Stars and Bars | The Nation


Stars and Bars

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In Marked, Devah Pager, who also teaches sociology at Princeton, uses a simple technique to show how mass incarceration has undone the small amount of racial progress achieved in the 1960s and '70s. Working with two pairs of male college students in Milwaukee, one white and the other black, she drilled them on how to present themselves and answer questions. Then, arming them with phony résumés, she sent them out to apply for entry-level jobs. The résumés were identical in all respects but one. Where one member of each team had nothing indicating a criminal record, the other's résumé showed an eighteen-month sentence for drugs. To help insure that the results were uniform, the résumés were then rotated back and forth among the testers.

About the Author

Daniel Lazare
Daniel Lazare is the author of, most recently, The Velvet Coup: The Constitution, the Supreme Court, and the Decline of...

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The results? The white applicant with a prison record was half as likely to be called back for a second interview as the white applicant without. But the black applicant without a criminal record was no more likely to be called back than the white applicant with a record, while the black applicant with a record was two-thirds less likely to be called back than the black applicant without. The black applicant with a record therefore wound up doubly penalized--as a black man and as an ex-con. With the chances of a call-back reduced to just 5 percent, the overall effect, Pager writes, was "almost total exclusion from this labor market." Considering that there are as many as 12 million ex-felons in the United States, a major portion of them black, the result has been to create a huge pool of the semipermanently unemployed where one might otherwise not exist. This is not to disprove sociologist William Julius Wilson, whose study The Declining Significance of Race caused an uproar when it was published in 1978. Wilson may have been right: The significance of race may well have been declining by the late '70s. But thanks to a government policy of mass stigmatization, it has come roaring back.

This is not only bad news for those arrested but bad news for those who have to foot the bill for their incarceration and for dealing with the social problems that labor-market exclusion on this scale helps generate. But there are other costs too. In Locked Out, Jeff Manza and Christopher Uggen, professors of sociology at Northwestern and the University of Minnesota, respectively, point out that only two states, Maine and Vermont, permit felons to vote while incarcerated, that most limit felons' voting rights after they complete their terms and that, even if not legally disenfranchised, some 600,000 jail inmates and pretrial detainees are effectively prevented from voting as well. All told, this means that 6 million Americans were unable to vote on election day in 2004. This is not peanuts. Nationwide, one black man in seven has been disenfranchised as a consequence, while in Florida, the state with the most sweeping disenfranchisement laws, the number of those prevented from voting now exceeds 1.1 million.

From a right-wing perspective, this is nothing short of brilliant. After all, what could be better than disenfranchising an unfriendly racial group while persuading the rest of the nation that the group deserves it because its ranks are filled with violent criminals? Since felons and ex-felons tend to be poor and members of oppressed racial minorities, they tend to vote Democratic. Even though the poor are less likely to vote than those higher up on the socioeconomic ladder, Manza and Uggen say there is little doubt that, had the disenfranchisement laws not existed in Florida in November 2000, the extra votes would have provided Al Gore with a margin of victory so comfortable that not even the Republican state legislature could have taken it away. If the ranks of prison inmates and hence of disenfranchised ex-inmates had not multiplied since the '70s, much of the wind would also have been taken out of the sails of the great GOP offensive. Americans have not gone right, in other words. Rather, by taking control of the criminal-justice issue, the right wing has winnowed down the electorate so as to artificially boost the power of the conservative minority.

But how did the right gain control of this all-important issue in the first place? This is the problem that Marie Gottschalk, a professor of political science at the University of Pennsylvania, wrestles with in The Prison and the Gallows, an eccentric but compelling study of mass incarceration's ideological origins. While taking aim at the usual right-wing villains, The Prison and the Gallows also goes after various liberals and radicals who, inadvertently or not, also contributed to the construction of "the carceral state." Bill Clinton, for example, not only embraced the drug war and capital punishment--he interrupted his 1992 presidential campaign to fly back to Arkansas and sign the death warrant for a mentally disabled prisoner named Rickey Ray Rector--but also endorsed what Gottschalk calls "a virulently punitive victims' rights movement," going so far as to call for a constitutional amendment in 1996 as "the only way to give victims equal and due consideration."

This was important because the victims' rights movement represented an effort to inject a dose of vengeance into the judicial process and thereby blur the distinction between the private interest of the victim and the public's interest in maintaining order and justice. In Europe, reformers were also concerned with victims' rights. But "extending a hand to victims was seen from the start as primarily an extension of the welfare state," Gottschalk observes, whereas in America, where welfare is a dirty word, it was seen as a way of steering criminal justice in a more punitive direction.

Gottschalk's assault on '70s feminism is sure to raise the most eyebrows. She argues that the women's movement helped facilitate the carceral state by promoting a punitive approach to sexual violence that was unmitigated by any larger political considerations. This single-minded focus led to what The Prison and the Gallows describes as unsavory coalitions with tough-on-crime types. In the State of Washington, women's groups successfully marketed rape reform as a law-and-order issue so that, when the measure finally passed in 1975, it was "in part by riding on the coattails of a new death penalty statute."

In California a new rape shield became known as the Robbins Rape Evidence Law, in honor of one of its legislative sponsors, a conservative Republican named Alan Robbins. In pressing for limits on the cross-examination of alleged rape victims, feminists "generally did not consider what effect such measures would have on a defendant's right to due process," Gottschalk adds, even though due process at the time was under assault from a growing war on crime. More radical elements, meanwhile, strayed into outright vigilantism. In Berkeley, antirape activists picketed an accused rapist's home. In East Lansing in 1973, they "reportedly scrawled Rapist on a suspect's car, spray-painted the word across a front porch and made warning telephone calls late at night." In Los Angeles, a self-styled "antirape squad" vowed to shave rapists' heads, cover them with dye and then photograph them for posters reading, This Man Rapes Women. A feminist publication called Aegis ran a notorious cover showing a gun with the warning, "You can't rape a .38; we will defend ourselves."

The National Rifle Association was no doubt delighted. Gottschalk contends that such activists wound up "profoundly co-opted," since "by framing the rape issue around 'horror stories,' they fed into the victims' movement's compelling image of a society held hostage to a growing number of depraved, marauding criminals." She notes that feminists threw themselves into the battle for the Violence Against Women Act, which passed in 1994 as part of an omnibus anticrime bill that "allocated nearly $10 billion for new prison construction, expanded the death penalty to cover more than fifty federal crimes, and added a 'three strikes and you're out' provision mandating life imprisonment for federal offenders convicted of three violent offenses." Yet feminists' involvement was relatively modest two years later when a few liberals tried to rally opposition to Clinton's plan to abolish Aid to Families With Dependent Children, which heavily benefited poor women. Like their nineteenth-century forebears, who advocated bringing back the whipping post to deal with wife beaters, late-twentieth-century feminists got more excited about punishment than defending the welfare state.

Gottschalk is more than a bit brave in pointing this out. Still, her choice of historical examples to explain the growth of an increasingly vindictive national mood seems incomplete. As much damage as radical feminists may have done in undermining due process, they seem less important than certain antidrug activists--in particular, certain black Democratic antidrug activists--whose efforts ran on parallel tracks. This means not just Jesse Jackson, who backed vigilante-style antidrug patrols by the Nation of Islam ("As long as this type of solution is within the law, it should be encouraged") but also Congressman Charles Rangel, the Manhattan Democrat who, as head of the House Select Committee on Narcotics Abuse, spent much of the '80s baiting Reagan for being soft on drugs. "I haven't seen a national drug policy since Nixon was in office," Rangel lamented at one point. "So far, the Administration hasn't given it any priority." This is as clear a case of an ostensible liberal cheering on the forces of right-wing reaction as one could hope to find. US prisons are not bulging with rapists and wife beaters, but they are filled with drug offenders, some 458,000 as of 2000, which makes the brief space that Gottschalk allots to the drug war somewhat hard to fathom. It's like discussing Al Capone without mentioning Prohibition.

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