bias in the judicial system), racial profiling and resultant prison overcrowding became rampant.
Rise of the private prison
As “more arrests” resulted in “less beds,” Corrections Corporation of America in 1984 in Texas built America’s first private prison. The vaunted “Drug Free America Act” of 1986 saw $900 million allocated by Congress for drug prevention programs instead being directed toward more helicopters, airplanes and intelligence gathering within the inner city; the FBI “drug war” budget at this time ballooned from $81 million in 1981 to $191 million in 1991. As national crime statistics began to decline in the late 1980s, the rise in America’s prison population did not reflect actual crime. Alexander contends that legal changes, new crime-control investments, and advanced punitive strategies helped the carceral state become self perpetuating.
“Mass incarceration has become normalized in the United States,” Michelle Alexander said. Her 2010 book provided an in-depth look at the war on drugs and the prison industrial complex. “Poor folks of color are shuttled from decrepit, underfunded schools to brand new, high-tech prisons and then relegated to a permanent underclass stigmatized as undeserving of any moral care or concern. Black men in ghetto communities (and many who live in middle-class communities) are targeted by the police at early ages, often before they’re old enough to vote. They’re routinely stopped, frisked, and searched without reasonable suspicion or probable cause. Eventually they’re arrested—whether they’ve committed any serious crime or not—and branded as criminals and felons for life.”
CRASH and ‘The Hammer’
Back in Los Angeles, the CRASH program had perfected the art of mass arrests. In the spring of 1988, the proliferation of crack sales by gangs in South Los Angeles gave rise to a controversial counter measure, “The Hammer,” which involved forces of 1,000 LAPD officers each weekend sweeping through the community apprehending not only pushers and buyers, but anyone placed within a mostly arbitrary category of suspicion. Hundreds of residents during a typical period extending from Thursday through Saturday evenings found themselves detained and/or arrested for jaywalking, traffic violations, littering, loitering, traffic warrants, parking fines, curfew violations and other “gang-related” violations.
Coinciding with “The Hammer” was “Operation Cul de Sac” which resulted in near-historic numbers of South Los Angeles residents falling under penal supervision. Because McCleskey v. Kemp declared targeted racial profiling to be acceptable for the sake of public safety, Operation Cul de Sac allowed the LAPD to temporarily install barricades around large portions of the community in search of future prisoners. The two programs may have served little more than to meet arrest quotas and make future convictions more likely by establishing criminal records.
Federal policymakers advocated such measures in all of the nation’s inner cities. In believing that African American males were primarily accountable for the turmoil and instability, law enforcement authorities increasingly opted for militarized police forces, construction of more prisons, and tougher sentencing guidelines to maintain a self-sustaining carceral system.
Bill Clinton and ‘super predators’
Mass incarceration of African Americans got a boost in the mid 1990s with the Violent Crime Control and Law Enforcement Act of 1994, which included $8.7 billion for prison construction and enacted “truth in sentencing” laws that required people jailed for violent crimes to serve at least 85 percent of their sentences. Two years later former First Lady and current presidential nominee Hillary Clinton described those persons of whom the crime bill was directed as “super predators.” This year, former President Bill Clinton spoke at an NAACP convention in Philadelphia and acknowledged: “I signed a bill that made the problem worse.”
Today at the federal level, the Obama administration has attempted to reform the criminal justice system without the help of Congress. In 2013, Attorney General Eric Holder announced a change in Justice Department policy to avoid draconian mandatory minimum sentencing rules. The department now charges low-level, non-violent drug offenders with offenses that do not impose mandatory minimum sentences.
More than a dozen states have, with support from the Justice Department, directed funding away from prison construction and toward drug treatment programs and other forms of social intervention aimed at reducing initial crime and recidivism. It may be ironic that this is the method of crime prevention first suggested by the Kennedy and Johnson administrations more than 50 years ago. The Urban Institute reported last year that those 17 states will save $4.6 billion over 11 years.
A handful of liberals and conservatives—including Republican Sens. Mike Lee of Utah and Jeff Flake of Arizona, and Democratic Sens. Dick Durbin of Illinois and Cory Booker of New Jersey—have introduced the Smarter Sentencing Act. Former White House hopefuls Ted Cruz of Texas and Rand Paul of Kentucky also signed on to the bill, which would give federal judges more discretion in sentencing those convicted of non-violent drug offenses. As well, Paul and Booker have introduced a bill crafted to complement other sentencing reform efforts, called the Redeem Act (the “Record Expungement Designed to Enhance Employment Act”) to reduce recidivism.