The Politics of Backlash by William J. Stuntz

Before the 1960s, conservative politicians were either indifferent towards crime or mildly libertarian in their attitudes toward criminal defendants. Conservative Republican President William Howard Taft opposed Prohibition; his son Robert criticized the Nuremberg prosecutions. Save for his father’s fondness for trust-busting and the son’s late-career flirtation with McCarthyism, neither Taft ever sought to make political hay from crime. For political conservatives, that stance was natural. Criminal punishment is an especially intrusive form of government regulation. Spending on criminal justice –including prison spending – is redistributive: money spend to warehouse poor criminals comes disproportionally from rich taxpayer’s pockets. Conservative politicians dislike government regulation and redistributive spending.



Two conservative governors in the liberal 1960s – George Wallace and Ronald Reagan – upended that tradition. Before Wallace, southern politicians’ chief goal with respect to crime was to keep the federal government away from it. Wallace sought to keep the federal government away from civil rights –but with respect to crime, he focused not on state’s rights but on black criminals, and (even more) on liberal white judges who allegedly protected them. His 1968 stump speech included these lines: “If you walk out of this hall tonight and someone knocks you on the head, he’ll be out of jail before you’re out of the hospital, and on Monday morning they’ll try the policeman instead of the criminal.”



As race riots struck many American cities, Wallace bragged about Alabama’s version of social peace” “They start a riot down here, first one of ‘em to pick up a brick gets a bullet in the brain.” Such racially charged rhetoric worked: Wallace ran strong races in three Democratic presidential primaries in 1964, four years later, and he carried five states and won 13 percent of the popular vote on a third-party ticket.



Reagan was more subtle –instead of rhetorical bullets to the head, Reagan noted sadly that “our streets are jungle paths after dark” (the jungle reference was a clear piece of racial code: Reagan wasn’t that subtle) – and also more effective. In his 1966 campaign for California’s governorship, Reagan took Wallace-style tough-on-crime rhetoric, made it more respectable, and used it to draw blue-collar Democrats across the partisan isle in huge numbers: enough to win by a million-vote margin against a seemingly unbeatable opponent. One of his key tactics was to link urban rioting with disorder on college campuses – a largely white crime problem. That move helped him appeal to white racists without identifying himself as one of them. By doing so, Reagan married two political constituencies that his contemporaries thought were incompatible: economic conservatives who had opposed the New Deal and white union members who had formed its core base of support.



Partisan politics was transformed. To northern and western politicians of the 1950s and early 1960s, blacks and pro-civil rights whites were the swing voters for whose allegiance the two parties competed. Dwight Eisenhower won 40 percent of the black vote in 1956; Richard Nixon won nearly a third in 1960. With the support of every Republican Senator, the Republican Eisenhower administration pushed for major civil rights legislation in 1957; though the bill was watered down by Senate Democrats, Eisenhower ultimately signed the first such legislation enacted since Reconstruction. While blacks were the object of partisan competition, blue-collar whites were generally seen as a core part of the Democratic base. Reagan intuited that, thanks to the Kennedy and Johnson administrations’ support for civil rights, blacks and white liberals were now solidly Democratic; yesterday’s swing voters didn’t swing anymore. Rising crime, falling punishment, and liberal Supreme Court decisions protecting criminal defendants’ procedural rights had created a new set of swing voters: blue-collar whites. That changed electoral configuration gave conservative Republicans the opportunity to build a national majority, just when that opportunity seemed most distant.



The Warren Court’s criminal procedure decisions were crucial to that process, in three respects. First, those decisions allowed politicians to attack black crime indirectly by condemning the white judges who protected black criminals, not the criminals themselves. That gave conservative politicians like Reagan a chance to appeal to more than racist whites. Second, the Court made street crime –violent felonies and felony thefts: classic state-law crimes – a national political issue for the first time since Reconstruction. One reason crime played a larger role in national politics in the last decades of the twentieth century than ever before is that, in the midst of fighting a crime wave, national politicians could talk about the kinds of crime that voters feared the most. Instead of Mafia corruption of local governments and labor unions, the crimes that made Estes Kefauver’s and Robert Kennedy’s careers, the combination of the Supreme Court’s decisions and the 1960s crime trends made robbery and burglary, murder, and rape national issues. Earlier generations had assumed that only local officials concerned themselves with such crimes. Earl Warren helped change that equation. Third, because the Court was the Court, crime talk was cheap: politicians couldn’t change the constitutional rulings that prompted so much controversy, so their criticisms were unburdened by the need to exercise governing responsibility.



Reagan and Wallace exemplified that last point. California’s imprisonment rate fell by nearly half during Reagan’s two terms in Sacramento. Alabama’s imprisonment rate did likewise under Wallace. Neither of these tough-on-crime governors managed to reverse those trends. Their tough rhetoric was just that: rhetoric. Like Kefauver’s hearings and Hoover’s Ten Most Wanted list, the conservative politics of crime was an exercise in political symbolism that seemed, much like the Supreme Court’s procedural decisions in criminal jurisprudence (Miranda, etc.), to have no substantive consequences.



But symbols do not remain purely symbolic for long; substantive consequences have a way of catching up. When conservatives like Reagan, Wallace, and Richard Nixon won blue-collar votes by attacking soft judges and (indirectly) black criminals, liberal politicians were forced to respond. Liberal Democratic President Lyndon Johnson supported and signed legislation that funneled money to local police and purported to overrule Miranda vs Arizona: The Omnibus Crime Control and Safe Streets Act of 1968, the first of what became a long series of federal crime bills targeting urban street crime. Liberal Democratic presidential candidate Robert Kennedy made tough measures against urban disorder a centerpiece of his campaign for his party’s nomination. Jimmy Carter – embodiment of the southern Left in the early 1970s – presided over a 40 percent increase in Georgia’s imprisonment rate, while neighboring Alabama’s prison population stagnated. Liberal Republican Governor Nelson Rockefeller proposed ramped-up penalties for heroin offenders; the so-called Rockefeller laws became the model for the next wave of tough state drug statues. The same year Rockefeller signed those laws, New York’s imprisonment rate turned up after fifteen years of decline.



For the balance of the 1970s – as liberal Democrats controlled Congress, most state legislatures and governorship, and nearly all big-city mayoralties – prison populations rose steadily. America’s punitive turn did not come from the political right, at least not initially. Rather, the rise in punishment came from the left’s response to the right’s rhetoric. That soon bred its own response. Once liberal politicians like Johnson and Kennedy embraced punitive politics, the right’s bluff had been called. Conservative politicians had two choices: they could back down, cede the crime issue to their liberal opponents, and admit that their tough rhetoric was cheap talk. Or they could follow suit and ramp up punishment still more.



They followed suit. Reagan was once again a key player, the model for his party and for his ideological camp. As governor, he had specialized in combining tough talk with soft policy or no policy at all. As president, his walk matched his talk: he signed into law the most draconian piece of drug legislation to date; partly as a consequence, the federal imprisonment rate doubled in the 1980s. In an increasingly conservative age, state prison populations saw similar trends. What began as a political bluff had become a bidding war.



Overall, late twentieth century states with Republican legislatures and governors increased prison populations faster than states ruled by Democrats – but there were plenty of exceptions: Anne Richards in Texas, Mel Carnahan in Missouri and Douglas Wilder in Virginia; all Democrats under whose administration prison populations expanded more rapidly than under the Republic administrations of their predecessors or successors.



The moment that best captured both the liberal’s dilemma and their response to it came shortly before the New Hampshire primary in 1992. Then-Governor Bill Clinton, falling in the polls, returned to Arkansas to supervise the execution of a mentally disabled black inmate named Ricky Ray Rector. It worked: Clinton finished a close second, was hailed as “The Comeback Kid”, and went on to win the White House. The Rector execution was Clinton’s gruesome answer to the elder Bush’s use of Willie Horton to defeat Michael Dukakis four years earlier. The character of the answer captures the relevant political dynamic. This was no philosophical argument between opposing sides; rather, it was a war of images in which both sides sought to send the same message. The politics of crime had devolved into a game of can-you-top-this.

Bush probably found Lee Atwater’s Horton ad distasteful, and Clinton may have felt similarly about Rectors execution. If so, the two presidents’ distaste highlights an important feature of late twentieth century politics: right and left alike supported criminal justice policies that, in principle, they found repugnant. The Reaganite right opposed big government yet helped to create a prison system of unprecedented scope and size. The Clinton left opposed racially discriminatory punishment yet reinforced and expanded the most racially skewed prison population in American history. The source of this conflict between politics and principle was the same on both sides. Crime policy was not a means of addressing crime – and the policy’s consequences for the poor blacks who were both victimized by crime and punished for it were, politically speaking, irrelevant. Each side supported punitive policies because the other side had done so, and because changing course seemed politically risky.



Such political stances worked because the votes mattered most – the votes for which the two parties competed, the ones most likely to switch sides if the other side’s crime posture seemed more attractive – were not the votes of crime victims and their friends and neighbors, much less of criminal defendants and their friends and neighbors. They were the votes of those for whom crime was at once frightening and distant, those who read about open-air drug markets and the latest gang shootings in the morning paper but never saw it for themselves Neighborhood democracy for the communities in which most of the crimes occurred faded, and was replaced by the democracy of angry voters in safer havens. The consequence was much more criminal punishment, distributed much less equally.