The Role of Politics in Crime Policy

Two scholars of criminal justice recently observed: “Criminologists and sociologists rarely make the political dimension of crime policy a principal concern, and political scientists almost never do.”Footnote ² I begin with the selective accounts that have begun to fill the vast lacuna of the political science of punishment. Marie Gottschalk's recent book centralizes the role of early developments and crusades against crime in leading to the building of the “carceral state”; she argues that each of these crime campaigns (and the social movements with which they interacted) left behind institutional residues which would enable later developments.Footnote ³ While race is mentioned, its influence is underwhelming and often completely overlooked. In showing how social movements conditioned the latest crime campaign, the civil rights movement is barely mentioned. While Gottschalk ably puts the lie to the notion that law and order campaigns were a recent phenomenon, this point comes at the cost of underestimating the genuine distinctiveness and importance of the crime policy changes that occurred starting in 1965, which ushered in a truly new scale of imprisonment. Unlike past episodes, the latest crime campaign launched the United States to the world record for incarcerating the largest proportion of its citizens.

David Garland's book also provides a long historical perspective. In this work, social, cultural, and economic developments of “late modernity” greatly weakened the penal-welfare state.Footnote ⁴ A complex, all-encompassing set of macrohistorical and societal factors—including but not limited to women entering the labor force, modernization of capitalist production, demographic changes and suburbanization, changes in family structure and divorce, and technological advances in the media (particularly the rise of television)—together are responsible for both more crime and more incarceration. Through this oversimplification, the primary actor is society itself and every change that characterized the latter half of the twentieth century; in short, the theory is overdetermined and offers a very loose framework for how social disorganization created insecurity and general anxiety about disorder to the detriment of laying out more proximate mechanisms behind policy change and legislative activism on crime.

Jonathan Simon's recent book, Governing Through Crime, refines the generality of Garland's thesis and is not beset by Gottschalk's failure to recognize the true distinctiveness of the post-1960s crime mobilization. Simon argues that the United States has created a new political order and mode of governance that is structured around crime and the fear of crime; crime has become “a, if not the, defining problem of government.”Footnote ⁵ Governing through crime has become the dominant mode—whether in managing crime risk, valorizing the victim in political discourse, or in using crime as a legitimate reason for action in other domains. While Simon's focus is different—the consequences of this reordering and transformation for democracy—his account compellingly highlights the political dimension of crime politics and the ways institutions and governance were transformed by the various “wars on crime.” Using original historical counterfactuals, Simon convincingly demonstrates that crime was the path of least resistance for government intervention and innovation and the crime problem actually became a “solution” to the problem of governance left by the New Deal. Through his account, we see how crime legislation during the 1960s was not simply legislation but was critical in the forging of a new governing coalition and in presenting crime as a priority for government. In his words, “That legislation and the metaphoric mapping of American society it promoted remain, I would argue, the dominant interpretive grid on which governable America is known and acted upon by government officials at all levels.”Footnote ⁶

Several scholars have advanced the idea that crime policy transcends the instrumental logic of reducing crime and is better understood as deeply symbolic. The overarching theme in these accounts is that crime is a symbol for other societal anxieties.Footnote ⁷ Scheingold argues that crime policy is a “product of political decisions rather than moral or functional imperatives.”Footnote ⁸ In a similar vein, Morone and Meier argue that crime and drug policy exist in the category of “morality politics,” or “policies that redistribute values rather than income.”Footnote ⁹ Race is the axiomatic example. Racial motivations take a central place in the crime drama, particularly for Katherine Beckett, Bruce Western, and Naomi Murakawa.Footnote ¹⁰ In addition to his economic account of the prison, sociologist Bruce Western argues that “the prison boom was a political project that arose partly because of rising crime but also in response to an upheaval in American race relations in the 1960s.”Footnote ¹¹ Katherine Beckett presents a similar argument: “In short, the creation and construction of the crime issue in the 1950s and 1960s reflect its political utility to conservative opponents of social and racial reform.”Footnote ¹² Beckett identifies a relationship between the initiative of elites and the media and changes in public opinion. Natalie Murakawa's research goes even further in theorizing about the connection between crime and race. She posits a “race-laden electoral connection” in which crime policy is developed in a context where parties and legislators have incentives to proffer racial framings of the crime problem, and because the costs of the policies are “racially concentrated,” there are few checks on the “punitive bidding wars” that result. Murakawa's account is a unique contribution of how racial power in the U.S. intersected with electoral incentives to create a durable punitive framework. Unlike other accounts, she presents an aggressive account of why crime policy is tied to race and in locating the importance of how crime was framed in the 1960s, providing a rich description of problem framings and party convergence.

While Murakawa, Beckett, and Western all consider the civil rights era an important moment in the development of punitive crime policy to different degrees and make bold claims about the racially inflected motivations of elites, why that is the case is not altogether clear and there is a mismatch between the scale of their claims and the research to support it, a mix of thick descriptive anecdotes and quantitative analyses that skip over the process of change. Their research contains a similar view of the manner in which crime was framed in congressional legislation during 1960s. Indeed there are symmetries between our accounts and the emphasis we place on critical factors—changing crime discourse, the importance of elites, and the emboldened federal role. The key difference is that while they assert a connection of civil rights agenda to crime, that connection is underspecified.

All pay attention to this historical moment and to how legislative incentives are molded by race, yet the question of “why the 1960s?” remains undertheorized. Why did race come to matter when it did? For instance, Murakawa hypothesizes that “mandatory minimum statutes will increase with the waning political power of civil rights agendas”; however, her quantitative analysis, while quite original, does not bring us near that conclusion, finding only that mandatory minimums are related to the electoral cycle. Simon asserts that civil rights was a very probable issue for “recasting New Deal governance” but that it was “stymied easily when the crime agenda decisively sprinted ahead,” without considering the possibility that these two developments were not merely coincidental.Footnote ¹³

I contend that these accounts are important first steps in theorizing the role of race in crime policymaking, and their ambiguity is the motivation for a deeper investigation. These accounts highlight the political dimension of crime policy and the role of race, but they hesitate in fully articulating just how and why racial conflict came to matter in shaping criminal justice, at which part of the policy process it came to matter, and the particular mechanisms that are driving the outcomes; without an adequate theory, they fall short of empirically testing their instincts. This article continues in their path by deepening the mechanisms in their accounts and bringing into historical conversation the path of criminal justice and civil rights. Rather than being seen as critical of these accounts though, I use them as stepping stones to further our understanding of the political development of crime policy. I pause longer at the historical moment they identify, and, in so doing, find a more complex and nuanced developmental process.

The idea that conservatives used race and crime in strategic ways is neither novel nor unique to the criminal justice literature; research on the civil rights era oft mentions law and order and Nixon's southern strategy. Although not specifically concerned with explaining criminal justice, several historical accounts and one important recent work acknowledge the linkages between social change in the 1960s and repressive responses.Footnote ¹⁴ In his historical account of “law and order,” Michael Flamm centers race and civil rights in the analysis: “For conservatives, black crime would become the means by which to mount a flank attack on the civil rights movement when it was too popular to assault directly.”Footnote ¹⁵ Other scholars have shown how crime has become a racial codeword, strategically employed by vote-seeking politicians.Footnote ¹⁶ The strong association of crime with blacks leads one scholar to note that, “later discourse about crime is discourse about race.”Footnote ¹⁷ However, within political science, racialized framings are treated as simply a rhetorical appeal without lasting policy implications. One must look to other policy domains, particularly welfare, for research on how race has affected the development and politics around policies.Footnote ¹⁸

The remainder of the article investigates the process of problem definition and the considerations that went into policy change. But the most obvious explanation for why crime came to the center of the agenda is that crime got much worse. The accounts discussed earlier share a common feature: they dismiss crime outright as a potential explanation, but the grounds on which they refute crime are shaky. Most base their claims on the axiom of criminological research—that there is virtually no empirical correlation between crime trajectories and incarceration or between the incidence of crime and public concern with crime.Footnote ¹⁹ While I agree with this thesis, I propose a different explanation for what motivated policy changes. Proponents of the crime-is-not-cause congregation raise a panoply of illustrative evidence. Incarceration steadily increased during the 1970s, 1980s, and 1990s, as the argument goes, regardless of whether crime was rising or falling. Crime was rising long before incarceration started to increase. Moreover, according to this argument, variation in crime among the states does not explain variation in state imprisonment. In showing the crime rate to be largely orthogonal, extant studies have focused on the crime-incarceration and public opinion-crime linkage, not crime-policy change. However, studies where incarceration is not the dependent variable have found an effect of crime; for example, the national budget and congressional activity are responsive to changes in crime.Footnote ²⁰ Other accounts not only challenge the influence of crime, but reject the rise in crime in the 1960s altogether. Evidence for this bold claim is questionable, usually resting on the fact that crime increased steadily after WWII so that the increase during the 1960s continued an upward pattern that was not distinct from the 1950s.Footnote ²¹

While it is true that criminal justice legislation has not responded mechanically with fluctuations in crime rates, in their eagerness to dismiss crime, they have thrown the baby out with the bathwater. The above points are useful but not to conclude that crime is wholly inconsequential; a more fruitful discussion is to understand why crime came to be politicized in the 1960s and not before and unearth the full quilt of motivations embodied in its being elevated to a the status of major national problem. In other words, in refusing to attribute any role to crime, these studies are forced into the same zero-sum framework they attempt to challenge. As Figure 2 demonstrates, crime rose steeply in the 1960s, particularly property-based offenses. Indeed, as I discuss later, crime statistics were by far not the objective measure of actual crime and were often tweaked. So it is possible that the crime figures were untrustworthy. Setting aside the accuracy problems in gauging crime, crime can matter in a host of other ways and the perception of a crime wave can be even more important than reality. Media can facilitate a fictitious crime rise through biased coverage or highly visible crimes, politicians can signal the importance of the problem by alluding to crime in their campaigns, and the resolution or ascendance of other issues can give disproportionate influence to the issue of crime.

Source: Sourcebook of Criminal Justice Statistics Online (www.albany.edu/sourcebook/1995/wk1/t3103.wk1), Table 3.103: “Estimated number and rate (per 100,000 inhabitants) of offenses known to police, by offense, United States, 1960–2001.” Based on the Uniform Crime Reports.

Fig. 2 The Crime Rate Overtime by Offense Type, 1960–2001.

I agree that crime is not the primary explanation; however, I part company with the accounts that argue that its tenuous relationship to punishment is simply because it has no link to incarceration or that the crime problem was overestimated. Crime did rise quite substantially and the homicide rate, by far the most unbiased measure of violent crime, saw a precipitous rise. Demographic changes and technical innovations in crime reporting ensured that even without society becoming more violent, crime would have still been a serious problem. Mine is a different argument—that crime is a partial explanation that cannot fully explain the ways in which the problem was addressed. I do not dismiss crime. Much like the actual presence of Communist affiliates in the anticommunist frontlash against unions and New Deal policies—a case I discuss below—crime was a rising problem in the United States; however, it also operated as a symbol for other motivations. The question is not just whether crime was a rising problem, but what factors best explain the way it was defined and why understandings and approaches changed and subsequently, why the policies to deal with crime departed course. Crime might have been rising, but the primary catalyst was to be found elsewhere. Without elite goals and shift in power, crime and violence were merely objective conditions. Deep investigation into how the issue was framed and negotiated in the political process provides crucial insights into when and under what conditions crime came to be an urgent social problem.

Several factors cast a doubtful shadow on the intrinsic value and singular role of crime in shaping the agenda. First, crime was rising for almost a decade before it was defined as a problem in the machinery of politics, which serves as an important reminder of Blumer's point that social problems are attached to processes of collective definition.Footnote ²² Second, crime can be addressed in a variety of ways—from more prevention to more punishment. The simplistic assumption that increases in crime are behind changes that led to increasing prison populations ignores the politicization of the issue, how target groups were socially constructed, and elite incentives and agency. A crime boom might explain heightened attention to the issue but only goes part of the way in explaining the punitive path and expansion in federal authority. Crime is not divorced from other factors that affect its politicization; only a naïve observer would conclude that other crime campaigns were solely about crime. Would one be comfortable assuming, to draw on a few examples, that Prohibition was only about a rise in alcohol-induced violence, that concern over immigrant crime in the 1920s had nothing to do with anti-immigrant sentiment, or that the scare over cocaine-addicted blacks during the 1920s (or the modern war on drugs) was singularly motivated? Conversely, the historical record is replete with cases when crime rose but was not followed by punitive legislation or a national campaign, including rising crime in the post WWII period.

So while crime does figure in the story, it is not the main character. Crime did rise and it does matter, but two additional factors suggest that it was not the sole motivation: (1) criminals began to receive longer sentences for the same crimes in the United States (2) the risk of incarceration increased steeply.Footnote ²³ Therefore, somewhere in the process of policy adoption, legislators decided to punish the same offenses more. I will devote much of the following to exploring the motivations for policy. Mine is an argument not about whether crime rose, but on how it came to be defined and politicized.

To cover the expanse of literature on why punitiveness has become gospel, it would take an encyclopedic treatment, which is not my purpose. This article seeks not to prove existing accounts wrong, but rather to expand them both in theoretical and empirical depth. To do that requires the articulation of a theory that does not isolate crime policy from the political agenda or from other policy domains. In so doing, it becomes clear that existing accounts are not so much wrong as seriously incomplete.

Toward a New Theory

To explain this developmental process in criminal justice, I advance the notion of frontlash, or the process by which losers in a conflict become the architects of a new program, manipulating the issue space and altering the dimension of the conflict in an effort to regain their command of the agenda. Frontlash hinges on the presence of winners and losers of a recent political conflict. In the aftermath, new norms are born and institutionalized, which “involves a shrinkage and rejection of positions that previously had been deemed acceptable.”Footnote ²⁴ But despite the score being settled on one conflict, losers do not disappear once defeated, nor do their ideologies. Rather, the losers seek to “preserve but also perpetuate the distribution of power emanating from those salient [past] political conflicts,” rendering the results of the past conflict fundamentally unstable.Footnote ²⁵ The dissatisfied parties seek openings to mobilize a new issue, alter the dimension of the conflict, or, in the terminology of social movement theorists, “shift the locus of attack.”Footnote ²⁶ Rather than defend the status quo ante then, losers propose new programs of action. By maneuvering into a new issue space and carving a new niche to mobilize around, the disadvantaged/defeated group opens the possibility of reversing its fortunes without violating established norms. If the issue definition is successful, it can manipulate the agenda in a way favorable to the interests of the losers and displace the prominent position of the old agenda issue. In addition to elite incentives catalyzed by defeat, an exogenous shock or dramatically altered environment can assist the mounting of a new issue campaign. Crises can provide opportunities to frame the introduction of a new problem, allowing the defeated group to “propose[s] a new interpretation of events” and “change the intensities of interest” in a problem.Footnote ²⁷ Finally, the losing actors from the previous struggle, though losing issue predominance, might remain in influential positions. Along with the articulation of a new issue problematic, entrepreneurs seek issue dominance by creating a monopoly on the understanding of an issue, associating it with images and symbols while discrediting competing understandings.

If the set of ideas is powerful enough and focusing events enlarge receptivity to it, the issue understanding can gain momentum and diffuse quickly, and frontlash will enter into its last stage—issue capture. Once one party in the conflict develops a monopoly on the understanding of an issue such that continuing opposition is a liability, “strategic pursuit” will usually ensue; in seeking to avoid blame, the disadvantaged side will position themselves nearer rivals despite this being outside their “zone of acceptable outcomes.”Footnote ²⁸ However, strategic pursuit can be a “perilous strategy” because it signals endorsement, narrowing the set of alternatives and discounting early conceptions; thus, it may further instantiate the issue understanding and proscribe policy options.Footnote ²⁹ Once the issue is captured, “secure policy subgovernments can and do build up around particular issues.”Footnote ³⁰

I show how frontlash occurred in crime policy, a critical episode in the development of criminal justice outcomes in the United States. The 1964 Civil Rights Act ended the “world's most developed system of racial servitude” and institutionalized strong norms of racial equality.Footnote ³¹ As Crow had loosened its clutch, leaders of the old paradigm remained and sought to enlarge and shift the conflict strategically. They mobilized a new form of resistance, shifting to a new policy domain by moving crime and criminal justice to the agenda. Two focusing events—crime and riots—facilitated mobilization of the issue. The violent insurrections that swelled in the mid- to late-1960s created an opportunity to sharpen the connection of civil rights to crime. Strategic policymakers conflated these events, defining racial disorders as criminal, which necessitated crime control and depoliticized the grievance. Although tinged with racial subtext, this causal story did not disturb the newly institutionalized egalitarian precepts. Conservatives pitted toughness on crime against vigorous advocacy of civil rights by building a durable connection between black activism and crime. The liberal social uplift approach atrophied under the weight of this powerful doctrine. Sandwiched between two traps—being soft on crime and excusing riot-related violence—liberals had to forgo their ideal outcomes and moved closer to the conservative position. They engaged in strategic pursuit, emulating the conservative issue understanding, implicitly endorsing the linkages conservatives had drawn. This vindicated the conservative law-and-order doctrine and deepened the association between crime and racial discord, and ultimately, collapsed the liberal alternative for dealing with root causes. Once partisan consensus emerged, the elite countermovement was able to eclipse the dominance of the civil rights issue, assaulting it not from the segregationist platform but where it was weakest. Strategic entrepreneurs thus used the crime issue as a vehicle to advance a racial agenda without violating norms, attaching the outcomes of old conflict (Great Society programs and civil rights legislation) to the causes of the new problem—the breakdown of law and order.

Revisiting the Backlash Narrative

This endeavor is principally geared at understanding the transformation of criminal justice in the United States, but in embarking on that exploration, it became clear that it was part of a much grander dilemma in racial politics in the United States and demanded a revision of traditional stories of race in post-civil rights America. By this point, it is evident that the frontlash framework is a critique of another literature and concept that has become doctrine in accounts of race and American political development.

Backlash is the politically and electorally expressed public resentment that arises from perceived racial advance, intervention, or excess. The backlash term was first used with regularity by journalists, political observers, and academics prior to and in the wake of the 1964 presidential election. Initially, it described the ‘Wallace phenomenon,’ or the strong support George Wallace received in the Democratic primaries of several Midwestern states and Maryland and especially in the major cities of these states.Footnote ³² It referred to working-class whites who shifted support to Wallace; thereafter, the label was applied to whites who deserted the Democratic Party to vote for Barry Goldwater. Later, scholars proffered what became termed as the backlash thesis (not to be confused with the earlier generic backlash label), which quickly became the orthodox view to explain the breakdown of the liberal New Deal consensus during the 1960s.Footnote ³³ According to this narrative, liberal excesses in the 1960s caused the middle American voter to snap back, which led to the conservative hegemony.Footnote ³⁴ The steady decline of liberalism in the post-civil rights era is explained by whites who were antagonized by the Democratic Party's espousal of “special interests,” especially minority groups. The “silent majority,” as they came to be referred to, rejected the encroaching racial liberalism.

Despite the great common sense appeal and parsimony of the backlash account, it is more of a descriptive narrative and pseudo-theory for describing anti-black feeling expressed via election outcomes than a specified theory. In other words, there are no accounts that fully theorize the backlash concept, when and under what conditions it occurs, and the distinctions between its varioius forms—policy, electoral, political, and general backlash. It is not clear, for example, where backlash comes from, whether a policy intervention is required, and what threshold of reaction must be passed to be considered a backlash. Much like the ambiguity around its origins and motivation, it is equally unclear what the ultimate aim or target of backlash is—repeal of an advance, desert a party who has gone too far to the extreme, revert to some prior status quo condition, or simply to register anger. One might wonder how backlash is distinct from a moral panic, racial threat, or symbolic racism exploited by elite appeals. The analytic and theoretic components of backlash have not been elucidated; rather, backlash has been volleyed around as a term for describing any negative reaction to a whole host of racial threats, perceived and real. This lack of empirical propositions for what constitutes a backlash has enabled an unspecified range—from withdrawal of support to outright violence—and an uncritical application of the term to a wide variety of groups and contexts—southerners, white ethnics, suburban whites, Midwestern Wallace voters, and working-class whites anxious over competition for jobs. It is therefore unclear which cases of racial conflict, if any, would not fall into this expansive and vague definition. In fact, we are not sure where backlash begins and ends and what the unique characteristics of backlash are.

This lack of clarity makes it a formidable task to distinguish concepts and raises doubts about the use of backlash as a conceptual tool. This can best be seen in the hasty way trends have been labeled backlash, when a case conveniently falls into the pattern of a negative reaction to any type of racial progress, combined with the inability to explain why other cases of racial advance do not fit the pattern. But the backlash account is flawed in another respect: the backlash thesis regards the transformation of politics as a fundamentally populist reaction. As a result, the backlash thesis overstates the degree to which a reactionary white electorate propelled developments verses elites. Based on a bottom-up view of growing disillusionment and inertia, this perspective gives total agency to undefined white masses, removing political initiative from elites and ignoring the incentives and opportunities that existed for an elite countermobilization and the new norms of racial equality they were bound by.Footnote ³⁵ It tacitly assumes that the developments that unfolded were driven by the mass public. Elites are often left out of the backlash story, and when they do appear, as in the Edsalls's account, elites are not formulating discourse or strategizing, they are onlookers with an eye toward anticipating public reaction, and acting accordingly. But why did the specter of racial change elicit such a reaction then and not other times—to the creation of minority majority districts for example? For the answer, we must turn to elites; in the latter example, it was not in the interest of conservative elites to argue against redistricting, because they benefited from it so there was little incentive to reframe the debate. In spite of these critiques, to fully understand frontlash it is useful to expound on the distinctions between frontlash and backlash and situate these concepts in regards to race.

We can think of backlash metaphorically as a bungee cord that snaps when stretched too far. In the more active account, seductive racial appeals catalyze the latent racial resentment of the white electorate. Backlash therefore entails a distinct tipping point; voters withdraw support or become sympathetic to more extreme voices when pushed too far. Backlash is a mass mobilization of white hostility to an intervention or in support of a candidate, the epitomizing case being the white vote for George Wallace in Wisconsin in 1964, or hostility against such policies as affirmative action or racial busing. While backlash came to represent a post-1960s phenomenon, racial backlashes are not specific to the post 1960s era. Based on an admittedly fuzzy definition, earlier examples might include backlash to the Brown decision that engendered the radicalization of southern whites and politicians, immigration reforms of the 1920s, or the 1863 New York draft riots.Footnote ³⁶

The key distinction then between frontlash and backlash consists in both the nature of the political reaction and the actors which carry that reaction to its conclusion. Backlash is reactive in a conservative dimension (aims to preserve the status quo and resist changes through emboldened opposition). Importantly, the main actors of consideration are the masses, the voting population which prompt elites to undertake certain policy positions with race in the foreground. Frontlash is preemptive, innovative, proactive, and, above all, strategic. Here, elites aim to control the agenda and resist changes through the development of a new issue and appropriation and redeployment of an accepted language of norms. The two conceptions also differ in terms of what might be a catalyst for their activation. For backlash, it is sometimes a policy, sometimes a candidate that stokes fears, sometimes broad civil rights developments that progress to uncomfortable levels for portions of the electorate. The catalyst in frontlash is defeat of longstanding political discourse or elite program.

Instead of a bungee cord recoiling when stretched too far, we can think of frontlash as water moving swiftly through a path that eventually comes to an end, forcing the water to seek alternative routes or as a weed that after being killed by weed killer mutates into a new variety, becoming resistant. It is strategic, alive, complex and sophisticated in its reaction. While racial/ethnic conflicts are good candidates because of the strong norms inherent to them, not all racial conflicts would necessarily result in frontlash. For example, the conflict over affirmative action did not result in a frontlash; rather it employed a prevailing norm—colorblind equality—to argue against “racial preferences” and “reverse discrimination.” The fervent anticommunism spawned by union centralization in the 1930s is a prominent example of frontlash. An increasingly activist government sympathetic to unions threatened the interests of business leaders and conservative legislators. This coalition strategically attacked a strong labor movement (and a supportive federal government) by connecting it to a “Red menace” and enlisting the fears of communist subversion, sidestepping issues of economic concern. Charging instead that workers' grievances were based on communist agitation, they argued for a crackdown on radicalism and labor unrest. These charges had some basis in reality; there were pockets of Communist Party affiliation in labor organizations including the CIO. Redefining the issue in terms of subversion rather than legitimate economic demands helped create an image favorable to business and shifted the dimensions of conflict. As the strategy developed, the American Legion, anti-labor business, and politicians on the Right claimed that Roosevelt's New Deal agencies had been infiltrated by Communists, discrediting the popular social programs. The House Un-American Activities Committee (HUAC) was created in 1938 to root out Communist Party influence. “HUAC's anticommunist investigations offered a more effective way to fight the New Deal than opposing its economic and social reforms.”Footnote ³⁷ Ultimately, this strategic issue redefinition and capture weakened the New Deal, liberalism, and labor unions.

By departing from backlash, I do not mean to impose a false dichotomy of terms, but rather, sharpen our view of elite incentives and thereby focus on a neglected history and important part of the conservative strategy. Rather than dismissing the backlash thesis writ large, frontlash revises and elongates the view of post-civil rights developments and brings into view developments that have been treated as merely coincidental. Without frontlash, we would mistakenly attribute the rise in incarceration to the much later war on drugs and fail to see how it developed out of the struggles of the 1960s. By sidestepping consideration of elite incentives, the backlash framework cannot explain the sudden mobilization of the crime issue and its connection to the rights revolution. It can explain why in the hundreds of articles and books on the Civil Rights Movement and its decline, there is comparatively little on its linkages with the issue that replaced it on the agenda and became a cornerstone of the conservative domestic program.

Frontlash adds another dimension to the backlash narrative because it can show how policies that usually are considered separately are actually part of same political history; developments in one domain can and do influence strategic decisions or new developments in another, ostensibly unrelated, sphere. In explaining the sustained shift in criminal justice then, my account unintentionally posits a different view of why the powerful civil rights agenda eroded.

The Political History of Crime Policy: From Great Society to War on Crime

Prior to 1960, federal involvement in crime and law enforcement was limited.Footnote ³⁸ Presidents rarely touched on crime in their public addresses or private messages; party platforms were silent on the issue. The federal government was proscribed from interfering in what was believed to be a state and local concern, only having jurisdiction in cases of treason and espionage, mail fraud, and counterfeit crime. The Department of Justice (DOJ) was a small entity which only prosecuted Internal Revenue Service (IRS) cases with an emaciated budget. Federal Bureau of Investigation (FBI) Director J. Edgar Hoover was the sole voice in this vacuum, fervently speaking about the mounting rate of serious crimes and predicting a further increase. He lamented the public's “submissive attitude,” saying “law enforcement has not yet attained the measure of public support it justly deserves.”Footnote ³⁹ He was partially right; the FBI reports showed that crime was increasing—it increased 66 percent in the 1950s—but there was little concern at the federal level. Rising crime rates in the 1950s, as far as we can take them as fact, were not initially followed by punitive legislation or a coordinated federal attack on crime.Footnote ⁴⁰ To the contrary, the only anticrime legislation that was passed in this decade concerned specific incidents—gambling and racketeering, crime in planes, obscene mail, and drunk driving.Footnote ⁴¹

This is not to suggest the federal government had never been involved in crime control. As Gottschalk documents, there were several other highly visible crime campaigns that resulted in “bursts” of federal attention: kidnapping, attention to immigrant crime in the 1920s, prohibition, Kefauver's highly publicized organized crime hearings all over the country, juvenile delinquency in the 1950s, airplane hijackings, and the heightened attention to crime and prostitution during the Progressive Era.Footnote ⁴² Hoover's Wickersham Commission (formally the National Commission on Law Observance and Enforcement) proposed a national effort to conduct research and improve law enforcement and overhaul criminal procedure. Indeed, many national leaders and presidents employed the crime issue before Goldwater and Nixon, including Teddy Roosevelt, Joseph McCarthy, and Estes Kefauver. However, none of these campaigns resulted in a sustained national program on crime. Gottschalk even notes that “in earlier periods, the state's skeletal criminal justice institutions kept a check on these moral crusades” and that “most of the penal reforms of this era were enacted and implemented by local or state authorities” even if they garnered national attention.Footnote ⁴³ As will become clear below, the 1960s crime campaign is set apart from the others in scope and impact. Figure 3 illustrates dramatic rise in legislative activity and federal financial commitment to crime and criminal justice over time. The scale of federal involvement was of a new magnitude and changes broke entirely new ground, establishing new precedents for federal action. The federal government had waged crime wars before, but never in ways that changed its role or shifted authority away from the state's constitutional powers to police.

Source: Based on data from Baumgartner and Jones Policy Agendas Project. Frank R. Baumgartner and Bryan D. Jones, “Policy Agendas Project,” National Science Foundation (NSF) grant number SBR 9320922; distributed through the Center for American Politics and Public Policy at the University of Washington and/or the Department of Political Science at Penn State University. Neither NSF nor the original collectors of the data bear any responsibility for the analysis reported here. See www.policyagendas.org (last accessed 14 Dec. 2005).

Fig. 3 Legislative Activity and Budget for Criminal Justice.

The beginning of the next decade continued in the same direction. Hoover called for the adoption of “stiffer laws and a more stern policy” but got instead legislation that expanded the rights of defendants and increased fairness in the system.Footnote ⁴⁴ Several Supreme Court rulings—Mallory (1957), Mapp (1961), Gideon (1963), Escobedo (1964), and later, Miranda (1966)—had focused attention on the rights of criminal defendants and significantly curtailed the admissibility of evidence and confessions. While these Court decisions were sharply criticized for “handcuffing the police,” bipartisan coalitions supported bail reform, indigent defense, and juvenile rehabilitation. These early priorities of the rights of the accused passed with minimal fanfare or controversy. Indeed, conservative congressional leaders such as Representative Roman Hruska (R–NE) and Senators James Eastland (D–MS), and Sam J. Ervin Jr. (D–NC) signed onto Attorney General Kennedy's Criminal Justice Act in 1964, which established the Office of Criminal Justice to oversee fairness in law enforcement and provided for a public defender system. However, this legislation did not make a significant change to criminal justice and its budget was fairly small. Attorney General Robert Kennedy created a Committee on Poverty and the Administration of Justice; its report found that poverty had a greater impact on crime than was commonly assumed and proposed solutions for improving the handling of poor defendants in court. Several preventative programs aimed at youth crime were begun as well as treatment programs, prisoner reentry, and the creation of Halfway Houses.Footnote ⁴⁵ Therefore, to the extent that crime was on the national agenda, it was geared toward fairness, rights of the accused, and organized and juvenile crime.

In its first two years, the Johnson administration was similarly indisposed to making crime a federal issue, characterized by a mixture of neglect, fairness, and root causes, with almost equal emphasis on each.Footnote ⁴⁶ The administration purposefully avoided making crime a federal problem, a responsibility that would put the government in the vulnerable position of making promises it could not keep and priming public demand for swift results. Johnson viewed crime as a problem of urban blight, poverty, and racial discrimination and as a result, placed a strong emphasis on understanding underlying causes. He argued that through a war on poverty, crime would be reduced, and was hesitant to establish a crime program for the national government. In 1964, Johnson aide Jack Valenti wrote a memorandum: “Very frankly, I disagree with … the formation of a Presidential Committee to study violence.”Footnote ⁴⁷ This passivity characterized the initial disposition of the Johnson administration.

In a striking break with this approach, the very next year, Johnson announced a “War on Crime.” To understand why, we must consider the emergence of the arguments of the crime entrepreneurs in civil rights debates.

Focusing Events: Riots and Crime

Two crises served to elevate the status of violence as a political issue: crime and riots. Just as the Law Enforcement Assistance Act was being passed, the August 1965 riot in the Watts neighborhood of Los Angeles dealt the first blow to the poverty approach. The most destructive riot in the twentieth century up to that time ended with 36 dead, more than 1,000 injured and 4,000 arrested, nearly 1,000 buildings burned, and 15,000 National Guardsmen deployed. A U.S. News and World Report headline captured well the contention that emerged with force: “Race Friction—Now a Crime Problem? … The turn: away from demonstrations and toward outlawry. For city after city, it's becoming a problem of crime control.”Footnote ⁷¹ A series of “long, hot summers” followed the events in Watts, with outbreaks in large cities to small communities, from Elizabethtown to Newark to Omaha. During 1967, 41 percent of cities with populations of more than 100,000 had experienced a racial disturbance, according to a national survey.Footnote ⁷²Figure 4 illustrates the sharp rise in riot activity between 1965 and 1969 and the resulting arrests and injuries.

Source: Based on data from Susan Olzak and Elizabeth West, “Ethnic Collective Action in Contemporary Urban United States,” data from 1954–1992. NSF proposal SES-9196229. Susan Olzak and Susan Shanahan. “Deprivation and Race Riots: An Extension of Spilerman's Analysis,” Social Forces 74 (1996): 931–961.

Fig. 4 Riot Incidents, 1954–1975.

Rising black insurgency coincided with another crisis, popular perceptions of the steadily rising crime rate. By virtually every official report, media account, or political speech, crime rose in the 1960s and continued to rise until the mid-1970s. The baby-boomer generation had come of age, adding millions of youth to the population. From 1958 to 1967, the adolescent population (those aged fifteen to twenty-four) went up 42 percent, the age group that is responsible for over half of index crimes, including violent offenses.Footnote ⁷³ One study found that if crime were calculated by taking into account the population in this age bracket and not the total population, the crime rate would have been stable. Simultaneously, increasing urbanization added millions to cities, which have historically experienced more crime. Figure 2 charts the trend in crime. In addition to actual rises in criminal behavior due to these natural demographic changes, there were several technical reasons for the bloated crime rates.

Crime statistics are based on the FBI's Uniform Crime Reports, compiled annually since 1930. The reports rely on thousands of local agencies voluntarily submitting their number of reported crimes (offenses known to the police). many jurisdictions had no systematic approach to reporting these data in place prior to the 1965 legislation's passing, and the proportion of those that did regularly report their crime rates increased steadily throughout the 1960s, which led to increased precision in the reports. Figure 5 charts the number of local agencies that submitted their reported crime to the FBI at least six months during the year; it steadily increases over these years, doubling from 1964 to 1985, and closely tracks the increase in crime. In addition to inconsistent reporting, police departments had incentives not to report poor crime rates, lest they draw the critical eye of J. Edgar Hoover. This incentive to tamper could have the could have had serious effects on crime: “it is doubtful that any large city has continuously participated in the Uniform Crime Reporting [UCR] program since 1930 without there having been some purposeful, major defection from UCR standards at some time during that period.”Footnote ⁷⁴

Source: Data on the number of agencies that submitted crime data was provided to the author by the FBI. The total crime rate is from the Sourcebook of Criminal Justice Statistics Online.

Fig. 5 Crime Reporting and the Crime Rate, 1964–1985.

In addition to reporting issues, the policy changes taking place in the mid- to late-1960s likely biased the historical trend in crime statistics. First, policy initiatives such as the LEAA aided the crime rate increase by professionalizing police departments, particularly rural jurisdictions, where, not coincidentally, crime rates climbed the fastest. As funds poured into local police departments and as pressure from the FBI increased, local manpower and technology for counting crimes improved dramatically. In addition to more police departments participating, the OLEA grants improved the quality of law enforcement and technologies available to them, increasing public confidence in police departments, which in turn meant that the public became more likely to report crimes during this time period.Footnote ⁷⁵ Second, these policies had switched the incentives of the now 40,000 police departments. Local police departments now had an incentive to inflate their crime rates because funding was contingent on need (a concern that was frequently voiced in the debates over the legislation); Attorney General John Mitchell later called this the “paper crime wave.”Footnote ⁷⁶ Therefore, the “official” reports were perhaps just as problematic after the passage of the 1965 Law Enforcement Assistance Act as before, but this time in the direction of overestimating crime.

People also became more likely to report certain crimes that were previously underreported, including rape. Some areas underreported crime more, particularly black neighborhoods and ghetto areas where police were reluctant to respond; greater attention to crime as a national issue and to inner-city riots ensured that a greater number of crimes in ghetto areas were recorded. Another factor contributing to artificial inclines in the rate of crime was the fact that, until 1973, the UCR counted only theft over $50 as “larceny.”Footnote ⁷⁷ The largest increase in the crime rate in the 1960s was in the category of larceny, which most experts agreed was due to the declining value of the dollar combined with the unchanged $50 that triggered a crime being reported as such. Finally, in deriving its crime statistics, the UCR used outdated census data, which led to spikes in crime at the end of the decade because population counts, the denominator, remained unchanged until the next census.Footnote ⁷⁸

Taken together, these factors resulted in estimates that were likely biased toward increasing trends, reflecting improvements in crime reporting rather than a scourge of crime. A combination of the vagaries of counting across disparate local law enforcement agencies, professionalizing at different paces, with the demographic realities of increasing urbanization and the baby boomer generation meant that finding the truth about the rise in the crime rate was nearly impossible. However, despite the large statistical nightmare that it presented, the fact of a crime epidemic was no longer disputed by 1965, and a steady flow of reports and journalistic accounts ensured that it was communicated to the public. Paradoxically, in addition to other exogenous factors, LEAA's passage in 1965 ensured the appearance of rising crime rates—the fodder which combined with escalating riot-related violence in the cities was used to call for more, and more draconian, policies.

The convergence of these critical factors altered the opportunity for establishing political advantage; elites leveraged these events to define a new issue, associate it with certain images and ultimately secure a monopoly on the issue understanding. The riots gave a rising crime rate new political currency. Mediated by elite goals, these conditions ripened the possibility of forming a new issue and increased the public receptivity to the original argument voiced in civil rights debates.

The Liberal Dilemma

The conservative countermovement thus presented a coherent problem definition based on depoliticizing and criminalizing the riots and racializing crime. This set of images created political traps for liberals. As they had in civil rights debates, liberal voices recognized the strategy of linking civil rights agendas to the problem of crime and tried to expose its racial character. The Washington Post headline characterized the allegation of liberals and black leaders: “‘Crime in Streets’ is Called Slogan to Curb Negroes.”Footnote ¹⁰⁸ Attorney General Nicholas Katzenbach was wary of the public hysteria that was being created around increasing crime statistics and their implied connection to the violent destruction being depicted on televisions throughout the country:

The [Civil Rights] Act, they say, has encouraged disrespect for the law in other parts of the country. Thus, a link is drawn between demonstrations for civil rights and crime in the streets. Riots in Harlem, or Rochester, or Philadelphia, are tied to rising crime rates.Footnote ¹⁰⁹

Presidential candidate Hubert Humphrey similarly argued:

Segregationists and some white conservatives use the riots as an excuse not to take the action for racial justice that they do not support anyway. They are very much afraid we will “reward the rioters,” as they say … . Ever since Watts, and particularly since Detroit and Newark, the discussion of equal rights has been distorted and sometimes even sidetracked by the very different issues of riots and civil disorders, of “crime in the streets' and ‘law and order.” … It is dangerous nonsense to believe that social progress and a respect for law are somehow in opposition to each other.Footnote ¹¹⁰

However, because the new conservative doctrine had worked vociferously to conflate crime and civil disobedience, with its obvious extensions to civil rights, liberals were forced to walk a tightrope. The liberal position was wedged in a trap—either refute the conservative paradigm, arguing that riots were legitimate expressions of deplorable inner-city conditions, which risked the appearance of sanctioning violence and doing permanent damage to the civil rights agenda, or seek to avoid blame for the riots by presenting a strong case for their distinction from civil rights protest. They pursued the latter strategy.

Liberals tried to project the message that riots were not part of a legitimate articulation of racial discrimination, for fear that the violent nature would hurt their civil rights agenda and create a backlash among previously supportive groups of whites. Black leaders submitted a collective statement printed in the New York Times in 1964 distinguishing between rioting and “legitimate protest.”Footnote ¹¹¹ In 1966, another group of nationally prominent black leaders, including A. Philip Randolph, Dorothy Height, Bayard Rustin, Roy Wilkins, and Whitney Young, Jr. published a statement in the New York Times repudiating violence while endorsing criticism of poor conditions in the ghettos.Footnote ¹¹² LeRoy Collins, formerly the head of the Community Relations Service of the DOJ, also tried to distinguish riots and protest: “We don't want to associate civil rights with this kind of lawlessness.”Footnote ¹¹³ And Attorney General Nicholas Katzenbach: “To call them [riots] ‘racial’ problems is not a solution but a slogan. What is worse, it is wrong.”Footnote ¹¹⁴ President Johnson put the point more bluntly: “A rioter with a Molotov cocktail is not fighting for civil rights any more than a Klansman with a sheet on his back and a mask on his face.”Footnote ¹¹⁵ By making these claims, liberals implicitly argued that the urban violence was not part of a larger social ill and that riot participants were common criminals, confirming the conservative claim.

The conservatives had offered an uncompromising position on crime and lawlessness. In contrast, the liberal alternative was to mix the call for law enforcement with more sobering pleas for social uplift. At a meeting called “Order and Justice” in September 1968, one participant characterized the conundrum: “We can't compete with Nixon and Wallace on law and order. But we're going too far on the justice emphasis. Let's emphasize order and justice.”Footnote ¹¹⁶ Ultimately, this emerged as the liberal alternative in an attempt to counter the popular conservative slogan with their own moniker—“law and order with justice,” an ambiguous position that tried to serve two masters. Liberal leaders tread this thin distinction, arguing that while we must act against violence and “put down” riots, there must also be consideration for continued progressive measures toward equality and programs to lessen unemployment and poverty. This message was not easily accessible to the public and stood in stark contrast to the seamless conservative message. The incoherent position left liberals precariously straddled across two sides that were increasingly polarizing. Conservative Republicans and southern Democrats attacked this alternative with the appeal that liberal politicians were permitting criminality to flourish under the guise of poverty and disenfranchisement, camouflaging ordinary crime as dissent, and “pussyfooting” on the issue of crime and riots. Nixon exposed this weakness in his “Toward Freedom from Fear” speech:

There is another attitude that must be discarded if we are to wage an effective national war against this enemy within. That attitude is the socially suicidal tendency—on the part of many public men—to excuse crime and sympathize with criminal because of past grievances the criminal may have against society.Footnote ¹¹⁷

Republicans launched a harsh criticism of the Democrats in their 1968 pamphlet entitled “Crime and Delinquency—A Republican Response.” Among the many criticisms, one of their strongest was against the Great Society approach: “The Johnson-Humphrey Administration has proposed its standard ‘great society’ answer to the problem—Federal money and Federal controls … but too many factors indicate that improved economic and social conditions alone will not reduce crime.”Footnote ¹¹⁸

Had the crime problem not been accompanied by riots and racial unrest, a root causes approach might have been favored, as the direction of the 1950s suggested, and the crime-race argument that racial conservatives employed would have been easily exposed as a racial ruse. Wracked by riots, the terrain had become hostile to the liberal root causes position—or, as Hoover maintained, society was “beginning to gag on the steady sociological diet of excusing the conduct of teenage hoodlums because ‘society has failed them’.”Footnote ¹¹⁹ The Democrats were split between holding fast to this position and moving rightward, while conservatives were unified. As civil rights was increasingly tied to criminality, the costs of defending civil rights and claiming poverty and unemployment as causes of riots was becoming clearly felt. Liberals engaged in strategic agreement, endorsing the conservative issue definition and policy program (see Figure 6).

Source: Author's compilation. Text of the party platforms was from the Public Papers of the Presidents, available in digital format: John Woolley and Gerhard Peters. The American Presidency Project [online] (Santa Barbara, CA: University of California [hosted], Gerhard Peters [database]). Available at http://www.presidency.ucsb.edu/ (last accessed 6 Aug. 2007).

Fig. 6 Democratic Party Agenda on Civil Rights and Crime.

Ultimately, liberals betrayed their early solidaristic calls for social reform and warring on poverty and, by the end of the 1960s, they began downplaying underlying causes, arguing instead for more gun control. Not in small part due to several defeats—Democrats had lost 12 million voters between 1964 and 1968—the early emphasis on poverty and social conditions faded. By 1968, Democrats had aligned themselves with the “law and order” program and were trying desperately to mimic the Republicans. The Democratic platforms during this time period demonstrate how increasingly indistinguishable their position was from the Republicans. The Democratic platform in 1956 contained a mere three sentences on law enforcement; the 1960 platform included only one additional sentence (dealing specifically with organized crime). By the next election, the issue was beginning to rise in importance: “We cannot and will not tolerate lawlessness. We can and will seek to eliminate its economic and social causes.” While crime is no longer ignored, the platform also firmly set out the idea that through eradicating poverty, crime would likewise diminish. The only mention of stricter punishments was focused on the unlawful behavior of employers who discriminate. The 1964 platform highlighted two pieces of legislation—the Juvenile Delinquency and Youth Offenses Control Act of 1961 and the Criminal Justice Act of 1964—that were aimed at preventing youth crime and making sure poor people were adequately represented in court, respectively. By 1968, the Democratic Party was clearly beginning to recognize the costs of being seen as supporting lawbreakers and the root causes commitment had faded. The program included a much fortified discussion on the problem of crime and strong critique of dissenters who use violence and pledged a “vigorous and sustained campaign against lawlessness in all its forms.” Meanwhile, Robert Kennedy campaigned for the Indiana primary by voicing his opposition to crime and Humphrey sought the Minnesota primary on law and order.

By the 1970s, the root causes argument had been eliminated in favor of echoing and reinforcing the connection between crime and civil rights, rendering Democrats virtually indistinguishable from their conservative counterparts. For one example, Senator Ted Kennedy (D–MA) echoed the conservative line: “Along with the civil right to vote, go to school, and have a job is the right not to be mugged, robbed, or assaulted.”Footnote ¹²⁰ Polls suggest that, by 1970, people viewed the two political parties as roughly equivalent on crime control. In response to one Gallop survey question on the issue—“which party—the Republican or the Democratic—do you think can do the better job of dealing with crime and lawlessness?”—the majority of respondents saw no difference or had no opinion (44 and 11 percent, respectively), while only 4 percent more respondents believed the Republican Party would do a better job on crime than the Democratic Party (24 and 20 percent, respectively).Footnote ¹²¹

When policy images are accepted and one side develops a monopoly on the understanding of an issue, they constrain the policy choices available. In the next section, I offer a detailed account of the way the problem definition and process of strategic pursuit manifested itself in crime laws. Not only did the liberal approach begin to come apart at the seams, administration proposals would again and again collide into a conservative-controlled committee. Constrained by public opinion, many liberals in Congress admitted to voting for some legislation to prevent other, more punitive legislation from passing.

Establishing a Monopoly: The Ascendance of Law and Order

After the “long, hot summer” of 1967, where riots occurred in 120 cities, it seemed the “Great Society” had given way to lawlessness. By the end of that summer, there had been at least 150 violent racial disorders spread across 128 cities, resulting in 118 dead, 4,000 injured, about 10,000 arrests, and millions of dollars of property damage.Footnote ¹²² The National Guard had been mobilized twenty-three times and on one occasion U.S. Army troops were deployed. Many perceived the nation as gripped in a state of rebellion (Figure 7).

At the same time, the public believed they were beleaguered by crime. Crime and lawlessness was the top issue to the public in 1968 for the first time since the 1930s, according to the Gallup poll, and about half of the public believed crime was increasing (compared to only 3 percent who said decreasing).Footnote ¹²³ The next year, 88 percent of people felt that the problem of “crime in the streets” should have a “great deal of attention paid to it (Figure 7).

Note: Special stamp issued in 1968 (unveiled at the White House on May 17, 1968).

Fig. 7 Law and Order postage stamp.

”Footnote ¹²⁴

By the time the National Advisory Commission on Civil Disorders (commonly known as the Kerner Commission) issued its report in 1968, the “end poverty and discrimination” appeal fell on deaf ears. Not only was it no longer an approach to crime and an excuse for permissiveness, some in Congress argued that further aid to ghettoes would capitulate to the riots; many assistance programs were cut including the rent supplement program, or dwindled down like the Model Cities program. The Kerner Report warned that without social reform, the riots would only get uglier and incorporate mainstream blacks.Footnote ¹²⁵ One of its authors, New York City Mayor John Lindsay warned: “The only certain change will be that next summer, all of it will be worse—more festering, more inflamed, and infinitely more perilous.”Footnote ¹²⁶ The Kerner Report was heavily criticized for blaming mobs and violence on white racism. Conservatives in the Senate Committee on Government Operations introduced a resolution to conduct their own investigation of “crime and lawlessness” sponsored by John McClellan:

Although the committee recognizes and commends the action taken by the President in appointing a Special Advisory Commission on Civil Disorders, it is the consensus of the Rules Committee members that the spate of riots and civil disturbances which have occurred throughout the Nation during the last few weeks places a corollary responsibility on the Senate to conduct its own investigation.Footnote ¹²⁷

There were still those who argued that an attack on poverty was the means through which crime should be thwarted, but they were now in the minority. John Sherman Cooper (R–KY) proposed an amendment (which was ultimately rejected) to the Senate resolution to incorporate a “study and investigate the extent to which economic or social causes have bearing on such disorders, the community attitudes toward such causes,” and urging the other senators to “consider also their grievances, their conditions, and that the Congress intends to move urgently to correct them.”Footnote ¹²⁸ Southerners held key positions on both the District of Columbia Crime Committee and the Judiciary Committee and conservatives dominated the Senate Subcommittee on Criminal Procedure, which was chaired by John McClellan. Ramsey Clark noted that McClellan was “so terribly strategically located”:

He was chairman of the Subcommittee in Judiciary, the second ranking man on the Judiciary, had the complete support of the chairman, Senator Eastland. He was also the chairman of our Appropriations Subcommittee so that literally on occasion we would adjourn a subcommittee meeting on the authorization … and Senator McClellan wouldn't even get up out of his seat.Footnote ¹²⁹

Realizing that the riots were costing him votes, several of Johnson's advisors pushed the president to “start acting less like a social worker and more like a cop.”Footnote ¹³⁰ However, they also saw the potentially disastrous consequences of promising the public more than it could deliver on crime and riots: “it is very important not to identify crime as a Presidential problem but as a local problem he is helping Governors and Mayors to solve … . So let's not do anything to raise crime's rating as a national problem.”Footnote ¹³¹ Turning his back on recommendations from Warren Christopher and Ramsey Clark, Johnson instructed Joe Califano to include a riot bill in his upcoming crime message.Footnote ¹³² In the message, he said that the law would “give the federal government the power to act against those who might move around the country, inciting and joining in the terror riots.”Footnote ¹³³ Realizing that he could no longer politically afford to decouple crime and civil rights, Johnson also changed his line dramatically in his 1968 State of the Union speech—“The American people … [h]ave had enough of rising crime and lawlessness”—and the loudest applause from the audience came in parts that attacked crime.Footnote ¹³⁴ In his message to Congress requesting action on the Safe Streets bill, he had abandoned the poverty approach for more “immediate solutions to the rising crime rate that will help us maintain order.”Footnote ¹³⁵

The negotiation and passage of two major bills exemplifies the escalating punitiveness. The first “immediate solution” was the Omnibus District of Columbia Crime bill. Efforts to get a bill passed on crime in the District began in 1958. There had been excessive attention to crime in the District for years; described as a “sick city,” it dominated news accounts of crime: “‘latchkey’ kids who know no family restraint roam the midnight streets, yoking (mugging), beating, and gang-raping.”Footnote ¹³⁶ Ramsey Clark and others believed this attention to have motivations above the crime rate, saying that “people always liked to focus on the nation's capital as a crime center” even though “the statistics never supported it” because “it was really a continuation of the old southern belief that the blacks were incapable of self-government.”Footnote ¹³⁷

Passed in 1967, it included warrantless arrests for misdemeanors, investigative detention with no charges or Mirandizing (allowing police interrogation of people not charged with a crime), imposed strict mandatory penalties, and prison sentences for inciting to riot. The conservative-dominated District of Columbia crime committees in the House and Senate deleted provisions related to gun control, drug treatment, and rehabilitation, and revised the penal code to include mandatory sentences for certain offenses. This bill attempted to undercut the Supreme Court's Mallory decision by ensuring the admissibility of confessions made in a three-hour investigative detention (the Mallory rule excluded confessions obtained by delaying arraignment). President Johnson vetoed the bill with reservations over detention and the mandatory minimums.

In February 1967, the commission established by Johnson in the 1965 LEAA to study the priorities in criminal justice reform issued its report, The Challenge of Crime in a Free Society. The commission found “far more crime than ever is reported,” and advocated federal aid to local police of “several hundred million dollars annually.” Based on this report and its 200 recommendations, Johnson requested from Congress the “most comprehensive set of anti-crime proposals ever sent by a President to Congress,” which implemented the recommendations of the report and included a mix of expansive federal gun control legislation, provisions for aid to state innovation in criminal justice, and prisoner rehabilitation. Aides had warned against the move to further “federalize” the crime problem; the Director of Johnson's Crime Commission, James Vorenberg, sent a message to Joe Califano where he strongly admonished restraint: “the ‘safe streets’ approach runs the risk of the President and the federal government appearing to take very direct responsibility for eliminating or reducing crime on the streets.”Footnote ¹³⁸

Although President Johnson's proposed legislation left the House Judiciary Committee with little modification, once on the Floor, the bill was dramatically rewritten by a Republican and Southern Democratic coalition through a series of amendments debated over the course of three days. The Senate did the House one better, foisting even more provisions that were anathema to the president's 22-point program and even attempting to rename the bill. These revisions gave extra funds with the “highest priority” of funds earmarked for riots and civil disorders, reassigned control of funds from the Attorney General to state governors, and expanded the power of electronic surveillance, overriding Johnson's strong belief that wiretapping should only be used in cases related to national security. The two bills were squared in the conference committee, with conservative John McClellan, the Senate sponsor, ultimately triumphing.

The conservatives who controlled crime-related committees influenced nearly every facet of the Safe Streets Act in ways that benefited their aims. One journalist and expert on crime legislation during the 1960s noted that while the conservative coalition usually “exercises negative control, and merely votes down bills, or parts of bills, that it dislikes,” the crime issue provided “an opportunity to exercise positive control, both in the Senate and in the House of Representatives.”Footnote ¹³⁹ The conservative coalition made sure that the crime legislation would be immune from civil rights challenge and wouldn't get into the hands of those sympathetic to civil rights, teaming up on several key roll call votes.Footnote ¹⁴⁰ First, they amended the law to make sure that disbursement of funds was not based on compliance with the condition of the Civil Rights Act in Title VI, which gave the federal government power to withhold funds from agencies that were racially discriminatory.Footnote ¹⁴¹ They also objected to the grants being administered by the attorney general for fear that he would enforce racial guidelines on local governments. In the Senate hearings on the bill, McClellan grilled Ramsey Clark over his potential authority to require recipient agencies to be racially inclusive. When Clark answered that the Civil Rights Act would indeed apply and that discriminatory law enforcement agencies would be in violation, Senator Thurmond interrupted:

I gave you the illustration that now HEW is trying to get schools to haul children from one place to another specifically to bring up the racial balance in schools. I am asking you here under this bill, coupled with Title VI of the civil rights act, would your director have the right to withhold funds if he wanted a racial balance brought into the personnel of the police department … ?Footnote ¹⁴²

Title I of the resulting act created a three-person LEAA to administer the grants and stipulated that the LEAA could not require that grant recipients had a racially balanced police force. This dictum was not merely symbolic; some states including Alabama and Mississippi still prohibited blacks from being employed as state police.Footnote ¹⁴³ Second, they changed the federally administered local grants into state block grants, in one of the most controversial and hotly debated provisions of the bill. The administration's bill had originally designed the grants to go directly to cities and local agencies with populations over 50,000 but House Republicans Everett Dirksen (R–IL) and Gerald Ford (R–MI) proposed to change the structure to block grants to be given directly to states. It was understood that if the money went to cities, agencies controlled by liberal Democrats and blacks in city government would administer it. Alternatively, if the money was channeled through at the state level, governors would have discretion over how the money was used and the majority of governors were ideologically conservative.Footnote ¹⁴⁴ Republicans and southern Democrats argued vociferously for the block grant amendment, upholding the tradition of attaching local control to federal funding that often resulted in racially discriminatory administration.Footnote ¹⁴⁵ Third, the act barred LEAA funds from going to any agency that had ties to the anti-poverty agency, the Office of Economic Opportunity (OEO), an agency criticized for being complicit in the riots.Footnote ¹⁴⁶ The above are powerful examples of how the conservative coalition used a pet project—crime—to advance the cornerstones of their prior agenda on civil rights.

Attention to racial disorders figured prominently in the protracted debates around the crime bill:

I do know that our courts and our national leadership has placed too much emphasis on minority rights without regard to the fact that society collectively also has rights … . I am charging the officials at Justice with ignoring their responsibility to society and to the American people in order not to offend certain minority groups.Footnote ¹⁴⁷

McClellan and other anti-civil rights legislators had not yet forgiven the Court for disturbing its Jim Crow practices; in a direct example of frontlash, they submitted several provisions to curb the Court. Senator Ted Kennedy implored his colleagues in a close vote on Title II, the provision that would nullify the Court's rulings expanding defendant rights (Miranda, Mallory, and Wade):

For it is these keystones in our tradition of ordered liberty which are threatened here today. They are threatened because other Americans want revenge against a Constitution and a Court which denounced prejudice and discrimination in large segments of American life … . It is ironic that those who rail the loudest about obedience to law as an unshakable absolute, those who inveigh against civil disobedience in all its forms should be in the forefront of an effort to violate the Constitution and rob the Supreme Court of its power …Footnote ¹⁴⁸

While the debates on Safe Streets were going on, the House passed a bill to punish people involved in the riots. The bill was introduced by Representative William Cramer (R–FL), who had originally tried to pass riot penalties as an amendment to the failed 1966 Civil Rights Act. Emmanuel Celler (D–NY) proposed to combine the antiriot legislation with another bill that was to ensure protection of civil rights workers, which had originally been part of the Civil Rights Act of 1966.Footnote ¹⁴⁹ Despite it being an uncontroversial provision in 1966, the bill ultimately failed after arch-segregationist William Colmer (D–MS) argued against the combination because he believed the civil rights protection would make the riot punishment futile. Some in Congress objected to the racial connotations of the antiriot bill; William F. Ryan (D–NY) believed the legislation was motivated by the same “white backlash” as that that killed the Civil Rights Act of 1966; Frank Thompson Jr. (D–NJ) argued that the bill was for sole purpose of stopping Stokely Carmichael, the black power leader.Footnote ¹⁵⁰ Despite the fact that the Commission on Civil Disorders found no evidence of a communist conspiracy, the riots were connected to communism and outside “professional” agitators and antipoverty workers. The DOJ's own video “Riotmakers: The Technology of Social Demolition” explained the riots of the 1960s as being coordinated by professional agitators, which were dubbed “Leninoids.” In his statement for the bill, Cramer presented the accounts of officials in cities that had had riots, which alleged the influence and participation of outside agitators; Colmer also claimed the riots were an “organized conspiracy  … . backed by the Communists.”Footnote ¹⁵¹ Many argued that the riots were not disjointed events or spontaneous outbreaks to racial bias and police brutality but were part of a conspiracy. In the hearings on anti-riot provisions, Representative Joel Broyhill (D–VA) argued:

These outbreaks of lawlessness … are conceived in the twisted minds of the hate-mongers, a trained cadre of professional agitators who operate in open defiance of law, order, and decency … . Moving among these people, the dregs of our society, these insidious enemies of our democratic form of government preach a cant of hate and contempt for law and order … . They create fear wherever they go, and feed with delight on this fear … . They train other malcontents in the art of destruction…these vultures of our society carry on their nefarious work on funds provided by the very tax-payers whose lives and property they threaten.Footnote ¹⁵²

The resulting legislation contained a sprawling definition of a riot; for instance, a riot could consist of a public disturbance of a group of only three people, which effectively meant that large peaceful demonstrations with a scuffle between three bystanders could constitute a riot. This legislation also provided for the prosecution of civil rights leaders.Footnote ¹⁵³ When Congress passed it, many fully expected it to be overturned by the Supreme Court as an unconstitutional abridgement of the First Amendment protections.

After being debated in committee and Congress for two years and suffering the addition of twenty-five amendments to the original administration proposal, the Safe Streets bill was finally sent to the president to sign on 6 June 1968.Footnote ¹⁵⁴ Even opponents of the bill, such as John G. Dow (D–NY) felt compelled by public anxiety over crime and riots to vote for the bill:

This bill, as now amended, I regret exceedingly, and will only vote for it because of the widespread desire of all our people to curb crime and prevent continuation of violence in our land. As the price for this, we are saddled with amendments that threaten our liberties and may remain to haunt us.Footnote ¹⁵⁵

Members of Congress referred to the blistering public pressure they faced to crack down. Torrents of constituent mail flowed into their offices, and businesses, nonprofits, and civic organizations lobbied for passage of the crime bill. Democrats had witnessed the departure of several colleagues in the midterm elections in 1966—forty-seven representatives and three senators were voted out of office (in addition to eight governors), some for their vote against a crucial crime bill.Footnote ¹⁵⁶ A former member of Congress and the House Judiciary Committee wrote the president urging his veto of Safe Streets: “One of the reasons I am no longer in Congress is because I voted against the D.C. [crime] Bill.”Footnote ¹⁵⁷ Now, fourteen liberal Democrats in the Senate were facing an election a few months away where crime was a major campaign theme.

With only seventeen members of the House voting against Safe Streets and only four in the Senate, no federal agency had come out against it, and, with an impending election four months hence, Johnson's hands were tied, even though the bill was unrecognizable from the administration's proposed legislation and did not include any of the recommendations of the crime commission's 18-month study. Although Warren Christopher called the bill “perplexing” and noted that Congress should have given the president a much better bill, he urged the president to “take into account the very large majorities which supported the bill in Congress,” who threatened to override a veto.Footnote ¹⁵⁸ Johnson reluctantly signed it five hours before the deadline saying it contained “more good than bad” and with a request that the Congress remove the electronic surveillance provisions.Footnote ¹⁵⁹ Most legislators and journalists saw it as a capitulation to public hysteria.Footnote ¹⁶⁰ Another aide, Harry McPherson, wrote in a memo to the president that it was “the worst bill you have signed since you took office.”Footnote ¹⁶¹

The resulting law, 134 pages in length, was the “most extensive federal anti-crime measure in the nation's history.”Footnote ¹⁶² Safe Streets, which began in a 1965 request from the president for funds for training local law enforcement through categorical grants, gun control, right to privacy (limiting wiretapping), drug control, and agency reorganization, was transformed into a radically different bill before passing in 1968. The 1968 act overturned three major Supreme Court rulings relating to defendants' rights, removed the federal courts' ability to review state court rulings on voluntary confessions, made a huge investment in riot control, and dramatically expanded law enforcement's powers relating to wiretapping.Footnote ¹⁶³ Much of the gun control legislation requested by Johnson was either not acted on or watered down significantly. In short, this bill had become a “vehicle for ‘law enforcement’ rather than ‘criminal justice’ in its journey through the legislature.”Footnote ¹⁶⁴ Street crime and riots were folded into same crime package. It was as much about political dissidents and racial conflict in the cities as it was about ordinary crime, perhaps more so. In the first month, $4 million was disbursed to forty states for riot prevention and control.Footnote ¹⁶⁵

Most importantly, under Safe Streets, the federal government would disperse millions of dollars in aid to state law enforcement, the first piece of major legislation to implement block grants and the revenue sharing concept. It was only the second program of federal assistance to the states designated for crime control (with ancestral ties to the first (OLEA), established three years earlier and expired by the passage of Safe Streets). Compared to the 1965 LEAA's appropriation of $10 million, it gave $400 million in the first two years for the state planning grants, with a larger budget in following years.

Despite the accuracy problems of the Uniform Crime Reports, a 1968 effort to create a National Crime Statistics Center failed in Congress.Footnote ¹⁶⁶ When Representative Larry Winn, Jr. (R–KS) wrote to the president complimenting his crime package but also voicing the concern that it did not contain anything to “upgrade city and state crime reporting,”Footnote ¹⁶⁷ he received a sheepish response from Assistant Attorney General Fred Vinson saying that the Safe Streets Act prohibited the federal government from controlling what the states did with the funds and that it was “in deference to this principle that no positive authorization for crime reporting has been included.”Footnote ¹⁶⁸ In 1973, the LEAA initiated the National Crime Survey. Based on victimization rates rather than reported crime, it was designed to get more accurate data on crime. The National Crime Survey actually showed higher crime than the FBI reports (as did most other victim-based reports, including the president's crime commission), but it also demonstrated that the crime rate has been relatively stable over time, whereas the FBI reports showed a rapid increase in crime in the 1960s and early 1970s.Footnote ¹⁶⁹

If the support for punishment was unrelated to race, then we should expect conservatives to be pushing for stricter punishments for all types of violence and criminal activity. The near universal support for more aggressive criminal justice from the conservative coalition was not extended in one area. They tried to exclude criminal penalties for violations of federally-protected civil rights on account of race (H.R. 2516 and S. 1362 “Interference with Civil Rights Plus Criminal Legislation”). Thus, criminal justice punitiveness cohered more along racial lines; indeed, as the next section discusses, the racialized crime innovations were also bound up with an attack on civil rights legislation, the poverty programs of the Great Society, and Supreme Court decisions.

Continuing to Get Tough and “Combat Lawlessness”: The Nixon Years

After the assassination of Martin Luther King, Jr., in April 1968, 142 cities across the U.S. erupted in racial confrontations, resulting in 43 deaths and 27,000 arrests.Footnote ¹⁷⁴ The District of Columbia witnessed arguably the most severe violence: property damage included 1,200 buildings and homes torched, while the human toll included 12 dead, 1,200 injured, and 7,600 arrested.Footnote ¹⁷⁵ Hoover's monthly crime clocks in the Uniform Crime Reports depicted an epidemic (Figure 8).

Note: Reprinted with permission from the original publisher, the Milwaukee Journal-Sentinel.

Fig. 8 Time magazine cartoon from October 4, 1968.

Presidential candidate Richard Nixon launched a frontal assault on Johnson's approach by saying the crime rate would decrease more by doubling convictions than quadrupling the war on poverty and that now was the time to start doing something concrete rather than studying crime with more commissions. Nixon released a position paper titled Toward Freedom from Fear, countering the root causes paradigm: “We cannot explain away crime in this country by charging it off to poverty.”Footnote ¹⁷⁶ Law and order was the centerpiece of the Nixon campaign, having learned much from Ronald Reagan's successful deployment of the law and order theme in the 1966 California gubernatorial election. In the course of the 1968 presidential campaign, Nixon dedicated seventeen speeches solely to the topic of law and order. One televised campaign advertisement began with frightening music accompanied by quickly flashing pictures of protesters, violence, bloodied victims, and mayhem. An authoritative voice followed, saying:

At the end a caption read: “This time … vote like your whole world depended on it . . NIXON.”Footnote ¹⁷⁷ While sanitized from the outright racism of the Goldwater and Wallace campaigns, Nixon's strategy was based on the linkages between racial conflict and lawlessness; indeed, in viewing his own campaign ad, he remarked triumphantly that it “hits it right on the nose. It's all about law and order and the damn Negro-Puerto Rican groups out there'.”Footnote ¹⁷⁸

Hubert Humphrey's campaign tried to respond, toughening their approach. Humphrey accepted the Democratic party's nomination in 1968 by saying “rioting, burning, sniping, mugging, traffic in narcotics, and disregard for law are the advance guard of anarchy, and they must and they will be stopped.”Footnote ¹⁷⁹

With the mandate of the “law and order” election behind him, the Nixon administration submitted twenty pieces of anti-crime legislation (including pretrial detention) and issued a memo declaring the DOJ's right to use electronic surveillance on any subversive group without getting permission from the courts. Nixon continued the tradition of his predecessor to make speeches and messages on crime. However, unlike Johnson, who rarely deplored lawlessness without also mentioning the squalor of poverty in the cities, Nixon blamed crime on permissiveness—of society, of parents, and of the courts. Fear was prominent in his speeches:

In 1969, the National Commission on the Causes and Prevention of Violence (commonly known as the Eisenhower commission) issued their final report To Establish Justice, To Insure Domestic Tranquility. Containing a mixture of solutions, it painted a picture of what the future city would be like if the problem of violent crime continued:

If Johnson took the federal government's role in crime control from zero to a hundred in scale, Nixon took it from one side of spectrum to the other in approach. Crime control during the Nixon administration continued the tradition of expanding federal involvement with more state power over the administration of funds, and both of these along with a more tough orientation to crime, law enforcement, and criminal justice. Based on Nixon's request, Congress quadrupled appropriations for the LEAA, going from $59 million in 1969 to $268 million in 1970.Footnote ¹⁸² Nixon declared drug abuse the most important problem in the United States in 1969 and announced a “War on Heroin,” sending several narcotics bills to Congress concentrated on punishment (rejecting the Commission's report recommending decriminalization). Meanwhile, the Controlled Dangerous Substances Act of 1969 set off a contentious debate over jurisdiction between HEW and DOJ officials over whether drug addiction should be an issue for law enforcement or health. In 1970, Nixon formed the Office of Drug Abuse Law Enforcement (ODALE), creating the crime strike forces that greatly increased policing and surveillance in black communities.

The National Commission on the Causes and Prevention of Violence recommended “a national commitment to double our investment in the administration of justice … a modest price to pay to ‘establish justice’ and ‘insure domestic tranquility’ in this complex and volatile age.”Footnote ¹⁸³ Ultimately the LEAA would be amended six times and was expanded financially and given more authority over criminal justice at lower levels of government. The initial expenditure for the LEAA went from $10 million in 1965 to $850 million in 1973.Footnote ¹⁸⁴

By 1970, the riots had subsided but the war on crime campaign was in full swing and showed no sign of abating. During his campaign, Nixon had focused on crime in the District of Columbia, calling it the “crime capitol of the nation” and a “national laboratory” for his proposals. Despite the fact that it ranked twenty-seventh (of fifty-two large cities) on crime, trailing far behind Denver, Chicago, New York, and others, Nixon submitted an anti-crime bill to Congress specifically concerned with Washington, D.C. The District of Columbia crime bill of 1970 was the “most innovative” and expansive of Nixon's proposed legislation. It was so broad that it was opposed vigorously by conservative Representative Sam Ervin—who had usually led the campaign for punitive crime policies in the Senate—because he thought it unconstitutional: “the Nixon Administration's major contribution to the D.C. Crime Bill was a grab bag of some of the most bizarre and repressive crime-control measures ever proposed to the Congress,” warning that “we must be extremely skeptical of the other administration ‘law and order’ proposals which are also advertised as ‘indispensable’ for crime control.”Footnote ¹⁸⁵ The bill mandated five-year sentences for anyone convicted of a second armed offense and allowed life sentences for offenders convicted of a third a felony, extended broad wiretapping authority, established “no knock” policies for police (going directly against the Court's search and seizure rulings), reorganized District Courts (which ultimately doubled felony indictments), allowed juveniles to be tried as adults (resulting in 60 percent of youths going to adult courts), eliminated juvenile jury trials, and allowed “preventive detention” (ultimately, overturning the Bail Reform Act of 1966 to allow people to be held without bail).Footnote ¹⁸⁶ The preventive detention proposal was the most controversial, allowing some “dangerous” suspects to be detained for sixty days before conviction. Despite a campaign against it in the Senate by civil libertarians, it passed on the eve of the election. More than just a bill for the District, this legislation “also represented the national crime policy of the Nixon Administration.”Footnote ¹⁸⁷

The Eisenhower Commission had originally provided a dual emphasis on unemployment and ghetto conditions. Its report argued that “Warring on poverty, inadequate housing and unemployment, is warring on crime. A civil rights law is a law against crime.”Footnote ¹⁸⁸ However, this dual focus was not reflected in policy. While law enforcement was expanding, poverty programs were reduced or eliminated altogether. Law enforcement was the only program that escaped cuts, and actually expanded, in Nixon's budget proposals. There was almost no new civil rights legislation. Impact Cities, a law enforcement program, replaced Model Cities.

When Nixon entered the White House, the crime problem that he had helped to fan, awaited his administration; now he would be in the position of having to make the crime rates go down, or in the words of one journalist, “he was being asked to sit down on the chair that he had scattered tacks on.”Footnote ¹⁸⁹ Crime had actually gotten worse since Republicans took over, increasing 25 percent from 1968 to 1970. Under the Omnibus Crime Control and Safe Streets Act of 1968, the Attorney General was “to collect, evaluate, publish and disseminate statistics.”Footnote ¹⁹⁰ Using this authority, Nixon's Attorney General, John Mitchell, personally submitted the statistics, putting a different spin on crime increases that would have made the “law and order” policies look bad. J. Edgar Hoover's report on crime statistics was rewritten by Mitchell's public relations staff to show that crime had improved during the Nixon administration in comparison to the Democratic administrations that preceded it. One tactic used to make it seem like crime was decreasing and was much worse during the Johnson years was accomplished by using rate of increase instead of the crime rate. Thus, for instance, in the first three months of 1970, the Uniform Crime Reports showed an increase in crime by 13 percent compared to the first three months of 1969. Mitchell's office revised this statement to say “the rate of increase of violent crimes in the first three months of 1970 slowed by 7 percent in the major cities of the nation—and by 3 percent in the nation as a whole.”Footnote ¹⁹¹ If the Nixon administration could show that its harsh policies were working lower, it could use this in the 1972 election: “By 1971, several aides in both the White House and the Office of Management and Budget (OMB) were regularly prodding LEAA to move faster to provide concrete evidence of a federal impact on crime rates.”Footnote ¹⁹² In addition, Nixon pointed to the District crime bill as the reason behind crime drops in the nation's capital during his tenure. The “audit,” conducted by a major contributor to his campaign (Ernst and Ernst) found a decrease in crime of 50 percent.Footnote ¹⁹³ However, an analysis by the Brookings Institution found that the decrease was due to a change in the value of stolen goods, decreasing the number of crimes classified as burglary or larceny.Footnote ¹⁹⁴

Former Attorney General Ramsey Clark warned against the drive for more punitiveness:

Those agreeing with Clark were now in the minority; even liberal Democrats did not talk about civil rights without deploring crime. In the 1969 mayoral and 1970 midterm elections, there was a clear attempt to reposition themselves on the crime issue. The law and order stance had been vindicated in the two preceding elections and crime was still the number one issue among voters, competing only with race relations (arguably, part of the same class of issues). Seeking to suspend the charge of being soft on crime and coddling criminals, many posed in campaign photos with police, and threw their support toward anti-crime legislation formulated by the Nixon administration.Footnote ¹⁹⁶ New York City Mayor John Lindsay, having been defeated in the Republican primary, continued the campaign as a Liberal party candidate, stressing that he had increased the police force by 5,000 and promised more if reelected. Relatively unknown candidates with law and order platforms upset elections in several mayoral elections from New York to Minneapolis.

Shortly after the D.C. crime bill, the usual law and order suspects—McClellan, Hruska, and Ervin—sponsored yet another bill. The Organized Crime Control bill, despite its title, actually increased penalties for a wide variety of offenses, most of which were not related to organized crime syndicates at all. It changed criminal procedure, establishing mandatory sentence enhancements for habitual offenders. The template for the habitual offender legislation in the 1970s, it allowed judges to enhance the sentence of a convicted criminal by a mandatory thirty years if the offender had two prior convictions or a first-time offender who had committed a crime deemed by the judge to be “a pattern of criminal conduct” or if the criminal was deemed to be a “dangerous special offender.” Senators Philip Hart and Ted Kennedy proposed that it be amended to apply only to organized crime offenses but the amendment failed. The resulting bill passed in the Senate by a vote of 73 to 1.

The policies passed in these few years did not simply augment state crime control efforts or extend a path already traveled in previous eras. This infusion of federal assistance to state systems of crime control was the first of its kind and the change it wrought cannot be overstated. The LEAA, once a small pilot program initiated by Johnson and his desire to root out the causes of crime and debated in Congress on one single day without opposition, had become a mammoth institution to “combat lawlessness” and resulted in the funding and creation of 80,000 state and local projects. Ironically, the same “states rights diehards” that the Johnson administration worried about offending in passing the LEAA in 1965, came to be the main activists in the war on crime. For the first time, the federal government launched a full scale program of aid to the states with appropriations totaling $7.25 billion, which today translates into approximately $28 billion dollars, however, the cost was probably much greater because of the matching funds required by states. Most of the grant money went to suburbs and rural areas rather than cities, and riot control funds went to hardware (including an armored tank in Birmingham), weapons, teargas, and training (i.e. “riot squads”), rather than police-community relations. LEAA's first report showed the breakdown of how federal funds were distributed: 3.5 percent to crime research; less than 5 percent to police relations with the community; 5.5 percent to improving courts; 8.5 percent to rehabilitation; 22 percent to riot control; and the most, 30 percent, to the police.Footnote ¹⁹⁷ The LEAA was given a budget twice the size of the FBI and half of the total DOJ budget; it became the “fastest-growing agency in the federal government” in the 1970s.Footnote ¹⁹⁸ Once in place, this legislation and the agencies it spawned were extremely durable and the DOJ's role in crime control would remain to the present, but that is another chapter of the historical development of criminal justice.

Alternatives

If reducing crime was primary goal of legislators, policy instruments were available, including the one that had been favored for the existence of the republic—that crime was a problem for local government and federal involvement would constitute a breach of the democratic impulse against a national police state. Actors had to choose to break with past approaches. The characteristics of policies themselves are inconsistent with the interpretation that a break was an inevitable response to crime passing some unacceptable threshold. The policies initiated and ultimately enacted were not logically connected to the goal of crime control; crime was rising fastest in rural areas, the category of crime increasing most was property-based offenses, and the reasons for the increase ranged from demographic changes from the baby boomers to migration. Several components of the legislation discussed here suggest additional motivations and aims.

The coalition behind the legislation strategically twisted legislation in directions that had more to do with racial ideology. Many obvious examples include exempting Safe Streets from provisions of the Civil Rights Act and barring federal crime program funds from going to the OEO. The crime legislation was purposefully designed so that federal funds would be controlled by state governments, who could in turn distribute funds to localities without any fear of civil rights challenges. Positions on the crime policies cohered more along lines of racial ideology; indeed, debates over crime legislation featured significant attention to race and carried significant implications for racial equality (such as block grants to state governments rather than directly to cities with significant populations of blacks). Votes on key provisions bore striking similarity to the vote breakdowns on civil rights legislation. Votes cast in opposition to open housing, busing, the Civil Rights Act and other measures time and again showed the same divisions as votes for amendments to crime bills. Moreover, those members of Congress who voted against civil rights measures proactively designed crime legislation and aggressively fought for their proposals. And this stance was itself inconsistent with motivation that was purely a conservative ideological stance against crime. For example, the same actors who tried to pass criminal penalties for freedom rides and sit-ins were the major initiators of punitive crime legislation; but they also bitterly opposed a bill for penalties for violence against civil rights workers. Moreover, they pursued policies at odds with what their ideology of limited federal government would dictate. The same group that opposed civil rights legislation on the grounds that it should be left to state control were at the helm of passing federal criminal justice legislation that would extend the federal government's authority. Thus, when the goals of the group defeated on civil rights pointed to a stance of more federal power, they abandoned the states-rights argument. Further, crime did not matter to conservatives until it was clear that it could be used as new currency to reestablish political advantage. Even in the 1960 election with Nixon, a time when crime had been rising substantially, crime is not a subject in campaign speeches. Together, these examples highlight a basic conclusion: it wasn't in their interest to push crime except for race.

Until racial disorder was defined as a crime problem, there was no mobilization on the crime issue and very little policy change. In fact, on at least three prior occasions proposals for federal assistance to local law enforcement had been evaluated, first in the Wickersham Commission's report during the Hoover administration, then a federal aid program was considered 1955 at President Eisenhower's request (to give local governments federal aid to help them deal with juvenile crime), and again in 1961 by the Civil Rights Commission's report to Congress. In all these cases, despite strong endorsement from the administration, opposition to a nationalized police force and a longstanding tradition of local jurisdiction was a check on expansion and the recommendations were rejected. Policy change was a likely outcome when a set of factors converged and were catalyzed by elite goals. The coalition of conservatives who now had a stake in the crime problem, now supported a federal intervention and ensured that it “converged with, and sustained, intense southern provisions.”Footnote ¹⁹⁹

Current explanations obscure these political interests, made even more urgent by the loss on several significant pieces of civil rights legislation. So for different reasons, then, each of the frameworks (opposed as they are about the role of crime) miss the political dynamics that led to the transformation of policies and each isolates crime from the racial context and distribution of power in which it came to matter politically. Avoiding a myopic focus on crime rates allows a view of the entire body of considerations that went into the design of criminal justice policies. The theory of frontlash argues that crime was used in the service of reacting to racial dislocations, a strategy that was vindicated by the rising crime rate. Without consideration of elites' strategic preferences, these alternative frameworks cannot explain the sudden mobilization of the crime issue, its momentum, and its connection to the rights revolution. They come up short in explaining why policy disputes over criminal justice formed along racial cleavages or why crime became entangled with racial unrest.

Other alternatives deserve mention; the collapse of the rehabilitation approach and the appetite for punishment among the public have become adages used to explain the punitive doctrine in the U.S. both historically and in comparative perspective. Casual observers to experts of criminology frequently attribute the punitive turn in the United States to the collapse of the “rehabilitative ideal” as an approach to crime. According to this account, two highly visible publications are credited with the reversal of course in criminal justice: Robert Martinson's 1974 essay “What Works?” in the Public Interest and James Q. Wilson's bestselling 1975 book, Thinking about Crime. The former argued that there was no evidence that rehabilitation worked in reducing recidivism, while Wilson's book extended this theme the following year, arguing that the approach to crime should be crime-specific and concerned with manipulating the costs of offending. While these manifestos were extremely influential pieces, they were more likely consequences than causes of the punitive policy changes. Published long after Safe Streets, the District of Columbia crime bill, the Organized Crime Control Act, and key critical policy changes, they were part and parcel of the punitive momentum beginning a decade prior to their publication. This is not to say the arguments they advanced were insignificant; much to the contrary, they likely contributed additional ammunition for the punitive problem framing and helped maintain a course that had already been in motion for several years. But the rehabilitative approach to crime did not “collapse” of its own volition.

Another alternative explanation that is also deeply entrenched in thinking about crime and the “get tough” movement is that the public drove the criminal justice crackdown while legislator's merely responded to public hostility to crime. A full examination of public opinion on crime and criminal justice would demand another analysis and is fraught with problems of inconsistent survey measures during the period of interest. However, a simple exploration of the timing of public opinion shifts on crime provides a crude test of this alternative. Figure 7 depicts the proportion of the public choosing crime as the most important problem in the nation over time; the salience of crime remains low until 1966, after the issue was a key theme in the '64 election and indeed after the first legislative proposals were enacted into law. Similarly, a composite measure of public opinion over time shows public preferences on criminal justice were actually decreasing in punitiveness until turning upward in 1967 (see Figure 9).Footnote ²⁰⁰ Several other scholars echo the finding that public concern with crime is the tail to the kite of elite initiative. Beckett's study finds that public concern with crime is correlated with elite attention and appeals around crime, but not with crime.Footnote ²⁰¹ The public did not register high levels of crime concern until after Goldwater's campaign appeals and particularly his nomination speech.Footnote ²⁰²

Sources: Crime Concern (as measured by the Most Important Problem) is based on Baumgartner and Jones's Policy Agendas Project data. Composite measure is based on original indicator generated by author using WCALC.

Fig. 9 Crime Salience and Punitive Attitudes Over Time.

Two scholars located the original output from surveys with crime measures during the 1960s and found that a disturbing number of surveys were blatantly misreported or conflated categories of lawlessness and crime. Moreover, they show how the media selectively reported public polls on crime and surveys were used to manipulate the image that public opinion was favorable. Survey categories represented elite discourse rather than public perception and lumping together categories was an “elite-sponsored social construction.” The concepts of crime and race (civil rights) became related after elite initiative, with the public registering changes after elite discourse. Crime was not the uppermost concern to the public, who until fairly late distinguished race, civil rights, and insurgency from crime; “The press and the public were accustomed to viewing crime in terms of judicial leniency, civilian complaint review boards, interrogation, and capital punishment. They did not understand how crime in the streets and the 1964 summer disorders in Harlem and Philadelphia related to the criminal justice system's lack of financial resources.”Footnote ²⁰³