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Justice in America Episode 9: How Democrats and Republicans Created Mass Incarceration

Josie and Clint talk with Elizabeth Hinton, Associate Professor of History and of African and African American Studies at Harvard University.

President Richard Nixon and former President Lyndon B. Johnson at the dedication of the LBJ Library, 1971.
LBJ Library

Justice in America Episode 9: How Democrats and Republicans Created Mass Incarceration

Josie and Clint talk with Elizabeth Hinton, Associate Professor of History and of African and African American Studies at Harvard University.

There are a few schools of thought regarding the origins of mass incarceration. Some blame Reagan and his” war on drugs,” while others blame Bill Clinton’s 1994 Crime Bill. Meanwhile, movies like Ava Duvernay’s 13th have drawn the direct parallels between slavery, Jim Crow, and our racist incarceration system. Each of these theories is correct, at least in part. Yes, it is undoubtedly true that mass incarceration cannot be divorced from prior systems of racial subjugation in America. And yes, Reagan and Clinton helped to perpetuate mass incarceration.

But in her book From the War on Poverty to the War on Crime, our guest Elizabeth Hinton, a professor of History and African American studies at Harvard, argues that the modern roots of mass incarceration can be traced even further back, to president Lyndon B. Johnson. Johnson, a Democrat, is famous for helping usher in key Civil Rights victories, from the Voting Rights Act to the Civil Rights Act. And he spent much of his tenure fighting for low-income Americans, implementing a series of domestic policies that he called the War on Poverty. But he also pushed for harsher punishments and a larger law enforcement presence, particularly in communities of color. Under Johnson, the federal government started pouring tons of money into local law enforcement, which gave them the tools they needed to lock up millions of people.

On this episode, we discuss how both parties helped perpetuate mass incarceration in the years immediately following the Civil Rights movement. We also discuss why it is that, during the 70s and 80s, black elected officials were some of the most ardent supporters of mass incarceration.

Professor Hinton joins us to talk about how both Democrats and Republicans are responsible for the mass incarceration system we have today.

Additional Resources:

Hinton’s phenomenal book, “From the War on Poverty to the War on Drugs” can be purchased here. We highly recommend it.

We also suggest checking out Locking Up Our Own by James Forman, Jr., which recently won the Pulitzer Prize. It examines how, throughout the 70s and 80s, many black elected officials actively encouraged and implemented policies that contributed to mass incarceration.

There’s also this excellent Naomi Murakawa book, The First Civil Right: How Liberals Built Prison America, which is fascinating.  

“The Negro Family: A Case for National Action” — otherwise known as the Moynihan Report — can be found here. There’s also a non-PDF version archived on the U.S. Department of Labor website.

This 1965 statement from President Johnson to Congress outlines his proposed War on Crime policy initiatives. But much of it is still relatively reasonable — he acknowledges the need for other social investments by the government to address some of the root causes of crime, cautions against mandatory minimums for drug crimes, and asks that those with legitimate medical needs still have access to necessary drugs. (Compare this to the speech made by Reagan almost 20 years later, included below.)

You should also read the Drug Policy Alliance’s brief history of the Drug War. It includes some unbelievable quotes from Nixon’s aide that we found especially chilling. Make sure to watch the amazing video, a collaboration between Jay-Z and artist Molly Crabapple.

Here’s the text from a radio address given by Reagan in September, 1982 on the need for increasing penalties and punishments for people convicted of crimes.

You should also watch Reagan’s remarks from a speech given a month later, in October 1982. He essentially says: it’s a myth that crime can be reduced by investing in social services and programs that improve material conditions. Instead, he says “evil is frequently a conscious choice,” making the only way to reduce crime “retribution” which must be “swift and sure.”

And while we may not agree with every argument in this 2016 Jacobin article, entitled “Bill Clinton, Superpredator,” it still includes a lot of important history and good information about Clinton’s embrace of mass incarceration.

Justice in America is available on iTunes, Soundcloud, Sticher, GooglePlay Music, Spotify, and LibSyn RSS. You can also check us out on Facebook and Twitter.

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[Begin Clip]

Elizabeth Hinton: If we really want to kind of understand how we get the kind of deep seeded, insidious inequality and racism that pervades our society today, then it requires us to to look at the ways in which even the best intended policies are marred by racist notions in general. And I think a lot of it has to do with the kind of narratives that we like to tell both academic ones, as historians, but also kind of in the public imagination about what the 1960s was and the achievements of the 1960s.

[End Clip]

Clint Smith: What’s going on everyone, I’m Clint Smith.

Josie Duffy Rice: And I’m Josie Duffy Rice.

Clint: And this is Justice in America. Each show we discuss a topic in the American criminal justice system and try to explain what it is and how it works.

Josie: Thank you everyone for joining us today. You can find us on Twitter @Justice_Podcast, you can like our Facebook page, you can just find us at Justice in America and you should subscribe and rate us on iTunes please, we’d love to hear from you.

Clint: We started the show with a clip from our guest, Dr. Elizabeth Hinton, who’s professor of History in African American Studies at Harvard University. She’s also the author of From the War on Poverty to the War on Crime, which argues that our mass incarceration apparatus largely stems from policies implemented in the sixties by the Johnson administration.

Josie: So we’re almost at the end of our season and we’ve talked about a lot, bail, plea deals, voting rights, prosecutors and prosecutor elections, crimmigration, women with incarcerated loved ones, many other topics and tangents and what we realize is that we’ve talked a lot about how things are, but what we haven’t talked about is how they got this way. We haven’t really talked about how we got here and by “we” we mean America and by “here” we mean with this mass incarceration system.

Clint: In some ways, this is a philosophical question. How did a country that so prides itself on freedom and liberation allow this sort of thing to happen? And of course we know that for many people America hasn’t always really been a country of freedom, clearly. And the question of how did America allow this to happen? Could be applied to many different atrocities perpetuated by our government against its own people, not to mention people from other nations. And honestly, we can’t give you a clear cut answer to the philosophical question of how we got here, but it’s also a historical question. What happened for America to become the country of mass imprisonment? Was there one moment, one law, one change, one case, again, how did we get here? Historically, what happened?

Josie: It seems like often when this question is discussed, the root of mass incarceration is traced back to a single event, so the war on drugs, for example.

[Begin Clip]

Ronald Reagan: We are making no excuses for drugs, hard, soft or otherwise. Drugs are bad and we’re going after them. As I’ve said before, we’ve taken down the surrender flag and run up the battle flag and we’re going to win the war on drugs.

[End Clip]

Josie: Or Hillary Clinton using the term superpredator after Bill Clinton signed his terrible 1994 Crime Bill.

[Begin Clip]

Hillary Clinton: They are not just gangs of kids anymore. They are often the kinds of kids that are called superpredators. No conscience, no empathy, we can talk about why they ended up that way, but first we have to bring them to heel.

[End Clip]

Josie: But our guest, Professor Hinton, makes a very convincing argument that these perspectives maybe just a little short sighted. Instead, she argues the beginning of our mass incarceration system can be reliably sourced back to President Lyndon Johnson.

[Begin Clip]

Lyndon B. Johnson: We will not tolerate lawlessness. We will not endure violence. It matters not by whom it is done or under what slogan or banner. It will not be tolerated. This nation will do whatever it is necessary to do to suppress and to punish those who engage in it.

[End Clip]

Clint: This is especially relevant because many people think of Lyndon Johnson as one of our greatest liberal presidents and a true champion of civil rights. In many ways, perhaps that perspective is accurate. But in other ways, Johnson really has helped create a system that has now morphed into one of the most punishing criminal justice systems on the planet. Professor Hinton is one of the few experts that has recently written about the large role that liberals have played in creating mass incarceration as we currently know it today. And this gets us to our main theme today, which is that this system wasn’t created by just one political party, our mass incarceration system is not just the work of Republicans or people on the right, but in fact, Democrats and liberals more broadly have been a major contributor to the system of mass incarceration that we have today and in many places that continues to be the case.

Josie: Right. So let’s go back to Lyndon Johnson. In 1964, during his State of the Union, Lyndon Johnson proposed what would come to be known as The War on Poverty. He said his goal was to quote, “not only relieve the symptom of poverty but to cure it, and, above all, prevent it.” You may have heard of Johnson’s War on Poverty before, but if you haven’t, you should read up on it. It’s very, very interesting. The War on Poverty was a group of policies and legislation and programs that were intended to address what was at the time an almost twenty percent poverty rate in America. That same year,1964, Johnson passed the Economic Opportunity Act, which was a massive piece of legislation that invested almost $1 billion in the fight against poverty in America, and it included a number of different programs from small business loans to remedial education to job training, and it was actually the legislation that started Americorps. Anyway, we could talk about the other War on Poverty initiatives all day, but the one that really matters basically begins in the Summer of 1964. And before we go further, let’s be clear, this was a turning point yes, but nothing in our system can be blamed one moment. There is not a tidy inception point and we want to be clear about that. We want you to know that this is a messy, complicated system with a lot of variables, but the Summer of 1964 certainly played a role in Johnson’s decision making.

Clint: That summer in New York City a 15 year old named James Powell was shot and killed by a police officer in front of more than a dozen witnesses. It was of course a traumatic moment and thousands of people, specifically black people, in Harlem and Brooklyn and throughout New York, filled the streets over the next few days and what became known as the Harlem Riots. The word riots is loaded and complicated and it has its own set of connotations of course, but we’ll use that word for the time being just because that’s the historical nomenclature that’s been used to describe this event throughout history. Anyway, Johnson spoke up about what happened in New York saying that quote, “the immediate overriding issue in New York is the preservation of law and order.” He said his office quote, “will not permit any part of America to become a jungle, where the weak are the prey of the strong and the many.”

Josie: Now by all accounts this is a pretty warped picture of what happened, right? I mean, after all, a kid was killed by a cop, and so this quote, “preservation of law and order” stuff seems misguided at best. That’s the kindest word I have for it.

Clint: Right. Much like we’ve seen over and over again, especially over the past few years in America, when the people who are supposed to be preserving quote, “law and order” are actually killing unarmed kids in the street, the community is not the issue. Law enforcement is.

Josie: But somehow law enforcement isn’t who got the attention. By many accounts, the protest in Harlem caused a lot of people, particularly white people, to be increasingly fearful of crime. That fear was undoubtedly tainted by racism and for many perhaps some negative feelings about the Civil Rights Movement, but Johnson used it to his advantage anyway, and he took the opportunity to become a champion for moral law enforcement, which had traditionally been more of a right-wing thing. So eight months after the riots, he declares the war on crime. So just so you’re keeping track. In 1964, he signs the Civil Rights Act. In 1965 he signs the Voting Rights Act. In 1964, he declares the War on Poverty. In 1965, he declares the War on Crime.

Clint: The major move he makes that year on this War on Crime thing, it’s called the Law Enforcement Assistance Act, and what it does is really expand the federal government’s power on issues of local law enforcement. Before now, it wasn’t so much national involvement in local policing or local criminal justice because policing in particular has always been an issue of local control, but now Johnson was investing.

Here’s a clip from the 1966 State of the Union address of Johnson asked Congress to expand federal police power.

[Begin Clip]

Lyndon B. Johnson: I recommend that you meet the growing menace of crime in the streets by building up law enforcement and by revitalizing the entire federal system from prevention to probation.

[End Clip]

Josie: Johnson justified the call for increased federal control by invoking, quote unquote “rioting” and associating those riots with increased civil rights protections. Here he is speaking in 1967 after sending in federal troops to Michigan during the 1967 Detroit Rebellion.

[Begin Clip]

Lyndon B. Johnson: Law enforcement is a local matter. It is the responsibility of local officials and the governors of the respective states. The federal government should not intervene except in the most extraordinary circumstances. The fact of the matter, however, is that law and order have broken down in Detroit, Michigan. Pillage, looting, murder and arson have nothing to do with civil rights. They are criminal conduct and the federal government in the circumstances here presented have no alternative, but to respond. Your president calls upon all of our people in all of our cities to join in a determined program to maintain law and order, to condemn and to combat lawlessness in all of its form and firmly to show by word and by deed that riots, looting and public disorder will just not be tolerated.

[End Clip]

Josie: Johnson said repeatedly that crime was so out of control that it was necessary for the federal government to get involved, but he didn’t just want to send in troops. He wanted to give resources to local law enforcement to make it more powerful.

[Begin Clip]

Lyndon B. Johnson: To attack and to overcome growing crime and lawlessness I think we must have a stepped up program to help modernize and strengthen our local police forces. Our people have a right to feel secure in their homes and on their streets and that right just must be secured.

[End Clip]

Clint: He wanted a new crime control agency, a federal crime control agency called the Office of Law Enforcement Assistance, which to quote Professor Hinton, would support “experimental surveillance techniques for police forces serving low-income urban communities.” And this is sort of where it all comes together. Basically, Congress and the Johnson administration merged the War on Crime with the War on Poverty. They wanted to provide some social safety nets and opportunities, but they also said that they wanted to fight crime and prevent crime and address crime from happening in the first place and they decided that they were going to do that through law enforcement.

Josie: Right, and Professor Hinton makes this really great point in her book that Johnson’s War on Poverty, the economic initiatives, while well intentioned, did not go nearly as deep or far as they would really need to go to address poverty in America. There was job training and creating temporary jobs, but there wasn’t sort of the permanent investment in job creation that the country really needed. But the government did heavily invest in one job creation program and that was cops. By investing so much money in the police state, they created more jobs for police officers then they did for pretty much any other sector. So we’ll talk about this later with our guest because she covers it excellently, but there are two things especially important, particularly when you’re comparing Johnson to the man that follows him, Richard Nixon. Johnson was obviously more liberal, as we know, and he was more invested in civil rights than any of his predecessors. I mean Kennedy made promises too but obviously never got the chance to act on a lot of what he had vowed to do. But Johnson did have the chance and at many points he took it, but he also played into the same backwards thinking that has existed forever that stems from racism and is fundamentally racist, though it is often well intentioned. It’s racist in the way that the concept of the culture of poverty is classist and it’s what we see from a lot of, again, well intentioned white liberals.

Clint: And this is something that we’ll talk a lot about with Ta-Nehisi Coates at the end of the season and it’s also something that Dr. Hinton talks about in her book. Plenty of scholars who have written and thought about this, but just to sum it up quickly. So there’s this idea that black people in particular are culturally inferior. That our behavior is warped or that because we’re black, we suffer from pathologies that make us inherently criminal or inherently angry or lazy or unable to work or even single parents. Liberals like Lyndon Johnson and Daniel Patrick Moynihan, who wrote the famous report, “The Negro Family in the United States,” which is more informally known as the Moynihan report, believe in this pathology without question. But the difference is they attribute it to wrongdoing that black people were forced to suffer. That the racism and poverty and lack of access and history of slavery have created the culture that black people exist in today. And Moynihan, who was a sociologist, and at the time was Johnson’s assistant Secretary of Labor, himself said that the virulent racism in America had created quote, “a tangle of pathologies.” Therefore, because we were in their minds, prone to criminality, whether because the history of racism or otherwise, the law enforcement apparatus was critical to make sure that we had cops and courts and prisons ensuring that we basically behaved ourselves. We’ll add a link to the Moynihan report on the website,

Josie: Look, this sounds ridiculous, but this is common. I mean it’s still common. People across the political spectrum still perpetuate variance on this culture argument for black people, brown people and poor people. This is what many people consider to be a rationalization for the fact that our government continues to fail these communities. It’s easier to imagine there’s something in black people or poor people or Hispanic immigrants that won’t allow them to succeed than it is to realize how our country has failed to alleviate the systemic barriers that it put in place. So yeah, Johnson was big on black cultural pathology, and meanwhile on the other end of the spectrum was Richard Nixon. Johnson set the stage for a dramatically expanded, astronomically expensive law enforcement apparatus on the local level funded by the federal government. Nixon continued it. During his presidency alone, the government spent $2.4 billion on crime. This is money mostly given to local police departments that they then spent on developing new ways to monitor and punish and patrol people, particularly black people.

Clint: And Nixon didn’t believe that poverty had much to do with crime at all. He once said, “If the conviction rate were doubled in this country, it would do more to eliminate crime in the future, than the quadrupling of the funds for any government war on poverty.” Essentially he thought that we were too soft on crime and that the reason people were criminals is because they weren’t being punished hard enough.

So here’s a clip from 1970 where he basically says the War on Crime is the only thing Johnson got right.

[Begin Clip]

Richard Nixon: We’ve heard a great deal of overblown rhetoric during the sixties in which the word war has perhaps too often been used. The war on poverty, the war on misery, the war on disease, the war on hunger. But if there is one area where the word war is appropriate it is in the fight against crime.

[End Clip]

Clint: So he increased mandatory minimums. He supported holding suspects in jail without charging them. He expanded the categories of offenders and under his administration, new prisons were built with increasingly minority occupants. And not surprisingly, given that his chief of staff quoted him as saying quote, “You have to face the fact that the whole problem is really the blacks. The key is to devise a system that recognizes this while not appearing to.”

Josie: Yeah, it’s pretty extreme and very racist and it was a harsher, less nuanced, all around worst perspective than Johnson. Right? But the end game was the same. Both liberals and conservatives have concerns that poor and minority neighborhoods, communities have few jobs or educational opportunities or economic mobility, and they both have relied on arresting people and locking them up instead of, you know, providing more jobs or educational opportunities are increasing economic mobility.

Clint: So yes, Nixon expanded the carceral state. Under him, national, state and local police spent millions of dollars executing sting operations. And when Reagan came along, he made it even worse.

Josie: Like Nixon, Reagan rejected any possibility that the prevalence of crime could be related to social forces. Here’s a clip that always gets me, of Reagan driving home the idea that crime is divorced from anything else, but an individual’s capacity for wrongdoing.

Ronald Reagan: This rise in crime, this growth of a hardened criminal class has partly been the result of misplaced government priorities in a misguided social philosophy. At the root of this philosophy, lies Utopian presumptions about human nature that see man as primarily a creature of his material environment. By changing this environment through expensive social programs, this philosophy holds that government can permanently change man and usher in an era of prosperity and virtue… The new political consensus among the American people utterly rejects this point of view. The American people are reasserting certain enduring truths, the belief that right and wrong do matter, that individuals are responsible for their actions, that evil is frequently a conscious choice and that retribution must be swift and sure.

Clint: You probably know that the war on drugs was Reagan’s thing and in the mid eighties criminal justice involvement really begins to skyrocket at this unprecedented rate, but it was Johnson who set the stage for the systems that we have today. More contact with law enforcement, more monitoring by the police and more punishment.

Josie: Yeah, and also more federal dollars going to local police forces to fund this apparatus to fund this surveillance. Now, as we mentioned before, most of criminal justice policy happens locally, and we’ll talk about this with Professor Hinton. So of course the president has power, Johnson proves that, but they don’t really control directly what happens on the local level. And it’s worth mentioning that in many black communities where crime was increasing in the seventies and eighties, it wasn’t just the white people who wanted more law enforcement. In fact, very often it was black leadership. This is the thesis of James Forman, a professor at Yale Law School’s, wonderful book, Locking Up Our Own.

Clint: A lot of his book, which won the Pulitzer Prize focuses on DC and how the increase in crime in black communities in the seventies led black politicians and leaders to call for far more punishments, stricter gun laws, stricter drug laws and higher mandatory minimums. John Ray, a black city councilman in DC even brought legislation in 1981 to increase some mandatory minimum sentences. He framed it through a racial lens. He said, quote, “Black crimes against blacks get very low sentences.” And that, “Black crimes against whites get very big sentences, and low-status whites get longer sentences than higher-status whites.” The reason then, for supporting mandatory minimums for folks like John Ray, was not only to eliminate crime in the neighborhood, but it was to make things fair. Now it’s important to mention that black political leaders and activists weren’t only calling for harsher punishment and more police they were calling instead for a sort of more holistic intervention, one that included calls for full employment, quality education, drug treatment, and one that actually criticized police brutality.

Josie: Right. And as Dr. Henton wrote in a New York Times Op-Ed in 2016, quote, “It’s not just that those demands were ignored completely. It’s that some elements were elevated and others were diminished — what we call selective hearing. Policy makers pointed to black support for greater punishment and surveillance, without recognizing accompanying demands to redirect power and economic resources to low-income minority communities. When blacks ask for better policing, legislators tend to hear more instead.” So Professor Forman and Professor Hinton’s books along with other books like The First Civil Right by Naomi Murakawa are all really driving home a very important point; both parties are largely responsible for mass incarceration and we have to understand that liberals and conservatives have been traditionally just pretty atrocious on this issue, otherwise we risk continuing the same instinctual patterns that got us here in the first place.

Clint: And now we have our guest, Professor Elizabeth Hinton of Harvard University, who is going to go even more in depth about some of these really important issues. Stay tuned.


Clint: So we’re here with Dr. Elizabeth Hinton of Harvard University, a professor of History and African American Studies. Thanks so much for coming on.

Elizabeth Hinton: Thank you. I’m super excited to be here.

Josie: So Dr. Hinton, you explain in your book that Lyndon Johnson’s War on Crime Bill was what really kind of set the stage for mass incarceration and I was hoping you could explain why he took this approach, why you think this was a strategy he took on crime and was he really genuinely concerned about crime or was this something else?

Elizabeth Hinton: Well, Johnson genuinely was concerned about crime. Part of the problem is what the roots of those concerns and the actual programs and policies that he and other federal policymakers took to combat it. You know, in part we have to go back to the Kennedy administration to answer this question. In the early 1960s, policymakers and the social scientists who were very influential over kind of the future of domestic legislation became very concerned about demographic changes in American society. All of a sudden cities like DC or coming into majority black cities like Cleveland and Detroit, were about a third black in the early sixties and policy makers and scholars realized that unless kind of issues of racial discrimination and poverty were addressed, that there were this kind of growing population of young black people who would explode. So they began in the Kennedy administration to refer to this group as social dynamite and they said, okay, we have to do some kind of a intervention in these places to prevent a large scale rebellion. And so Kennedy basically implemented the skeletal framework for the War on Poverty as an anti-juvenile delinquency program. And this was like a comprehensive crime prevention program where we see the first kind of iterations of Head Start, so early childhood education, we get remedial education programs, we get youth employment programs, all the things that really become implemented on a national scale. This was, Kennedy’s program was experimental. It was only in 16 cities. Johnson implements them on a national scale as a war on poverty. So the approach in the Kennedy administration to fighting crime was through kind of looking at not only what were then called, you know, the social dynamite youth or the potential delinquent youth and their families doing these kind of concentrated interventions. Johnson kind of decided to separate the two and so launches a war on poverty, but then at the same time also seeks to equip police officers and modernized police departments with new tools to prevent this dynamite from exploding. And sure enough short of a major structural intervention that dynamite does explode first in 1964 in Harlem and in other cities like Philadelphia and Rochester that summer. And then of course in 1965, just months after Johnson declares the War on Crime officially, we get Watts. And then these rebellions become worse over the course of the 1960s. Again, in the absence of maybe major structural changes. So I think, you know, you can’t separate this from the context of landmark civil rights legislation. There’s a historical pattern where, you know, like after emancipation we get new kinds of forms of criminalization targeting freed people through black codes and the convict leasing system, right? You know, alongside civil rights legislation, we get new policing and surveillance programs and eventually kind of an enlarged prison system. So the question that seems to be one of the enduring ones is know what are we, what are policy makers going to do, what our American elites going to do with free black people? And so Johnson’s crime war was very much an answer in part to that question and under the umbrella of the great society, it’s kind of this carrot and stick approach to combating some of the urban problems that concern policymakers. So the carrot we get, you know, remedial education programs, Head Start, job training programs to the War on Poverty and then a major police job creation program and the militarization of police departments through Johnson’s War on Crime.

Clint: And so this is really fascinating because I think one of the most important parts of your book is that it sort of debunks the notion that the, uh, the War on Poverty was singularly this moral crusade, was singularly the, this effort to, as, as you say in the book quote, “The War on Poverty is best understood not as an effort to broadly uplift community, or as a moral crusade to transform society but by combating inequality or want, but as a manifestation of fear about urban disorder and about the behaviors of young people, particularly young African Americans.” And so that kind of flips the entire conception of what the War on Poverty was as, as I’ve been taught and I think as many of us had been taught on its head. Can you talk a little bit more about that?

Elizabeth Hinton: Yeah. Right. And I, and I go into this research, you know, I had this kind of romantic view of the Johnson administration in this moment also, that the War on Poverty was this real kind of comprehensive attempt to combat poverty. And part of the limitations of it, you know, when, when I began to really look at the discussions that went into it, reflects the racism on, on behalf of policymakers. So, you know, I think this was in question during, we don’t know, perhaps Kennedy would’ve supported a major structural transformation in American society. Instead, you know, Johnson kind of takes the helm after his assassination. And the Council of Economic Advisors who worked with Kennedy basically told Johnson based on social science research from people like Daniel Patrick Moynihan, whose report on the Negro family, comes out in March ‘65 right as Johnson is launching the War on Crime, this idea that black poverty is not the result of kind of historical discrimination and structural exclusion, but that black poverty was the result of black pathology. What Moynihan called a “tangle of pathology” stemming from slavery. And so Johnson’s council of economic advisors says, ‘okay, well if, if poverty is really not a structural problem, if black poverty’s not a structural problem and it’s a pathological problem, then we can actually fight this war on poverty very cheaply because we need to just teach these people.’ And I’m using the words of policymakers and social scientists, ‘we need to teach these people how to become productive citizens. We need to help the disadvantaged help themselves, and we can do that by job training programs even if there was not a job guaranteed afterwards, we can do that. We don’t need to overhaul failing urban public schools. We can just include remedial education programs. We can, you know, spend millions of dollars teaching single moms how to parent their children better.’ So it was, it was never seen as this kind of major structural intervention, but a way to basically discipline poor black people and try to strategically target the behavioral or the pathological ills that policymakers and social scientists like Moynihan believed were the root cause of poverty.

Josie: On the same note about the approach that Johnson, Moynihan, etcetera took to kind of do these, I would call them like bandaids, right? Policies instead of actually addressing the deep roots of structural inequality and structural racism. Is your impression that that was a choice or that it didn’t even occur to them that they could be going further? In other words like this perception of black crime as stemming from black pathology, which Moynihan sort of says like ‘these people experienced racism, they experienced this sort of terrible, back then they experienced you sort of terrible inequalities and that’s what caused this pathology now,’ did they even consider the possibility that we were not the problem?

Elizabeth Hinton: No, I mean I, I think, and this is something that I really grappled with in the book. I think that when we get to Nixon and subsequent administrations its much more intentional, but I think that they, due to their own, I mean it’s classic liberal, white, liberal, paternalistic, racism. You know, the idea that, that somehow black people are incapable of taking care of themselves that even if we look at the ways in which the Johnson administration increasingly took greater control over the administration of community action programs in the War on Poverty, which is really kind of the most, the principle of maximum feasible participation and the ways in which, for this brief moment in US history, really only one year, the first year of the War on Poverty, ‘64 to ‘65, the federal government was giving grassroots organizations grants to actually solve the problem of poverty on their own terms themselves. Increasingly, this kind of autonomous community directed, community based model of fighting poverty was institutionalized and increasingly controlled by local authorities. And I think this reflects policymakers real unwillingness to believe that poor people, that people of color, that black people in this case know what’s best for them and should be empowered and can be empowered to actually improve our society. So, so much of it has to do with just the, these kind of deep seeded long held racist notions about black intelligence, about black leadership capability and I think that Moynihan’s argument for a number of reasons was very compelling. That really the issues that black America were facing were the results of their own kind of pathology and it had nothing to do with historical racism or structural discrimination.

Clint: For so long in our, in our public discourse, in our sort of public facing political discourse the blame for the current state of mass incarceration has largely been placed on Nixon and Reagan. But more recently, I think there has been some conversation about implicating liberals, especially the Clinton family and President Clinton around the ‘94 Crime Bill and its impact. The rhetoric, you know, that Hillary Clinton and others espoused around superpredators and the sort of way that a few decades ago that, that language and that policy led to and expanded and amplified the impact that mass incarceration was, was beginning to have. But Johnson and Kennedy have sort of sidestepped or been overlooked in the conversation around mass incarceration and its origins. And, um, I’m curious how you think that both of them and Johnson in particular have remained out of our focus around the origins of how this happened for so long when, as as you talk about in your book, it seems so clear that the War on Poverty and the subsequent War on Crime are fundamentally linked in ways that after you read your books seem very intuitive?

Elizabeth Hinton: Yeah, I think you’re totally right in that, and I didn’t even realize this at the time I was writing the book, but I feel like in the past few years, you know, from people like Jordan Peele’s Get Out to Ta-Nehisi Coates’ work that we’re in this moment where we’re actually reckoning with white liberal racism. And I think when I began the research for the book, I started the archival work in the Nixon administration then had to keep on going back because I bought into the narrative that we like to tell that the 1960s was this glorious moment of progressive social change and the civil rights revolution and the ways in which we kind of romanticize the interventions that Kennedy and Johnson took. And a lot of this has to do with the fact that historians and others, you know, we begin to tell these stories by following what’s reported in the press. And so these are the ways in which Johnson and Kennedy were really championed for, and this is not to say that there are policies aren’t extremely influential and important and transformative, but that if we really want to kind of understand how we get a kind of deep seated, insidious inequality and racism that pervades our society today, then it requires us to look at the ways in which even the best intended policies are marred by racist notions in general. And I think a lot of it has to do with the kind of narratives that we like to tell both academic ones as historians, but also kind of in the public imagination about what the 1960s was and the achievements of the 1960s. And you know, we tend to celebrate the good things while obscuring some of the more damaging policies that came out of those same administrations and in that period.

Josie: So one thing that we talk about a lot on this show is that this perception that punitive measures solve problems rather than investing in communities. You know, ensuring better education, better perks, better social services, actually solve the problems that this sort of punitive system is, is meant to solve, right? And all evidence tells us that punishment is not a be all end all solution to crime or what everybody in the sixties seems to refer to as delinquency.

Elizabeth Hinton: Right.

Josie: And your book. So I’m wondering why you think this perception persists? That the criminal justice system is the only tool and the best tool to solve some of these quote unquote “social ills” versus doing the front end work and investing in communities, actually getting people out of poverty, ensuring that they have the tools they need for opportunity and for sort of a future?

Elizabeth Hinton: That is perhaps the question. Um, and one of the big points in my book is that, and you know, I have the documents to prove it, that, you know, hundreds of billions of dollars have been spent into surveillance and policing and incarceration programs instead of the approaches that, at least during the Kennedy administration, we saw being debated at the national level, that maybe the best way to solve the problem of is to invest in communities, to invest in school systems, to invest in job creation programs. And this, in many ways the rise of law enforcement, the carceral state, mass incarceration, the types of urban policing programs that we see that have been implemented in targeted low income communities for the past half century, really kind of one of the biggest domestic policy failures of our time. Yet policymakers keep on investing in these types of programs. Even though they were well aware that the programs weren’t actually working to really deal with the root causes of crime to prevent recidivism and things like that. And so the short answer I think is, is racism. There has been a real, there’s a real unwillingness to actually commit the resources to bring about the kind of transformation that would actually deal with problems of inequality. I think one of the missed moments of the Johnson administration, and I have a, you know I’m critical of the Kerner Commission report, to the presidential task force that Johnson called to determine the causes and solutions to so called urban rioting, but they suggested a Marshall plan for American cities. They said if we really want to prevent future urban unrest, we have to invest billions of dollars, as we have in other countries, into institutions and giving people resources and Johnson, you know, the report was seen by Johnson and others as far too radical. He never even commented on the report, but these were options that were being floated around at this time. And I think that again, due in large part to their own racism, there’s a real resistance to disrupt the kind of hierarchies that have defined the United States historically and the kind of transformation that we’re talking about. A real commitment to communities. And, you know, what I’m hoping that we see in, in, in a very short time is a real reckoning with these failed policies to say, okay, you know, the response to crime with more police hasn’t worked, so we need to try something else. Incarceration isn’t actually working, it deprives communities. It doesn’t keep them safer. So how can we rethink this choice to systematically lock up entire groups of citizens. Um, so that’s, that’s really the question and I think it’s going to be one of the kind of, and we are, we already see it coming up in terms of the kinds of domestic policies that are being contested right now. Um, but this is going to be, I think the question of our lifetimes, if we can redistribute resources, if we can begin to think about a more comprehensive, humane approach to dealing with the problems facing our society and inequality in our society.

Josie: Yeah.

Clint: So we’re in this fascinating moment now, I think, we’re in a sort of post-Edward Snowden moment as a, as a nation, as a world we’re reckoning with and thinking about our relationship to surveillance and what sort of surveillance of citizens the government should be able to do. We’re additionally thinking about surveillance and providing information to the government in the context of Facebook and other social media and this sorta ubiquity of technology that surrounds us at every moment of our lives. And so we’re watching in real time as our administration, as our government, as our institutions try to figure out what the balance is and what surveillance or what privacy looks like in this quickly changing moment. And I’m wondering how, if you can talk a little bit about how previous administrations have kind of set the stage for the expansion of surveillance that we’ve seen over the last decade or so including surveillance by private businesses and corporations?

Elizabeth Hinton: I think that’s actually, in thinking about kind of a liberals’ role in precipitating mass incarceration and the kind of policing that we see today in that many of us are disturbed by, the key difference between liberal and conservative approaches to crime control is the issue of surveillance and wiretapping. So Johnson was completely fine with the terms of the Omnibus Crime Control and Safe Streets Act of 1968, which was the first major piece of crime control legislation. What he didn’t like about the bill, and this is the reason why he waited until the last day to sign the legislation before it would be a pocket veto, I think historians like to say, ‘oh, well, Johnson didn’t really want to start the War on Crime, and so this is why he waited to the last day.’ No, he was completely fine with it. He didn’t like the wiretapping provisions that conservative Republicans in Congress introduced in the legislation. He and his Attorney General Ramsey Clark were very concerned that the Crime Bill would lead to a new level of surveillance of Americans, so he ended up signing the legislation anyway. Again, back to our earlier conversation, you know it was more important to kind of manage the problem of inequality and ensure that urban communities were being policed than it was to kind of preserve the basic civil liberties of American citizens. And I think, you know, we begin to see this in ‘68. Of course we see the expansion under a conservative administration. Of course it’s successor Nixon, the expansion of wiretap and provisions and surveillance and all kinds of new police powers that are in some ways tested through the COINTELPRO of the FBI against radicals and specifically black radical groups like the Black Panthers. We see this being implemented, you know, really on a large scale through the seventies and eighties. And I think it’s one of those things. I mean, you know, similar to the kind of impact of the War on Drugs and all these policies, you know, that say, and like ‘first they come for my neighbor, then they come from me.’ The idea is that, you know, this is okay if it’s happening to somebody else, but eventually these policies end up seeping into entire institutions and systems. And so in some ways we could think about what we’re seeing with Facebook and social media and our cell phones today as the consequence of Johnson’s choice to press on with legislation that he knew compromised our constitutional principles to fight black crime.

Josie: I wanted to ask you about the role that presidents play in criminal justice policy. So your book obviously focuses on the role of the president and how they kind of expand the system from Johnson to Nixon to Reagan and Kennedy as well obviously.

Elizabeth Hinton: Sure.

Josie: But you know, we talk on this show a lot about how most of what happens in criminal justice happens on the local level. So in terms of the influence that you see the executive having over the system, what does that influence look like for a position that obviously is very powerful overall, but maybe it doesn’t have that much direct control over what’s happening day-to-day on the streets in a certain neighborhood?

Elizabeth Hinton: Right. That’s a great question. And of course I get it a lot, especially because I see the federal government, federal policy makers as being kind of the principle drivers of mass incarceration. I mean, of course, you know, we, every one of us in one way is responsible for the kinds of inequities and disparities in the criminal justice system that we, um, that we see today. However, what’s so important about what Johnson does in the 1960s, is that he breaks with two centuries of policy and begins a role for the federal government in local police court and prison operations for the first time. And so he basically sees himself as kind of the architect of modern American law enforcement. He begins a major national investment in crime control programs at all levels of government. And he forces through that legislation I just mentioned the Safe Streets Act. He forces states to make crime control a priority. Whether or not that is the priority of the state. So basically in order to qualify for federal grant funding, states have to start criminal justice planning agencies. They have to start revolutionizing their respective criminal justice systems. And eventually, and this is what we see over the course of the 1970s before Ronald Reagan takes office, there’s a disinvestment from those social welfare programs that, that Johnson implemented and really in order for states to even get money for some of the social programs like job training programs, youth summer programs that were once under the purview of the Department of what was then Health Education and Welfare, the only way that that money becomes available as if it is through the Department of Justice and as a crime control program. So federal policy makers, you know, really do have an important role in terms of shaping priorities at the state level. In many instances too, you know, we see the kind of local federal interplay around the ways in which federal policymakers give programs at the local level support to as experimental programs that can eventually be implemented. So we see this happening very frequently throughout the 1960s and 1970s. And maybe one of the most devastating recent examples is in the ‘94 Crime Bill. Right? Because you know, New York and Chicago received federal funding to help start what was then zero tolerance or community policing programs where we see kind of people getting arrested for minor infractions and misdemeanors. And so these programs had been deemed by policy makers as successful and then they become widely implemented and forced on states through the 1994 Crime Bill and the community policing programs, the 100,000 cops that the Clinton administration invests in, um, to, to kind of bring these community policing programs to places like Stockton, California, and Gary, Indiana and smaller cities. Um, the federal government is supporting what they see as promising initiatives when they’re believed to work, even though they’re widely considered by the law enforcement community now, outside of the Trump administration, as complete failures, um, these things can be kind of expanded under the federal government’s guidance.

Clint: So you’ve laid out really thoroughly the role that the Johnson administration has played in shaping the criminal justice system and shaped mass incarceration as it exists today. And I’m curious through your lens, is as a historian, through your lenses as a politically engaged academic, how you’re sort of thinking about what the current administration and their impact on mass incarceration is or is going to be? Is it something that, because I think people are of two minds, right, like, oh, well the president doesn’t actually have that much power over shaping criminal justice policy because it’s mostly done on a state level and then there are others who are kind of talking about the history of presidents who have created certain precedents that led to a significant exacerbation of the problem and incarceration. So I guess I’m just curious how you think about what our current political moment means for the trajectory of incarceration more broadly?

Elizabeth Hinton: Yeah, that’s a great and tough question. I mean, I’d like to, even though we have people in office who want to turn back the clock in ways that I think for many law enforcement officials and other policy makers seem completely arbitrary and ridiculous at this point, I’m hopeful by the kinds of changes that are happening on the local level and I think that we’re, as much as the conservative forces or repressive forces are mobilized at this moment, I think that history is on the side of what we’ve been talking about. I think through the whole conversation, thinking about how we can approach these fundamental problems differently and I’ve seen at the local level police chief’s going against some of the orders of the Department of Justice and the kind of return to zero tolerance and lock them up and throw away the key approaches of the past and to say, ‘no, we, we actually, these strategies haven’t worked to keep our community safer and it’s time to try something else’ and I think we also see that there’s a new kind of mobilization that’s been brewing for the past few years, you know, against the kinds of oppressive and occupational police practices that have been embraced. And so I think if we continue to keep the pressure on, I hope that you know, the, what the signals from the Trump administration won’t actually bring us back to the failures of the past.

Clint: Definitely. Well, thank you so much, Elizabeth. We really, really appreciate it.

Josie: Yes. Thank you so much.

Elizabeth Hinton: Thank you.

Joise: That was Dr. Elizabeth Hinton, professor of History and African American Studies at Harvard University. Her book From the War on Poverty to the War on Crime is an excellent look at this and we highly recommend it.

Clint: As always, thank you all so much for listening to Justice in America. I’m Clint Smith.

Josie: I am Josie Duffy Rice.

Clint: You can find us on Twitter @Justice_Podcast and like our Facebook page at Justice in America.

Josie: Justice in America is produced by Florence Barrau-Adams. The production assistant is Trendel Lightburn with additional research support by Johanna Wald. Join us next time.


Texas D.A. Who Sent Woman To Prison For Five Years for Voting Made Her Own Election Mistake

Tarrant County District Attorney Sharen Wilson prosecuted Crystal Mason for casting an illegal ballot. But Wilson escaped charges for a possible election violation of her own.

Tarrant County DA Sharen Wilson
Video still via Fort Worth Star-Telegram; Illustration by Anagraph

Texas D.A. Who Sent Woman To Prison For Five Years for Voting Made Her Own Election Mistake

Tarrant County District Attorney Sharen Wilson prosecuted Crystal Mason for casting an illegal ballot. But Wilson escaped charges for a possible election violation of her own.

Crystal Mason, a 43-year-old mother of three, made headlines in March when she was sentenced to five years in prison for voting. Because of that conviction, on Aug. 30 a federal judge found her in violation of the terms of her supervised release and sentenced her to 10 months in prison, plus two years and two months of probation.

Mason says she didn’t know she was ineligible to vote when she cast a provisional ballot in Fort Worth, Texas, in the November 2016 presidential election. But she was on supervised release after a federal prison term for tax fraud, making her vote illegal. She found out three months later, when she was arrested for it.

“They tell you certain things like you can’t be around a felon, you can’t have a gun,” she told the Fort Worth Star-Telegram last year. “No one actually said, ‘Hey, you can’t vote this year.’”

The original case against Mason was brought by Tarrant County District Attorney Sharen Wilson in February 2017. But critics say it was not only unduly harsh—it was also hypocritical. Wilson, a Republican, has been far more lenient in handling an election-related forgery case involving a Republican justice of the peace, they point out. And she also committed an election-related impropriety of her own in 2016: asking her staff for personal contact information and then using it to solicit them for funds for her re-election.

Legal experts are mixed over whether that was a criminal offense, and a special prosecutor declined to pursue action against her. But Grant Hayden, a law professor at Southern Methodist University, said it’s unfair for Wilson to hold voters like Mason accountable for not knowing election rules and then claiming not to know rules herself. “Yeah, it looks like a double standard on its face,” Hayden told The Appeal. “And that’s a problem.”

A re-election fundraiser

In August 2016, Wilson was about halfway through her first four-year term serving as district attorney in Tarrant County, which covers Fort Worth. On Aug. 10, reporters for the Star-Telegram later discovered, she sent an email to her employees asking for their personal email addresses and cell phone numbers, and confirmation of their home addresses. Then in September, she sent an email inviting them to her Sept. 28 re-election fundraiser, the Star-Telegram reported. “Sharen would appreciate your support of $1000-$500-$250-$100,” the invitation read.

Section 39.02 of Texas law forbids public servants from using government property or personnel to “obtain a benefit.” So an elected official’s use of a government computer to request staff members’ private email addresses to solicit them for political donations could be a misdemeanor. Twenty-eight of Wilson’s staffers donated to her campaign, according to a campaign finance report obtained by the Lone Star Project, a political action committee.

In fall 2016, the Texas Rangers’ Public Integrity Unit launched a criminal investigation, according to the Star-Telegram. Since Wilson couldn’t investigate her own case, a judge assigned it to the DA in another county, Republican Maureen Shelton. But after reviewing the evidence, in February 2017 Shelton sent a letter informing the judge that she was dropping the case because of “insufficient evidence of criminal intent. … I have been assured that there are policies and procedures in place so there will be no issues in the future.”

Wilson’s office didn’t respond to questions about her own case or Mason’s. Instead, spokesperson Samantha Jordan pointed to her office’s “most recent comment,” which assistant DA Matt Smid made to the Star-Telegram on Aug. 30: “The DA’s office has said that we will not apologize for enforcing the laws of the State of Texas. It is against state law for a person on federal supervised release to vote in Texas. We believe it is not an ‘accidental vote’ when the voter drives herself to the polling place and votes after signing a warning against illegal voting and after being warned not to vote by her defense attorney. That is why the state judge found her guilty and the federal judge revoked her supervised release today.”

But the attorney warning happened years before the election, in November 2011, when Mason pleaded guilty in the tax fraud case, her attorney at that time, Warren St. John, told The Appeal.

Prison vs. probation

In her one-day trial in March, Mason herself challenged the logic of the prosecution’s case. She would never have cast a ballot had she known it was illegal since she had nothing to gain, she said in her testimony. The prosecution’s evidence that Mason knew what she was doing rested heavily on the testimony of a 16-year-old volunteer poll worker. He said he watched Mason read the section of the provisional ballot she filled out about not being eligible to vote while under supervision.

“What did you see?” a prosecutor asked him on the stand.

“Her finger watching [sic] each line,” the young poll worker responded, “making sure she read it all.”

A second poll worker—an experienced election judge—couldn’t say for certain whether Mason read that section.

And Texas law regarding what constitutes “supervision” under federal versus state law is confusing, says Alison Grinter, Mason’s current attorney. “Had she come to me beforehand [before the 2016 election] and said, ‘Alison, can I vote?’ I mean I’m board-certified in criminal law, and I’d have said ‘I don’t know,’” Grinter told The Appeal. In any case, Mason’s vote was never counted.

Mason’s case was the second time Wilson had come down hard on someone for an illegal vote. In 2016, she prosecuted 37-year-old green card holder Rosa Ortega for twice casting illegal ballots. Last February, Ortega was sentenced to eight years in prison, though, like Mason, she has also insisted throughout that she didn’t realize she couldn’t vote. Hers is the longest prison term in Texas history for an illegal ballot, according to records obtained by the Star-Telegram. Mason and Ortega are appealing their convictions.

The DA’s unsparing approach to prosecuting both Mason and Ortega contrasts with her handling of another election-related case. In April, Justice of the Peace Russ Casey pleaded guilty to forging signatures to get on a March 6 Republican primary ballot. For his crime, he got no prison time but is serving five years’ probation. “No one is above the law in Tarrant County,” Wilson told the Star-Telegram. In response to a question about why Mason and Ortega got long prison sentences for lesser crimes, Smid told the paper that it was because neither woman accepted a plea deal.

But St. John said Mason was offered 10 years’ probation—double what Casey got. When asked about that disparity, Wilson spokesperson Jordan responded, “We offered probation for this offense to [Mason,] a multiple felon with both state and federal convictions. There was no prior criminal history in the other case [Casey’s].”

Yet, Grinter explained that Mason couldn’t plead guilty because doing so would have violated the terms of her federal supervision.

Regardless of the plea deals offered, some experts say, Casey ultimately got off easier than either of the two women, which doesn’t seem fair. “If you’re looking at what is a bigger risk to democracy, insiders manipulating the rules is a much bigger threat than someone who voted while they’re not eligible to vote but will be eligible as soon as they complete the terms of their supervised release,” said Theodore Rave, associate law professor at the University of Houston Law Center.

Sending a message

There’s a lot more at stake than unequal treatment of individual cases, according to advocates. Tarrant County votes Republican but not by much. Donald Trump beat Hillary Clinton by just nine points there, and Democrats are targeting it in their effort to flip the whole state.

The long jail terms send new voters the message that a ballot mistake could ruin their lives, explains Beth Stevens, a lawyer at the Texas Civil Rights Project, and that’s an effective way to keep them from the polls. “Any attempt to quash someone who’s been a nonvoter in the past from becoming a voter benefits those currently in power,” she told The Appeal.

Ultimately, the only check on elected prosecutors is voters who care about whether cases are handled fairly, said Gerald Reamey, a law professor at St. Mary’s University School of Law in San Antonio.

They will get to issue a verdict on Wilson in the election on Nov. 6. In 2014, she ran unopposed. This year, she’s facing a challenge from Albert John Roberts, one of her former assistant DAs.“I don’t see this as using our resources as the district attorney’s office or as taxpayers wisely,” Roberts said of the Mason and Ortega prosecutions. “Are we a safer community because they’re in prison? And the easy answer to that question is ‘No, we’re not.’”

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Curtis Brooks Didn’t Kill Anyone. So Why Is He Labeled A Murderer For Life?

A man sentenced to die in prison is inciting debate over ‘felony murder’ rules in Colorado.

Illustration by Simone Noronha

Curtis Brooks Didn’t Kill Anyone. So Why Is He Labeled A Murderer For Life?

A man sentenced to die in prison is inciting debate over ‘felony murder’ rules in Colorado.

This piece was published in partnership with Slate.

In 1995, 15-year-old Curtis Brooks was homeless. He had moved to Colorado from Maryland to reunite with his mother, who had been in and out of his life. “Getting out here, I was happy,” he recalled. “All I ever wanted was my parents. And it just turned out that it was not at all what I was hoping for.” Brooks ended up on the streets, gratefully accepting offers to sleep on couches and garage floors. One day in April, he sought refuge from a blizzard, watching kids play Mortal Kombat in the Aurora Mall arcade. In his bag, he carried his only possessions: a few T-shirts, a pair of sandals, a video game magazine, a tube of Clearasil, and face cleanser.

At the arcade, Brooks ran into Deon Harris, a teenager he’d met a few days earlier, who had let Brooks sleep on his couch. Harris and two other boys asked Brooks to help them steal a car. Brooks, who had no criminal record, agreed and was handed a gun. The group approached a stranger named Christopher Ramos, who was walking to his car from an ATM across the street. As instructed, Brooks fired a distraction shot in the air. Without warning, Harris shot Ramos in the head, killing him.

Brooks and the other boys ran, but police easily followed their tracks in the snow and arrested them. Brooks confessed to his role that day. Even though prosecutors acknowledged he wasn’t the one who’d pulled the trigger, he was convicted of first-degree murder and given a mandatory sentence of life in prison without the possibility of parole. He remains incarcerated today.

Brooks’s conviction wasn’t a mistake. In most states, individuals can be convicted of murder for any death that occurs while they are in the act of committing another felony—in Brooks’s case, aggravated robbery of the car. “Felony murder rules” are used by prosecutors to escalate all sorts of crimes into murder convictions—even when the defendant did not carry out, intend, or anticipate the killing. By law, Curtis Brooks is as guilty as if he’d planned and perpetrated cold-blooded murder.

Felony murder rules are unique to the United States. It is difficult to quantify how many people they have put behind bars, since the convictions are simply recorded as murders. When Human Rights Watch and Amnesty International surveyed 172 letters from youths serving life without parole in 2005, they found that 45 had been convicted of felony murder. And a 2009 report by the Children’s Law Center of Massachusetts found that 20 percent of people sentenced to life without parole as juveniles in the state were convicted of felony murder.

In Colorado, Brooks finds himself at the center of a case that is inciting public debate over the felony murder rule. On Monday, the court issued a ruling that could transform the lives of the 16 prisoners in the state who were sentenced to life for felony murder when they were children.

Illustration by Simone Noronha

After returning a guilty verdict in Curtis Brooks’s 1997 trial, the jury went back to the deliberation room. The judge came by to thank the jurors and invite them to ask questions about the case.

“That’s when all of a sudden, everything changed,” recalled Bruce Grode. He and his fellow jurors were stunned and horrified, he said, to discover what they had been blocked from hearing about at trial: Brooks’s nonexistent criminal background, the fact that he barely knew his accomplices, and the multiple crimes the other boys had committed together that very morning. Grode said he asked if the jury could take this information into consideration for sentencing, but the judge explained that Brooks’s life sentence was automatic.

“There was a gasp in the room,” Grode recalled. “Some of the women on the jury started crying.” As they gathered in the courthouse parking lot before going their separate ways, “one woman said, ‘I feel like we’re pawns that’ve just been used in a chess game.’ It was very disheartening.”

When Brooks aged into the adult prison system at 17, he was sent to Colorado State Penitentiary, a maximum-security facility where everyone was in solitary confinement for 23 hours a day. “I was absolutely a scared punk kid,” he said. “I acted out as a way to show, ‘Just leave me alone and I’ll do my thing.’” He spent the next 10 years in solitary confinement.

Brooks quickly earned his GED, but spent most of the next few years watching a small black-and-white TV in his cell. He often overheard other men on his tier talk about returning to crime upon release. “Hearing those kind of conversations disgusted me, because I thought it was like the ultimate level of stupidity,” he said. When he was 23, “I took a couple days where I literally didn’t talk to anybody. And I spent that time in self-reflection and I came to realize that I was disgusted with what I was hearing because I was seeing those qualities in myself. And that was the period when I decided I needed to change.”

He began reading voraciously; taking college courses; studying Spanish and Lakota, a Siouan language; learning psychology and physics; and writing a series of fantasy novels. “Once I started learning, it ignited that desire for me to just want more and more and more knowledge,” he said. He held a job and coached an over-40 basketball team, and he is co-founding a pro-social discussion group for incarcerated video gamers.

Brooks’s commitment to improving his life started drawing attention. The judge who oversaw his original trial wrote a letter in support of a reduced sentence, and former Colorado Governor Bill Ritter came to visit him in prison. Grode, the juror, as well as Brooks’s elementary school principal Joanne Benson, who is now a state senator in Maryland, have testified on his behalf many times.

“He has a heart of solid gold,” Benson said. “He’s wonderful, he’s low-key, he’s very calm. And knowing what he’s been through in his life, you would think he’d be out of control. Never. Just a kind, gentle soul. And for him to be caught up in this is just very heartbreaking.”

Grode visited Brooks in prison years after the trial and came away similarly impressed. “When you have no reason to be a decent person, and you know there is no way you are going to get out, and you choose a life to better yourself, to learn these languages, to go to school? You know he really just tried to be a good person. With no hope of getting out … And yet this is the path that he chose.”

Brooks, far right, with the over-40 basketball team he coached in prison.
Courtesy of Curtis Brooks

Brooks finally got real hope of a future outside of prison in 2016, when the Colorado legislature passed resentencing guidelines in response to U.S. Supreme Court rulings banning mandatory life without parole for children. The new guidelines allowed Coloradans serving juvenile life without parole to petition district judges for parole eligibility, which would be reached after 40 years served. But the bill went one step further, making the 16 people convicted of felony murder as children eligible for sentences of as little as 30 years, if the district judge agreed their cases showed “extraordinary mitigating circumstances.”

In March 2017, 22 years into his incarceration, Brooks petitioned district judge Carlos Samour for a lesser sentence. If everything went right—if Brooks received the shortened sentence, served his remaining time, and won over the parole board—with his “earned time” for discipline-free years, his lawyers thought he could be released as early as 2019, by age 40.

But everything did not go right.

Arapahoe County District Attorney George Brauchler asked Judge Samour to deny Brooks’s application, arguing that Colorado’s 2016 resentencing guidelines violated the state constitution by showing preferential treatment to people convicted of felony murder. In an October 2017 court order, the judge agreed, writing that Brooks and others convicted of felony murder could not legally receive shorter sentences than the rest of the state’s juvenile lifers, “no matter how poignant and tragic the defendant’s story may be.” But then in April 2018, right before Brooks’s resentencing hearing, Samour suggested he had changed his mind and would grant the shorter sentence. On the morning of the hearing, supporters filled the courthouse, including Brooks’s grandmother, Benson, and Grode.

But at the last minute, the DA asked the Colorado Supreme Court to halt Brooks’s resentencing, and to rule on the constitutionality of the resentencing guidelines. The state Supreme Court issued its ruling on Monday, deciding to uphold the state law. Brooks (and the 15 others serving life sentences for felony murders committed as children) now have a real chance at release.

Brauchler said Monday he would accept the ruling.

“The Supreme Court has now spoken, we know what the law is, and we accept that the ruling is now the law of our state,” he said in a statement. “It is important that we now see that Mr. Brooks is back in court as soon as possible for re-sentencing under the 2016 legislation.”

The felony murder doctrine is “one of the most widely criticized features of American criminal law,” the University of Buffalo School of Law’s Guyora Binder wrote in a 2011 law review article. “Some have concluded that felony murder rules impose unconstitutionally cruel and unusual punishment by ascribing guilt without fault, or that they violate conditional due process by presuming malice without proof.”

There’s no shortage of cases where people were convicted of felony murder despite no demonstrated intent to kill. In 1980, 18-year-old Orlando Stewart and nine other teenagers approached a stranger in Pennsylvania, planning to mug him. One of the teens hit the man, knocking him to the ground and causing a skull fracture that led to his death two days later. Stewart was convicted of felony murder and will remain in prison for the rest of his life.

In 2003, 20-year-old Ryan Holle loaned his car to his roommate, who proceeded to drive with several accomplices to steal a safe from an acquaintance’s house. When they found the woman at home, one of the accomplices beat her to death. Holle, who was miles away at the time, is serving life without parole in Florida.

And this April in Alabama, Lakeith Smith was sentenced to 65 years in prison, including 30 for felony murder. In 2015, the then-15-year-old burglarized two homes with several friends. When the police approached, one of the teenagers fired, and was shot and killed by an officer. Smith was convicted of the felony murder of his friend, based on the felony burglary he was committing when his friend was shot.

Felony murder rules disproportionately affect young people like Brooks, Stewart, Holle, and Smith, who are more likely to commit crimes in groups and are more impulsive than adults, increasing the chances someone in the group pulls a trigger. A law review article from 2017 described felony murder as “the quintessential juvenile crime, capitalizing on the developmental vulnerabilities of adolescents.”

Since 1980, the high courts or legislatures in Michigan, Kentucky, and Hawaii have eliminated felony murder rules, and Vermont, New Hampshire, New Mexico, Arkansas, and Massachusetts limited felony murder to those who act with reckless indifference to the risk of death, preventing accomplices like Curtis Brooks from being charged with murder. There has been some recent momentum for reform; in the current legislative session, lawmakers entered bills that would end felony murder accomplice liability in Pennsylvania and California. The California bill, which would allow people currently serving life sentences for felony murder to petition for resentencing, passed in August. It is now awaiting Governor Jerry Brown’s signature.

Binder, however, warns that felony murder isn’t going to disappear anytime soon. “There was a lot of excitement back in the early 1980s when the Michigan Supreme Court abolished it,” he said, but only a handful of states have followed suit since then. Binder believes reform efforts would be most effective by focusing on the most problematic aspects of felony murder rules, like the accomplice liability statute that escalated Brooks’s crime to murder.

“It’s really, really hard to create any kind of change when you’re trying to reform something that’s called felony murder. Those two words are incredibly scary,” said Alexandra Mallick, executive director of Re:store Justice, an advocacy organization that helped advance the current bill to limit felony murder in California. “So first what we found was that it was really, really important to educate people.”

“Secondly, there is the narrative that prisons are full of nonviolent drug offenders and that’s really where we need to push our efforts. That is completely wrong,” Mallick said. She notes that people who have committed a violent crime have some of the lowest recidivism rates. “Most of the time when someone commits a violent crime, they age out of it, they’ll grow up,” she said.

“Participating in this crime that ultimately led to somebody losing their life is absolutely wrong,” Brooks said. “But at that same time, I don’t want to hold that label of murderer, because I didn’t intend to kill anybody. I didn’t kill anybody. I didn’t want to be part of anybody dying. So for the law to say one is the same as the other one, to me, absolutely is unfair.”

Tom Raynes, executive director of the Colorado District Attorneys’ Council, said he understands that felony murder rules are controversial, particularly because they allow people to be convicted of murder without proving intent to kill. “Granted, I understand completely the departure from the mens rea requirement evident in nearly every other crime,” he said. “It is a unique animal.”

Yet Raynes still believes felony murder rules deter crime and ensure adequate punishment for ending a life. “The thought process is, if you engage in an activity that is so inherently dangerous that it is likely or very likely to result in the death of another person, you should be held culpable,” he said.

The available data suggest harsh punishments for felony murder do not actually function as a disincentive. A 2002 paper that analyzed state-level crime rates from 1970 to 1998 concluded that “the felony-murder rule does not substantially improve crime rates. If the main reason a state retains the rule is to reduce crime, it should reconsider the rule.”

“You can always find that case that kind of stands out,” Raynes conceded, such as an accomplice who was completely unaware the shooter had a gun. But prosecutors are not required to bring felony murder charges in these cases, he said. If the original DA in Curtis Brooks’s case had opted to charge the teenager with armed robbery, Brooks would have been released decades ago.

While prosecutors may not be required to bring felony murder charges, they have a lot to gain by doing so. “The felony-murder rule makes it easier for prosecutors to gain convictions because it relieves them of the often onerous burden of proving that the teenage defendant intended to kill the victim,” Steven Drizin, a professor at the Northwestern University School of Law, wrote in a 2004 law review article arguing for a ban against felony murder for teenagers.

“I came from a very conservative family, and it’s like, if you do the crime, you do the time,” said Grode, the juror on Brooks’s case. “But in hindsight, you start to see the wheels of justice and it really makes you question things.”

Illustration by Simone Noronha

In states without felony murder rules—or perhaps even in a different Colorado county with a different DA—Brooks would not have been charged with murder. Justice means something different from state to state, county to county, and even defendant to defendant. Of the three teenage boys arrested along with Brooks for the murder of Christopher Ramos in April 1995, two have been released. One of them, who was 13 at the time, was sentenced as a juvenile and served less than five years in detention. A 15-year-old, who like Brooks was not the shooter, accepted a plea deal of 48 years. He successfully applied for clemency in 2011, and was paroled in 2015. Those two accomplices are white. Brooks was not offered a plea deal, and his 2011 clemency application was rejected. Brooks and the shooter, who also remains incarcerated, are both Black.

“I’ve taken the attitude—not in a negative way—that the past is the past,” said Brooks. “I don’t hold anything against any of them. I’m here because of my own decisions. They didn’t force me into this, they didn’t make me do anything. This was my choice, this was my fault. I’m looking to move past that past and make something better than what I have behind me.”

Now that the state Supreme Court has upheld the law, Brooks is appealing for a new sentence from the Arapahoe County District Court. In the meantime, he submitted a new application for clemency to Governor John Hickenlooper, and is cautiously hopeful for a sentence reduction.

“I know it’s going to be a challenge, mostly because of the perception that people have of individuals that have been incarcerated,” Brooks said. “But I kind of thrive on challenges and I always look forward to them, so I have no hesitations or reservations about what I’m going to have to deal with.”

If he’s able to rejoin the outside world, Brooks is hoping to make a “drastic change” from his rocky adolescence. “Growing up, I was basically trying to hang out with the cool kids and just trying to … fit in and be accepted. For me now, getting out, I feel like I have the opportunity to elevate myself well above that. I want to have different experiences than I would have had with the people that I was choosing to associate myself with at that time. I’m fine with getting out and being the guy who says, ‘Hey do you want to go to this museum?’ or, ‘Do you want to go fall asleep in an opera?’ or something like that.”

If he is released, Brooks has a job waiting with Joanne Benson, his elementary school principal who’s now a Maryland state senator. “Whatever Curtis Brooks wants to do, we have the resources right here in the state of Maryland that’s going to help him move where he wants to go,” she said. “We are convinced that he is going to be a productive and wonderful citizen. There is no question in my mind.”

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