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Trump’s version of law and order is the reason we lead the world in incarceration

"Law and order" has driven criminal justice policy for 50 years. It’s time to try something new.

Crime and policing was a fixture of every night of the Republican National Convention.

In the wake of several high-profile shootings, disorder abroad, and mass protests across the country, the Trump campaign was eager to try out its new slogan. Donald Trump is, he proclaimed in his keynote address, "the law and order candidate."

The strategy has a clear historical forerunner.

During the 1968 election, Richard Nixon successfully ran as the candidate of law and order against a backdrop of rising crime and civil unrest. There was then, as there is now, a very unsubtle racial element at play in the statement. In '68, Nixon plastered Americans’ TVs with images of protests and urban upheaval, urging the nation to "vote like your whole world depended on it." Today, Trump vows that without his guidance regarding Hispanic immigrants, Muslims, and the "threat" of Black Lives Matter, "we will cease to have a country."

That’s because "law and order" in American politics has always been a dog whistle — a way of speaking in code to one group of Americans to exploit their fears regarding another.

But it’s not just racist posturing. Appealing to white America’s anxieties about black crime was more than smart election strategy for Nixon — it ended up shaping the criminal justice policies of both his administration and the ones that followed. The result was an unprecedented explosion in incarceration and aggressive community policing that continues to disproportionately target people of color.

Therein lie the stakes for us today.

As the Atlantic’s David A. Graham has pointed out, crime rates are actually quite low. What’s more, the reemergence of law and order on the national stage comes at a time when lawmakers on both sides of the aisle are publicly acknowledging that our criminal justice system is in desperate need of recalibration.

Trump’s new mantra, and Democrats’ inability to offer worried Americans an alternative script, poses a serious threat to these reform efforts, if only because it signals that the way voters think about crime hasn’t changed much since Nixon’s day.

Richard Nixon and Spiro Agnew ran on a platform of law and order in the 1968 presidential election.
Hulton Archive/ Stringer via Getty

The politics of law and order have a racist and authoritarian past

In a lot of ways, the parallels between the 1968 election and the current one are overblown. Between Vietnam, the assassinations of MLK and JFK, and Johnson’s decision to leave office in the midst of it all, '68 was much worse. Still, the very fact that the comparison is on people’s minds says quite a bit about the current national sentiment — after all, when it comes to political moods, it isn’t about facts; it’s about how people feel.

And in 1968, as in 2016, a lot of Americans felt like the country was slipping away from them.

The '68 election was framed by mass unrest — protests, assassinations, and countercultural movements. Activists were organizing for racial justice, the left was challenging cultural and sexual values, and a large contingent of white Americans were left feeling vulnerable — both physically and in terms of their place in the nation.

In retrospect, the country hadn’t entirely fallen off its hinges. Crime rates, though high by today’s standards, were lower than they had been during the Prohibition era. But again, it was perception that drove fear.

Picking up on national anxieties, then-candidate Nixon repurposed a slogan previously used by Barry Goldwater in the 1964 election. According to Elizabeth Hinton, a professor of history and African-American studies at Harvard University, appeals to "law and order" in American politics originated as nothing more than a reactionary response to the advancements of the civil rights era.

"As soon as we have Brown v. Board and we have demonstrations and these challenges to the Jim Crow regime," she explained to Vox, "we get Southern segregationists talking about how law and order has broken down."

With both black activists and the white left threatening to buck the status quo in the nation, "law and order" allowed Nixon to create a large, vague enemy.

"It was used as a catchphrase to express the fear of a lot of Americans had about what the disruptions by different parts of the left were doing to the fabric of American society," says Michael Kazin, a Georgetown historian and author of The Populist Persuasion.

Nixon wanted his "silent majority" — another one of Trump’s favorite phrases, meaning middle-class, center-right white folks — to find solace in the prospect of stronger law enforcement. The whole appeal, Kazin explains, hinged on the idea "that the police were the only barrier between anarchy and riot and law-abiding citizens, and that they shouldn’t be criticized or condemned in any way."

With "law and order," Nixon, like the segregationists before him, shrouded racism and authoritarianism in an appeal that only those who were seen as criminals or troublemakers could object to.

But that authoritarianism and racism didn’t just go away after Nixon was elected, or even after he left office — it became the driving force behind American criminal justice policy for the next 40 years.

"Law and order" really means punitiveness. And bipartisan punitiveness is the reason we have the highest rate of incarceration in the world.

After taking office in 1969, Nixon’s campaign promise of "law and order" hardened into punitive policies. By pushing to expand prisons and lengthen sentences across the board, Nixon and his immediate successors presided over a fundamental shift in the way American policymakers thought about incarceration: Prisons were for punishment, not rehabilitation.

This logic lives on today, so it can be hard to imagine an America without it. To understand just how different a rehabilitative model of justice is from our retributive one, it’s important to keep two things in mind.

First, crime during this era was defined in a very specific way. As Hinton points out, when the politicians of the late 20th century decided to be tough on crime, they weren’t talking about white-collar criminals — they were talking about street crimes, the majority of which were committed by black and low-income Americans.

The classic example of this is illustrated by the 100-to-1 sentencing ratio of crack to powdered cocaine, which was the result of a federal drug law in place until 2010. While being caught with a candy bar’s weight of crack would mandate at least a 10-year sentence, you’d have to be in possession of 100 times that amount in cocaine to get similar time. In this way, racism is etched into the very structure of the law: Crack is the drug of the "inner cities," while cocaine is for Wall Street bankers.

Ultimately, this inequality of law enforcement led to aggressive policing in communities of color, sometimes causing deadly encounters with police forces over remarkably petty crimes.

The US has the highest rate of incarceration in the world — we house roughly 25 percent of the world’s prisoners, despite making up only 5 percent of total world population.
The Sentencing Project

Second, crime doesn’t spring from a vacuum. In America’s highly segregated black communities, especially, it’s rooted in poverty, neglect, and institutionalized racism. The focus on punishment rather than rehabilitation also signaled a governmental choice on how to deal with a lot of these greater problems plaguing communities of color.

"The policies that led to mass incarceration are the outcome of a bipartisan consensus of policymakers who work in between election cycles to enact punitive legislation, to disinvest in social welfare programs, to expand the prison system," Hinton says. "It’s beyond the political rhetoric, it’s a shift in the domestic policy priorities that began to happen when the rhetoric of law and order appears on the national stage in the '64 election."

Throughout the '80s and '90s, when crime really was quite high, media sensationalism and public anxieties created a further mandate for this type of agenda. The welfare state as we knew it was decimated. On the federal level and in both red and blue states, policies like truth-in-sentencing laws and mandatory minimums whittled away judges' ability to show leniency or issue sentences consistent with the circumstances of each individual case. The government was operating a directive: Increase the incarceration rate and lengthen offenders’ sentences.

That isn’t an overstatement. The 1994 crime bill, the controversial law enforcement act signed into law by President Bill Clinton, stipulated that if a state wanted federal funding to build prisons, it would have to show that it:

(A) has increased the percentage of convicted violent offenders sentenced to prison; (B) has increased the average prison time which will be served in prison by convicted violent offenders sentenced to prison; (C) has increased the percentage of sentence which will be served in prison by violent offenders sentenced to prison.

And again, these policies were incredibly long-lived. Even when crime leveled off in the 1990s and plummeted dramatically around the turn of the century, people were still being pumped into state and federal prisons at a breakneck rate.

Crime fell, but prison rolls kept rising.
National Research Council

Let’s be clear: The reemergence of the politics of "law and order" isn’t about crime; it’s about votes. The problem today isn’t so much that Donald Trump is willing to say it, but rather that despite the failures of a half-century of punitive policies, Americans still want to hear it.

The way we think about law and order is holding us back

It’s widely acknowledged that our current criminal justice system is deeply flawed: It’s costly, discriminatory, and, frankly, just too large. On top of all that, it probably isn’t even the reason the crime has dropped since the mid-1990s. Studies have suggested that incarceration yields diminishing returns; ramping up imprisonment yields a quick drop in crime, but after that it just up locks people who are unlikely to reoffend.

Still, it’s not hard to understand why tough-on-crime measures are so popular. When the world feels unsafe, people are generally willing to put up with imperfect solutions that promise more security.

But this is where we come up to the limits of "law and order." Public perception of danger (the force that mandates punitive policies) doesn’t follow actual crime rates. Today crime is actually very low, but Americans don’t seem to know that.

Violent crime rate versus the percentage of Americans who think crime is higher than it was a year ago.
Gallup

So we’re stuck: If our presiding philosophy of criminal justice is driven by unwavering anxieties, there’s no real room to move beyond the failures of punitive policies.

However, the world shows that there are other ways of dealing with lawbreaking. For example, countries like Norway take a more rehabilitative approach. Prison cells look more like small bedrooms than cages, there are real opportunities for inmates to learn vocational skills, and instead of minimum sentences, their time is based on maximums. In part because Norway employs data-backed approaches to reducing recidivism (like those endorsed in a 2007 US Department of Justice study), only 20 percent of released prisoners reenter the Norwegian system. That’s opposed to 76.6 percent in America, one of the highest recidivism rates in the world.

Of course, a Norwegian system probably wouldn’t translate well here — for one, we just have too many people in the system already. But the comparison illustrates a key point: Until we’re ready to rethink our definition of law and order on a large scale, we won’t be able to make our current system more efficient and more equitable.

But just before the 2016 election got into full swing, there was real appetite for criminal justice reform on both sides of the aisle.

Yet it’s safe to say a Trump presidency would mean the end of such conversations, at least on the national stage. As Vox’s German Lopez has pointed out, in addition to his past support for draconian crime measures, Trump hasn’t indicated that criminal justice reform is even on his radar.

So far, that doesn’t seem to bother his supporters, possibly because the alternatives to "law and order" — continuing with the incrementalist reforms of the Obama administration, or picking up the pace as activists demand — are even scarier to them. Trump and Republicans like him have done a great job of painting domestic disturbances and terror abroad as both historical threats to America and a result of the policies of the Democratic president. That’s why law and order plays so well in this election. If you really fear that the fabric of the country is fraying, strict measures to hold it together seem warranted.

"Law and order is a reflection of the political climate," explains Michael Flamm, a history professor at Ohio Wesleyan University and author of Law and Order: Street Crime, Civil Unrest, and the Crisis of Liberalism in the 1960s. "At the moment, in this political campaign season, we have observed an already toxic political atmosphere that’s become even more polarized and partisan."

Keeping crime low and rethinking the way we run the system don’t have to be mutually exclusive goals. But that’s the false binary that Trump has enforced by capitalizing on misinformed distress. Unfortunately, that’s also the impression that will likely remain even if he isn’t elected in the fall.

As history shows, once stoked, Americans’ race-based fears about crime tend to burn slow and long.


Watch: How mandatory minimums drive mass incarceration