How did this happen? Why didn’t politicians from Republican Barry Goldwater to Democrat Bill Clinton face more public opposition to the proliferation of harsh talk and harsh penalties, like mandatory minimums, three-strikes laws, life sentences, and capital punishment? After all, public opinion polls show that Americans’ views of crime and punishment are not uniformly harsh. Indeed, it wasn’t until the early 1990s--two decades into the prison boom and just as the crime rate was plummeting--that the public identified crime as a leading national problem.
Liberal disillusionment with rehabilitation beginning in the 1970s together with attacks from the right and left on sen-tencing policy (notably indeterminate sentences) certainly provided major openings for penal policy to shift radically in the United States. The profitable prison-industrial complex and conservative groups, like the National Rifle Association, were also key players in promoting hard-line policies. But the picture is more complex than that.
Other groups, some of which are not the usual suspects, helped facilitate, often unwittingly, a more punitive environ-ment. Four movements in particular mediated the construction of the carceral state in important ways: the victims’ rights movement, the women’s movement, the prisoners’ rights movement, and opponents of capital punishment. The distinctive origins and development of these movements help explain why such a massive carceral state took root in the United States but not in other industrialized countries facing similar crime patterns and similar temptations to exploit law-and-order issues.
The Victims’ Rights Movement
Three decades ago, the United States gave birth to a formidable victims’ movement that was highly retributive and punitive. Victims became a powerful weapon in the arsenal of proponents of tougher penal policies. In a way not seen in other Western countries, penal conservatives successfully framed the issue as a zero-sum game that pitted the rights of victims against the rights of offenders. This movement was remarkably in sync with the country’s growing penal conserva-tism and relatively immune from critical examination.
A highly retributive victims’ movement centered on meting out tougher penalties to offenders coalesced in the United States but not elsewhere for several reasons. The greater development of and public support for social welfare programs in other Western countries help explain why.
Britain and New Zealand, not the United States, were pioneers in making the plight of crime victims a public issue. British interest in victims first took root in the 1950s when confidence in the welfare state and sympathy for offenders were still high, and law and order was not yet a major factor in national politics. Elite pe-nal reformers with extensive experience in helping offenders were at the forefront of drawing public attention to victim-related issues. Victims themselves did not wage a mass campaign. Indeed, they were largely silent and unorganized.
The British government sought to avoid galvanizing a broad victims’ movement. At each stage in the debate over crime victims, the British Home Office was reasonably successful in steering and co-opting the growing public concern for victims. This made it tougher for law-and-order penal conservatives to exploit the victims issue for political gain.
With the passage of landmark victims’ compensation schemes in the 1960s, reformers in Britain and New Zealand sought to bestow compensation on crime victims much as the expanding welfare state bestowed housing, education, and medical services on its clients. In doing so, penal reformers denied crime victims a powerful political identity independent from that of other victims of misfortune. This undermined the political salience of the crime victim issue. It opened up an important avenue to be supportive of crime victims by bolstering the welfare state rather than by expanding the criminal justice system.
This issue developed quite differently in the United States. In the late 1960s and 1970s, the United States became a pioneer in the use of large-scale victimization surveys. The U.S. surveys discovered that the level of victimization was much higher than previously indicated by the FBI’s Uniform Crime Reports (UCR). This fostered the belief that much crime went unreported and thus unprosecuted. Concern grew that uncooperative victims and witnesses were undermining the efficiency and operations of the criminal justice system. These narrow surveys did not investigate a wide range of other issues related to victimization. The accepted conventional wisdom was that crime victims were punitive, even though the limited psychological evidence available at the time suggested that retribution and tougher law enforcement did not address victims’ primary needs.
Largely because of the victimization surveys, improving the efficiency of the criminal justice system became the main goal of hundreds of new government-funded victim and witness programs in the United States. These programs became the nucleus of the victims’ rights movement. The Law Enforcement Assistance Administration, created by Congress in 1968 as an arm of the U.S. Department of Justice, was pivotal in creating a victims’ movement that viewed the rights of victims as a zero-sum game predicated on tougher penalties for offenders. The LEAA funded some of the leading victimization studies. It also provided crucial support for key victims’ organizations, like the National Organization for Victim As-sistance (NOVA), and hundreds of victim and witness programs designed to increase cooperation with prosecutors and the police.
By the early 1980s, interest in the plight of crime victims was intense in the United States. There was a flurry of legis-lative and other political activity, thanks in part to government-supported organizations like NOVA. Victim advocacy groups played a prominent role in the formation and passage of measures that enlarged victims’ rights and that tough-ened penalties for offenders at the federal, state, and local levels. In a keynote address at a NOVA conference in 1992, then Attorney General William P. Barr credited the victims’ rights movement with restoring “proper balance” in the criminal justice system. “We should not forget that justice is done when people get what they deserve,” Barr declared.
Governmental organizations were not the only ones that exploited the victims issue to promote hard-line penal poli-cies. So did many law-enforcement groups. For example, the California Correctional Peace Officers Association, the state’s powerful prison guards’ union, provided office space and virtually all the funding for the Doris Tate Crime Victims Bureau (renamed the Crime Victims Action Alliance), a fierce advocate of three-strikes legislation and other tough measures.
Many so-called victims’ advocates drew a stark line in the public mind between crime victims and criminals, even though many perpetrators have themselves been victims of violent crime. The U.S. victims’ movement also largely ignored the fact that incarcerated men and women are regularly victimized by a brutal penal system in which prison rape, assaults by correctional officers, and unsanitary, even life-threatening, living conditions are commonplace.
The All-Powerful Prosecutor
The relative weakness of the U.S. welfare state, the proliferation of victimization surveys, and strong government support for victims’ rights organizations were not the only reasons why a punitive victims’ movement took hold here but not elsewhere. Another important difference is the unique role of the public prosecutor in the U.S. legal system. The United States made the transformation from private prosecution to public prosecution earlier on and more extensively than many European countries.
As a consequence, the government historically has monopolized the prosecution process to a much greater extent, leaving victims far more marginalized in the U.S. legal system.
U.S. prosecutors possess huge discretionary powers that the courts have consistently left largely unchecked in key areas, including the initial decision to press charges, what level to charge a suspect, and when to terminate prosecution. Attempts by victims and other private individuals to compel prosecution are usually not successful. Until the advent of the victims’ rights movement, the victim’s role in the U.S. legal process was largely confined to that of a witness in a criminal proceeding. By contrast, victims in many other Western countries traditionally have enjoyed considerable rights to partici-pate in the prosecution of a case.
The common-law judicial system that prevails in the United States further compounded the marginalization of victims and ignited calls for victims’ rights. This accusatorial legal system demands more of victims and incites greater animosities than the inquisitorial, less adversarial legal system that prevails in much of continental Europe. In the United States, the prosecution and the defense have equal standing before the courts, which are relatively passive in developing the case. Defense attorneys go to war with prosecutors as they attempt to tear apart the state’s case. In the process, victims and their claims often are put on trial as well.
In the common-law system, the focus is on eliciting the facts relevant to determining guilt or innocence. Elsewhere, for example in the Netherlands, the public trial mainly serves as a check on whether the investigations have been carried out properly. A greater portion of the trial is devoted to understanding the personal circumstances and why the offense oc-curred. In the European continental system, judges play a more active role in shaping the case by controlling the legal proceedings, including the calling and questioning of witnesses.
Differences in the legal training, professional norms, and career paths of prosecutors and judges are another reason why victims’ rights became such a flashpoint in the U.S. war on crime. Most prosecutors and many judges in the United States are either elected or nominated and confirmed through a political process. This makes them highly dependent on public ap-proval and more vulnerable to political pressures. By contrast, many other Western countries rely on career prosecutors and career judges with specialized training and education to run their legal systems. Once the victims’ rights movement burst forth, U.S. prosecutors and judges were forced to respond to its punitive demands or risk being voted out of office.
The Women’s Movement
Politicians of all stripes, including Goldwater, George Wallace, Lyndon Johnson, and Richard Nixon, promulgated the politically potent--but highly misleading--image of white women, preyed on by strangers, as the most likely victims of vio-lent crime. But leading politicians had considerable help from women’s groups in feminizing the crime issue and taking it in a more punitive direction.
Women’s groups and feminists in the United States have a long and conflicted history on questions related to crime, punishment, and law and order. Periodically, they have played central roles in defining violence as a major threat to soci-ety and uncritically pushing for more policing powers. The U.S. victims’ rights movement coalesced at about the same time that women’s groups were mobilizing against rape and domestic violence. This had important consequences for the growth of the carceral state.
The contemporary women’s movement in the United States was among the first to draw widespread attention to the issue of violence against women in the 1970s. By some measures, the U.S. anti-rape and domestic violence movements were remarkably successful.
Nearly every state enacted legislation designed to make it easier to convict and punish people accused of sexual as-sault or domestic violence. These reforms had significant effects on public attitudes. On the positive side, more services became available for victims of sexual assault and domestic violence. Public officials and members of law enforcement were sensitized to these issues in ways they had not been before. On the negative side, these movements, with their em-phasis on law enforcement solutions, bolstered a more punitive climate.
Feminists allied themselves with law-and-order groups to secure rape reform and domestic violence legislation. If they hadn’t, the simmering backlash against the women’s movement in the 1970s likely would have derailed their efforts in many state legislatures. The costs of these alliances were high. In Washington State, for example, the women’s lobby marketed a rape reform bill to the legislature as a law-and-order bill.
The measure was eventually enacted in July 1975, in part by riding on the coattails of a new mandatory death penalty statute. In California, the rape shield statute was named the Robbins Rape Evidence Law in honor of its co-sponsor, conservative state senator Alan Robbins.
In pressing for limits on the cross-examination of rape victims, including questions about their sexual history, women’s groups generally did not consider what effect such measures would have on a defendant’s right to due process. At the time, this right was under assault as the war on crime intensified. Legal aid societies and civil libertarians were challenging the constitutionality of rape shield laws and other legal reforms designed to protect sexual assault victims.
Mainstream national women’s organizations, notably the National Organization for Women, are credited with putting rape and later domestic violence on the national agenda. But the original rape crisis centers and shelters for battered women in the United States had strong local and radical origins. Over the years, many of these centers and shelters were dramatically transformed.
Apolitical and conservative professionals replaced many of the highly politicized volunteers and staff members who had established these facilities. Shelters and centers cast aside their initial concerns about being too closely associated with the government and developed formal and informal ties with police, prosecutors, hospitals, and social service agen-cies. They became more dependent on government money and more supportive of law enforcement solutions, like stiffer penalties, mandatory arrests, and no-drop policies. Shelters in the United States faced greater pressure to secure gov-ernment funding because the U.S. welfare state is comparatively less developed. British shelters could fund themselves primarily by charging rent to their residents, many of whom received financial support from the government.
Many U.S. shelters and centers had modest goals that turned out to be quite compatible with the growing conserva-tive law-and-order movement. They sought to press public officials to manage violence and eschewed any broader cri-tique of the government’s role in the war against crime. In the process, rape and domestic violence were increasingly re-defined as individual, psychological traumas. This seemingly apolitical view of violence against women complemented the conservative view that attributed the increase in crime to the pathologies of individual criminals and not to deeper social, economic, and political problems in the United States.
It also was compatible with the proliferation of dehumanized images of black criminals preying on innocent white vic-tims, best exemplified by the infamous Willie Horton commercials of the 1988 presidential campaign.
These ads featured the mug shot of a black man who attacked a white couple while on a furlough from a Massachusetts prison and became a centerpiece of George H.W. Bush’s presidential campaign that year. These powerful commercials reinforced the mislead-ing view that most violent crime is interracial and that whites are the main victims. In fact, blacks are far more at risk for rape, robbery, aggravated assault, and murder than whites, and these crimes are overwhelmingly intraracial, not interracial.
As the victims’ rights movement took shape, anti-rape activists mimicked some of its key tactics in order to secure leg-islation and funding. For example, they used storytelling tactics that dramatized accounts of a rape victim’s experience. By framing the rape issue around horror stories and victimhood, they fed into the victims’ movement’s compelling image of a society held hostage by a growing number of depraved, marauding criminals.
The main vehicle for greater state involvement in the cause of violence against women was the U.S. Department of Justice, which funneled money, expertise, and philosophy to the emerging movement. The patchwork, incoherent, means-tested U.S. welfare state had neither the will nor the way to help women who were victims of violence. Instead, the U.S. Department of Justice became the champion of abused women. It was a leading critic of the government’s response to domestic violence, including the failure of law enforcement to protect women from further abuse. Law enforcement solu-tions filled a vacuum created by an underdeveloped and much maligned welfare state.
By contrast, Britain’s Home Office and police maintained their distance from women’s groups fighting rape and do-mestic violence. By the time the women’s movement in Britain sought to politicize the issue of violence against women in the early-to-mid 1970s, the needs of crime victims had been an ongoing, though not leading, concern in elite British poli-tics for nearly two decades. The anti-rape and domestic violence movements in Britain emerged at a time when the poli-tics of victims was already on a relatively settled course that emphasized social welfare solutions and that did not pit vic-tims against offenders.
The presence of a more developed welfare state in Britain predisposed British feminists and public officials to view social policy as the most promising arena to address violence against women. State officials in Britain were responsive to calls from women’s groups for more housing, social services, and welfare benefits to help them escape violence by achieving economic independence. They were far less receptive than U.S. officials to criticisms of policing and other law enforcement practices in dealing with domestic violence and rape. By not legitimizing feminists’ criticisms of law enforce-ment’s unresponsiveness to violence against women, the British government reduced the likelihood that feminists would become accomplices in the brewing get-tough movement in Britain. In essence, it neutralized the salience of violence against women as a law-and-order rallying point.
The U.S. women’s movement embraced the cause of violence against women at a moment when the politics of vic-timhood was still very embryonic, fluid, and volatile in the United States. Attention to the needs and rights of rape victims and abused women helped to ignite and politicize a broader interest in victims that stressed victims’ rights and that deni-grated offenders. In the United States, the victims’ movement and the women’s movement increasingly converged, which helped to embolden penal conservatives. In Britain, they remained largely at arm’s length from one another.
Women’s groups in the United States worked closely with state officials and government agencies at a time when the voice of penal conservatives was growing louder in local and national politics. As a consequence, they were not well posi-tioned to resist the rising tide of penal conservatism. Indeed, they ended up supporting policies that emboldened it.
The most notorious example is the federal Violence Against Women Act of 1994. VAWA was a considerable achievement in many ways. It heightened public awareness of violence against women, promoted greater cooperation between agencies with vastly different perspectives on the issue, and provided states with new resources to tackle this problem. But VAWA also strongly emphasized law enforcement remedies.
VAWA was part of the landmark $30 billion Violent Crime Control and Law Enforcement Act signed into law by President Clinton, which allocated nearly $10 billion for new prison construction, expanded the federal death penalty, and created a federal three-strikes law. In the name of protecting women and children, it contained several measures that challenged es-tablished privacy protections, including a mandate that all states establish a registry for sex offenders or risk losing federal money. The crime bill also permitted prosecutors in federal cases to introduce a defendant’s previous history of sexual of-fenses into court proceedings.
The consolidation of VAWA into the crime bill solidified the understanding of domestic violence and other violence against women as primarily criminal matters. VAWA became yet another way for congressional leaders to show they were tough on crime. Although women’s groups had some concerns about VAWA as it wound its way through Congress and became attached to the crime bill, they nonetheless spearheaded the effort to pass it. VAWA’s supporters ended up align-ing themselves with conservative political forces that had been prosecuting the war on crime so zealously.
Years ago, few feminists and women’s groups considered that, by relying so heavily on the criminal justice system to combat violence against women, they might be fostering a punitive political environment conducive to a prison boom. The enormous expansion of the carceral state in the decades since may finally bring about a day of reckoning for feminists and women’s groups. With more than two million people behind bars, the overwhelmingly majority of them men, millions of women are the mothers, daughters, wives, partners, and sisters of men entombed in the carceral state. Moreover, since 1995, women have been the fastest growing segment of the U.S. prison population.
Over the last decade, the chorus of doubts about relying on penal solutions to address violence against women has grown louder. Across a broad range of feminists, crime experts, academics, and social workers, concerns have been growing about mandatory arrest, presumptive arrest, and no-drop policies, and about tougher sentencing. These legal remedies do not necessarily reduce violence against women and have contributed to greater state control of women, es-pecially poor women.
A 2003 report by the Ms. Foundation for Women denounced this over-reliance on the legal system to address vio-lence against women. It conceded that the criminalization of social problems like domestic violence has contributed to the mass incarceration of poor men, blacks, and Hispanics, and has destabilized marginalized communities. In his new book Punishment and Inequality, Harvard professor Bruce Western concludes that men who have been incarcerated are more likely to commit domestic violence. In The Golden Gulag, Ruth Wilson Gilmore of the University of Southern California notes how the presence of a prison in a community increases the rate of domestic violence in that prison town. Pressure is growing today to address the problem of violence against women not by strengthening ties to law enforcement and vic-tims’ groups but by joining other progressive reform movements pushing for social justice, an expanded welfare state, and a retreat of the carceral state.
The Prisoners’ Rights Movement in the U.S.
The U.S. women’s movement was exceptional. So was its prisoners’ rights movement that burst forth in the 1960s. A forerunner in the prisoners’ rights revolution, the United States ended up being a forerunner in the construction of the car-ceral state. For a time, the United States experienced a considerably more open and progressive public debate about prisoners’ rights and penal policy. But that public debate was eventually captured by law-and-order conservatives waving the bloody shirt of victims’ rights, in part because of the distinctiveness of the U.S. prisoners’ movement.
The U.S. prisoners’ rights movement emerged earlier and had deeper roots in and out of prison than prisoners’ movements elsewhere. Several important developments explain why, including the rising proportion of blacks behind bars, the government’s initial efforts to desegregate federal penitentiaries, and the emergence of the black Muslims as a formidable organization inside U.S. prisons. The Nation of Islam and the civil rights movement pried open the courts, ren-dering them important arenas for prison activism. In the process, prisons were pried open and subjected to intense public scrutiny. The racially charged political atmosphere in which the prisoners’ rights movement emerged provided an opportu-nity for race and imprisonment to become tightly linked issues.
Some imprisoned blacks and other minorities became ce-lebrities with significant bases of support on the outside. With the help of the New Left and other outside groups, they made powerful and highly publicized claims that they were the true victims. They promoted the idea that lawbreaking should be seen primarily as a political act aimed at a racially, economically, and politically repressive system.
These claims to victimhood together with the high profile nature of the prisoners’ rights issue helped foreclose any role for the state in brokering a détente between offenders, their sympathizers, and the emerging victims’ movement. In-deed, these claims served to push the U.S. victims’ movement in a more punitive direction as women and other victims of violent crime sought to wrestle the status of victim away from the prisoners’ rights movement and its allies. This helps ex-plain why the backlash against prison activism was so strident in the United States and why the government was so ef-fective at decimating the movement once it sought to impose a lockdown on political activism behind bars. It also helps explain why penal conservatives ultimately won the day.
The New Black Majority
Between the 1930s and 1970s, the prison population in the United States was racially transformed. In the 1920s, fewer than one in three prisoners was black. By the late 1980s, blacks comprised the majority of prisoners for the first time in U.S. history. This transformation coincided with fundamental changes in the nature of prison unrest.
Earlier waves of prison riots and protests in the 1920s and 1930s focused on calls for improvements in day-to-day liv-ing conditions. These disturbances were led by ad-hoc, isolated organizations helmed mostly by whites. Subsequent waves of prison unrest, beginning with the dozens of major riots and protests in the early 1950s, were far more political in nature and had significant racial overtones.
The presence of a growing and disproportionate number of blacks in U.S. prisons at a time of rising political mobili-zation and tension around racial issues focused government and public attention from the 1950s to 1980s on prisons in a way not seen in other countries. For a time, prisons became an important part of the political fabric and the touch-stone for debates about fundamental political questions involving race, justice, and oppression.
World War II had a transformative effect on U.S. prisons, as it did on many other institutions in the United States. The war brought an influx of new kinds of prisoners into federal penitentiaries for violations of the 1940 Selective Service Act, including Elijah Muhammad, the founder of the Nation of Islam, who was sent to a federal facility in Minnesota in 1942 after refusing to be drafted. These conscientious objectors, many of whom were sentenced to lengthy terms, tended to be more educated, politically active, and ready to challenge prison authorities on a number of fronts, especially race rela-tions.
World War II also focused national and international attention on segregation in the U.S. armed forces, which spurred a wider debate about segregation in other government institutions. In the 1940s, the leadership of the U.S. Bureau of Prisons set out to challenge the deeply entrenched segregationist practices in federal penitentiaries. The Bureau’s director pushed to end discrimination in federal penitentiaries and grant blacks the same opportunities and privileges that white prisoners enjoyed.
The Bureau sought to end segregation, but in its own time and in its own way. It stridently resisted efforts by prisoners themselves to lay claim to the race issue, be they politicized conscientious objectors who challenged the color line or, later, black Muslims who organized their own tightly knit groups. With their commitment to desegregate, federal prison administrators, wittingly or unwittingly, put race at the center of prison life, changing the very nature of prison protest.
In other ways, government authorities fostered the creation of a highly politicized prisoners’ rights movement that had deep roots behind bars and significant ties and political notoriety outside. The growing confidence in the 1940s about the constructive role that government and education could play in remaking society infused penal policy in many states. Belief was widespread that incarcerated people could be remade into constructive citizens through education and closer contact with the world outside prison gates.
California took the rehabilitative ideal most to heart in the postwar years. Republican Governor Earl Warren and other public officials portrayed California’s prisons as places to reform minds rather than punish bodies, as Eric Cummins shows in The Rise and Fall of California’s Radical Prison Movement. Group counseling, family picnics, greater access to reading materials through “bibliotherapy,” and more contact with the outside world were cornerstones of this new approach. Ex-perts and new ideas streamed into prisons, courtesy of the state, helping to politicize prison life and to pull aside the iron curtain that had shrouded prisons from the public. By making prisons less closed institutions, state authorities provided an opening for people in prison to develop and retain identities imported from outside. Their primary identity was no longer just their status as a prisoner.
California’s zeal for rehabilitation helped to create the first in a long line of U.S. prisoners who became celebrities in the postwar years. Caryl Chessman, sentenced to death in 1948, became a prolific and best-selling author. For penal re-formers, Chessman was exhibit A in defense of the rehabilitative ideal as he challenged his death sentence on the basis of his writings and his contributions as a legendary jailhouse lawyer.
Chessman became a national and international cause célèbre. He was a model of how a prisoner could be empow-ered through writing and could subvert San Quentin’s controls on reading and writing. He inspired a worldwide movement opposed to his execution and capital punishment. His May 1960 execution in the gas chamber spurred angry demonstra-tions around the world. With his death, U.S. prisoners and their supporters became increasingly disaffected from the promised land of rehabilitation. His execution exposed the apparent hollowness of the promise that rehabilitation would bring, if not release, at least reprieve.
Emergence of the Nation of Islam
This disaffection coincided with the emergence of the Nation of Islam as a powerful force within prisons and beyond by the early 1960s. The black Muslims set in motion a radical transformation in how prisoners viewed themselves and in how society viewed them. They introduced the idea of prisoners as victims of the system rather than as transgressors of the system. This had major consequences that lasted long after the Nation of Islam ceased to be a major factor in penal politics by the mid-1960s.
The black Muslims established a collective and disciplined organization that was unprecedented in prison politics. In doing so, they provided a model for other groups to organize in prison. By introducing a new ethos of group solidarity into prison life, they upended the prison norm of “do your own time” that had defined prison subculture. Furthermore, once they went above ground with their strikes and lawsuits, the black Muslims became an important window through which prisons became visible to the wider public. The barrage of litigation they instigated in the 1950s and 1960s prompted the media and the public to focus intently for the first time on the inhumane conditions in many prisons.
The black Muslims, despite their small numbers, engineered a dramatic shift in how prisoners viewed themselves and how society viewed them. With their emphasis on group identity and collective oppression, they laid claim to the idea that blacks were society’s victims and that the difficulties they faced were not primarily the result of their own personal deficiencies.
From Rights to Revolution
Once the Nation of Islam sought salvation through court challenges, the legal profession and other prison reform groups streamed in. The black Muslims were aided and abetted by a potent civil rights movement that had established important precedents for using the courts to challenge the color line. The civil rights movement initially focused on the ra-cial ills of the Jim Crow South. It primed the public to take a hard and sympathetic look first at penal farms in the South and then at penal facilities elsewhere. The movement also provided important legal and other resources for the prisoners’ rights movement that emboldened it.
With the fitful abolition of formal segregation in prisons in the 1960s and the barrage of legal challenges to prison ad-ministration and penal conditions, a void in prison structures and authority opened up. U.S. prisons exploded, paralleling wider political unrest and rioting in many cities. For much of the 1960s, relations between blacks and whites in prison were highly antagonistic. The massive race riot in San Quentin prison in January 1967 exemplified this antagonism and was a ma-jor turning point for the prison movement.
Many prisoners acknowledged the self-defeating nature of the San Quentin riot. Following the upheaval, underground prison publications and radical ones on the outside began to emphasize the need for cross-racial struggles centered on economic issues. They began to challenge the basic legitimacy of prisons, portraying them as an extension of an oppres-sive racial and class structure. This was a direct rebuke to the Nation of Islam, which emphasized strict racial segregation. It also was a rebuke to the civil rights movement, which attacked explicitly racist practices like Jim Crow laws, but ap-peared unable or unwilling to indict larger social and economic structures like class.
By the late 1960s, prison activism in the United States became enmeshed in revolutionary causes in a way not seen elsewhere. The activities of the more radical strands of the prison movement began to overshadow the efforts of civil rights lawyers and other legal groups working on behalf of prisoners. The U.S. prisoners’ movement came to be seen in the United States and abroad as a vanguard of a worldwide liberation movement for oppressed people, especially people of color.
Imprisoned blacks began to eschew the separatist stance of the Nation of Islam and started forging direct ties with the white radicals associated with the New Left in California and elsewhere. The writings and charismatic leadership of El-dridge Cleaver, George Jackson, Huey Newton, Martín Sostre, and other imprisoned blacks and Latinos prompted the New Left to view prison issues as central to wider struggles against political and economic oppression. Some members of the New Left became obsessed with the place of the prison in larger political struggles, according to Cummins, and to idealize prisoners.
The 1968 unity strikes at San Quentin and the 1970 rebellion at California’s Folsom prison were dramatic expressions of the new political and interracial foundations of the emerging radical prison movement. As John Irwin shows in Prisons in Turmoil, the San Quentin and Folsom uprisings had significant outside support and depended on interracial coalitions within. In their wake, incarcerated people across the country became highly politicized.
These uprisings and the prison writings of famous prisoners like George Jackson helped awaken the political con-sciousness of black, Latino, and even white prisoners. Prisoners set up their own elaborate alternative education systems. Many black and Latino prisoners began to regard their imprisonment as expressions of racial, ethnic, and economic op-pression.
The trials and tribulations of notable prisoners and defendants like Eldridge Cleaver, George Jackson, and An-gela Davis became national and international sensations. Jackson’s death under disputed circumstances in August 1971 during an alleged escape attempt further galvanized prisoners across the country and spurred the infamous uprising and bloody crackdown at New York’s Attica prison in September 1971.
Even in the aftermath of the Attica bloodshed, public sympathy for prisoners was considerable. The Attica uprising prompted an outpouring of public and scholarly interest in how to make prisons more humane and in how to reduce the prison population. Public opinion seemed to be on the side of people in prison, not the prison authorities. A number of na-tional advisory commissions at the time called for a moratorium on prison construction. Soon after, however, the public responded by recoiling from prisoners and the left.
The U.S. prisoners’ rights movement helped drive a cleavage between victims of crime and offenders that penal conservatives were well poised to exploit. The racially polarized and charged atmosphere in the United States was a potent one for creating national and international celebrities identified with racial struggles, like Martin Luther King, Malcolm X, Eldridge Cleaver, Bobby Seale, Angela Davis, and Huey Newton.
Prominent imprisoned blacks embraced the association between race and prison. As Etheridge Knight said in his preface to a 1970 collection of writings by black prisoners: “[T]he whole experience of the black man in America can be summed up in one word: prison.” Victimhood was a central theme of The Autobiography of Malcolm X and other prison writings by prominent blacks that became best-sellers.
This helps explain why the notion of victimhood became such a politically charged issue in the United States. In other countries, a movement for victims could develop without first needing to wrest control of the idea of being a victim back from prisoners, many of whom were black, and their advocates. Certain prisoners and former prisoners in the United States became towering public figures unlike anywhere else. They became heroes--or outlaws--depending on your point of view, who staked an important part of their identity on a claim of victimhood based on their prison experience. This greatly reduced the maneuverability of the state to engineer a quiet accommodation with the emerging victims of crime movement, as happened in Britain, that would not pit crime victims against offenders.
Eric Cummins blames the revolutionary public image of the prisoners’ movement for its rapid demise in the 1970s. He and others argue that the New Left’s romantic vision of prisoners and their revolutionary potential was costly. It divided the prisoners’ movement irreparably between reformers and revolutionaries. This romantic revolutionary vision became closely identified in the public’s mind with the urban guerrilla warfare and political gangsterism of groups like The Weathermen, Black Panthers, and Symbionese Liberation Army. This gave prison administrators great leeway to crush political activity in prisons by terminating education programs; placing greater restrictions on reading materials (even “disappear-ing” whole prison libraries); intensifying the surveillance of prisoners (including developing clandestine counterintelligence operations in prisons); creating more maximum-security prisons and special housing units to segregate, isolate, and discipline prisoners; and abolishing most prison organizations.
In the U.S. case, the initial response to the unprecedented prison unrest of the late 1960s and early 1970s was a combination of repression and reform. Over time, reform yielded to repression. Other Western countries experienced revolutionary upsurges in the 1960s and 1970s, but they ran their course without resulting in a wholesale lockdown on prison activism and without reasserting such a divide between offenders and the rest of society, especially victims of crime.
Capital Punishment and the Carceral State
In the 1970s, the death penalty catapulted to the center of debates over crime and punishment in the United States and remained stubbornly lodged there, deforming U.S. penal policies and disfiguring U.S. society in ways not seen in other Western countries. By the 1990s, leading candidates for national or statewide office in the United States rarely opposed the death penalty. Politicians regularly boasted about their willingness and indeed eagerness to carry out executions. Capital punishment was critical to reframing the politics of punishment. It fostered the consolidation of the conservative victims’ movement that stressed victims’ rights and that marginalized fundamental questions about limits to the state’s power to punish.
Opportunistic politicians and public officials exploiting the death penalty for electoral or ideological reasons were not the only reason why capital punishment reshaped the broader politics of penal policy. A whole host of legal decisions and legal strategies related to capital punishment fortified the carceral state in subtle but profound ways. They fostered a pub-lic debate around the death penalty that reinforced wider punitive tendencies that were then surfacing in the United States and helped them take root.
The battle over capital punishment, initially confined to the courts, helped to enshrine in the United States the view that popular sentiments and passions are paramount in the formulation of penal policy.
Furthermore, the judicial decisions and legal arguments surrounding capital punishment over the last three decades or so helped transform the death penalty into “the ultimate form of public victim recognition,” according to Berkeley law professor Jonathan Simon, something it had never been before in U.S. history.
The Furman v. Georgia 408 U.S. 238 (1972) decision was a critical moment not just for capital punishment but also for the construction of the carceral state. From an immediate legal and legislative perspective, the most noteworthy as-pects of Furman were how it vacated more than 600 sentences and spurred a mad dash by dozens of state legislatures to rewrite their capital punishment statutes to address the objections the U.S. Supreme Court had raised. From a political point of view, the ruling is significant in how the fiercest opponents and proponents of capital punishment reframed the issue in strikingly similar terms.
The four dissenting justices in Furman took direct aim at the central argument of the Legal Defense and Educational Fund of the National Association for the Advancement of Colored People (NAACP), the lead counsel in the case. The dis-senters disputed the LDF’s claim that the death penalty “is a cruel and unusual punishment because it affronts the basic standards of decency of contemporary society” and is at odds with public opinion.
The dissenting justices denied that the American public had repudiated the death penalty. The LDF and other aboli-tionists contended that it had. In doing so, both opponents and proponents ended up legitimizing popular sentiment as an important factor in the making of penal policy. The battle then began to hinge on how to measure, shape, and interpret public sentiment on capital punishment and other penal policies.
This dramatic reframing of the capital punishment issue had wider political repercussions. It essentially identified pub-lic sentiment as the main political terrain on which capital punishment would be contested and on which the carceral state would be constructed and legitimized over the coming decades. Furthermore, by failing to close the door once and for all on the death penalty by declaring it unconstitutional under all circumstances, the Supreme Course ensured that the courts would remain the main forum to battle about capital punishment.
The political and legislative response to Furman was fast and furious. Nearly three dozen states quickly enacted new death penalty statutes, and leading elected officials and politicians began to stake out stridently pro-death positions. The Furman decision galvanized such a powerful political backlash not merely because the Supreme Court had ruled that the death penalty (as then practiced) was unconstitutional. Nor because the abolitionists were ill-prepared to battle a backlash they did not see coming. President Richard Nixon, former governor of Georgia Lester Maddox, and other hard-liners seized this moment to make an issue of capital punishment. They were so successful because abolitionists in the United States ended up having to tread a slippery slope of public opinion that their counterparts elsewhere did not have to con-tend with.
Capital punishment was abolished by elected officials in Canada and Western Europe in spite of public opinion, not because of public opinion.
In the U.S. case, abolitionists had to prove in the courts that public sentiment had turned deci-sively against capital punishment, a very tall order. As state legislatures briskly passed dozens of new death penalty stat-utes, as the number of defendants receiving the death penalty increased to record levels, and as public opinion polls showed that support for capital punishment was the highest in two decades, it was hard to make a convincing case that the public had rejected the death penalty.
Gregg, Deterrence, and Public Opinion
U.S. opponents of the death penalty also were handicapped because another weapon that had proved so powerful in defeating capital punishment elsewhere--the hollowness of the deterrence argument--was neutralized. In the United States, private, nongovernmental studies demonstrating that the death penalty had no significant deterrent value had to compete with a cacophony of other arguments about the death penalty and public sentiment. And for the first time in many decades, the anti-death penalty movement had to contend with growing elite and organized public support for capital pun-ishment.
Capital punishment in the United States has been stubbornly impervious to rational or scientific arguments that have been its undoing elsewhere.
Canada and Britain made considerable investments in publicly financed research on capital punishment in the 1950s and 1960s. This research demonstrated that the death penalty does not deter homicide. Can-ada and Britain were more at liberty to focus single-mindedly on the deterrence issue and make that a central feature of the national debate because they did not have to contend with claims about how the death penalty was imposed in a ra-cially discriminatory manner. Furthermore, concerns about crime were minimal when the deterrence issue became promi-nent in Canada and Europe in the 1950s. So the deterrence question took center stage in a more dispassionate context.
In the U.S. case, capital punishment burst forth as a national concern in the 1970s at just the moment when the num-ber of homicides was escalating in this country. Thus it became easy for supporters of the death penalty to blame the de facto moratorium on executions from the mid-1960s to mid-1970s for the rising homicide rate that was a source of growing public angst. This undermined one of the most powerful arguments against capital punishment--and, by extension, the carceral state--i.e., that harsher penalties do not significantly deter people from committing crimes.
The Gregg v. Georgia 428 U.S. 153 (1976) decision, which essentially reinstated capital punishment, reaffirmed the centrality of public opinion in the making of penal policy. It also drew public attention to the deterrence issue at an inauspi-cious movement--when escalating homicide rates coincided with the nation’s de facto moratorium on executions. Sophis-ticated statistical studies proving the absence of any significant deterrent effect had great difficulty competing with these compelling facts on the ground and, as a result, were less effective in restraining penal populism. As in a number of capi-tal punishment cases before and since, the justices demonstrated in Gregg that they paid close attention to public opinion polls, to the dismay of Justice Thurgood Marshall. In his dissent in Gregg, Marshall argued that the proper yardstick should be “the opinions of an informed citizenry.”
Offenders and Victims After Gregg
The Gregg decision did not immediately prompt the expected blood bath. Executions resumed with a trickle, not a gush. A series of legal decisions soon after Gregg, most notably Woodson v. North Carolina 428 U.S. 280 (1976) and Lockett v. Ohio 438 U.S. 586 (1978), accorded defendants in capital cases expansive rights to present mitigating evi-dence. This gave defense attorneys wide leeway to portray capital defendants as sympathetic, tragic figures. But it also provided an opening for penal conservatives to claim that the legal process marginalized the grief and grievances of vic-tims’ families.
From about 1983 onward, the Supreme Court began a hasty retreat from involvement in many of the procedural de-tails of the administration of the death penalty, and the number of executions rapidly escalated. In the mid-1980s, some Supreme Court justices and other prominent public officials started drawing public attention to the growing backlog of people on death row and the big increase in the average time from sentencing to execution. This fueled public concern that the courts were bending over backwards for capital defendants while denying victims and their families justice. It rein-forced the unfounded idea that imposition of the death penalty would bring about “closure” and thus provide some signifi-cant psychological comfort to victims’ families.
In response, prosecutors and other state officials pushed to permit the introduction of victim impact evidence in capital sentencing hearings. In Booth v. Maryland 482 U.S. 496 (1987) and South Carolina v. Gathers 490 U.S. 805 (1989), the Supreme Court ruled that victim impact evidence was inadmissible. But a few years later, the Court reversed itself in Payne v. Tennessee 501 U.S. 808 (1991). As a result, courtrooms in both capital and noncapital cases became dramatic stages to magnify the suffering of all victims, the immorality that taints all offenders, and the fundamental antagonism be-tween victims and offenders. This was a unique outcome unparalleled in other Western countries.
All of this helped to solidify a view of capital punishment and other penal sanctions as primarily the result of a contest between victims and offenders in which the state’s power to punish was an incidental issue.
So were claims about how the death penalty (and the legal process more broadly) discriminated against the poor and people of color. In such an at-mosphere, it is not so surprising that the courts and legislators dismissed sophisticated studies demonstrating the racially discriminatory manner in which the death penalty is imposed and the absence of any significant deterrence effect.
In short, some of the legal arguments to which the abolitionists appealed were ambiguous and could be infused with different meanings.
Conservatives appropriated the claim about the importance of public sentiment in formulating penal policy. They also recognized that the death penalty had enormous potential to frame and redirect how the public felt about broader social and political changes over the last three or four decades.
The regulation of capital punishment in the courts had powerful spill-over effects. It helped legitimize the conservative, zero-sum view of victims and offenders. It contributed to an erosion of the separation between state and society in the making of penal policy, allowing blunt measures of public passions, such as opinion polls, to be accorded a central role. This facilitated the prison boom by deflecting attention from the central question of what are the limits, if any, to the state’s power to punish and kill.
By the 1990s, the political consensus in favor of get-tough penal policies had become a formidable and defining feature of contemporary American politics, even as the extraordinary extent of the carceral state remained largely invisible and un-examined. The tenacity of this consensus should not lead us to assume that leading politicians and their allies single-handedly propelled the prison boom. Just because political elites desire a certain type of social control (e.g., massive impris-onment of African Americans in the wake of the rebellions of the 1960s and the deteriorating economy of the 1970s) or seek to fortify their electoral base by exploiting law-and-order concerns does not mean they automatically get what they want. A variety of political and other factors can stymie or facilitate their goals. Women’s groups, prisoners’ rights organizations, and the anti-death penalty movement groups did not instigate the law-and-order crusade, but they helped propel it once elites declared war on crime and criminals.
These movements are not to blame for the rise of the carceral state and the consolidation of a powerful, retributive vic-tims’ rights movement.
They were highly constrained by historical and institutional factors, and some strokes of bad luck and bad timing. In some cases, they may have had a real choice to pursue another path. But in many instances, factors beyond their control sharply constricted their options. Their immediate political and strategic choices had many long-term negative consequences, some of which could not have been predicted at the time.
In February, 2008, at a symposium commemorating the 40th anniversary of the landmark Kerner Commission report on the racial disturbances that gripped the country in the 1960s, former President Bill Clinton characterized the country’s massive penal system as perhaps the leading civil rights issue in the United States today. In calling for a second chance for people who break the law, Clinton appeared to be calling for a second chance for himself. His remarks were a be-grudging admission that he could have done more to battle the “law-and-order crowd” who “took over” in the 1990s—even if he did not admit how much he had been part of that crowd.
Law and order was a signature issue for Clinton when he ran for president as a “new Democrat.” As president, Clinton pur-sued what some analysts called a “velvet tongue, iron fist” approach to criminal justice. He employed softer language than Ronald Reagan or George H.W. Bush but wholeheartedly endorsed get-tough proposals for more police, more prisons, and more boot camps that were virtually indistinguishable from his Republican predecessors.
“Most of the people who went to prison should have been let out long ago,” Clinton conceded at the symposium. He vowed that he would “spend a significant proportion of whatever life I’ve got left on the earth trying to fix this because I think it’s a cancer.” Whether he actually does so remains to be seen.
Leading politicians did not single-handedly create the carceral state. A change of heart by Bill Clinton and other public officials, however welcome, will not be enough to reverse the prison boom. In rare instances, politicians are moved by strong personal beliefs to begin emptying their prisons and jails. Early in the 20th century, England underwent a major decarceration, prompted in large part by Winston Churchill. During his brief tenure as Home Secretary, Churchill ex-pressed deep skepticism about what could be achieved through incarceration and quickly came to believe the prison sys-tem was overused. As he once said, “The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilization of any country.”
Political leadership has been critical for major decarcerations in other countries. But in many cases, politicians had to be pushed by the public and experts on crime and punishment to reverse course. In Finland, the small group of experts involved in criminal justice in the 1960s and 1970s became convinced that Finland’s high incarceration rate was a dis-grace. They provided the compelling research to demonstrate that Finland’s rate was way out of line with other European countries and unrelated to the level of crime. They reached out to politicians, civil servants, and the public by arguing that criminal justice policy had to be seen in a wider societal context. That view was captured by their slogan: “Criminal policy is an inseparable part of social development policy.”
So far, the leading presidential candidates have not made mass incarceration a central issue. Sen. Barack Obama glancingly addressed the civil rights implications of mass incarceration in an address at Howard University last Septem-ber. But he generally has not focused on the perils of the carceral state. Neither has Sen. Hillary Clinton. As for Sen. John McCain, civil rights and criminal justice policy are not among the 15 issues the presumptive Republican nominee high-lights on his Web site. But America’s space program did make the top 15.
With so many millions somehow enmeshed in the criminal justice system and the vast political silence at the national level about them, the penal policies of the United States have a certain taken-for-granted quality. Thirty years ago it seemed unimaginable that the United States would be imprisoning its people at such unprecedented rates. Today it seems almost unimaginable that the country will veer off in a new direction and begin to empty and board up many of its prisons. Yet as Norwegian criminologist Thomas Mathieson reminds us, “major repressive systems have succeeded in looking extremely stable almost until the day they have collapsed.”
Marie Gottschalk is a professor of political science at the University of Pennsylvania. She is also the author of The Prison and the Gallows: The Politics of Mass Incarceration in America, available from PLN for $28.95, which gives a longer, more detailed explanation of the prison explosion of the past 30 years.
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