Law and Order On the Loop
When Richard Nixon ran for president in 1968, he knew he could reach white voters in the South by appealing to law and order, blaming civil rights activism, anti-poverty programs, and anti-war protesters for rioting, drugs, and other forms of civil unrest, appealing to the silent majority that wanted ‘tough on crime’ leaders. Nixon knew better than to use blatantly racist language. He needed to distinguish himself from the segregationist George Wallace, who was running as a third party candidate. As Nixon’s aide H.R. Haldeman put it: “The whole problem is really the blacks. The key is to devise a system that recognizes this without appearing to.”
In the wake of George Floyd’s extrajudicial murder at the hands of police in Minneapolis, we are compelled to revisit the racist uses of appeals to law and order over these past 50 years. We can use this moment to rethink fundamental questions about public safety, the role of police, and all the related social and economic issues that distort our dominant perceptions of criminal justice, which has been deeply racialized, going back 400 years.
Recent events, especially George Floyd’s murder, have pushed people in black and brown communities to the edge. In the midst of a pandemic that is disproportionately killing black, brown, and indigenous people, that is being used to scapegoat people of Asian descent in this country and abroad, people of color, and especially black people, are reminded that not all lives are valued the same. Added to this, the lockdown — though a necessary blunt instrument in dealing with the pandemic, especially given we don’t have adequate equipment, testing, health infrastructure or universal access to healthcare — has compounded the economic, psychological and social pain that is a pre-existing condition in working-class and lower income black and brown communities.
Adding insult to injury, our President is incapable of speaking to this pain and uncertainty. Instead, he tweets direct as well as indirect support for white nationalists and supremacists and threatens to unleash the military against civilians. Alongside this, Trump and the Party he has captured openly advocate policies that are meant to disenfranchise black, brown and indigenous voters. And while the pandemic continues, so do the extrajudicial killings of black persons: Ahmaud Arbery (by white vigilantes), Breonna Taylor and George Floyd (by police officers). Tensions are running high.
From Civil Rights Laws to the War on Drugs
How is it that, after the very real progress made by the Civil Rights Movement, we find ourselves with militarized, unaccountable, racially-biased policing in our cities, a crisis of mass incarceration, and ongoing disinvestment and despair in lower-income communities of color?
Alongside notable progress, and especially the growth of black professional and middle classes, we’ve also seen what Loïc Wacquant calls the ‘hyperincarceration’ of working class and poor black and brown communities:
“[T]he expansion and intensification of the activities of the police, courts, and prison over the past quarter-century have been anything but broad and indiscriminate. They have been finely targeted, first by class, second by that disguised brand of ethnicity called race, and third by place. This cumulative targeting has led to the hyperincarceration of one particular category, lower-class black African American men trapped in the crumbling ghetto, while leaving the rest of society — including, most remarkably, middle- and upper-class African Americans — practically untouched.” — from “Punishing the Poor: The Neoliberal Government of Social Insecurity.”
I would add this caveat to Wacquant’s final point: middle- and upper- class African Americans who may have felt they were untouched by the plight of poor and working-class blacks were reminded in two very clear ways last week that their wealth and status do not shield them from white supremacist violence: the case of the white woman in Central Park who used the history of racial bias in policing to threaten a black man, knowing that police would likely presume a black man to be dangerous, even a professional looking and sounding black man like Christian Cooper, was one kind of reminder. The craven killing of George Floyd was a more chilling reminder, one that tapped into a well of centuries-old pain. There was something about the casual demeanor of the police officers who held George Floyd down or stood by as he suffocated. It made manifest the banality of evil.
In the wake of the Civil Rights gains, conservatives pivoted to law and order as a way to criminalize poor black and brown communities and re-establish a racial hierarchy. Nixon criminalized dissent (in particular, Black Power and Anti-War activists), using race to realign white southern voters within a changing Republican Party. For Reagan, it morphed into the War on Drugs in 1982, two years before the crack epidemic got underway. This war was expanded throughout the Clinton and Bush Administrations, driving forward ever-increasingly draconian changes in law enforcement, the courts and prisons.
All of this was happening alongside the rise of neoliberal political and economic logic. Since the era of Reagan and Thatcher, a radical philosophy of market rule has dominated the global economic and political order. Because it draws on the classic economic philosophies of the late 19th Century, this new world order often is referred to as neoliberalism. Neoliberal philosophy associates the market with freedom, choice, and rugged individualism, counterposing these with government interference, whether it takes the form of social welfare, or labor laws, or regulations on corporations and big banks, environmental protections, workplace safety, or taxation, neoliberalism has been used to defund, deregulate, and privatize most public and social goods and services.
Over time, neoliberal ideas and practices have succeeded in ripping apart much of the social safety-net, hollowing out local economies (both rural and urban), increasing inequality, reshaping government to serve corporate prerogatives, shifting the role of government away from providing social welfare and wider opportunities toward policing the poor and the politically marginalized.
What this has looked like for criminal justice, in terms of major policy shifts, includes things like Military Cooperation with Law Enforcement Act, in 1982, which cemented the shift from community policing to militarized policing. The 1986 Anti-Drug Abuse Act established long mandatory minimum prison terms for low-level drug dealing and possession of crack cocaine. The Edward Byrne Memorial State and Local Law Enforcement Assistance Program, passed in 1988, offered millions of dollars in federal aid to local law enforcement agencies as incentives to focus more on the War on Drugs. As a result, narcotics task forces began to proliferate, and higher numbers of drug arrests became a benchmark of success. Clinton’s Violent Crime Control Act, passed in 1994, further expand mandatory minimums, and sparked state and local innovations like ‘three strikes’ and ‘truth in sentencing laws, drastically increasing the size of prison populations.
With “The New Jim Crow,” first published in 2010, Michelle Alexander helped to frame a conversation about the War on Drugs and how it became a war on black and brown communities, re-establishing the post-Reconstruction racial caste system in the guise of ‘law and order.’ That conversation has continued over these past 10 years, even as we witnessed more extrajudicial murders. In the 2nd half of the Obama Administration, lawmakers from local the national levels, mostly Democrats, but with some Republican support, started to address mass incarceration and police brutality.
We cannot blame Trump alone for the lack of progress in these areas, but we can and must note that his Justice Department rolled back guidelines for holding police more accountable, a reminder that we must prioritize regime change in November. We desperately need a new Justice Department. It’s past time to revisit the impact of the war on drugs, especially how it changed policing, and identify areas where real, meaningful reform can happen.
No More Re-Runs
Are we now facing a repeat of Nixon’s law and order episode? Trump would like to make the Nixon pivot — using unrest in the streets to assert himself as the supreme defender of law and order. But Trump is not as savvy as Nixon. He doesn’t have an H.R. Haldeman guiding him. Instead, he has white nationalists whispering in his ear. And, it appears that Trump is losing support from many in his own party and among the military leadership as he says and does more outrageous things each day. Here’s another important way in which this moment is different: the people in the streets, in official positions (elected and appointed), and in the organizations that can push for reforms are younger, multiracial, intersectional, and clear about the role of race in shaping our criminal justice system. They are the emerging new multiracial majority, and they are stepping into their power to fundamentally change the social contract.
Through collective action, we can stop Trump from making this law and order pivot. This does not mean we have to defend looting or vandalism, neither of which are the intent of the majority of protesters. A wise poet and activist in DC, E. Ethelbert Miller, reminds us who bears the costs of looting: “At the end of the day black people are left with destroyed communities and must await the return of colonial investors.”
The attention garnered by looters must not be used to try and diminish the protesters’ fundamental demands for racial justice. And it most certainly does not justify the levels of violent force that some police departments (and unidentified prison officers) have used against protesters in recent days. We can and must join with those who are turning protest into political action. Our collective democratic future depends upon it.
The Opportunity/Changing the Program
We have an opportunity to completely rethink and reshape what law and order means in an inclusive, democratic society, with an emphasis on creating conditions for greater public safety and security. Rolling back the laws and practices that have militarized policing would start to change the relationship between police and the communities they are meant to serve. More fundamentally, the role of police in society would change significantly if we could excise the racist roots of our current criminal justice system. Expanding restorative justice would help us reduce the use of incarceration. As we think about points of intervention that can help us advance major changes, let’s remember that the reforms in policing that have occurred since 2014 already are making a difference. We can build upon these. And we can take inspiration from the work of the Movement for Black Lives, and their comprehensive policy platforms.
A wide range of reforms are on the table now, most of them representing long-overdue changes in every part of the criminal justice system: police, courts, prisons. Systemic change requires long-term strategy, a picture and a practice that helps us use any one reform to build toward advancing the next level of reforms, addressing the cross-cutting issues (economic security, education reform, healthcare, housing, etc). With multiracial alignment across groups and sectors, we can craft a shared strategy for moving many parts of a racial and economic justice agenda forward, over the next five to ten years. Without social movement alignment, this moment for making major reforms might slip away. We cannot afford to let that happen.