The truth about mandatory minimums: The left's painful—but necessary—conversation about crime & punishment

Michael Javen Fortner's "Black Silent Majority" overstates its case but sparks important conversation about crime

Published October 29, 2015 6:59PM (EDT)


New York Gov. Nelson Rockefeller is remembered for having been amongst the last of a dying breed known as liberal Republicans. But he was also a father of the Rockefeller drug laws and, as such, of the modern war on drugs, a punitive turn in politics that only recently appears to maybe be going out of style. The 1973 passage of Rockefeller's pioneering, eponymous and notoriously harsh laws established mandatory minimum sentences that helped raise the number of annual felony drug commitments to state prison from 843 that year to 11,225 in 1992.

New York's prison population stood at 13,437 in 1973, a little more than one-in-ten serving time for drug offenses. By 1999, the state's prison population reached 71,472, and nearly a third were drug offenders. And they were overwhelmingly black or Latino.

Worse yet, the Rockefeller laws set a model (which New York has reformed over the past decade) that helped usher in the age of mass incarceration nationwide. Nationwide, the total jail and prison population has risen about 500 percent over the past 30 years, reaching roughly 2.2 million adults in 2013. How this all happened, however, is now the subject of an extraordinarily contentious and acrimonious debates over criminal justice and, more pointedly, about the relationship between crime and punishment.

"Black Silent Majority: The Rockefeller Drug Laws and the Politics of Punishment" makes the case that anti-crime agitation by working and middle-class black Harlemites played a key role building support for the legislation, and in crafting a language that helped ensure its passage. Author Michael Javen Fortner, however, also tries to make a larger and far more controversial point, contending that "mass incarceration had less to do with white resistance to racial equality and more to do with the black silent majority’s confrontation with the ‘reign of criminal terror’ in their neighborhoods."

Amid a 1960s heroin boom in Harlem, violent and property crimes indeed surged. Drug addicts, Fortner recounts, carted away working people's hard-won consumer goods and residents feared attending evening church service. Most importantly, the incidence of murder skyrocketed. Killings were concentrated in poor non-white neighborhoods like Harlem's 28th precinct. The area, according to Fortner, had a homicide rate more than 26 times higher than on the Upper East Side, nearly 50 times higher than in white middle-class Bayside's most dangerous precinct, and nearly 40 times higher than in white working-class Canarsie.

This all occurred at a pivotal moment: Some middle-class and working-class black people were experiencing unprecedented if exceedingly fragile success as they entered professions and public sector jobs; meanwhile, deindustrialization combined with discrimination amidst the Great Migration from the Jim Crow South shut many into poverty and unemployment. Rigid housing segregation meant that black people of all classes experienced this horror show in uncomfortably close proximity.

The upshot, according to Fortner, was a middle- and working-class social movement demanding police protection and a crackdown on heroin dealers and, ultimately, addicts too. The black silent majority turned against not only the black underclass but also erstwhile white liberal allies who insisted on structural root causes and the defense of civil liberties. It was, writes Fortner, "the suspension of brotherhood and the persecution of the 'hood.'"

In signing the harsh mandatory-minimum legislation, Gov Rockefeller, ambitious and with a near-constant eye on higher office in a party that was tacking hard to the right, used the black silent majority's demands "to achieve his own goals and laid the groundwork for mass incarceration."

The black silent majority, however, was not merely a tool of conservative white opportunists. Take Rev. Oberia Dempsey, a key character in Fortner's tale who spent early years as a pastor in the storied Abyssinian Baptist Church and later organized armed militias to patrol the neighborhood. Dempsey and others in the book called for law and order in a manner that would have fit neatly into a conservative anti-Warren Court jeremiad.

"We don't advocate taking the law into our own hands," he said, "but the emphasis of the law is placed on protecting the rights of the criminal, not the decent citizen. I think every addict who is on the streets must be removed from Harlem."

Fortner puts black people at the center and beginning of a story that they are often written out of. Consider widespread Congressional Black Caucus support for the Reagan-era drug law, Harlem Rep. Charlie Rangel included, that created the 100-to-1 crack-to-powder cocaine sentencing disparity, and the countless black mayors, prosecutors and police chiefs who have embraced harsh policing and sentencing. Consider that retiring Philadelphia Police Commissioner Charles Ramsey this year boasted a 75-percent approval rating in a plurality black city where incarceration, stop-and-frisk, abuse and corruption are rampant.

Law-and-order sentiment amongst segments of the black community suggests one reason why middle class-heavy groups like the NAACP were for so long so quiet about mass incarceration. Many black middle-class people later migrated out of poor segregated neighborhoods, and their hostility toward black criminals might have softened into indifference.

* * *

Fortner's book no doubt has consequences for the current debate over criminal justice. And it has proved controversial.

"Nowhere does Fortner find the visible hand of racism," scholar Khalil Gibran Muhammad wrote in a scathing New York Times review. "There’s little mention and even less analysis of police brutality, housing discrimination, redlining, educational tracking or the like. There’s no research on all the federal and state investments in white housing and educational subsidies — or what the historian Ira Katznelson has called white affirmative action."

But that context of segregation that Muhammad claims is missing from "Black Silent Majority" is in fact not. Indeed, these structurally imposed injustices are the setting within which Fortner sets his story about how law-abiding black people turned on their more marginalized neighbors.

The Civil Rights Movement, Fortner writes, delivered working and middle-class blacks “economic freedoms and social rights" at the same time as "deindustrialization...closed off the labor market to unskilled, uneducated blacks, and persistent racial segregation placed the dispossessed and the recently empowered in constant contact and conflict."

And not only does Fortner cite Katznelson, he describes racist housing policies as having "concentrated poverty and concomitant social problems within minority urban areas."

More troubling is Muhammad's contention that Fortner sees black law-and-order activism "as a good thing," and that he "perpetuates a newer myth of post-civil-rights America: that nothing stands in the way of racial equality except black people’s own choices and behavior."

To describe Fortner as a defender of mass incarceration is a caricature. Fortner writes that "the human costs" of the Rockefeller drug laws were "unmistakable. As critics predicted [they] led to overcrowding in New York's prisons, filled those penal institutions with racial minorities, and failed to curb drug addiction and crime." Fortner describes a statute prescribing involuntary commitment of drug addicts as “a harrowing tale about an assault on the downtrodden and despised."

It is important to treat Fortner's argument and empirical account fairly to critique it. And it does merit criticism. Fortner's argument, as Muhammad rightly points out, downplays the critical role that white racism played in the rise of mass incarceration.

"The surveys do not indicate a desire among white ethnics to deploy police and prisons to maintain the old racial order or to suppress a population of surplus black labor,” Fortner writes, seemingly dismissing a large body of historical work exposing the central force that white racism played in 20th century American history. Fortner argues that white ethnic worries "about crime," to the extent that they existed, "were products of particular patterns of illegal activities in their neighborhoods instead of racial politics."

But it was in New York City that Democrat Mario Procaccino ran for mayor in 1969 on a law-and-order platform that mobilized so-called white ethnics to take on effete white "limousine liberal" elites—a campaign that was perceived by many as anti-black.

"We must stop coddling the criminals and pampering the punks," said Procaccino, who compared conditions in New York to Vietnam. "The do-gooders and bleeding hearts must stop handcuffing the police."

Fortner doesn't explore Procaccino's candidacy. Nor does he account for many facets of Nixon-era law-and-order politics—like the role that then-Maryland Governor Spiro Agnew's response to Baltimore's 1968 riot played in his political rise—in sufficient depth. Instead, Fortner uses an interesting case study to make sweeping generalizations about American criminal justice and political history as a whole. And they don't entirely convince.

Fortner is right that role of racist "white ethnics" in the north and segregationist rural conservatives in the south has been overstated: Nixon's coalition was in significant part based in the Sunbelt suburbs where an ideology of white innocence and meritocratic class privilege substituted for George Wallace-style massive resistance. But as Matthew Lassiter writes in "The Silent Majority: Suburban Politics in the Sunbelt South,"

"the corporate leaders of the New South...played the most significant role in constructing a metropolitan landscape of spatial apartheid that first reoriented and then outlasted the arrangements of Jim Crow."

In other words, racially-loaded law-and-order politics espoused by unrepentant segregationists and the racial-innocence peddled by white suburbanites were both important forces in the collapse of the New Deal coalition, the rise of the New Right, and the birth of mass incarceration. After all, the moderate suburbanite proclamation of white innocence required not just ignorance of the discriminatory government subsidies that underpinned their success but also an assertion of black failure—even if that assertion was sometimes implicit or unstated.

Finally, it seems that Fortner overstates the role of black law-and-order advocates in the passage of the Rockefeller drug laws, though I'm not qualified to say by how much. Certainly, as Kelefa Sanneh pointed out in The New Yorker, the fact that the legislation "passed with hardly any help from black legislators, all but one of whom voted against them...makes it hard to conclude that black political support was decisive." In Fortner's defense, he specifically says that black activist was "not decisive." But he does make a point of dispensing with most other causal factors—like white racism.

* * *

"But what is Fortner really saying?" asked Gawker's Hamilton Nolan, after conceding that he has not read the book. "Here is what he is saying, in its simplest form: Most black people don’t like to be victims of crime. Yes! Wow! This is the fresh new insight that will be sweeping our national thinkpiece media for at least the remainder of this week."

Nolan, his demonstration of self-professed ignorance aside, might be right when he predicts that Fortner's "argument will soon be seized upon as a right wing rallying cry." It's tough for black people to talk about crime publicly when conservatives will instantly seize on it to prove that crime justifies mass incarceration and harsh policing. Witness the recent post in David Horowitz's far-right FrontPage Mag entitled "THAT 'WHITE SUPREMACIST' PRISON PIPELINE WAS CREATED BY BLACK PEOPLE."

But street violence is real, and long as society continues to segregate poor black people and deny them decent jobs and good schools, it will likely continue at unacceptably high levels and police will be involved in dealing with it. That should not, however, lead to a deterministic conclusion that street violence requires mass incarceration as a response.

In Dissent, Fortner and University of Pennsylvania political scientist Marie Gottschalk discuss whether it is necessary to couple the fight against mass incarceration with an attack on the root causes of crime: poverty and segregation.

Gottschalk argues that mass incarceration should end because it is a human and social disaster on its own terms. Tying the destruction of the carceral state to lowering crime rates leaves the project vulnerable to new crime panics—whether they be over problems that are real, imagined or misconstrued. Witness the recent wrongheaded argument that a "Ferguson effect" is causing a (non-existent) violent crime surge, or the current move to impose extraordinarily harsh sentences on even minor heroin dealers. It also obscures the fact that many prisoners are nonviolent.

Fortner argues that "today’s reformers are preoccupied with police and penitentiaries, and blind to the painful experiences that gave punitive approaches purpose and urgency." They "are valiantly attacking the policies punishing people of color. But they have yet to couple this activism with a robust program targeting the social conditions that undermined public safety and prompted working and middle-class African Americans to turn to police and prisons for relief."

Gottschalk is right that the fight to end mass incarceration can only be successful if it is first and foremost about defending human and civil rights, and not because it will decrease crime or save money. But Fortner's book and the debate it has sparked is a reminder that victims of crime must be convinced that decarceration is not taking place at their expense.

Further, helping to eliminate crime by remedying its root causes is not just an intrinsic good, it would also no doubt make decarceration easier by further decreasing the incidence of crime. If at times it seems like Fortner, who grew up in Brownsville and lost a brother to violence, is trolling his opponents, that's because he thinks an important piece of black community sentiment, one he knows intimately, is too often ignored.

Demands for law-and-order have often had more to do with racist anti-crime hysteria than actual crime. But some on the left wrongly treat crime politics as pure panic, ignoring what many understandably perceive to be a real threat. In a letter to the editor objecting to Muhammad's review, Fortner complains of "a broader discourse that seeks to shame those who are concerned about black-on-black crime. It’s possible to recognize the devastating effects of black-on-black crime and at the same time support criminal justice reform."

As Fortner told me:

"I have been somewhat confused by why activists have not been open to extending their own discourse and rhetoric to include all the types of violence that undermine the dignity and worth of black lives. For me, it's, lets fight police brutality and lets fight black on black crime. The violence that inheres within urban communities is so vicious and so terrifying and so brutal that it deserves to be part of a broader movement against violence and for the dignity and worth of black lives."

A reticence to address crime falls short not only empirically but politically. It cedes a problem to the right for which the left, in reality, offers a more compelling explanation. It also reinforces the false belief that ending mass incarceration is primarily a matter of freeing nonviolent drug offenders when in fact decreasing sentences for violent offenders, many murderers included, must be part of any real program to end mass incarceration. Failing to pay attention to crime dismisses victims. It also renders hundreds of thousands of violent offenders invisible, and ultimately beyond the reach of decarceration.

A recent poll found that two-thirds of black people preferred the phrase "All Lives Matter" to "Black Lives Matter," countless internet think pieces notwithstanding. Conservative media unsurprisingly seized on the news as some sort of grand vindication. But debates considered to be very important to activists can seem arcane to the public at large: All it probably means is that black community perspectives are complex and diverse, encompassing conflicting desires for more, better, and less policing; there are condemnations of root causes alongside the pitiless condemnation of violent wrongdoers.

Despite the tenuousness of some of Fortner's sweeping claims, his book is an important historical witness to an understudied current in black politics, and a warning against treating the black community as a homogenous mass. It's also a reminder that while the morality of mass incarceration is incontrovertibly horrible, its roots are complex and sometimes counterintuitive, rooted not only in white racism but also aspects of the victims and women's movements, little-remembered technocrats and institutional developments, the lack of a strong welfare state, in liberal pressure to make sentencing more fair, and in crime, both real and perceived. As Gottschalk writes in Caught, "The full story of black politics and the rise of the carceral state has yet to be written." Fortner's book will be part of that conversation.

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By Daniel Denvir

Daniel Denvir is a writer at Salon covering criminal justice, policing, education, inequality and politics. You can follow him at Twitter @DanielDenvir.

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