Fifteen years ago, a small group of scholars and activists began embracing the term mass incarceration to refer to the unprecedented explosion in the size of the U.S. jail and prison population since the mid-1970s. At the time, it was an obscure concept.
Today, high school and college students across the country are taking courses on mass incarceration. Numerous church and community groups have been reading Michelle Alexander’s The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010). Public figures spanning the political spectrum from Grover Norquist to Eric Holder to Rachel Maddow now identify mass incarceration as a leading public issue. So does Sesame Street. In 2013, the popular children’s show introduced the first Muppet who has a parent in prison.
The general public has been slowly waking up to the idea that the United States is the world’s warden, incarcerating more people in absolute and proportional numbers than any other country. Meanwhile, scholars and activists have started to popularize a new concept: the carceral state, or what I like to call “the prison beyond the prison.”
Embedded in an ostensibly democratic state, the carceral state operates an extensive and unprecedented system of surveillance and punishment through a set of institutions, including police departments, prosecutors’ offices, corrections departments, and the courts, that are increasingly unaccountable to the wider polity. The carceral state metes out an enormous and growing array of penal and nonpenal sanctions. It surveils and controls wide swaths of people, many of whom have never been charged or convicted of a crime. The brunt of the carceral state falls hardest on the most dispossessed groups, including the poor, people of color, the mentally ill, and immigrants. But in levying more punishments and controls on these groups, the carceral state has begun to deform the wider polity and society in significant ways, as Naomi Murakawa, Amy Lerman, and Vesla Weaver show.
The carceral state has become a key governing institution in the United States and a major source of political, social, and economic inequalities. It is no longer just a problem largely confined to the prison cell and prison yard and to poor urban communities and minority groups—if it ever was. The U.S. penal system has grown so extensive that it has begun to metastasize. It has altered how key governing and public institutions operate, everything from elections to schools to social programs like public housing and food stamps.
The emergence and consolidation of the U.S. carceral state is a major milestone in American political development that arguably rivals in significance the expansion and contraction of the welfare state in the postwar period. In The First Civil Right, Murakawa persuasively challenges the conventional view that dates the origins of the carceral state to the mid-1960s and the emergence of the Republican Party’s racially charged southern strategy based on restoring “law and order.” She identifies “race liberals” associated with the Democratic Party as key architects of the carceral state. “In the end,” she argues, “the Big House may serve racial conservatism, but it was built on the rock of racial liberalism” (p. 151).
According to Murakawa, the ways in which President Harry Truman and other race liberals initially formulated the law-and-order issue made it ultimately vulnerable to capture by “race conservatives” calling for more punitive measures. Long before the national crime rate began its sharp decade-long climb upward in the mid-1960s, law and order had already catapulted to the forefront of national politics. The numerous disputes and protests over instances of police brutality and over police inaction in the face of organized and wide-scale white violence in the 1940s directed at blacks, Mexican Americans, and other people of color forced white liberals to take action. For a fleeting moment, Truman and other race liberals embraced an encompassing vision of the law-and-order problem, she explains. As articulated by Truman’s Committee on Civil Rights, defending “law and order” meant defending the “first civil right,” which it defined as freedom from violence in all its manifestations. Foremost among them was violence perpetrated by the state and by organized groups of whites against blacks and others who were challenging the country’s entrenched color line.
Race liberals singled out prejudice itself as the main source of white lawlessness and called for greater federal leadership and enhanced law-enforcement resources to purge the criminal justice system of bias and discrimination. They rejected a more structural understanding derived from the anticolonial movement that viewed racism as a deeper systemic problem that pervaded the country’s social, economic, and political structures. Race liberals told a causal story in which decades of state-sanctioned segregation and discrimination under Jim Crow had acutely damaged the psyche and culture of many blacks and had rendered the legal system illegitimate in their eyes. As a consequence, they argued, blacks were more prone to criminality. For race liberals, ending Jim Crow and building a more procedurally fair, neutral, and uniform criminal justice system that constrained the discretion of whites to act on their racial prejudices would resolve both the law-and-order problem and the civil rights problem.
This turned out to be a costly and risky strategy, according to Murakawa. As early as 1943, Phileo Nash, a special adviser to Truman, was warning against tethering the cause of civil rights to promises that more proceduralism would yield less crime. Doing so, he said, would leave the civil rights agenda and the Democrats who promoted it politically vulnerable. In what turned out to be a chillingly prescient observation, Nash noted, “If a public relations program in race relations is developed around a pronouncement from a high official on the importance of law and order, then every breach of law and order is a slap in the face of the program and speaker” (quoted in The First Civil Right, 2014, p. 28).
Race liberals associated with Truman sought a greatly expanded role for the federal government in the administration of criminal justice and law enforcement at the local and state levels and in the prosecution and punishment of civil rights crimes. They supported a flurry of bills in the 1940s and 1950s to provide greater federal assistance to equip, train, and professionalize local and state police forces so that they would be better able to protect African Americans and their allies from violence directed at them by whites defending the color line.
Meanwhile, conservative southern Democrats opposed to desegregation and civil rights were challenging race liberals by formulating their own association among civil rights, criminality, and blackness. Southern Democrats began pushing for enhanced police forces and law enforcement, but for different reasons than the race liberals associated with Truman. They sought an expanded criminal justice apparatus as a way to stem what they charged was the increased lawlessness on the part of African Americans and their supporters who sought to bring down the Jim Crow regime.
Between the mid-1960s and mid-1970s, the national homicide rate doubled. The lack of a consensus on what caused the alarming increase in violent crime opened up enormous space to redefine the law-and-order problem and its solutions. Foes of civil rights increasingly sought to associate concerns about crime with anxieties about racial disorder, the transformation of the racial status quo, and the wider political turmoil of the 1960s.
Aiming to neutralize conservative critics, President Lyndon B. Johnson signed the Omnibus Crime Control and Safe Streets Act in 1968, which accorded the federal government a new and much larger role in criminal justice and law enforcement. As this landmark bill moved through Congress, southern Democrats and their Republican allies outmaneuvered race liberals time and again. They enshrined funding formulas that gave state governments—not cities or the federal government—enormous leeway to distribute the money as they saw fit, as Murakawa explains.
In the face of massive urban unrest that was increasingly criminalized and racialized in public debates, many states opted to prioritize riot control and militarization of the police over crime prevention and rehabilitation, two of the stated goals of the Safe Streets Act. In doing so, they legitimized and institutionalized the idea that greater law-enforcement capacity was the best way to combat crime and political unrest. This legacy was dramatically on display on the streets of Ferguson, Missouri, in the aftermath of the death of Michael Brown, who was killed by police officer Darren Wilson last August.
When President Johnson launched his war on crime, he linked it to the war on poverty and stressed the need to address the root causes of crime. But the root-causes approach, which called for addressing the crime problem by investing more in education, health, welfare, and other social and economic programs, not just law enforcement, lost out in public debates.
The conventional view accords conservatives a pivotal role in delegitimizing the root-causes approach. Murakawa, however, argues that race liberals were central actors in the turn away from root causes. Dating back to the 1940s, race liberals had consistently prioritized greater investments in law enforcement and neutral procedures over addressing the root causes of crime. Many—but not all—race liberals remained confident over the decades that establishment of a modernized, rationalized, and uniform sentencing structure and of professional police forces was the best way to combat crime and guard against the creation of a criminal justice system that was excessively punitive and excessively biased against minorities.
By the late 1960s, southern Democrats, Republicans, and some northern liberals had converged on important common ground with respect to the law-and-order question, according to Murakawa. For Republicans and southern Democrats, the expansion of civil rights fostered crime “by disrupting the harmonious segregation of the races and by validating black civil disobedience” (p. 14). For many race liberals, the incomplete civil rights agenda was the main cauldron of crime. Both explanations identified “blacks as default subjects in the crime problem” and thus generated support for a vast expansion of the law-enforcement apparatus, but for different reasons (p. 14).
Murakawa takes Gunnar Myrdal, President Truman, Senator Edward Kennedy (D-MA), and other race liberals to task for embracing the idea that the original sin of white individual prejudice was at the root of black criminal propensities. In doing so, the liberal law-and-order regime entrenched powerful notions of black criminality (p. 151). It also deflected attention away from the myriad ways that violence perpetuated by the state—whether by militarized police officers, or by prison officials largely immune from criminal charges or civil suits, or by prosecutors who casually dispense decades-long and life-long sentences, or by parole and probation officers who control the most mundane aspects of peoples’ lives—has continued to circumscribe the life chances of African Americans and other dispossessed groups in the United States and to render them second-class citizens. The intense national spotlight on instances of sensational violence in the South—including the 1955 murder of Emmett Till and the lethal bombings of black churches—drained political attention away from what Murakawa characterizes as the “routine violence of standard policing and legal incarceration” throughout the country (pp. 57, 67).
By the 1970s, combating the root causes of crime and discrimination was a distant secondary concern for many race liberals. By then, the two major political parties had come to align themselves in remarkably similar ways on the law-and-order question. These developments ushered in what Murakawa describes as “The Era of Big Punishment” in the 1980s and 1990s. She presents damning evidence of the complicity of race liberals in the passage of the signature punitive legislation of the Reagan and Clinton years. She charges that the Democratic Party’s punitive turn entailed a deliberate distancing from racial egalitarianism. The punitive turn gained such traction largely due to the institutional legacies from the law-and-order crusades that began in the 1940s.
The First Civil Right is a fresh and compelling account of the origins, development, and lasting consequences of the carceral state. Indeed, it is a shining example of many of the hallmarks of what was once the exceptional niche that scholars associated with historical institutionalism and American political development carved out a generation ago: a willingness to tackle big, important political questions that often have enormous public policy and normative implications and that cannot be neatly sliced and diced; a high tolerance for answers that are sometimes messy and often not parsimonious; a healthy skepticism toward the neat and conventional periodizations that bookend political moments like the “the law-and-order era”; use of some basic analytical tools and frameworks from history, politics, and sociology in order to illuminate an important political phenomenon or problem but not necessarily to develop a grand theory of politics; a foregrounding of substance over methodology; and, finally, an enthusiasm for tackling what Ira Katznelson once described as the “silences” in the study of politics and public policy, especially the complex and intersecting ways in which race, class, ethnicity, and gender have altered the course of American political development (“Rethinking the Silences of Social and Economic Policy,” Political Science Quarterly, 1986).
Murakawa’s book is a poignant reminder of what has been increasingly lost, as a display of mixed methods has in many instances become the price of professional admission for scholars of historical institutionalism and American political development. This has meant, in many cases, the sacrifice of what had once been so distinctive about historical institutionalism and its approach to the study of American politics. It has entailed a slide down the slippery slope of posing smaller questions that can be nailed with methodological rigor but that yield neat but “so what” conclusions. Fortunately, Murakawa has defied these trends and written a big, important book on the carceral state that will be a touchstone for discussions of race, liberalism, and penal reform for years to come.
While Murakawa focuses on the politics and ideologies at the elite level that built the carceral state, Lerman and Weaver are primarily concerned with the “lived experiences” of the millions of people caught up in the carceral state. They call for expanding our analytical gaze beyond the 2.3 million people sitting in jail or prison today to encompass the tens of millions of other “custodial citizens.” The overwhelming majority of these people have never been found guilty of a serious crime or indeed of any crime. They include people who have been stopped by the police but never arrested, or arrested but never charged, or charged with a minor offense like loitering or graffiti or public drunkenness that in another era would have been overlooked or mildly sanctioned. Lerman and Weaver put a much-needed human face on these millions of custodial citizens, who are often overlooked or demonized in public debates about crime and penal policy.
As the authors persuasively demonstrate in Arresting Citizenship, the vast number of custodial citizens and the vast controls and pernicious stigmas they must negotiate on a daily basis raise deeply troubling questions about the health of democratic institutions in the United States and about the character of the liberal state. Lerman and Weaver artfully mine a trove of general survey data and original interview data to document in mournful detail how millions of custodial citizens face powerful barriers to full citizenship that are largely invisible to the wider public but are politically, socially, and economically debilitating. The denial of core civil liberties and social benefits because of a criminal conviction, the deeply stigmatizing effects of contact with the criminal justice system, and the daily fear of being stopped by the police send a powerful negative message to custodial citizens. According to one of their interview subjects, the resounding message is: “We don’t really consider you a citizen. You look like us. You talk like us. You bleed like us. But you’re not really like us” (p. 125).
Many custodial citizens have a deep sense of political alienation. For them, the criminal justice system and the government are synonymous. As such, they describe their lives as if they were living in a semiauthoritarian country. They portray the government as a “nefarious force that was mostly impervious to their will and could rarely be held accountable for its actions” (p. 143).
These feelings have a basis in reality. Lerman and Weaver provide an excellent survey of the ways in which major institutions of the criminal justice system—the police, prosecutors, jails, and prisons—have increasingly failed to effectively balance the goals of coercion and responsiveness and to address the problems of crime and public safety while remaining democratically accountable (p. 61). Many of their interviewees know a lot about politics and have strong views about the government. But they recoiled from electoral politics (even when there were no formal barriers to voting) and many other acts of political expression. Reinforcing the findings of Cathy Cohen (Democracy Remixed: Black Youth and the Future of American Politics, 2010), Traci Burch (Trading Democracy for Justice: Criminal Convictions and the Decline of Neighborhood Political Participation, 2013), Alice Goffman (On the Run: Fugitive Life in an American City, 2014), and others, Lerman and Weaver describe the ins and outs of the ways that custodial citizens cope by pursuing a strategy of staying below the radar screen.
Black custodial citizens experience an additional layer of entrapment. Many of them subscribe to a complex racial narrative that is an impediment to the development of a collective consciousness to mobilize against the carceral state (p. 197). As the authors explain in Arresting Citizenship, “black custodial citizens seeking to make sense of racially inflected institutions and experiences are left struggling for a clear framework that integrates the ideology of personal responsibility with their lived experiences of structural disadvantage and racialized poverty” (p. 169).
Lerman and Weaver’s nuanced excavation of the origins and manifestations of this complex narrative in custodial citizens is one of the highlights of the book. Along with Murakawa, they take racial liberalism to task for enshrining the idea in public discourse that ending overt discrimination would soon end racial inequality and for rendering invisible the structural factors and implicit biases that keep a disproportionate number of African Americans ensnared in the carceral state.
Lerman and Weaver also take to task the long line of public figures, including some leading African Americans, who have stressed the preeminence of personal responsibility—not structural factors—in determining who climbs up the economic ladder and who is more likely to remain at the bottom and to run afoul of the law. Jails, prisons, and reentry and rehabilitation programs reinforce this message by bombarding custodial citizens with messages about the need “to make better choices” and “take responsibility for your life” (p. 168).
The carceral state is a deeply entrenched institution that is politically enervating, especially for the millions of people most directly damaged by it. Lerman and Weaver’s qualified optimism in their conclusion—that we may be at the cusp of an important turning point away from the carceral state—may not be justified. Murakawa’s pessimism may be more on the mark. So long as we fail to confront the damning fact that the bricks of racial liberalism were important building blocks of the prison beyond the prison, according to Murakawa, we will remain mired in administrative tinkering that leaves the carceral state largely intact.
