Our national conversation on race and crime is based on a fiction. It is the fiction that the organs of internal security, especially the judiciary and the police, can be adjusted, modernized or professionalized to make possible a post-racial America. We discuss issues of race while ignoring the economic, bureaucratic and political systems of exploitation—all of it legal and built into the ruling apparatus—that are the true engines of racism and white supremacy. No discussion of race is possible without a discussion of capitalism and class. And until that discussion takes place, despite all the proposed reforms to the criminal justice system, the state will continue to murder and imprison poor people of color with impunity.
More training, body cameras, community policing, the hiring of more minorities as police officers, a better probation service and more equitable fines will not blunt the indiscriminate use of lethal force or reduce the mass incarceration that destroys the lives of the poor. Our capitalist system callously discards surplus labor, especially poor people of color, employing lethal force and the largest prison system in the world to keep them under control. This is by design. And until this predatory system of capitalism is destroyed, the poor, especially people of color, will continue to be gunned down by police in the streets, as they have for decades, and disproportionately locked in prison cages.
“The strength of ‘The New Jim Crow’ by Michelle Alexander is that, by equating mass incarceration with Jim Crow, it makes it rhetorically impossible to defend it,” said Naomi Murakawa, author of “The First Civil Right: How Liberals Built Prison America,” when we met recently in Princeton, N.J. “But, on the other hand, there is no ‘new’ Jim Crow, there is just capitalist white supremacy in a state of constant self-preservation.”
“We should talk about what we are empowering police to do, not how they are doing it, not whether they are being nice when they carry out arrests,” she said. “Reforms are oriented to making violence appear respectable and courteous. But being arrested once can devastate someone’s life. This is the violence we are not talking about. It does not matter if you are arrested politely. Combating racism is not about combating bad ideas in the head or hateful feelings. This idea is the perfect formula to preserve material distributions in their exact configuration.”
Murakawa, who teaches at Princeton University, laid out in her book that liberals, in the name of pity, and conservatives, in the name of law and order—or as Richard Nixon expressed it, the right to be safe and free of fear—equally shared in the building of our carceral state. “Liberal racial pity mirrored conservative racial contempt,” she writes. These “competing constructions of black criminality, one callous, another with a tenor of sympathy and cowering paternalism,” ensured that by the time these forces were done, there was from 1968 to 2010 a septupling of people locked in the prison system. “Counting probation and parole with jails and prisons is even more astonishing still,” she writes. “This population grew from 780,000 in 1965 to seven million in 2010.”
Racism in America will not be solved, she writes, by “teaching tolerance and creating colorblind institutions.” The refusal to confront structural racism, which in the 1930s and ’40s among intellectuals “situated domestic racism and colonialism abroad in an integrated critique of global capitalism,” led to a vapid racial liberalism that, as Penny Von Eschen writes, conceived of racism as “an anachronistic prejudice and a personal and psychological problem, rather than as a systemic problem rooted in specific social practices and prevailing relations of political economy and culture.”
Police brutality will not be solved, Murakawa points out, by reforms that mandate an “acceptable use of force.” The state may have outlawed lynching and mob violence—largely because of international outcry and damage to the image of the United States abroad—but insisted that capital punishment “could be fair with adequate legal defense for the poor, proper jury instructions, and clear lists of mitigating and aggravating circumstances.” Racial violence was seen as an “administrative deficiency.”
Murakawa goes on in the book:
Liberal lawmakers would come to evaluate fairness through finely honed, step-by-step questions: Did legislators enact a sufficiently clear criminal statute? Did police properly Mirandize? Did prosecutors follow protocol in offering a plea bargain or filing charges? Did parole officers follow administrative rules of revocation? And, in any single step, did a specific actor deviate from the protocol or intentionally discriminate? As a methodology for ‘finding racism’ in the criminal justice system, liberal law-and-order reinforced the common sense that racism is a ghost in the machine, some immaterial force detached from the institutional terrain of racialized wealth inequality and the possessive investment in whiteness. At the core of liberal law-and-order was the promise to move each individual qua individual through a system of clear rules that allow little room for individual bias. In effect, a lasting legacy of liberal law-and-order is this: we evaluate the rightness of criminal justice through the administrative quality by which each individual is searched, arrested, warehoused, or put to death.
All penal reform, from President Truman’s 1947 Committee on Civil Rights report to the Safe Streets Act of 1968 to the Sentencing Reform Act of 1984 to contemporary calls for more professionalization, in effect only hand more power and resources to the police. It does nothing to blunt police abuse or reverse mass incarceration. It does nothing to address the bias of white supremacy.
“Truman’s version of the civil rights agenda came through lynching,” Murakawa said. “It illuminates how the rule of law and white supremacy operate hand in hand. Lynching hurt U.S. credibility. It hurt its force projection abroad. The concern over lynching was not a concern for black lives. It was a concern that mob and state violence were too easily conflated. The objective became to make a sharp difference between white supremacist mob violence and white supremacist state violence. The difference is not that one is white supremacist and one is not. The difference is one is proceduralism, one is rights based, one is orderly, bound by rule of law with ever more elaborate procedures. That is the only thing that makes it different from the lynch mob.”
The real crime—poverty, institutional racism and capitalist exploitation—is rarely discussed. Therefore, the blame for crime is easily shifted to the “pathology” of black families. The Moynihan report, for example, argues that black criminality results from dominant black mothers and absent black fathers.
“You can perfect due process so it operates like a machine and have perfect quality control,” Murakawa said. “This is what the due-process-rights revolution was. You can have full adherence to the panoply of rights. And yet you also have a machine that only grows. Everyone thought the Miranda decision would stop the rate at which police arrest people. They thought it would curtail the scale and scope of policing. Instead, Miranda rights are used to protect police officers in civil litigation. Police officers say they got the waiver. They say people were informed of their rights. Miranda is used mostly to deflect lawsuits against police departments. These little procedural interventions give the system a patina of legitimacy. If we are processing at the same scale and at the same racial concentration, then the machinery of death only gets bigger and bigger.”
The more that “carceral machinery was rights-based and rule-bound, the more racial disparity was isolatable to ‘real’ black criminality.” In other words, as liberals and conservatives became convinced that the machinery of the judiciary and the police was largely impartial and fair, the onus for punishment shifted to the victims. State-sponsored white violence remained entrenched. Institutionalized murder remained acceptable. In the minds of liberals and conservatives, those who were arrested, locked up or shot deserved to be arrested, locked up or shot. Federal mandatory minimum statutes tripled under President Bill Clinton, and this is one example Murakawa points out of how “with each administrative layer to protect African Americans from lawless racial violence, liberals propelled carceral development that, through perverse turns, expanded lawful racial violence.”
By 1993, she points out, “African Americans accounted for 88.3 percent of all federal crack cocaine distribution convictions.” And because the judicial system is stacked against poor people of color, it does not matter, she said, if the arresting officers are also people of color.
“There is no evidence that having a minority police officer changes arrest or use of force,” she said. “The better evidence suggests that black police officers tend to arrest everyone at higher rates across races. I interpret this as black professionals having to over-perform in any number of professions to get to comparable ranking. Maybe interpersonally, people will find it a little less offensive. But it does not diminish the violence.”
By the Clinton administration, liberals and conservatives were competing with each other to be “tough” on crime. Murakawa notes that between 1968 and 1976, no one was executed in the United States. But this changed under Clinton. Democrats and Republicans proposed bill after bill until the number of crimes punishable by death leapt from one in 1974 to 66 in 1994. The two parties engaged in “a death penalty bidding war.” Then-Sen. Joe Biden was one of the most enthusiastic proponents of expanding the death penalty—he boasted that he had “added back to the Federal statutes over 50 death penalties”—and the Democrats effectively “neutralized soft-on-crime accusations with punitive outbidding.” But while this may have been politically advantageous to the Democrats, it was devastating to poor people of color and in particular blacks.
Change, Murakawa said, requires us to formulate a very different vision of society.
“We should follow Angela Davis’ call to ask the question: What is it we have to imagine if we abolish the social functions of police and prisons?” she said. “What is it we have to build if we can no longer jail people who are mentally ill or suffering from long-term addiction or homeless? We are going to have to build a lot.”
But few people, and perhaps no one in the political establishment, are asking these questions.
“These bipartisan coalitions are conjoined in the rhetoric of cost cutting,” Murakawa said, referencing Marie Gottschalk’s book “Caught: The Prison State and the Lockdown of American Politics.” “They may say there is bias, that it is not racially fair. They may attack prisons as big government, as inefficient or as a bad investment. But once you follow the logic of austerity, you push the cost of punishment on those who are punished. You are not committed to building anything. The reason Portugal has been so successful with drug legalization is because of the Portuguese National Health Service. Fighting addiction requires pharmacological and medical intervention, along with psychological and financial support.
“I worry that we are once again moving toward more professionalized police who have had more training but still have the scope to arrest and issue citations and summonses the same way they do now,” Murakawa said. “Indeed, there will probably be an increase in arrests, citations and summonses if the police forces get bigger. Even with scaling back the war on drugs, I worry that we will still have a massive number of people embroiled in the criminal justice system. It will be death by a thousand cuts rather than the 20-year mandatory minimums for drug conspiracy. Bipartisan coalitions that are about cutting costs justify pushing the cost of punishment on punished populations. I worry we are moving toward a population, mostly black and poor, that is cycling through jail and effectively serving 20-year sentences but in stints of about 90 days at a time. With each jail stay they accumulate more debt for room and board. A municipality in Missouri is billing people for the Tasers used against them—$26 per Taser discharge. Roughly half of all states are now charging people for the services of indigent criminal defense. A 2013 Supreme Court decision said that extended families could be held responsible for the debts of those incarcerated.
“There are 10 to 12 million arrests every year; about half will never be processed because these arrests are for charges so trivial they are not worth pursuing or there is no evidence,” she said. “Maybe 5 percent of these arrests are for charges of violent crime and 15 percent for property crimes.
“There is no reason why police on patrols should be armed,” she went on. “If we were serious about stopping executions without trials, we would be committed to the idea that all police have to call in special forces. What we now see as regular police units would be SWAT patrols that have to be specially called in to use lethal force. We have to diminish the scale of everything. We have to wipe clean penal codes. Most arrests are for misdemeanors, petty offenses like public drunkenness or loitering. These are things no state agent with a gun should be addressing. The only way to reduce the scale of police brutality is to reduce the scale of policing. People should not be arrested for not mowing their lawn or for selling loosies.
“The idea we can put police officers through training to address their implicit bias and then give them guns—the idea that two days of intensive training will diminish the probability of shoot to kill—is absurd,” Murakawa said. “I have zero faith in this.”