As President Obama expands Pell Grant eligibility to current prisoners for the first time since 1994, strange bedfellows Van Jones and the Koch brothers unite to tackle criminal justice reform, and the Black Lives Matter movement continues to demonstrate the racial inequities in our policing and incarceration system, we should recognize that we are living in a historic moment for criminal justice. Much has been written on the size of the US prison population, which constitutes 25 percent of the world’s prisoners even though the US is home to just 5 percent of the world’s population; less has been said about how the late ’60s and early ’70s gave rise to this unprecedented era of hyper-incarceration. The last 40 years of tough-on-crime policies have led to a 700 percent increase in our prison population. To harness the power of today’s bipartisan push for change, it is critical that we analyze and identify the similarities with this earlier era.
Richard Nixon took the White House in 1968 based on a law-and-order platform that responded to the widespread panic over crime in the period following the Civil Rights era. He demonstrated both his belief in incarceration and the centrality of prison to his broader policy vision with his memorable statement that “doubling the conviction rate in this country would do more to cure crime in America than quadrupling the funds for [Hubert] Humphrey’s war on poverty.”
Nixon wasn’t the only one embracing conversations on crime and criminality, however; the political establishment on both the left and the right was forced to engage on one of the crucial issues of the time. There existed an “official philosophy” within which all serious debates and policy contentions around criminal justice transpired; for instance, both sides agreed on the need to expand correctional practices. The difference between their views was mostly one of degrees.
At the other end of the spectrum in 2016, the Black Lives Matter movement, in particular, has pushed candidates to embrace criminal justicereform as a central part of their policy prescriptions. Hillary Clinton demonstrated this early in her campaign with her calculated decision todisclose her policies on mass incarceration and criminal justice prior to speaking on economic policy or education. Similarly, Bernie Sanders, Jeb Bush and more have been forced to speak out on their ideas for criminal justice reform in every public encounter since the launch of their campaigns.
Now, as then, conservatives and liberals, Democrats and Republicans, Van Jones and the Koch brothers have spoken out in favor of reforming the existing system of mass incarceration. Yet, the same focus on criminal justice that once pushed candidates and policy priorities toward warehousing a growing number of bodies behind bars, advocates today for it’s polar opposite. Their methods and their reasons for intervention may vary, but left, right, and center have embraced the importance of solutions to hyper-incarceration. The combination of Republican senators from Utah and Texas joining hands with Democratic senators from New Jersey and Rhode Island around criminal justice issues has been a rare sight to behold in the age of political brinksmanship. Little wonder, then, that President Obama isn’t the only one “feeling more hopeful today” about the prospect of legislation.
Similarly, the reemergence of the Ku Klux Klan, white supremacist terrorists like Dylann Roof and inquiries into violent police restraint measures today mirror the widespread protests (often termed riots) across the United States following the murder of Dr. Martin Luther King, Jr. Divisive rhetoric was a strong part of the political speech of the late ’60s and early ’70s, with Nixon claiming to speak on behalf of the “silent majority of law-abiding citizens.” Similarly, candidates today have been pushed to overtly declare their position on the race struggles playing out across the nation – notably with Martin O’Malley’s “All lives matter” comment at Netroots Nation.
The legacy of the early 1970s, though, lies not only in its reconfiguration of our criminal justice model, but also in the birth of a new understanding of the economy. The economy’s stagnation (termed stagflation) in the early ’70s led to the birth of a new economic model characterized by a broad economic shift toward widespread deregulation, dwindling worker support systems and individual responsibility. This vision of personal economic responsibility was effortlessly assimilated into conceptions of crime and criminality in the period. The new free market logic – where an individual, rather than the state, bore the burden for economic failure – translated rather simplistically into personal, rather than structural, responsibility for crimes. Just as individuals were ultimately responsible for their own law-breaking, they were thought to bear the responsibility for failing to obtain a living wage.
Yet we are in the midst of a strong pushback against this vision of “individual responsibility” in favor of a structural understanding of the economy. This can be seen in the popularity of Bernie Sanders’ economic inequality platform and a desire by think tanks, policymakers and activists alike to explain our current societal condition in terms of this historically faulty economic blueprint. We now have a vital opportunity toembed the emerging new economic framework in our understanding of crime and criminals. If the late ’60’s/early ’70s was the era of individual responsibility for the economy and the prison alike, could we be embarking today on the era of structural causation?
My opening question – Are we living in a historic moment for criminal justice? – is really a normative one. I ask not simply whether are we living in a historic moment, but whether we could construct one. Our historic incarceration rates demonstrate the success of past generations of policymakers and activists in building a system of social control that rests on chains and shackles. Should we not today seek to combine an equally expedient set of circumstances to decarcerate?
We have a truly unique opportunity to rewrite the rules of criminal justice and transform the manner in which we view prisoners, treating them as citizens and human beings. The early ’70s is regarded as a turning point, not only in the manner in which it framed a new logic for criminal justice, but in that it came to define both policymaking and cultural understandings of prisons and prisoners for decades to come. In this moment, the challenge for all of us lies in whether we can tap into a similar moment to conceive a society defined by rehabilitation and justice, not retribution and vengeance.