Crime, Punishment, and Federalism: The Curious Case of the Law Enforcement Assistance Administration
If some conference panels generate synergy by bringing together papers asking similar questions across disparate times and places, this panel took the opposite tack and brought together three papers investigating one short-lived federal agency: the Law Enforcement Assistance Administration (LEAA). Established by the Safe Streets Act of 1968, LEAA required states to develop “comprehensive plans” for criminal justice policy and awarded grants to supplement the budgets of local courts, corrections agencies, and police departments. LEAA was phased out in 1982, although it has various successor entities within the Department of Justice.
LEAA
is typically remembered as a flag-bearer of the punitive,
“law-and-order” turn in American social policy, and in particular, as an
early harbinger of police militarization. As panel chair and commentator Elizabeth Hinton has chronicled in a recent article (and in her forthcoming book),
states used LEAA grants “to increase surveillance and patrols in
already-targeted black urban neighborhoods,” to acquire “military-grade
weapons” for police, and to cultivate “a climate of surveillance and
intimidation” in inner cities that frequently erupted into “street
warfare between police and residents.” However, LEAA funded far more
than paramilitary gear (especially in its later years, and especially
through the component of the program that made block grants available to
states to use as they saw fit), pouring federal dollars into a dizzying
variety of projects related to courts, jails, and prisons. As this
panel demonstrated, taking a close look some of these projects may
complicate our understanding of the agency’s legacy in some ways.
Overall, though, the panel confirmed LEAA’s importance in laying down
political, intellectual, and material foundations for the metastasizing
“carceral state.” Further study of this somewhat opaque agency promises
to generate new insights not only about criminal justice policy but also
about the postwar American state and the dynamics of “cooperative
federalism” more generally.
The
works-in-progress presented on this panel join a burgeoning American
history subfield on the “carceral state,” recently the subject of
special issues in the Journal of American History, the Journal of Urban History, and the Journal of African-American History. Just
a few years ago, work by historians on the massive
late-twentieth-century growth of jails and prisons could seem sparse
(especially compared to the voluminous literature on this subject from
our disciplinary cousins in sociology and political science). Now, it is
getting hard to keep track of all of the books, dissertations, and
articles in progress examining dimensions of this history. (The rich
array of work being done in this field among ASLH members alone was
highlighted by the fact that our panel was held concurrently with a
panel on “The Legal History of Immigration Detention.”)
Amanda Hughett,
a fellow at the American Bar Foundation and history PhD candidate at
Duke, discussed the ACLU National Prison Project’s partnership with LEAA
to develop inmate grievance commissions in North Carolina prisons. This
partnership could seem surprising since ACLU lawyers were vocal critics
of LEAA, testifying before Congress that the agency was a “failure.”
Nevertheless, ACLU lawyers shared LEAA’s interest in bolstering due
process protections for prisoners—although for different reasons. The
ACLU hoped to destabilize prisons by providing a channel for prisoners
to voice their complaints, while LEAA hoped that grievance commissions
would legitimize prisons—which they did, at least in the eyes of many
federal judges. From the ACLU’s perspective, LEAA funds were appealing
as a “politically safe” way to fund services for prisoners. However,
liberal advocates’ focus on procedural protections may have distracted
from or undermined the more radical critiques of prison conditions being
advanced in the same era by the prisoners’ rights movement and by
nascent prisoner labor unions. Ironically, making prisons more
accountable to law helped to shore up the carceral state against more
fundamental challenges to its legitimacy. (As was brought up in Q&A,
these insights resonate with arguments that historians and legal
scholars have made about procedural due process in many other policy
contexts; Taja-Nia Henderson asked about possible parallels or overlaps with Goldberg v. Kelly and Mathews v. Eldridge.)
Sara Mayeux (that is, I), a
Sharswood Fellow at Penn Law and history PhD candidate at Stanford,
discussed LEAA funding for indigent criminal defense in the 1970s and
early ‘80s. I focused especially on the LEAA-funded Roxbury Defenders
Committee, an innovative community-based defender founded in 1971 in
response to African-American Bostonians’ complaints that public
defenders were socially, culturally, and physically distant from the
communities they served. In interviews and writings, lawyers affiliated
with the Roxbury Defenders made sometimes quite radical critiques of the
criminal courts as engines of racist oppression. Nationwide, indigent
defense received a minuscule sliver of LEAA funds overall, but in
absolute dollar amounts, LEAA grants represented an unprecedented
federal outlay for indigent defense, and some organizations, like the
Roxbury Defenders, owed their existence to LEAA funds. I suggested two
possible interpretations of this phenomenon. One interpretation might
hold that LEAA funding for indigent defense must have somehow co-opted
defenders into the unwitting service of a law-and-order agenda—limiting
their ability, despite their ostensibly critical politics, to mount any
real challenge to the emergent carceral state. However, I suggested that
we might instead view LEAA funding for indigent defense as evidence of
genuine (if hairline) cracks in the carceral state’s foundations. By the
early 1980s, LEAA was widely criticized for its byzantine structure and
for failing to give states clear substantive direction about how to divide up their block grants, instead emphasizing elaborate procedural requirements
that states had to follow. I wondered, however, whether in this
context, complexity, purposelessness, and proceduralism might be
reconceived as virtues, insofar as they made LEAA somewhat permeable to
grassroots activists and civil libertarians who had very different views
of the “War on Crime” than did presidential speechwriters.
Melanie Newport,
a history PhD candidate at Temple University, rounded out the panel
with her paper on LEAA funding to expand Chicago’s Cook County Jail.
Echoing the other two panelists, Newport observed the internal
contradictions within 1970s federal law enforcement policy—the
Department of Justice was suing Cook County Jail over its brutal
conditions and LEAA was funding bail reform in Chicago even as LEAA was
also funding a massive expansion in the jail’s capacity. Newport noted a
persistent gap between local ambitions to build jails and local
capacity to actually fund and administer those jails—a gap that federal
dollars helped to fill. Newport emphasized, however, that federal
funding for programs and federal funding for construction had very
different legacies. Bail reform and treatment programs came and went
with the vicissitudes of outside funding, but once new jail cells were
built, they were there to stay. In contrast to federal investments in
programming, then, federal investments in physical infrastructure
represent a form of policy direction that is especially lasting and
especially hard to challenge later on. LEAA might seem to have been
internally contradictory if we just take a snapshot of the 1970s, but in
the long run, LEAA’s legacy in Chicago appears more uniformly
pro-carceral.
In her comments, Elizabeth Hinton,
Assistant Professor of History and African-American Studies at Harvard,
noted that her forthcoming book views LEAA primarily from the
perspective of federal policymakers. These three papers complemented her
work by providing a view of LEAA from the periphery, from the
perspective of the state and local entities that distributed and
received LEAA funds. Together, the papers illuminated “the uneven
development of the carceral state in the United States,” showing that
state and local policymakers had a range of choices in how they used
federal funds and responded to federal incentives, and some chose to
plan quite deliberately for mass incarceration—complicating social
science accounts of mass incarceration as simply an unintended or
unforeseen consequence of other policy projects. Newport’s evidence, in
particular, suggests that Chicago officials envisioned and concertedly
planned for an expanding jail population.
