B. Wrath of the Lash: Prison Expansion Explained
Like the era of lynching, the era of mass incarceration followed major ruptures in American society. This has been the crux of what is discussed in academic circles as “backlash” theory, which suggests that the civil rights movement catalyzed the modern era of harsh punishment. This section offers a fuller account of this era and attributes the turn to prisons not simply as a matter of “backlash,” but “frontlash” as well, which was unleashed when it became clear that the old caste hierarchy was crumbling and that something new would be required to take its place. As Professor Ian Haney Lopez describes, paradoxically, it was the success of civil rights struggles that created an incentive for its opponents to take crime tropes to the national stage, and soon enough, “political leaders mobilized white opposition to civil rights through a proxy language: ‘crime’ became a coded vocabulary capable of marshalling racial fears without violating newly dominant egalitarian norms.”
While backlash is a familiar, if under-theorized, concept, “frontlash” describes how political elites played a leading role in calling attention to crime and defining these issues as the consequence of insufficient punishment and control. More specifically, the term indicates:
[T] he process by which formerly defeated groups may become dominant issueentrepreneurs in light of the development of a new issues campaign. In the case of criminal justice, several stinging defeats for opponents of civil rights galvanized a powerful elite countermovement .... The same actors who had fought vociferously against civil rights legislation, defeated and shifted the ““locus of attack” by injecting crime onto the agenda.
The frontlash concept insists that crime rates alone do not account for the dramatic increase in punishment figures. Instead, political defeats catalyze change in law and policy and “provide opportunities to frame the introduction of a new problem, allowing the defeated group to ‘propose a new interpretation of events' and ‘change the intensities of interest’ in a problem.” For example, scholars have traced the development of the Federal Sentencing Guidelines in the 1980s to decisions made during the civil rights era. From this critical angle, the Guidelines were promulgated to strip federal judges of their historically broad sentencing discretion to shore up sentencing disparity. Hence, the Guidelines have less to do with sentencing policy than they do with the discontent that developed because judge after judge began loosening the Jim Crow order. As it relates to mass incarceration, then, frontlash highlights how politicians and other elites responded politically to legal defeats in the civil rights era. These elites pit tough-on-crime policies against civil rights by creating links between civil rights and crime. Frontlash embodies the turn to “law and order” politics of southern officials in the effort to undermine the civil rights movement. It describes how “conservatives systematically and strategically linked opposition to civil rights ... to calls for law and order, arguing that Martin Luther King Jr.'s philosophy ... was a leading cause of crime.” Other leaders characterized civil rights strategies as criminal and indicated the rise of the civil rights movement as reflecting a breakdown of law, calling for a crackdown on those who challenged the old order of segregation. The entry of crime into political discourse provided a sanctuary that “saved the careers of innumerable politicians who were never forced to renounce disgraced political values but could instead restate them as responses to crime. The war on crime allowed the nation to again turn hostile to racial minorities without having to explicitly break support for civil rights.”
Despite the utility of the frontlash concept, it would be an error to assume that the political elite were single-handedly responsible for the creation of the U.S. penal state. There are other factors as well, including what might collectively be labeled “backlash,” some of which was the result of economic factors and particular interest groups. Although backlash has been described as a “pseudo-theory” for describing anti-racial sentiment and its relation to election outcomes, as well as criticized for its lack of clarity to distinguish concepts, the term is still useful for denoting the non-elite forces that facilitated the rise in imprisonment trends. Although the shape of backlash is seemingly amorphous and problematic, it represents the reactive side of social politics that inspires political transformations. Unlike frcntlash activism, which is based on a winner/loser model, backlash is the politically expressed public resentment that spawns from perceived racial advances. The critical distinction between the two concepts exists in the nature of the political reaction and the actors who carry that reaction to its logical conclusions:
Backlash is reactive in a conservative dimension .... Frontlash is preemptive, innovative, proactive, and above all, strategic .... The two conceptions also differ in terms of what might be a catalyst for their activation. For backlash, it is sometimes a policy, sometimes a candidate that stokes fears, sometimes broad civil rights developments that progress to uncomfortable levels for portions of the electorate. The catalyst in frontlash is defeat of longstanding political discourse or elite programs.
When considered in tandem, these concepts show that crime and punishment in post-civil rights America have more to do with politics than penology. The two work together, since “the extent to which the public expresses concern about these social problems and [support for] punitive anticrime policies is ... linked to the imagery and rhetoric that depict these problems [as resulting from] excessive lenience.” The conflation of color with crime helped to reframe politics in the decades after the modern civil rights movement. The new order put liberals in a classic “catch-22,” since they were fated either to be viewed as excusing riot-related violence or as soft-on-crime, which forced them to move closer to the conservative position. And move they did: Democrat politicians embraced “law and order” politics and helped their Republican adversaries write massive crime bills attached to some of the longest sentences in the world and helped to broaden the scope of capital punishment.
As these “lash” theories indicate, crime-policy punishment transcends the instrumental logic of reducing crime, and are better understood as “deeply symbolic.” From this perspective, crime is a symbol that stands for other motivations, of which racial perceptions are paramount. These concepts support post-civil rights crime policy as inseparable from political agendas.
As this part demonstrates, the same issues were at stake both in the era of lynching and of mass incarceration. Civil rights legislation and court decisions aroused anger and preoccupations with issues of purity and danger that were resolved by turning to harsh punishment. In these instances, ritual punishment was a tool for social control--on both sides--serving to control broader social impulses toward violence as effectively as it controlled the communities that supplied the victims of punishment.
