Legal Commentary

Forty years ago this January, America awaited the inauguration of another President who marked a sharp break with the previous 8 years, and who promised a whole new logic of governing.  That president was Richard Nixon, and with his election, albeit a narrow one, America began four decades of a war on crime that has come to transform our social and political landscape.  In 1968, fewer then 100 Americans were in prison for every 100,000 free residents.  In 2008, 509 Americans were in prison for every 100,000 free residents. [see the latest report from the Bureau of Justice Statistics]

Nixon was not the first political leader to call for a war on crime.  Efforts to position the federal government as a national leader in crime fighting go back to at least the first years of the Roosevelt administration, when J. Edgar Hoover?s FBI emerged as a media focus.  But conditions by the late 1960s had produced something on the order of a national panic around violent crime.  The rate of reported robberies and homicides had more then doubled since the beginning of the decade.  A series of violent riots had broken out across major American cities in the summer beginning with Los Angeles in 1965, and increasingly volatile demonstrations against the Vietnam war culminated in the police riot at the 1968 Democratic convention in Chicago.  As Richard Perlstein puts it in his terrific history of that era [Nixonland p. 294], ?a terror over law and order engulfed the nation?s cities??

Nixon was not the only or even first politician to respond to this growing terror.  LBJ, had appointed a Presidential crime commission early in his term, and was the first president to use the phrase ?war on crime? to describe his objectives (although he still imagined it to be a front in the war on poverty).  Nixon?s most serious rival, Robert Kennedy, had made confrontation with the mafia a major feature of his Justice Department as Attorney General 1961-1965.  In his primary campaign against fellow peace candidate Eugene McCarthy, Kennedy promised a vigorous effort against rioters and published a newspaper add listing proposals for ?Law Enforcement in the Cities,? noting that McCarthy had none (Perlstein p. 272).

But Nixon moved beyond his rivals by focusing his campaign on the slogan ?law and order.?  Once in office, he pushed aggressive crime fighting powers (first in DC) and defined his increasing demands for executive control as a necessity to combat the forces of crime and disorder in American society (demands that ultimately led to criminal behavior by the President and his aides). 

Nixon?s resignation in 1973 and the crisis of ?law? (rather than law and order) that his presidency represented, focused the next two presidents, Ford and Carter, on other issues.  But every subsequent president including Reagn, both Bushes and Clinton, have made crime fighting a central piece of their leadership, helping to build a broad political and social movement that has transformed not just our prison population but our democracy [see my book, Governing through Crime].  In some periods this has been more visible, especially during the late 1980s and early 1990s when President Bush made the war on drugs his most visible domestic initiative, and President Clinton promised to put 100,000 police on American streets.  The presidency of George W. Bush has largely been defined by his war on terror, and indeed has been criticized by some police leaders for de-emphasizing the war on drugs.  But the fear based governing ideology of using any mean necessary to eliminate malevolent individuals, is a direct extension and escalation of the war on crime. 

In posts this month I will try to highlight some of the enduring effects of the war on crime, and generally argue that real change in America requires a vigorous and explicit effort to end that war and address the severe social destruction it has caused.  I do so with some real optimism that Barack Obama might be the president to lead that effort, forty years later.  Despite the fact that the Obama campaign hewed closely to consensus tough on crime positions on most conventional policy issues, like the death penalty, two features of his campaign give this polemicist hope.

First, vigorously and repeatedly, Obama denounced the politics of fear and suggested that political victories based on it were inevitably compromised.  This was taken mainly in the context of the war on terror, but as suggested above, the politics of fear is more accurately anchored in the campaign that ended forty years ago this past November.

Second, Obama is our first president in a generation, at least since JFK, who identifies with urban America.  While the war on crime was early on promised as a panacea to save cities, its effects have helped drive two generations of middle class families to embrace life in sterile and often segregated suburbs.  Obama recognizes that convincing the middle class to move back to cities is a key to changing our high carbon, high stress life style, and that to do so he must break through the frame that for forty years has linked cities to crime.