Defending Justice: How Does Law & Order Play Out in Racial Terms?

About Jean Hardisty

In the United States, existing institutional, systemic, and individual racism magnify and reinforce this us/them dichotomy. Because the criminal justice system of every country serves as a means of control over some members of that society (and others who get caught up in it), it always reflects the need of the State for control, the political desire of leaders to stay in power, and the norms and mores of behavior favored by those leaders and usually supported by at least a portion of the society’s members. In a country with the racial history of the United States, we cannot be surprised that Whites have always controlled the criminal justice system and used it to control people of color, especially African Americans and increasingly all dark-skinned people, including those from the Middle East and South Asia.

Cartoon by Kirk Anderson.

Cartoon by Kirk Anderson.

In the ideological and political campaign to promote “law and order,” conservative strategists have been careful to avoid any mention of its agenda’s racial implications. After arguing for criminalizing certain behaviors, especially drug consumption and distribution, they never mentioned how this would disproportionately affect communities of color (where the State’s arrests for such behavior are higher than in White and suburban communities). Some of the academics who promote law-and-order arguments have even maintained an identity as liberals, and claim to be writing in the interests of “the community.” Through this sleight of hand, rightist policymakers have constructed law-and-order policies as a series of supposedly race-neutral policies, although the outcome of these policies has been to criminalize, to a vastly disproportionate extent, the behaviors of certain targeted groups, especially racial minorities. Whether or not these law-and-order policies were intentionally racist may be open to debate, but many people, especially people of color, connect the dots and see their outcome as both intentional and systemic.

You might imagine that an increased emphasis on law and order would result in increased attention to all forms of law-breaking. But addressing police brutality and other forms of State violence clearly is not the focus of law-and-order policies. Nor is it the focus of the ideological camp that promotes these policies. Such neglect of a whole class of “victims”-those victimized by police or military power-supports the assertion that illegitimate race-based practices are the single most salient feature of the contemporary criminal justice system. Rightists often blatantly deny statistical evidence of unequal rates of incarceration, arrest, and punishment by race or class for identical crimes, as well as evidence of police and criminal justice officials’ presumption of guilt according to the race of the accused. Rightist Professor John J. DiIulio, Jr., a prominent law-and-order proponent who inaccurately predicted a growing wave of “super-predator” children, stated that data on the administration of capital punishment “disclose no trace of racism..” But it is nearly impossible to study the discrepancies between incarceration rates for people of color and those of Whites for similar behaviors and not conclude that these policies, and those who defend them, are racially motivated.

Ideological Contradictions In Law-and-Order Policies

Each sector of the Right does not necessarily support the same policy solutions to the issues of crime and punishment. Various anti-crime policies create splits and disagreements within the Right. For example, rightist libertarians – who favor the most limited role possible for government – object to a punishment model that requires a huge investment of government funds, even when incarceration is privatized, and prisons eliminate training and treatment. The cost of building new prisons to house and police a swelling prison population increases government spending in both the long- and short-term. Between 1985 and 1995, states and the federal government opened one new prison a week to cope with the flood of inmates into the prison system. Much of this increase resulted from the increasing criminalization of non-violent offenders, through three-strikes laws, mandatory sentences, and drug laws. Referring to the many economic interests that now have a vested interest in maintaining high rates of incarceration, some critics, notably Angela Davis, have called this the emergence of a “prison-industrial complex.” Police departments, private prison corporations, unions of prison guards, rural communities eager for prison jobs, and businesses that provide prisons with food, security, and maintenance serve as pressure groups to assure the continuation of ever-increasing funding for prisons and to support tough on crime policies and drug laws that continually escalate rates of imprisonment.

Liberals have supported some of this growth in the role of federal courts. Because they hope, for instance, that hate crimes, abortion clinic bombings, and stalkings will often be prosecuted more vigorously at the federal level than at the state level. But, as both political parties compete to appear tough on crime, much of the federalization of the criminal justice system is directed at drug offenders and non-violent criminals. It thereby diminishes the role of the states in fighting even local crime. So much for states’ rights, a key principle of the Right’s ideology.

Widespread imposition of the death penalty also creates dissonance for some rightists. Between 1995 and 2003, prisoners in the United States were executed at an average rate of one per week. Although execution is a more expensive form of punishment than life-long imprisonment (due to the cost to the State of legal appeals), until recently its use has been steadily increasing, driven, in large part, by the Secular Right. Some conservatives are disconcerted by the revelation, as a result of DNA testing, that innocent prisoners have been executed. Others more critical of the criminal justice system, have not been surprised by these cases.

Finally, some rightists are uneasy with the growth of federal domination over state criminal justice systems. Despite the traditional conservative commitment to “states’ rights,” criminal prosecutions usually conducted at the state level have increasingly been taken over by the federal government, as the law-and-order crime model has grown in influence. For decades, crimes that involve crossing state lines have been classified as federal crimes and are prosecuted in federal courts. Organized crime cases and many drug and firearms crimes have swelled the number of federal cases. But journalist Ted Gest describes a “creeping federalization of criminal prosecutions” of crimes that occur at the local level. Liberals have supported some of this growth in the role of federal courts. Because they hope, for instance, that hate crimes, abortion clinic bombings, and stalkings will often be prosecuted more vigorously at the federal level than at the state level. But, as both political parties compete to appear tough on crime, much of the federalization of the criminal justice system is directed at drug offenders and non-violent criminals. It thereby diminishes the role of the states in fighting even local crime. So much for states’ rights, a key principle of the Right’s ideology.

Why would rightists persist in favoring these “big government” aspects of tough-on-crime policies? The prevention and rehabilitation model, which has largely been defunded, ultimately costs less in tax dollars because it addresses the causes of crime and the rehabilitation of prisoners. The answer lies in the ideological compatibility of apparently contradictory ideas when they are held within an overarching worldview that explains the contradictions. Two especially strongly held conservative beliefs are not subject to debate-criminals must be punished, and government should remain small. But “smallness” does not mean that the government should be weak. Thomas Hobbes’ admonition that States must establish a strong power that can exert control undergirds the idea that a massive program of incarceration is ideologically acceptable for conservatives who don’t believe in “big government.” In this case, many conservatives who believe that criminals are bad and must be punished in order to protect good, responsible (read White) people accept a strong role for government as appropriate and consistent with a conservative ideology. All sectors of the Right oppose the one policy solution that is most likely to solve the problem of crime in the long term-the creation of jobs, housing, economic opportunity, and universal health care that includes treatment for addictions.

Editor’s Note: This post is an excerpt of Political Research Associate’s 2005 Activist Resource Kit, “Defending Justice.” The full kit is available here.
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Jean Hardisty was PRA's founder and president emerita, and had a Ph.D. in Political Science from Northwestern University. She was an activist for social justice issues for over 25 years and a well-known speaker and widely published author, especially on women’s rights and civil rights. In 1999, her book, Mobilizing Resentment, Conservative Resurgence from the John Birch Society to the Promise Keepers, was published by Beacon Press. She served on the boards of the Sister Fund, the Highlander Center, and the Women’s Community Cancer Project. She remained involved with PRA until her death in March of 2015.