Monday, November 9, 2015

ASLH Panel Recap: "Crime, Punishment, and Federalism"

[This ASLH panel recap comes from Sara Mayeux, a Sharswood Fellow at the University of Pennsylvania Law School and Ph.D. candidate at Stanford University]

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. 

During the Q&A, several audience members asked about the primary sources used to study the “carceral state.” What archives are available? What about oral histories? This line of questioning generated an interesting but troubling conversation about the (growing?) difficulty of accessing government records relating to jail and prison policy. While all of the panelists had used informal interviews and/or more formal oral histories to some extent, Hughett noted that former prisoners are often understandably reluctant to revisit a dark period in their lives, and former prison and jail officials have their own reasons to be reticent. As far as archives, the picture is bleak. Hinton noted that the LEAA records at NARA are sparse and there are no records at all for many years during the 1970s. It is unclear whether additional records exist but have never been processed, or whether the records simply have not survived. Newport noted that Cook County Jail destroys its records after 10 years, so she has relied primarily on personal papers of individuals who happened to collect documents in the course of their work. Hughett reported that North Carolina’s most recent sunshine law exempts the Department of Public Safety, and as a result, she is now able to consult many of the materials she works with only in redacted form. Perhaps a future ASLH meeting can feature a panel or roundtable discussion where legal historians, lawyers, and archivists can strategize about how to open and maintain access to government records in areas like law enforcement, where both historical inquiry and present-day oversight are urgently needed. From the audience, Barbara Welke noted that tobacco class-action settlements have sometimes included a requirement that tobacco companies make records available to researchers, and wondered whether similar litigation might be a strategy here

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