The American justice system is anything but just, especially for the poor and people of color. What has led to the U.S. having the largest prison population in the world? Does having more prisoners make us safer?
In this series, we will be taking a look at the issues surrounding our justice system, including: police budgets, militarization of police forces, bail, prosecutors and judges, etc., in an attempt to understand why we have gone so awry. Let’s begin with a brief history of how we got here.
Being tough on crime has long been a battle cry for politicians. The origin of tough on crime policies began with President Richard Nixon’s declaration of a war on drugs during a June 17, 1971 press conference: “America’s public enemy number one in the United States is drug abuse. In order to fight and defeat this enemy, it is necessary to wage a new, all-out offensive. I have asked the Congress to provide the legislative authority and the funds to fuel this kind of an offensive.”
Yet even as this might sound like a noble goal, the goals were anything but.
White House Counsel to Nixon, John Ehrlichman revealed the nefarious truth of Nixon’s war in a 1994 interview, which wasn’t published until 2016.
In the interview, Ehrlichman stated, “The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the antiwar left and black people. You understand what I’m saying? We knew we couldn’t make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did.”
And thus began decades of chaos. Billions of dollars have been spent, and the human toll is staggering. This was the nexus of mass incarceration, and the end of the American Dream for millions of families, predominantly people of color.
Subsequent presidents would add their own spin to the war on drugs, as the thinly veiled racist policies of being “tough on crime” became battle cries on both sides of the isle.
In October of 1986, President Ronald Reagan signed the Anti-Drug Abuse Act of 1986. This increased fines for drug possession, introduced harsh minimum sentencing guidelines, allowed for the seizure of assets, and increased funding to combat drugs at both state and local levels. This was on top of Truth In Sentencing (TIS) laws already in place that ensured longer jail time for prisoners by removing incentives for early release like good behavior credits or parole.
One of the harshest sections of the Act (21 U.S.C. § 841(b) (2000)) was the disparity of the treatment of crack cocaine versus powder cocaine. While possession of 5 grams of crack cocaine would net a person a mandatory minimum sentence of 5 years, it would take 500 grams of powder cocaine to get the same sentence.
Representative Daniel Lundgren (CA), who helped write the Act, admitted in 2010 that the 100:1 sentencing disparity was baseless, saying, “By the time we finished on the floor, [the sentencing ratio] was 100 to 1. We didn’t really have an evidentiary basis for it, but that’s what we did.”
It wasn’t just politicians feeding the hysteria of a crack epidemic: the media was feeding the frenzy with tales of woe that captivated a nation.
“When reporters discovered crack in the mid-1980s, coverage of the “epidemic” soon eclipsed all other stories from inner-city America. Newsweek called crack the most significant story since Vietnam and Watergate. Time labeled it the “issue of the year” in 1986. In the period from October 1988 through October 1989, the Washington Post alone ran 1,565 crack stories.
Suddenly this new form of cocaine, a drug whose addictive properties were compared to potato chips by Scientific American in 1983, was, according to Newsweek, “the most addictive drug known to man.” U.S. News and World Report called the crack problem “a situation experts compare to medieval plagues” and “the number one problem we face.”
All of these wild claims and knee-jerk laws were in complete denial of the actualities of crack, whose usage was actually in decline. In a perverse twist, the declines were seen to be caused by tough on crime attitudes and not on a natural decline in the use of the drug.
The inherent racism in these policies and stories cannot be overstated. Crack was cheap and seen as an inner-city drug, and powder cocaine was expensive and belonged to the mostly white party set. Of course, the 100:1 sentencing guidelines ripped through communities of color, and has had multigenerational effects that can still be seen today.
Even when addressing the wrongs created by the Anti-Drug Abuse Act decades later with the Fair Sentencing Act in 2010, Congress still took a ham-fisted approach. Instead of actually equalizing the penalties for the two different types of cocaine, they simply narrowed the gap from 100:1 to 18:1. A disparity that exists to this day, but will, hopefully, finally be dealt with by the Eliminating a Quantifiably Unjust Application of the Law (EQUAL) Act.
After Reagan and then President George H. Bush, and at that time Governor of Arkansas Bill Clinton, boldly tried to rehabilitate the Democratic party’s appearance of being soft on crime.
Clinton’s first step came during the 1992 Presidential race. In a gruesome display of “toughness” Clinton attended the execution of Ricky Ray Rector, a convicted cop killer. The problem with the execution was that Rector had shot himself in the head, effectively lobotomizing himself, after he killed Officer Bob Martin. Rector’s attorney, Jeff Rosenzweig referred to his client as a “zombie.”
As Governor, it was actually Clinton’s duty to stay the execution as it was illegal at both state and Federal levels to execute a person who is severely mentally incapacitated. The courts sided with the prosecution, and the execution was allowed to proceed. In ghoulish fashion, Clinton voluntarily attended the execution to signal his support of the death penalty. He had learned a valuable lesson in previous campaigns.
While Rosenzweig did not believe that Clinton was actually pro-death penalty, he describes Clinton’s conundrum: “Mr. Clinton was harshly criticized as being soft on crime in 1980, when he was defeated by Frank White, his Republican opponent, in his first re-election bid. Mr. Clinton defeated Mr. White two years later and has been re-elected three more times.”
One could argue that the stunt worked. Clinton won the Presidency, and continued what he started in Arkansas with the 1994 Violent Crime Control Act and Law Enforcement Act, or more simply put, the 1994 Crime Bill. Despite the fact that violent crime was on the decline, the effects of the Crime Bill would be catastrophic.
According to the US Department of Justice, the Crime Bill provided a massive $9.7 billion to states to build jails, and $6.1 billion for crime prevention programs “designed with significant input from experienced police officers.” The bill also originated the “three strikes” rule, which saw automatic life sentences given to any person with two prior violent convictions after their third conviction. It also provided grants to bolster TIS laws, thus ensuring longer prison sentences for violent offenders as well as creating sixty new death penalty offenses.
While signing the bill, Clinton leaned on erroneous rhetoric about rampant gang violence. At the time, he said, “Gangs and drugs have taken over our streets and undermined our schools. Every day we read about somebody else who has literally gotten away with murder. But the American people haven’t forgotten the difference between right and wrong. The system has. The American people haven’t stopped wanting to raise their children in lives of safety and dignity.”
What children and families was President Clinton wanting to protect? How did ripping apart families with aggressive and draconian crime policies protect families? The hard truth is that these laws were enacted to protect those who were predominantly white. America has a long history of demonizing black men, and the American media has a rapacious appetite for feeding into those myths.
In a 1996 speech in support of her husband’s bid for a second term, Hillary Clinton famously used the term “super predator” to describe young, black men. “They are not just gangs of kids anymore. They are often the kinds of kids that are called ‘super predators.’ No conscience, no empathy. We can talk about why they ended up that way, but first we have to bring them to heel,” she said. However, Hillary didn’t create the term.
The idea of the super predator can be attributed to John DiIulio, a Princeton University professor. Writing for the conservative Weekly Standard in 1995, DiIulio theorized that black juveniles were “radically impulsive, brutally remorseless youngsters, including ever more preteenage boys, who murder, assault, rape, rob, burglarize, deal deadly drugs, join gun-toting gangs and create serious communal disorders,”
The media sensationalized DiIulio’s claims, and the American public lapped it up. Tough on crime laws were seen as the only way to keep people safe. The combination of racist theories like DiIulio and decades of disproportionately applied laws have devastated communities of color, and this series will look at the consequences.