Crime and Social Justice No. 15 (1981)
Editorial: Law and Order in the 1980s
This special issue of Crime and Social Justice addresses and calls attention to the decisive shift to the right in criminal justice policies and practices in the 1980s. In previous issues of the journal, we have noted the alarming rise to prominence of "intellectuals for law and order" -- in particular, the "new realists" and sociobiologists (see Crime and Social Justice No. 8, 1977, and No. 11, 1979). In the 1977 article, we wrote: "It would be a mistake to write off the 'realists' as aberrant cranks. They are a decisive influence in criminology and their ideas and programs are very much on the rise.... These ideas...represent the dominant trend in criminology today...." Some four years later, it is clear that what only recently was a policy trend is now very much the established program of the Reagan administration.
Unlike previous issues of Crime and Social Justice, this one is totally a theme issue, devoted to describing and assessing a topic that poses significant theoretical and policy questions. This theme issue allows us to explore in much greater depth the shift to the right -- its scope, its context, and its underlying political-economic conditions. Previous efforts to discuss this shift to the right generally have been piecemeal, selective, and atheoretical. In this issue, we attempt both to understand the totality of this shift in criminal justice and to analyze its relationship to broader changes in the political economy. To do this, we solicited articles and commentaries from a variety of progressive social scientists in different regions of the United States and from leading criminologists throughout the world.
Contributions to this issue come from the East and West Coasts, from the South and Midwest; from prisoners as well as academics; from Canada, Latin America, New Zealand, and Scandinavia. The style of the contributions ranges from brief commentaries and polemics to scholarly, documented articles. The topics similarly range from detailed empirical discussions of internal criminal justice policies and trends to complex analysis of the political-economy on a global scale. Taken as a whole, these contributions explore and investigate different aspects of the shift to the right.
This issue of CSJ hopefully raises the level of discussion and analysis of criminal justice policies in the 1980s. Yet it is more than a plea for greater theoretical clarity. It is also an urgent call to action, recognition of a dangerous, qualitative shift in the state's repressive policies. The 1980s pose a great threat to hard-won civil rights and civil liberties. Never before has criminology been faced with such a crisis or such clear-cut choices. It is a time for all progressive criminologists and social scientists to confront this crisis and to firmly oppose policies of reaction and repression.
The following comments sketch out the parameters of the current crisis and indicate the significant controversies raised by contributors to this special issue of CSJ.
Increasing Severity of Punishment
During the last decade in the United States, there has been a steady increase in the imprisoned and legally supervised population, an increase in the severity of punishment and of mandatory sentences, the proliferation of "law and order" legislation, and a rapid deterioration of social conditions within prisons. In the last five years, the number of federal and state prisoners has increased by one-third. Since January 1975, the prison population has risen 42%, or almost 100,000 prisoners. The number of persons now on Death Row is once again approaching (and soon will pass) the peak of the early 1970s. After a 10-year moratorium, capital punishment is again in use and, as of December 1979, there were 567 persons awaiting execution throughout the country.
With the increase in the imprisoned population and cutbacks in social services, there has been a corresponding increase in the severity of penal discipline. A nationwide study sponsored by the National Institute of Justice, released in March 1981, reported that 60% of persons in prison and 70% of persons in jail are forced to share their cells due to serious overcrowding and the informal deregulation of federal standards regarding health and safety in prison. In Texas, for example, the prison population has increased from 14,000 to 30,000 in the last decade and is expected to double by 1990. A federal judge in Texas recently described conditions there as "shocking," with at least 2,400 prisoners forced to sleep on the floor without decent sanitary or recreational facilities (Guardian, June 3, 1981).
In this issue of CSJ, the fullest discussion of changing penal conditions is to be found in the contribution by Jim Thomas et al. Based on the authors' personal experiences in Illinois' Stateville prison, the article documents the increase in the prison population (a 50% increase between 1970 and 1980) and the increase in the proportion of minority prisoners. At the maximum-security Stateville and Pontiac prisons, the population is approximately 83% black and 7% Latino. Since 1979, the proportion of minorities in Illinois' prisons has increased by about six percent. This appears to be the trend throughout the country, since racial and national minorities are most heavily concentrated in the reserve army of labor and are the first to feel the impact of unemployment and social service cutbacks.
The attack on minimum standards of decency in prison, combined with the systematic repression by prison authorities of progressive political and cultural prisoner organizations, has generated considerable despair and reactionary violence in prison. Since the horrendous prison riot in New Mexico in 1980, there have been other violent, often spontaneous outbreaks throughout the country. Even California's Medical Facility at Vacaville, known for its generally peaceful conditions, has experienced an alarming rash of suicides and suicide attempts (San Francisco Chronicle, May 6, 1981).
The current "law and order" campaign, orchestrated at the highest levels of federal, state, and local governments, is well under way to eliminate the minimal reforms in criminal justice and corrections that were won in the 1970s. The justification for this shift to tougher punishments -- deterrence, incapacitation, mandatory sentences, restitution, etc. -- is that "rehabilitation" has failed to reduce crime or reform prisoners. Of course this is a transparent fiction, given that social programs were never seriously incorporated into the penal regime. The realities of criminal justice are clearly expressed in the budget: in 1979, well over 50% (approximately $14 billion) of all public funding of criminal justice was spent on the police; moreover, despite Reagan's call for cutbacks in all areas of social spending in 1982, the FBI has proposed an increase in their budget of over $60 million (for a proposed total of $743 million and 19,400 staff positions).
Along with the increasing severity of punishment and penal discipline, there are renewed efforts (especially at state and federal levels) to "widen the net," that is, to criminalize or recriminalize behavior that is not currently subject to criminal sanctions. This tendency includes proposals to elevate some misdemeanors to felonies.
The most dramatic and serious example of criminalization, as Lynn Cooper notes in this issue of CSJ, is the legislative attack on women's right to safe, affordable, and accessible abortions. The U.S. Senate has already voted to cut off federal funds for abortion except when the mother's life is in danger. The Senate is also currently debating the Helms-Hyde bill, which would define a fertilized egg as a person and therefore transform abortion into murder. These attacks on women's right to control their bodies will predominantly affect working-class women, since it is likely that the criminal law will be selectively aimed at poor women, while middle-class women will be able to purchase safe and confidential abortions -- as they did when abortion was previously criminalized. As we now have one set of laws for working-class drug abuse and another for middle-class drug abuse, so we can expect that the regulation of abortion will be guided by similar norms of class justice.
There are other indicators of criminalization that need to be closely watched and opposed. For example, the New Right is actively lobbying Congress to impose strict limitations on labor and union activity. In the short run, there are efforts to criminalize various aspects of labor organizing and picketing by amending the Hobbs Act; in the long run, the aim is to pass "right-to-work" laws, that is, to ban the union shop (Guardian, April 22, 1981). Finally, as we shall discuss below, there is a concerted effort in Congress to expand and "unshackle" the repressive apparatus. Armed with new laws and expanded budgets, unfettered by the checks and balances of liberal reforms, the state is preparing to launch an attack on progressive community, political, and labor organizations.
The essence of all these policies is to discredit the political legitimacy of hard-won rights -- the right of women to control their bodies, the right of the working class to organize for purposes of collective bargaining, and the right of progressive political organizations to advocate their ideas and programs. Criminalization, as it is being implemented today, is not aimed at crime, but rather at the economic and political gains that the working class has made in at least 50 years of bitter class struggle.
Expanding Repressive Apparatus
Reminiscent of McCarthyism, the Reagan administration and Congress are systematically generating a new Cold War ideology in which the buildup of the military and repressive forces is justified by references to external (i.e., the Soviet Union) and internal (i.e., the Left) "terrorism." The Senate's new Subcommittee on Security and Terrorism has even attempted to find connections between these twin "terrorisms" by hunting for evidence of an international terrorist conspiracy, master-minded in Moscow (Guardian, June 13,1981; San Francisco Chronicle, April 25,1981).
The government's campaign against "terrorism" in the United States is selectively aimed at progressive organizations. But it is having considerable trouble in constructing a plausible case. Between 1975 and 1977, there were about 100 "terrorist" bombings reported each year; in 1978, the number declined to 52; in 1979 to 42; and last year, there were only 30 bombings, according to FBI director William Webster (First Principles, March-April 1981). In sum, the specter of "terrorism" is being fabricated to legitimate the expansion of the repressive apparatus. But the growth of the repressive apparatus is not a fiction. Congress is moving very quickly to expand and "deregulate" the intelligence agencies. There are several proposals on the floor to "unshackle" the FBI and CIA, to severely restrict the Freedom of Information and Privacy Acts, and to reintroduce an even more conservative version of the federal criminal code -- originally the notorious S.B. I (New York Times, May 4, 1981; Los Angeles Times, January 14, 1981; National Committee Against Repressive Legislation, D.C. Memo, March-April 1981). Perhaps most ominous is the formation in the Senate of a new Subcommittee on Security and Terrorism, chaired by Jeremiah Denton, R.-Alabama, a retired admiral who was elected with the support of the Moral Majority in 1980 (San Francisco Chronicle, May 16, 1981; Guardian, June 13,1981).
In sum, what appears to be developing is a combination of the Nixon model of political policing and political witch-hunting reminiscent of McCarthyism. Under the guise of "antiterrorism," the repressive apparatus is quickly shedding the modest liberal reforms of the 1970s and preparing itself for a war of words and deeds against progressive political and labor organizations. According to David Wise, writing in the Los Angeles Times (February 15, 1981), "conditions appear favorable for a resurgence of CIA covert operations, a general unshackling of the intelligence agencies -- and perhaps disturbing consequences for civil liberties at home." As Della Hinn notes in this issue of Crime and Social Justice, the violation of human rights is not simply a foreign policy issue, but rather a matter of grave concern within the United States.
The White House has not only supported these developments in Congress, but has also played a decisive role in their formation. President Reagan made this clear when he granted "full and unconditional pardons" to two former high officials of the FBI who had been found guilty of authorizing illegal "black bag" projects in the early 1970s. Originally, these two officials had been "punished" by fines of $5,000 and $3,000 respectively. Reagan's pardon symbolized his support of an unregulated FBI (New York Times, December 16, 1980; San Francisco Examiner, April 15, 1981). According to William Turner, a former FBI agent, this pardon "might well be the raising of the flag signaling an all-out assault on the intelligence-gathering restrictions that lately have been imposed on the FBI and CIA in an effort to strike a balance between national security and civil freedom" (San Francisco Chronicle, April 25,1981).
Given these developments in Congress and the White House, we cannot expect decisive government action against the Klan, the neo-Nazis, and other forms of right-wing paramilitary terrorism. Although the state may not formally approve of the New Right, we should be prepared for both covert complicity and benign neglect, as suggested by the Communist Workers Party and Dan White cases (see John Horton's article ahead). The danger represented by the shift to the right in the intelligence apparatus, as Victor Navasky of The Nation points out, is that it serves to "legitimize the illegitimate, to make respectable what was previously done only undercover because it was fundamentally shameful" (San Francisco Chronicle, February 14,1981).
The Right Is Not a Fringe Group
The growth of the Right is not simply a matter of extra-legal, aberrational political groups (such as the Klan and neo-Nazis), as Horton notes in this issue of CSJ. Though the extra-legal and legal New Right organizations are clearly growing and becoming a serious political force, it is important to recognize that, with respect to criminal justice policies, the Right is very much entrenched in the centers of political power.
Repressive law-and-order policies are being advocated by the White House, by appointed government officials and by Congress. The politics of right-wing fringe groups have become the respectable policies of government. Examine the following examples:
* George Bush, a former director of the CIA, is now vice president of the United States.
* Edwin Meese, Reagan's top aide on criminal justice matters, advocates more prisons, tougher punishments, restrictions on the right to bail, cutbacks in crime prevention and treatment programs, and opposition to the American Civil Liberties Union and other organizations of the "criminals' lobby" (The Western Criminologist, Spring 1981; San Francisco Chronicle, May 12, 1981).
* Much of the government's policy regarding the intelligence apparatus is drawn directly from the Heritage Foundation, a right-wing think tank, which has interlocking ties with the Reagan administration (Center for National Security Studies, 1981; National Education Association, 1981).
* Attorney General William French Smith has called for new "intelligence-gathering mechanisms" to "detect the possibility of racial violence" (San Francisco Chronicle, May 29, 1981; see also Department of Justice press release of October 26, 1980, regarding "strategies for assessing the potential for urban disorders"). Also, the Attorney General's Task Force on Violent Crime (which includes conservative criminologist James Q. Wilson) recently recommended that the Navy be involved in helping to control drug traffic, that abandoned military bases be used to supplement state prison facilities, and that local police be given more powers to combat crime within public schools (San Francisco Chronicle, June 15, 1981).
* Congress is readily echoing the White House policies on criminal justice. With Barry Goldwater as chair of the Senate's Intelligence Committee and Strom Thurmond as chair of the Senate's Judiciary Committee, the president has had little trouble in finding support for the expansion of the repressive apparatus and for cutbacks in programs that address the social roots of crime. In the House of Representatives, legal services to the poor have been severely restricted (San Francisco Chronicle, June 18, 1981) and there is a proposal on the floor to revive the Internal Security Committee (National Committee Against Repressive Legislation, D.C. Memo, March-April 1981). Moreover, the Reagan administration's proposed 1982 budget includes cuts of 75% (about $30 million) in the Basic and Applied Science Division of the National Science Foundation and of 66% of NIMH's budget. The former represents an attack on, inter alia, sociological studies of crime, while the latter will drastically affect social programs for minorities, women, children, and vets (The Society for the Study of Social Problems, Memo, April 21, 1981; American Sociological Association, Footnotes, April 1981).
* In the legal system, President Reagan has the full and unqualified support of Warren Burger, the Chief Justice of the Supreme Court. In a recent speech to the American Bar Association, reprinted in full in this issue of CSJ, Chief Justice Burger explicitly calls for a program of law and order to combat the internal and external problems that are reducing the United States to "the status of an impotent society." As John Galliher notes, also in this issue, Burger appears committed to undermining many important constitutional rights that have been won over the last 20 years.
* The shift to the right in the White House and Congress has also left its mark on the traditionally liberal wing of the Democratic Party. Governor Brown of California, for example, has opportunistically jumped on the law-and-order bandwagon by calling for an increase in the state sales tax to raise five billion dollars over a 10-year period to finance new prison construction and to increase local police budgets (San Francisco Chronicle, May 7, 1981).
In sum, repressive policies of law and order, which not too long ago appeared to be monopolized by right-wing political organizations and alienated petty bourgeois intellectuals, are rapidly becoming the conventional wisdom in the White House, Congress, state legislatures, and academia.
The Right and the Capitalist Crisis in Global Context
Much of this issue of Crime and Social Justice concerns the shift to the right in the United States, the most powerful capitalist nation in the world. But capitalism is not a national mode of production, and the rise of the Right is not limited to a specific region or country of the world. The Reagan model of repression significantly borrows from other capitalist countries: in England, state repression, especially against minorities and immigrants, has intensified under Prime Minister Thatcher (Hall, 1978); West Germany a few years ago reintroduced loyalty tests to purge progressive civil servants from government jobs; and throughout Europe there are efforts to centralize and coordinate intelligence activities (Hoefnagels, 1977).
In this issue of Crime and Social Justice, there are several contributions that independently verify that the shift to the right is a global phenomenon and that it is a political tendency in the social democratic as well as conservative governments of capitalist nations. John Hylton notes that throughout Canada there is an expansion of the prison population, an increase in police expenditures, and a return of "criminal personality" theories. Even in Saskatchewan, under the liberal regime of the New Democratic Party, there is a significant increase in the penal population and the rate of imprisonment. Similarly, Thomas Mathiesen, writing from social democratic Scandinavia, comments that in Sweden, Finland, Denmark, and Norway new government policies emphasize "stiff prison sentences and extensive and harsh control measures outside the actual prison system." David Williams, reporting from New Zealand, comments on the rise of law-and-order ideology to justify intensified policies of repression, especially against the native Maori people who, for the first time, now constitute over 40% of the prison population. As in England and North America, government officials in New Zealand talk about the failure of rehabilitation and the need for deterrence and restitution.
Finally, Argenis Riera Encinoza and Rosa del Olmo, writing from Venezuela, report how the shift to the right in criminal justice policies is being reproduced in the United Nations, where conservative criminologists, especially from the United States, are attempting to exercise hegemony over the "penal question" in Third World countries.
These contributions, together with the various reports on the United States, suggest that the shift to the right is not simply a regional phenomenon, nor simply the expression of a specific political tendency (for example, Reaganism or Thatcherism), nor simply the result of internal criminal justice developments. Several authors observe that the new wave of law and order is connected to important developments in the political-economy. Hylton relates the growth of the prison population to the growing unemployment rate, noting that new law-and-order policies must be understood in the "context of the crisis of capitalism and the changing requirements for domestic pacification...." Mathiesen points out that the attack on liberal criminal justice policies followed shortly after Scandinavia felt the full impact of the capitalist economic recession in the mid-1970s. Williams suggests that the rise of law-and-order policies accompanied the "peasantization" of New Zealand's economy, exemplified by increasing unemployment, housing shortages, and the collaboration of the government with transnational corporations. According to Williams, the New Zealand government's focus on working-class crime concentrates "attention upon the symptoms rather than the causes of social crises," thus allowing "finance capitalists to reap their profits." Similarly, Raymond Michalowski, writing about developments in the United States, notes that Reagan's law-and-order policies, reminiscent of 19th-century ideology regarding the "deserving" and "undeserving" poor, are designed to scapegoat the "dangerous classes" and to divert public attention away from the "new round of capital accumulation" and "increasing centralization of wealth."
While the above contributors note the relationship between the rise of law-and-order policies and changes in the political-economy, a full analysis of this dynamic relationship is provided by John Horton's article, 'The Rise of the Right: A Global View," in this issue of CSJ. As Horton notes, the shift to the right in criminal justice has to be understood in the context of "austerity capitalism" and the "larger rightward trend that reflects enormous, complex changes in the world-economy." The Right, says Horton, is first of all an economic policy of exploitation; but it is also a political and ideological policy, required to manage the economic crisis. "Today the immediate, most extreme, and visible manifestations of the Right are part of a worldwide, historically specific and many-dimensioned response on the part of the bourgeoisie as well as sectors of the petty bourgeoisie to economic crisis and changes in the world-economy and geopolitical relations." Horton's article provides the necessary framework for making analytical and political sense of the material roots of the Right and the resurgence of law and order policies.
Given the pervasiveness and depth of the current crisis in the political economy, it is necessary to evaluate the potentiality for fascism as a political solution in the core capitalist nations. As Jeffrey Reiman notes (in this issue of CSJ), it is time to study the lessons of the past, to examine the Depression and McCarthyism, to understand how "forces of irrationalism are allowed to flourish" in times of economic crisis, for "it is precisely when capitalism is in crisis that liberalism becomes precarious."
Many of the law-and-order policies currently being discussed or implemented recall fascist trends in penal policy -- more brutal punishments, increased use of capital punishment, restrictions on judicial discretion, criminalization of abortion, etc. (Rusche and Kirchheimer, 1967: 177-192; Rusche, 1980; Mosse, 1981). At the same time, as Horton and Reiman note in this issue of CSJ, it would be premature and dangerous to equate the rise of the Right with fascism, or to predict that neofascism will follow exactly the same path as its predecessor in the 1930s.
The nature and likelihood of fascism in the United States is the subject of Gregory Shank's thoughtful commentary (in this issue of CSJ) on Bertram Gross' controversial book, Friendly Fascism. Building on John Horton's analysis of the global capitalist crisis, Shank explores the political-economy of fascism and brings much-needed conceptual clarity to a debate that is often rhetorical and shallow. There is no question, as Shank and Gross agree, that there has been a sharp and rapid shift to the right in the United States. This is reflected in the rise of the New Right, represented by the Moral Majority, the Klan, and other resourceful and well-organized political formations. At the same time, however, the New Right is in itself an expression and elaboration of a shift that is taking place at the center of the political-economy. This is what Gross refers to as "friendly" fascism in order to distinguish it from classical forms of fascism. Shank's review puts the issue of neofascism in the context of broader changes in the global capitalist economy and provides a framework for assessing the political and ideological consequences of Reaganism.
This issue of Crime and Social Justice looks at criminal justice trends in the 1980s and draws some somber conclusions. There is little doubt that in the countries for which we have reports, there is a definite, qualitative shift to the right that variously takes the form of increasing imprisonment, increasing severity of punishment, widening the net of criminalization, and expansion of the repressive apparatus. If this editorial and the contents of this issue strike a note of alarm, they are intended to do so. Though the shift to the right is by no means monolithic nor without contradictions, the policies of reaction are clearly well entrenched and pose a clear and present danger to the rights and gains won by the working class, especially minorities and women, since the New Deal. As Plain Speaking, recently editorialized (June 1-15, 1981):
At the same time, however, we do not think that fascism, "friendly" or otherwise, is inevitable or just around the corner. With the successes of the anti-fascist, socialist, and communist movements in England, France, Italy, and Holland, it is clear that Reaganism and its European counterparts are by no means undefeatable. We can learn a great deal from how a progressive mass movement in England used direct action to limit the growth of the neofascist National Front; from how mass protests in France forced the government to take action against anti-Semitic terrorism; and from how the Civil Rights Movement in the United States moved the federal government to pass legislation against institutionalized segregation. Hopefully, the materials and analysis contained in this issue of Crime and Social Justice can play some part in understanding and organizing against the Right.
All references, other than those below, are cited in full in the text.
Center for National Security Studies
Hall, Stuart, Chas Critcher, Tony Jefferson, John Clarke, and Brian Roberts
Hoefnagels, Marjo (ed.)
National Education Association
Rusche, Georg and Otto Kirchheimer
Citation: Editors. (1981). "Editorial: Law and Order in the 1980s." Crime and Social Justice 15 (1981): 1-6. Copyright © 1981 by Social Justice, ISSN 1043-1578. Social Justice, P.O. Box 40601, San Francisco, CA 94140. SocialJust@aol.com.