In the 1988 presidential race, Michael Dukakis, the technocratic governor of Massachusetts, had a wide early lead over George H.W. Bush, only to lose badly. Massachusetts had a weekend furlough program for state prisoners. One prisoner, William Horton, had been sentenced to life without parole for murder. Horton was released for a weekend furlough and never came back. He committed assault, armed robbery, and rape before he was captured.
An independent-expenditure campaign ran now-famous ads that featured a mug shot of Horton, a Black man. The ads called Horton “Willie,” although Horton had always gone by “William.” Jesse Jackson and other Democrats charged that the ads were racist. The racism charge just seemed to make matters worse.
The first question to Dukakis in the second presidential debate was whether he would still oppose the death penalty, his long-held position, if his own wife was raped and murdered. Dukakis seemed dazed by the question and robotically gave his prepared, impassive answer on the death penalty.
The 1992 Democratic nominee, Bill Clinton, was determined to avoid the same fate as Dukakis, and the same “soft on crime” attack. He said Democrats should not “feel guilty about protecting the innocent.” Clinton interrupted his campaign to return to Arkansas for the execution of Ricky Ray Rector, an African American who murdered two people. Rector suffered serious brain damage from a suicide attempt after the murders. The brain damage did not affect Rector’s culpability, but his ability to assist in his own defense was doubtful in the extreme. The execution was controversial around the world. Clinton offered no pardon and no reprieve.
There was also the “Sister Souljah moment.” Souljah was a hip-hop artist who had recently said in a published interview, “[I]f black people kill black people every day, why not have a week and kill white people?” It was a flippant remark that was easily portrayed as extreme. Clinton used his speech to a Rainbow Coalition conference where Souljah was present to criticize Souljah, and the organization for inviting her.
The 1992 election was not just about “the economy, stupid.” It certainly was not about financial deregulation. The difference between Clinton’s successful campaign and Dukakis’s disastrous campaign four years earlier was largely about crime.
I was elected to the North Carolina House of Representatives in 1992 as well. I can forgive Democrats for “tough on crime” bills in the ’90s, and for the sins of omission since then, because I need some forgiveness myself.
But Democrats now have a shot at redemption.
AFTER THE 1992 ELECTION, Democrats in Congress enacted legislation to hire 100,000 new police officers around the country, to provide $9.7 billion to the states to build new prisons, and to expand the federal death penalty. There was funding for crime “prevention” programs, but the legislation and the rhetoric were overwhelmingly punitive. Much of the federal legislation was symbolic, since the criminal justice system is largely controlled by state and local government. Approximately 87 percent of prisoners in America are in state prisons, and federal prisoners are much more likely to be upscale white-collar criminals. The federal crime bill’s contribution to mass incarceration was minor, but the national debate set the tone for the states.
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In Raleigh, we were even tougher.
The Democratic governor, Jim Hunt, called a special session of the legislature on crime in February 1994, which lasted seven weeks, far longer than previous special sessions. Democrats, who controlled both houses of the legislature, enacted legislation to toughen punishment for both adults and juveniles. We allowed juveniles as young as 13 to be prosecuted as adults for some crimes.
The state’s prison population grew from 20,351 at the end of 1992 to 30,775 at the end of 1996. Paroles shrank from 26,784 in 1993 to 12,461 in 1996. We went on a prison construction binge. Voters passed a $200 million bond referendum for prison construction in 1990, and the legislature appropriated another $62 million in 1994. We enacted legislation to rent space in county jails and out-of-state prisons.
Democratic pollsters advised us privately that voters wanted us to be as tough as possible, and had no patience for handwringing about how difficult some violent criminal’s childhood was. If we talked about prevention at all, it should only be after we established our credibility as tough.
It would be an overstatement to say the legislation had the full-throated support of the Black community. Despite the checkered history with law enforcement, many African Americans complained that police did not adequately protect Black neighborhoods. Of course, they also knew that implicit in many interactions with police was that they were not there to protect Black neighborhoods, but to protect whites from African Americans. And the racial message of the Willie Horton ad was hard to miss. Black legislators won small concessions—substance abuse programs in prison, counseling in schools for “at risk” kids, and so forth. But mostly they went along, just as a strong majority of the Congressional Black Caucus (CBC) voted for the federal legislation.
Progressives generally bit their tongues. Organized labor took no position, but the president of the state AFL-CIO told me in the locker room of the YMCA that they didn’t have enough reliable friends in the legislature, and they didn’t want to risk anyone with quixotic opposition to crime legislation that had overwhelming public support. He advised me to pick my battles, and crime legislation was not one to pick.
I quietly voted for pretty much all of it.
THERE WAS PLENTY of political demagoguery over crime in the 1990s, of course, but crime had in fact increased dramatically over the previous generation. According to FBI statistics on reported crime, there were 8,530 murders and non-negligent manslaughters in 1962 and 24,700 in 1991. There were 17,190 rapes in 1960 and 109,060 rapes in 1992. There were 154,320 aggravated assaults in 1960 and 1,113,179 in 1995. Property crimes, such as burglaries and car theft, increased even more. A 1993 Bureau of Justice Statistics (BJS) survey found that 35 percent of households were victims of property crime—breaking and entering, car theft, and the like—and 7.5 percent of individuals were victims of violent crime—rape, assault, and robbery.
In short, almost every American knew someone who had been a victim of property crime, and most probably knew someone who had been a victim of violent crime. A burglar broke into my law office one Sunday night during the crime session. “Crime Gets Tough on Legislator,” the local newspaper headline read. I was kidded that I could speak for crime victims, but the publicity was probably more valuable than the computer that the burglar stole. The burglary was unsettling, but really just an inconvenience.
In September 1992, however, a young woman I knew pretty well from Democratic politics was kidnapped at gunpoint from a parking lot, robbed, raped, choked, and left for dead. She survived, but the constriction of blood to her brain forever changed her life. She was confined to a wheelchair and largely unable to speak. She communicated by pointing to letters on a board that she carried with her. Governor Hunt also knew the young woman, and gave the example of the crimes of which she was a victim when he talked about crime.
The joke on the right was that a conservative was just a liberal who had been mugged.
There was little political reward for the tough-on-crime legislation that Democrats enacted. Republicans just said we should have been much tougher. “Three strikes and you’re out,” which gave a life sentence to defendants convicted a third time of a violent crime, should have been two strikes. We should have double- and triple-bunked prisoners, they said, without mentioning the existing federal court orders against overcrowding and disrepair of North Carolina’s prisons.
Because of the overcrowding, prisoners were often paroled after they served a small fraction of their stated sentence. We enacted “truth in sentencing” legislation, as did many states, which required prisoners to serve almost their full stated sentence. (Prison officials said some reduction for good behavior was necessary for discipline.) The stated sentence for many nonviolent crimes was reduced to match the actual sentence, and to make more room in prisons for violent criminals. Republicans ran saturation ads that we reduced sentences for those crimes. The explanation that we reduced the stated sentence but not the actual sentence was too complicated.
In the 1994 midterms, Democrats lost control of the House of Representatives for the first time since Eisenhower was president. In North Carolina, we lost 25 seats in the 120-member House, and control. My seat was one of the 25. Democrats in the state Senate clung to 26 seats out of 50. There were other factors, of course. Democratic voters were dispirited that the Clinton administration had been unable to enact health care reform. But it seemed just not possible to be tough enough on crime.
The 1996 election went better for Democrats. President Clinton claimed his policies had reduced the crime rate, and beat Bob Dole. In North Carolina, Democrats won back four seats in the state Senate. I won one of those seats. Our polls showed that voters still wanted to be tough on crime, but the concern no longer crowded out discussion of all other functions of government. It was even possible to talk about some racial-justice issues, like the achievement gap in schools. I was more than happy to talk about other issues.
Lennox McLendon/AP Photo
In his second and final presidential debate against Republican candidate Vice President George H.W. Bush, on October 13, 1988, Massachusetts Gov. Michael Dukakis was singled out with a question about his opposition to capital punishment.
I WAS ELECTED to Congress in 2002, in a district that was dead even between Al Gore and George Bush in 2000. The issues in Congress were somewhat different, but the political calculation was the same: Republicans continued to talk about crime as much as possible, and to be as tough as possible; Democrats saw only political danger and wanted to change the subject.
In my first few months in Congress, the Republican House majority pushed legislation to get tougher on some crime—I can’t remember what. My staff told me on my way to the vote that Bobby Scott led the opposition in floor debate. Bobby represented a majority-minority district in Virginia and was (and still is) one of the leaders in the CBC on criminal-justice issues. I respected Bobby then and I still do. I found Bobby on the floor and asked him how bad the bill was. Bobby’s jaw dropped. He could oppose the bill in his district, he said, but I couldn’t in mine. I took Bobby’s advice and voted for the bill.
The politics of crime did not quickly change, but the reality did. According to crime statistics compiled by the FBI and the BJS, the crime rate has dropped continuously since the early ’90s and has now returned to approximately what it was in the early ’60s. Gallup surveys also found, however, that during that same 1993–2018 period, 60 percent of Americans continued to believe that crime was on the rise, just not where they lived. Crime victims were less often someone Americans knew personally, and more often someone they saw on TV.
Did crime decrease dramatically because the tough-on-crime policies of the ’90s worked? State and local responses to crime varied greatly among jurisdictions, but crime went down just about the same everywhere. If correlation proves causation, then more cops and longer sentences, drug counseling, mental-health treatment, early-childhood education, after-school programs, alternative schools for at-risk kids, militarized police, Big Brother programs, broken-windows policing, community policing, the prosecution of juveniles as adults, midnight basketball, and every other policy intervention worked.
Or, more likely, none of them did.
The data also supports the explanation that exposure of young children to leaded gasoline emissions resulted in significantly reduced cognitive function and impulse control in adolescence. New cars did not use leaded gasoline after 1975, and leaded gasoline was finally banned in 1996. Children who were toddlers in 1975 had entered adolescence by the early ’90s. The lead/crime hypothesis is as good an explanation as any for the increase and then decrease in the crime rate.
DEMOCRATS’ QUARTER-CENTURY of avoidance of crime issues may have been smart politics, but it came at significant cost. The nation’s prison population continued to explode, and the prisons built in the ’90s remained full, despite the dramatic decrease in crime. The nation’s prison population in 1988, when the Willie Horton ads savaged Dukakis’s campaign for president, was 603,732. The population in 2008 was 1,610,446, declining slightly to 1,439,608 by 2017.
Our nation’s incarceration rate greatly exceeds the rate of any other nation. In 2017, 665 Americans were imprisoned out of every 100,000 in total population. In Germany, in contrast, 77 were.
Taxpayers spend $31,286 a year to incarcerate a prisoner. The number of police officers has not gone up significantly for two decades, but equipment and training has become more and more expensive. Police in many places are now equipped to act as a paramilitary occupying force in hostile territory, not as a friendly neighborhood presence. State and local funding for law enforcement and incarceration successfully competes with funding for public schools and other government services. In the Great Recession, state and local governments made drastic cuts in public education and social services, but funds for law enforcement and incarceration remained sacrosanct. Between 1993 and 2012, real per capita spending on law enforcement, courts, and corrections grew by 40 percent.
The expense is not the worst damage. The evidence is overwhelming that whites and African Americans are treated differently in the criminal justice system. People of color are 37 percent of the nation’s population, and 67 percent of our prison population. The likelihood that a white male born in 2001 will be imprisoned at some point in his life is 1 in 17. The likelihood for an African American male born the same year is 1 in 3.
In 1999, I helped shepherd a bill through the North Carolina Senate introduced by Frank Ballance, the most influential African American in the Senate. The bill required law enforcement to keep extensive statistics on discretionary traffic stops disaggregated by race. The intent was to document and inhibit racial profiling. The bill had strong support from the state’s African American political leadership and progressive community. We’d all gotten passes on the crime legislation five years earlier, but there were no passes for Democrats on Frank’s bill.
For a decade, hardly anyone looked at the data, but in 2011, the organization of North Carolina’s trial lawyers asked a University of North Carolina political science professor, Frank Baumgartner, to compile and analyze it.
Baumgartner found that African Americans drove less than whites but were stopped twice as often and searched four times as often. Blacks were more likely to be stopped for no particular reason. Disparities in car searches likely account for much of the disparity in convictions, most obviously for simple possession of drugs. African Americans were much more likely to be arrested on the sole charge of resisting, obstructing, or delaying an officer, which often is charged because the officer thinks the driver is too mouthy. The disparities declined greatly after dark, when officers could not see the race of occupants of cars. “[T]he numbers certainly validate the idea that young black and Hispanic men are commonly viewed as suspects, not as citizens, by police,” Baumgartner told The Washington Post.
Baumgartner’s report coincided with protests that followed the deaths of Michael Brown in Ferguson, Missouri, and Eric Garner in New York City, and became part of the national debate, as well as an issue in local politics.
Allen G. Breed/AP Photo
Following the killing of George Floyd in Minnesota, protesters face off with police guarding the Old State Capitol in Raleigh, North Carolina, May 31, 2020.
In Fayetteville, the town in which George Floyd and I were born, the city manager and the police chief resigned. Two officers were forced out because videos from dashboard cameras supported allegations that the officers discriminated against black drivers. The new police chief discouraged traffic stops not related to safety, such as for expired license plates.
Economic injustice and racial injustice are inextricably connected. The difference in economic circumstances of African Americans and whites may be as much the result of the disparity in law enforcement as the cause of the disparity. African American men with criminal records are far less employable. African Americans are paid 73.4 cents for every dollar that whites are paid. The wage gap now is worse than it was at the beginning of the century, and the wealth gap is much worse than the wage gap. According to the Brookings Institution, the typical white household had a net worth of $171,000 in 2016. The typical Black household had a net worth in 2016 of $17,150.
Martin Luther King Jr. warned against the “tranquilizing drug of gradualism,” but it is not possible to address all aspects of injustice at once. The criminal justice system is an excellent place to start.
THE EVENTS OF GEORGE FLOYD’S death and the protests that followed need not be retold here. The CBC had proposals on the shelf to address police brutality, which other Democrats quickly endorsed: a national registry of officers with a history of abuse; a ban on chokeholds; a ban on no-knock searches; national statistics on use of force by law enforcement; an end to the “qualified immunity” defense that has stymied civil rights lawsuits for police brutality; a limit on transfers of military equipment to local police; the required use of body cameras; and so forth. Those proposals were likely more aspirational than attainable when drafted, but now seem less than what is necessary, and less than what is politically possible.
The reflexive political response by Trump and other Republicans was to claim that middle-class families are not safe in their homes from violent criminals, and promise law and order. Trump’s threats to set “vicious dogs” on protesters recall the worst police violence of the civil rights movement. He appears to want to be added to Stone Mountain, not Mount Rushmore. Republicans have gone repeatedly to the “law and order” well since the ’60s and the well has never run dry.
This time, the well was dry.
This time, the public strongly sides with protesters. There is no ambiguity in the video that shows George Floyd’s death, and no question among Americans that it reveals a serious problem of excessive police violence against African Americans. And Americans can see that the subsequent protests have been mostly peaceful, and that police in many communities have engaged in unprovoked violence against protesters.
I was the Democratic candidate in competitive districts in North Carolina for the state legislature or for Congress in every general election for two decades, and I never saw a poll that showed that racial justice was a better issue for Democrats than crime was for Republicans. The political advice that the president of North Carolina’s AFL-CIO gave me in 1994 and that Bobby Scott gave me in 2003 was sound advice based on an accurate read of political reality. But political reality is now entirely different.
It is easy for Democrats to be the lesser evil on racial injustice compared to Trump and Republicans between now and November. There is political danger, however, if Democrats then fail to address racial injustice. Ineffective, half-hearted reforms will be punished, and should be.
The federal Department of Justice has the legal power now to seek court-ordered reforms for police departments with a “pattern or practice” of unconstitutional misconduct. That power was also included in the 1994 federal legislation of which Joe Biden was the principal Senate sponsor. There will be no excuse if a Biden administration does not use that power aggressively to identify and reform problem departments. It should not take “police-involved deaths” to identify problem officers and problem departments. Data on routine interactions between police and civilians, not just on the use of force, would be revealing, just as traffic stop statistics have been in North Carolina, and body camera videos will also be revealing, just as dashboard camera videos were in Fayetteville.
It will be hard to forgive Democrats if they miss this moment. It is now politically possible for Democrats to rise from their defensive crouch on crime. Justice requires that they do. And it would be incredibly stupid politics to do otherwise.
