The United States has five percent of the world’s population, but houses 25 percent of the world’s prisoners.
Conventional wisdom has it that it is the systemic, widening, and tightening grip of conservatives, particularly racist Republicans and Southern Democrats, over the years that led to such high numbers. Prison is no longer simply confined to four walled buildings or any other manifestation of the judicial system. Today, everyday institutions like schools and hospitals are subject to surveillance and punitive regimes, and the very definition of crime has expanded such that jumping a turnstile can mean a jail sentence. All of this is part of what theorists of prison call the carceral state; the overwhelming presence of the criminal legal system in our daily lives. It is now challenging to not commit a crime of some magnitude somewhere, and it is all but impossible to escape the system of judicial oversight without feeling the effects over the course of one’s lifetime. Consider, for example, sex offenses, which are now classified so broadly that they range from consensual sexual acts to violent rape. Those placed on mandatory sex offender registries (SORs) face restrictions on habitat and occupation so debilitating that anything resembling a normal life is impossible.
The rise toward greater and more wide-reaching forms of incarceration first began in the late 1960s. Naomi Murakawa’s slim but dense new book, The First Civil Right: How Liberals Built Prison America, demonstrates that the growth of the carceral state actually came about in the civil-rights era, beginning in the 1940s and continuing through liberal Presidents like Clinton and Obama.
Murakawa’s title is derived from Richard Nixon’s famous 1968 declaration that “The first civil right of every American is to be free from domestic violence...Our goal is justice—justice for every American.” Nixon’s words are often read as the beginning of a racially coded Republican thrust towards more incarceration, but in fact, in 1947, President Truman’s Committee on Civil Rights “designated the ‘right to safety and security of the person’ the first condition of all rights.” Murakawa writes, “As the black freedom struggle gained momentum, as lynchings of black veterans caused international embarrassment, and as all feared impending ‘race wars,’ liberals established a law-and-order mandate: build a better carceral state, one strong enough to control racial bias in the streets and regimented enough to control racial bias in criminal justice administration.”
Murakawa uses Nixon’s more familiar formulation as a springboard to jump back in time and demonstrate that what has been widely read as a conservative watershed moment was in fact presaged by liberal policies twenty years prior. Her book is a critique and indictment of “postwar racial liberalism,” which was (and is) based on a diagnosis of racism as a personal, internal problem of character rather than a range of systemic and deliberately wrought economic and social policies specifically designed to occlude progress and opportunities for non-white people.
The First Civil Right sets a hard task upon liberals, progressives, and many leftists: to think about the complicated ways in which they reinforced a racialized and racist paternalism that endures to this day, and to consider how the—no pun intended—black and white rendering of racism allowed liberals to blithely go about building the carceral machinery. As it stands, it unfairly criminalizes black bodies and then continues to reform and refine it so that prisons becomes even more damagingly punitive to those disproportionately targeted.
Murakawa focuses on specific elements to amplify her points, such as mandatory minimums, the death penalty, and the euphemistically termed community policing, along with measures like the “modernization” of law enforcement (more and bigger guns, along with diversity quotas).
The center of the carceral state is not, it turns out, the cold, frozen heart of the conservative dominated by an openly racist animus, but the warm, bleeding heart of liberalism, throbbing with feelings of goodness and tolerance.
A starting point of the carceral state was Truman’s creation of the President’s Committee on Civil Rights (PCCR). The PCCR considered crime in liberal terms of the distinction between private violence and the ability of the law to grant restitution. In discussing matters it described as “arbitrary,” as in arrests or discriminatory administration of laws and institutions, the PCCR saw “lawless violence” as a central problem: “To be killed by private persons or a mob was cruel; to be imprisoned or killed through due process of law preserved the nation’s moral fabric.”
We can see the lasting influences of this logic in a time of Oscar Grant, Trayvon Martin, and Michael Brown. Over and over, defenders of what amounts to the state-sanctioned murder of black men resort to the rationale of the police and/or vigilantes like George Zimmerman needing to protect private or state property.
In 1968, President Lyndon Johnson signed the Omnibus Crime Control and Safe Streets Act (SSA) of 1968, which established the Law Enforcement Assistance Administration (LEAA), which was designed to “distribute federal money to state planning services.” LEAA funds went towards a tank used to storm the New Orleans Black Panther headquarters in 1970, prefiguring what commentators are only now noticing in Ferguson, where massively violent machinery was used against residents.
But it was what Murakawa terms the bidding wars over the death penalty that most marked what she analyzes as the rise in the proceduralization of justice, a process that would eventually tighten the stranglehold of the carceral state.
Between 1968 and 1976, there were no executions in the United States. Death penalty abolition was seen as such a common-sense measure it appeared in the 1972 Democratic Party Platform. In 1988, only three types of crime were punishable by the death penalty, but by 1994, that number had ballooned to 66. It is tempting to surmise that this came about because of an increased conservative tide toward the institution of the death penalty, but Murakawa shows that, over the years, the Democrats sought to up their stakes in the law and order game.
In 1994, after a protracted history of crime bills where Republicans and Democrats sought to increase penalties to cover more offenses, Republican Senator Orrin Hatch accused the latter of “bowing” to its “liberal wing.” In response, then-Senator Joe Biden cited actual numbers:
“Let me define the liberal wing of the Democratic Party. The liberal wing of the Democratic Party is now for 60 new death penalties...has 70 enhanced penalties...is for 100,000 cops...is for 125,000 new State prison cells.” Clinton’s attorney general Janet Reno stated in her confirmation hearing in 1993 “that she ‘regularly’ asked for the death penalty as Dade County state attorney, and she pledged to help Congress craft new death penalty procedures to cut the protracted appeals that make a ‘mockery of the justice system.’”
It is easy to blame conservatives for this acceleration of the carceral state; it could be argued, and it will be argued, that liberals were simply doing what they had to do to stay in power and that the Right forced their hand. But Murakawa points to deeper, more profound ideological problems. Abolitionists stated their opposition to the death penalty based on “its procedural quality—too much discretion and too little protection for the marginalized. Herein lay their vulnerability: too many abolitionists rejected capital punishment on (conditional) administrative grounds rather than on (unconditional) principled grounds of the limits of state violence.” In other words, liberals based their arguments on the idea that the death penalty was insufficiently overseen, not that it is an inherently unjust form of state violence.
Murakawa’s book is an invaluable addition to the history of the carceral state. But she tends to ignore, partly because the book is necessarily so focused in its exhaustive research, the ways in which social and political causes, like gay and lesbian rights, which she only mentions in passing, have built upon the carceral state.
For instance, the mainstream gay movement demanded and got hate crimes legislation, which uses penalty enhancement to strengthen the reach of the prison system. Immigration rights organizers reinforce distinctions between good and bad immigrants, insisting that only people with “criminal” records should be deported.
Murakawa emphasizes race, and situates her analysis in work like that of Ruth Wilson Gilmore, who writes of “the state-sanctioned or extralegal production and exploitation of group-differentiated vulnerability to premature death.” Certainly, there is more than ample proof that the liberal carceral state depends upon and furthers a racist and starkly anti-black agenda. But, as is evident with SORs and immigration, where millions are silently whisked away from society without recourse, the carceral logic of neoliberalism is increasingly focused on the most vulnerable, which can include simply the poorest or the least likely to gain any sympathy from liberals or even leftists.
To point to this is not to deny the continuing force of racism. But it does, in an age of global mass migration and economic and political crises, which are more grist for the punitive mill, complicate our understanding of the same.
At the end, the question—in a sense outside the focus of this rich text—remains: where has the left been while all this developed? What role can or does the left play in resisting the growth of the carceral state? For that, we will have to look to other histories and analyses.
The First Civil Right is an important and necessary book. It is particularly in Murakawa’s critique of death penalty abolition strategies that we see what the book ultimately argues for: a far more radical form of political will and activism than we have seen so far. In the end, Murakawa lays to rest the fondest hopes of liberals who constantly seek yet another conservative like Sarah Palin to mock and blame for our current state of affairs. The Last Civil Right effectively demonstrates that, when it comes to the carceral state, “there is no master narrative of conservative ascendance.”