The Punitive Turn in American Life

How the United States Learned to Fight Crime Like a War

Michael S. Sherry

• Publisher: The University of North Carolina Press
• Year: 2020
• Print ISBN: 9781469679341, 9781469660707
• eBook ISBN: 9781469660714
• Topic: History
• Subtopic: North American History
• Index: History

In 1965, President Lyndon Johnson insisted that “the policeman is the frontline soldier in our war against crime,” and police forces, arms makers, policy makers, and crime experts heeded this call to arms, bringing weapons and practices from the arena of war back home. The Punitive Turn in American Life offers a political and cultural history of the ways in which punishment and surveillance have moved to the center of American life and become imbued with militarized language and policies. Michael S. Sherry argues that, by the 1990s, the “war on crime” had been successfully broadcast to millions of Americans at an enormous cost — to those arrested, imprisoned, or killed and to the social fabric of the nation — and that the currents of vengeance that ran through the punitive turn, underwriting torture at home and abroad, found a new voice with the election of Donald J. Trump. By 2020, the connections between war-fighting and crime-fighting remained powerful, evident in campaigns against undocumented immigrants and the militarized police response to the nationwide uprisings after George Floyd’s murder. Stoked by “forever war,” the punitive turn endured even as it met fiercer resistance.

From the racist system of mass incarceration and the militarization of criminal justice to gated communities, public schools patrolled by police, and armies of private security, Sherry chronicles the United States' slide into becoming a meaner, punishment-obsessed nation.

1: The Crisis of a Militarized Order, 1963–1969

Blame it on President Lyndon Johnson, among others.¹ In 1965 LBJ declared “war on crime,” and in his usual way of making extravagant promises that often backfired, he pledged “not only to reduce crime but to banish it.”² He did much to start the punitive turn and to shape its nature. Because his crime-fighting efforts carried an aura of liberal social uplift and got lost in the sea of his many other initiatives and failures, they gained him little credit at the time from law-and- order types, little attention for a long time from scholars, and little blame from critics of American criminal justice.³ But his administration did help start the punitive turn in response to the Vietnam-era disruption of a militarized order, thereby enmeshing it in the attitudes and institutions of war.

Johnson hardly intended to create the massive punitive system that soon emerged, a development so incremental that almost no one foresaw it, much less advocated it, in the 1960s. But he was as instrumental in that development as law-and-order luminaries like Barry Goldwater, George Wallace, and Richard Nixon. True, LBJ sometimes disavowed responsibility—he had “no choice” but to sign the Omnibus Crime Control and Safe Streets Act of 1968, he told Doris Kearns, explaining, “Nixon has forced me into it by all the election bullshit blaming the Democrats for crime in the streets.”⁴ But his reluctance to sign that bill can be misleading. Johnson was a vigorous proponent of new crime-fighting efforts, and he saw crime as warranting “war” against it. In tying crime-fighting and war-fighting so closely, LBJ helped set the punitive turn in motion, redirecting the state from war abroad to war at home. Liberalism, at least some strands of it, was as responsible for the punitive turn as conservatism. Liberals had a deep association with war, not because they loved it but because the midcentury peak of liberalism coincided with the midcentury peak of American war-making, which often underwrote the liberal state. They shared responsibility for the river of words, images, weapons, and personnel of war that flowed into crime-fighting. It is the place to begin this story.

This chapter locates the start of the punitive turn in the embrace by Johnson and others of war’s rhetoric and institutions, and in their ability to draw on the midcentury buildup of those institutions, which provided state capacity that could be turned to crime-fighting. As such, this chapter differs from other explanations of Johnson-era crime politics that seldom mention either that embrace or the Vietnam War context of crime politics in the 1960s and 1970s.

LBJ and the Punitive Turn

The pressures within and beyond the Johnson administration to tackle crime were numerous, big, and volatile. Rising crime rates—as always, more malleable and subjective than almost anyone admitted, and partly the product of more systematic reporting—were the most obvious concern. According to the Federal Bureau of Investigation (FBI), violent crime rose 11 percent from 1965 to 1966, and 165 percent between 1965 and 1975. In addition, “the national homicide rate doubled between the mid-1960s and early 1970s” and soared even more in some big cities.⁵ Crime rates would have registered even higher had they reflected the illegal acts of racist southern sheriffs and police, scared National Guardsmen patrolling campuses and cities, angry cops unloading sticks and guns, and urban red squads and federal agents snooping on and provoking violence by alleged radicals. But such people were rarely arrested, much less convicted, barely leaving a trace in crime statistics. At least as unsettling to people in power like LBJ, more and more prison inmates, especially black ones organized by the Nation of Islam, were rebelling or taking legal action against their treatment.⁶

In 1966, the young expert James Q. Wilson, later to champion a crackdown on crime and to influence presidents and crime policy for decades, assayed the statistics skeptically. Stating that he had found “as yet no good evidence to justify the assertion that American society is becoming more criminal or less moral,” he also suggested, “We are . . . less likely to commit a truly serious crime today than twenty or thirty years ago.” Far from “going to hell in a handbasket,” he added, “we are a long way from hell, and in fact may not even be in that particular handbasket.” Wilson did speculate that the “middle classes” might be “now consuming more crime, even though our society, as a whole, may be said to be producing less.” And he warned that crime “can become the major domestic issue of the far right, replacing ‘communist subversion’ and even ‘socialism.’” Unless “liberalism” addresses crime, he declared, “it will become a notable victim of crime in the streets.” But like many experts, Wilson attributed rising crime to the huge baby-boom cohort of the 1960s, given that younger people are more prone to crime: “What appears to be a crime explosion may in fact be a population explosion.”⁷

Moreover, in some categories like murder and robbery, crime rates only rose above their historically low levels in the 1950s, reflecting the periodic fluctuations such rates always experience rather than a march into unknown territory. Indeed, the rising crime rates of the 1960s might have attracted little attention by themselves—absent, that is, the political disorder, urban uprisings, racial conflict, and antiwar protest of the period (which, to be sure, contributed to the crime statistics).

But crime rates never exist “by themselves,” and the public voices of politicians and law enforcement leaders rarely acknowledged demography or the other complexities Wilson examined. A spike in public fears of crime seemed obvious at the time. Increasing anxiety was measurable in an “explosion of fear of crime stories . . . easily traced to around 1965,” and more tentatively in public opinion polls. But pollsters’ leading questions (do you agree that “Law and Order has broken down in this country”?) did as much to provoke fear as to measure it, and crime did not ascend to a major place in polling until 1968. Even then, “recorded concerns over the Vietnam War” far outpaced concerns about crime.⁸

Indeed, over the long haul politicians and other elites nurtured public fear of crime more than they responded to it, much like they led rather than followed public opinion preceding America’s entry into many of its wars. One LBJ biographer postulated a “national desire for substantive and symbolic responses to the country’s growing lawlessness.” However, that desire was more conjured than palpable—in the early stages of its construction, as scholars like to put it.⁹

Americans’ desire for crime control was hardly uniform or stable across class, racial, and other lines, and it was certainly less pronounced late in the LBJ years than a national desire to end (one way or another) America’s war in Vietnam. As Marie Gottschalk stresses, “It is misleading to portray the public as overwhelmingly punitive,” and “the widespread impression that public concern about crime skyrocketed in the 1960s . . . is not solidly supported.” Indeed, it was only “in the mid-1990s” that “the public began to identify crime as a leading problem.” Americans did not focus on crime as a goad to leaders’ initiatives; rather, they pinpointed the issue in reaction to how leaders had harped on it for decades. Political scientist Peter K. Enns has challenged those formulations, arguing that “politically motivated elites have been marching in step with the mass public.”¹⁰ But it is more accurate to say that in the 1960s politicians tried to make hay out of crime, and they did so with only mixed success (it did Goldwater little good in the 1964 election).

Still, the social production of fear—the claim that fear was rampant—surged at mid-decade, even if the grassroots reality of fear was less evident. And beyond crime of a familiar sort, urban riots, campus conflicts, antiwar agitation, black militancy, youthful rebelliousness, pornography, and godlessness added to a generalized sense of social disorder for numerous Americans. In response, many whites sought to throttle African Americans for their violence or simply for their assertion of equality. This distinction was rarely clear to many white Americans, for whom policing had a deep antiblack history. (“The first real organized policing systems in America arguably began in the South with slave patrols,” argues Radley Balko.)¹¹ Much crime was committed by whites intimidating or terrorizing blacks—by “Bull” Connor’s Birmingham, Alabama police, for example—although most public debate framed the aggressors’ actions as an issue of civil rights rather than criminality.

Most worrisome to Johnson and those around him, their political enemies seemed to gain traction by lambasting crime and blaming it on the liberalism of the ruling Democrats and key judges (especially Chief Justice Earl Warren, though he was a Republican nominated by President Dwight Eisenhower). As president, Eisenhower had made little public mention of crime. President John Kennedy had not discussed the matter much more, except for organized crime and race relations. But law and order moved to center stage in Goldwater’s 1964 campaign, assisted by former president Eisenhower’s denunciation that year of “maudlin sympathy for the criminal” who was “roaming the streets with switchblade knife and illegal firearms seeking a prey.”¹² Lawbreaking was also emphasized in state and local races, including Ronald Reagan’s successful campaign to become California’s governor in 1966, and independent Wallace’s and Republican Nixon’s presidential campaigns in 1968. The crime issue plausibly accounted for Nixon’s tiny margin of victory over Wallace and Vice President Hubert Humphrey.

Often enough, politicians presented crime in gendered and racialized terms. “Our wives, all women, feel unsafe on our streets,” Goldwater declared in 1964. Given that the candidate connected the civil rights movement to “mobs in the street,” critics interpreted Goldwater as saying that white women felt vulnerable at the hands of black men.¹³ Nixon announced in 1968, “50 per cent of American women are frightened to walk within a mile of their homes at night.”¹⁴ Women’s fear of crime, especially sexual violence, was powerful, but male politicians also exploited it, posing as protectors of defenseless women even though many crime victims were men. Not infrequently, critics in turn presented law-and-order crusaders as protofascists driven by an out-of-whack masculinity—charging, for example, that Goldwater was a “counterfeit figure of a masculine man, namely, Adolf Hitler.”¹⁵ Lawlessness was enmeshed with race, gender, and class, issuing a gusher of volatile politics that rained down on the White House.

But Johnson was not simply a beleaguered respondent to these pressures who sought “to co-opt some of his critics’ momentum by adopting the crime issue himself.”¹⁶ He was also an active agent in expressing and channeling those burdens. He came into office because of a great crime, Kennedy’s assassination in 1963, and he agonized over the alleged criminality of people close to him. In the heat of the 1964 campaign, Walter Jenkins, Johnson’s chief of staff and longtime confidante, was arrested for sexual activity in a D.C. YMCA men’s room. In 1967, Bobby Baker, the party wheeler-dealer close to LBJ, was indicted and convicted on tax evasion, theft, and fraud charges after years of sex and corruption allegations.

For sure, LBJ did not engage crime as intensely as he did the Vietnam War and race relations, matters that presented him with almost daily crises. But crime worried LBJ in itself and as a threat to his efforts to build the Great Society, which he in turn saw as a means to combat crime. Like many liberals, he understood his “war on poverty,” publicly launched on March 16, 1964, as one way to get at the root causes of criminality. In the same way, he regarded civil rights laws as a means to quell black discontent that might erupt into lawlessness. As the President’s Commission on Law Enforcement put it in 1967, “Warring on poverty . . . is warring on crime. A civil rights law is a law against crime.”¹⁷ Humphrey’s 1968 campaign retort to Nixon’s law-and-order stance captured that liberal view: “For every jail Mr. Nixon wants to build I’d like to build a house for a family. And for every policeman he wants to hire I’d like to hire another good teacher.”¹⁸

But it was not that neat: LBJ, too, wanted more police. He repeatedly, if sometimes waveringly, backed new measures to deal with crime, among them the Law Enforcement Assistance Administration, begun in 1965 and expanded in 1968, which funneled federal money and resources to local agencies (New Orleans police got an armed personnel carrier).¹⁹ Johnson also supported a major, impressively staffed national crime commission. Capping off the legislative record was the Omnibus Crime Control and Safe Streets Act, so sprawling that “Omnibus” was indeed a fitting title. That law was the federal government’s biggest intervention to date into the highly localized business of crime control, and it was so stripped of liberal provisions Johnson originally proposed (he wanted stronger gun control and better protection of privacy rights) that it took much squirming for him to sign it. Also, insofar as warring on poverty was equated with warring on crime, the instruments and resources of the former process were often redeployed to the latter one in the twilight of Johnson’s presidency and under his successor.²⁰

Just as important, Johnson employed the language of a “war on crime” repeatedly. That metaphor was hardly new, and it was easily lost in the blizzard of war metaphors LBJ issued—there was hardly a problem he did not declare war on. But Johnson used war-on-crime language abundantly and elaborately. He first publicly mouthed a similar phrase on the campaign trail, proclaiming on October 16, 1964, that “the war on poverty . . . is a war against crime and a war against disorder.” In the months after, he mentioned “war against crime” occasionally, and on September 22, 1965, he insisted that “the policeman is the frontline soldier in our war against crime.”

Johnson escalated his rhetorical war on crime on roughly the same schedule that he expanded America’s war in Vietnam (major U.S. ground forces arrived there in 1965, and their number rapidly grew thereafter). In his special message to Congress on crime and law enforcement on March 9, 1966, LBJ proposed a long list of punitive, preventive, and rehabilitative measures, elaborating the war metaphor at length. The country would witness a “unified attack” and an “immediate attack” and a “three-stage national strategy,” with the local policeman again “the frontline soldier in the war on crime.” On October 15, Johnson told a crime-fighting group, “We are today fighting a war within our own boundaries. . . . This war is a war against crime in America.” Entangling combat in Vietnam with combat against crime, he added, “This Nation can mount a major military effort on the other side of the globe, and we can transfer hundreds of thousands of men 10,000 miles away from home without too much difficulty. Yet this Nation tolerates criminal activity, right here at home, that costs the taxpayers far more in both lives and dollars than the Vietnam conflict has ever cost them.” He used war-on-crime phrasing frequently for the rest of his presidency.

Others employed similar language. Nebraska Republican senator Roman Hruska, for example, claimed, “The task of law enforcement agencies is really not much different from military forces: namely, to deter crime before it occurs, just as our military objective is deterrence of aggression.”²¹ But other public...

Table of contents

• Cover Page
• The Punitive Turn in American Life
• Copyright Page
• Contents
• Introduction
• 1 The Crisis of a Militarized Order, 1963–1969
• 2 War on Crime in Vietnam’s Wake, 1969–1973
• 3 The Uncertain Advance of the Punitive Turn, 1974–1981
• 4 The Triumph of Militarized Crime-Fighting, 1981–1993
• 5 The Sprawling Punitive Turn, 1993–2001
• 6 The Punitive Turn in an Age of Vengeance, 2001–2009
• 7 Reversal or Redirection? 2009–2017
• Epilogue: The Enduring Punitive Turn
• Acknowledgments
• Notes
• Index