The Politics of Protest: Task Force on Violent Aspects of Protest and Confrontation of the National Commission on the Causes and Prevention of Violence 9780814708910

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The PoliTics of ProTesT

Statement on the Research Study The Commission was directed to “ go as far as man’s knowledge takes” it in searching for the causes of violence and the means of prevention. These studies are reports to the Commission by independent scholars and lawyers who have served on task forces and study teams; they are not reports by the Commission itself . Publication of any of the reports should not be taken to imply endorsement of their contents by the Commission, or by any member of the Commission staff , including the Executive Director and other staff officers, not directly responsible for the

preparation of the particular report. Both the credit and the responsibility for the reports lie in each case with the directors of the task forces and study teams. The Commission is making the reports available at this time as works of scholarship to be judged on their merits, so that the Commission as well as the public may have the benefit of both the reports and informed criticism and comment on their contents. MILTON S. EISENHOWER Chairman

The PoliTics of ProTesT Task Force on Violent Aspects of Protest and Confrontation of the National Commission on the Causes and Prevention of Violence

A Report Submitted by

Jerome H. SkolNiCk,

director

With a New Preface and Introduction by

Jerome H. SkolNiCk

a N ew York U Ni V erS iTY Pr e S S New York and London

Ne w Yor k U N iV e r S iT Y P re S S New York and london www.nyupress.org © 2010 by New York University All rights reserved library of Congress Cataloging-in-Publication Data Skolnick, Jerome H. The politics of protest : a task force report submitted to the National Commission on the Causes and Prevention of Violence / a report submitted by Jerome H. Skolnick ; with a new preface and introduction by Jerome H. Skolnick. p. cm. earlier ed. published in 1969. includes bibliographical references and index. iSBN-13: 978–0–8147–4098–9 (pb : alk. paper) iSBN-10: 0–8147–4098–7 (pb : alk. paper) 1. United States—Social conditions—1960–1980. 2. Violence—United States. i. United States. Task Force on Demonstrations, Protests, and Group Violence. ii. United States. National Commission on the Causes and Prevention of Violence. iii. Title. HN90.V5S5 2009 303.6’2097309045—dc22 2009041131 New York University Press books are printed on acid-free paper, and their binding materials are chosen for strength and durability. we strive to use environmentally responsible suppliers and materials to the greatest extent possible in publishing our books. manufactured in the United States of America 10 9 8 7 6 5 4 3 2 1

Staff Director: Jerome H. Skolnick General Counsel Ira M. Heyman School of Law University of California

Associate Director Anthony Platt School of Criminology University of California Berkeley

Berkeley

.

Asst General Counsel

Assistant Director Elliott Currie Department of Sociology University of California Berkeley

Edmund C. Ursin Office of the General Counsel Department of the Air Force

Accountant Herbert Kalman , C.P.A.

Staff Administrator Sharon Dunkle Marks

Research Asst , to Director

Asst. Staff Administrator Lee Maniscalco

Richard Speiglman

Research Assistants Charles Carey

Office Staff

Kathleen Courts Gabriella Duncan

Howard Erlanger Nancy Leonard Sam McCormick Alan Meyerson

Emily Knapp Wendy Mednick Sharon Overton Charlotte Simmons

Supporting Research Assts. Susan Currier Howard Schechter Nelson Soltman H. Frederick Willkie, III

Supporting Office Staff

Mary Alden Jayne Craddock Judy Dewing Sally Duensing Sue Feinstein

Judy Foosaner Vera Nielson Elizabeth Okamura Melba Sharp Betty Wallace V

Staff Consultants

Irving Louis Horowitz

David Chalmers Kermit Coleman Thomas Crawford Frederick Crews Amitai Etzioni Richard Flacks

Marie-Helene leDivelec Martin Liebowitz Sheldon Messinger Richard Rubenstein Rodney Stark

Joseph Gusfield

Advisory Consultants

David Matza

Richard Albares Isaac Balbus Herman Blake Robert Blauner Ed Cray Harold Cruse Caleb Foote Allen Grimshaw Max Heirich

Henry Mayer Phillipe Nonet Thomas Pettigrew Robert Riley J. Michael Ross Peter Scott Charles Sellers Philip Selznick

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Staff Consultants

Irving Louis Horowitz

David Chalmers Kermit Coleman Thomas Crawford Frederick Crews Amitai Etzioni Richard Flacks

Marie-Helene leDivelec Martin Liebowitz Sheldon Messinger Richard Rubenstein Rodney Stark

Joseph Gusfield

Advisory Consultants

David Matza

Richard Albares Isaac Balbus Herman Blake Robert Blauner Ed Cray Harold Cruse Caleb Foote Allen Grimshaw Max Heirich

Henry Mayer Phillipe Nonet Thomas Pettigrew Robert Riley J. Michael Ross Peter Scott Charles Sellers Philip Selznick

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Contents Staff Staff Consultants Advisory Consultants Preface to the New Edition Introduction to the New Edition Preface Summary

Part One: Introduction Chapter I. Protest and Politics Problems of Definition Political Violence in American History Contemporary American Protest

v vi vi ix xiii xli xlv

1 3 3

8 21

25 Part Two: The Politics of Confrontation 27 Protest . War Anti Chapter II The Disorganization of the Anti-War 30 Movement 35 Why the Movement Grew The Social Bases of the Anti-War 58 Movement 65 Tactics and the Question of Violence 79 Chapter III . Student Protest American Student Protest in International 81 Perspective American Student Activism in the 1960’s 87 105 The Politics of Confrontation Black and Third World Student Protest 109 111 Colleges and Universities in Crisis 120 Response to Student Protest 125 Chapter IV. Black Militancy 128 The Roots of Contemporary Militancy 145 The Impact of Riots The Direction of Contemporary 149 Militancy 171 Conclusion

Part Three; White Politics and Official Reactions 177 Chapter V. The Racial Attitudes of White 179 Americans 181 Decline in Prejudice

The Validity of Racial Attitudes Surveys 183 The Widening Racial Gap : Social Perception in the “ Two Societies” 201 210 Chapter VI. White Militancy 211 Vigilantism and the Militant Society 218 The South 224 The Urban North 231 White Paramilitarism 239 Conclusion 241 Chapter VII. The Police in Protest The Police and Mass Protest : The Escalation of Conflict, Hostility, 241 and Violence 249 The Predicament of the Police 252 Resources of the Police The Police View of Protests and 258 Protesters Militancy as a Response to the Police Predicament : The Politicization 268 of the Police Activism in Behalf of Material Benefits 272 274 Activism in the Realm of Social Policy 288 Conclusion Chapter VIII. Judicial Response in Crisis 293 The Lack of Preparation: An Overview 295 297 The Role of Lawyers in Crisis 300 High Bail as Preventive Detention Some Causes and Implications of Judicial Response 308 The Lower Court as an Agency of Law 313 Enforcement 324 Recommendations Part Four: Conclusion Chapter IX. Social Response to Collective Behavior Theories of Collective Behavior Official Conceptions of Riots Social Control of Riots Appendix : Witnesses Appearing at Hearings Notes Bibliography Index

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329 330 339 342 347 349 397

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Preface to the New edition o n J une 9, 1968, three days after the assassination of Senator robert F. kennedy, and three months after the assassination of martin luther king, Jr., President lyndon B. Johnson established a National Commission to investigate “The Causes and Prevention of Violence.” i signed the contract to write this report on “violent aspects of protest and confrontation” about a month before the 1968 Democratic National Convention that fascinated and appalled a national audience of television viewers. Social scientists who write for commissions are subordinate to a Commission’s executive staff. Before signing, i negotiated for the right to hire and fire my own staff, and for authorial rights. we also agreed that instead of a lawyer as co-director, i would have a general counsel, who would make presentations with me to the Commissioners. my friend, Berkeley law School Professor ira m. Heyman—mike Heyman—agreed to be general counsel. mike had lived through the campus protests and understood their complexity. (He was later to be U.C. Berkeley Chancellor and after retirement, head of the Smithsonian institution.) The report begun in August, 1968, was due at the end of December, which was, of course, impossible. That was the bad news. The good news was that i had virtually unlimited funds to hire people to help write drafts on the topics of the report. Their contributions are acknowledged in the original preface. Some of ix

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the Berkeley staff received a new royal typewriter, then state-ofthe-art. my “assistant director,” elliott Currie, was a 26- year-old graduate student. i had just turned 37 myself. we were a young team. i had realized from the beginning that i could never complete the report in the sterile washington, D.C., headquarters of the Commission, where I was offered a set of offices. I needed a dedicated staff, in a university setting, where we could work day and night. my friends and colleagues, Philip Selznick and Sheldon messinger, turned most of the U.C. Berkeley Center for the Study of Law and Society offices over to me and my staff. We received visits from Washington officials to check on our progress. i think they may have been taken aback initially by our hang loose ways, but they soon “got it.” we were hang loose, but also the most productive of any of the Violence Commission’s “task forces.” i later learned—from a Freedom of information request—that someone on our staff (whose name was redacted) was reporting back to washington. we had a spy, but who cared. i think our spy gave us good reviews—yes, we working hard and effectively—and he ended up being a valued member of our team. A complete draft of the report was submitted to the Commission in February, 1969. lloyd Cutler and his staff met with me and my staff—and my wife, Arlene—at the opulent offices of his major Washington law firm, Wilmer, Cutler, and Pickering, to discuss the completed report. He said that he and his staff thought the report was comprehensive, well written and researched, and ready for publication, but he could not and would not release it. As executive Director, he explained, he was, in effect lawyer to the Commissioners—and that The Politics of Protest did not reflect their views, or the views of President Johnson. He was right—our research focused on the reasons for protest and the arguments of the protestors. The student and anti-Vietnam war protestors were protesting against the policies of the Johnson administration. Furthermore, following Dan walker’s report, which had been leaked, and had concluded that the police had rioted at the Democratic National Convention, the publication of The Politics of Protest would be another blow to the traditional Democrats, like mayor Daley and President Johnson.

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Perhaps the most controversial of the report’s conclusions was the section of Chapter Vii, “The Police in Protest,” where we sharply criticized the testimony of FBi Director, J. edgar Hoover before the Commission (the Commission held public hearings where we made presentations). Hoover had testified that “Communists are at the forefront of civil rights, anti-war, and student demonstrations,” a view which was reflected in most police literature at the time, and which we challenged. By challenging Hoover’s views, i was later to learn from a Freedom of information request, that Hoover had issued a recommendation to right-wing newspapers, that they write editorials denouncing The Politics of Protest and me personally. A Congressman, whose name i cannot recall, called me a “Pied Piper of Radicalism,” from the floor of Congress, where he—like all members of Congress—was protected from a libel lawsuit. of course, i would not have sued anyway. However, this was not the era of Senator Joseph mcCarthy. The more Hoover and his acolytes denounced me, the more invitations i received to lecture and express my views on protest at universities across the nation. eventually, Hoover’s views that Communists were the main force behind the protests were entirely discredited. Hoover’s successor, Clarence kelly, former kansas City police chief, invited me to lecture on protest to the FBi academy in Quantico, Virginia. in retrospect i could not have had a more propitious enemy than J. edgar Hoover. The report was not published by the U.S. Government Printing Office when submitted. Its main findings did not comport with the views of most of the Commissioners. Two Commissioners, Senator Philip Hart (known as “the conscience of the Senate”), and Judge A. leon Higginbotham, were our principal supporters among the commissioners, but they were in a minority. The Commission, as it was required to do by contract, published the report with the U.S. Government Printing Office when the Commission expired on June 9, 1969. i was then free to publish, and insisted that the report first be published as an inexpensive paperback. it was also published in a hardback edition and a quality paperback edition by Simon & Schuster. Fortunately, ian Ballantine admired the report, published it as a $1.25 paperback, and placed me for my six minutes of fame on the Today Show. The Politics of Protest sold several hundred

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thousand copies as a $1.25 mass Ballantine paperback. All royalties, of around $40,000 were donated, mostly to minority student scholarships at U.C. Berkeley. Had the report been published when completed, it would have been in the public domain, and i would have received no royalties. After June 9, 1969, i held copyright, so i thought it was only fair that i donate the royalties. i am delighted and grateful that, 40 years later, NYU Press, and especially my editor, Deborah Gershonowitz, have given The Politics of Protest a new life, and me the opportunity to reflect on the major changes that have occurred since. i want to thank elliott Currie, then a graduate student, now a Professor at U.C. irvine, who was in it from the beginning; he became and has remained a great colleague and friend. Based largely on what we learned from our research, we published a book of readings, Crisis in American Institutions, for which we are preparing a fourteenth edition. Crisis brought a different vision to the field of “social problems.” Instead of concentrating on the traditional “nuts and sluts” vision of social problems, we concentrated on systemic problems, such as corporate power, banking, the environment, health care, racism, and sexism. i thank Jim Jacobs and David Garland for their friendship, support, and wise counsel. michael Palmieri has been a dedicated, exceptional research assistant; and Janelle Pitterson has been cheerful and helpful, especially in pulling me out of computer glitches. Arlene Skolnick, my life partner, was there for me 40 years ago, has been enormously helpful in writing this introduction, and is still hanging in there with me today, for which i am most thankful.

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Grant Park 1968 to 2008 August 29, 1968. “Police Battle Demonstrators in Streets” J. Anthony lukas, The New York Times “The protesting young people had broken out of Grant Park on the shore of Lake Michigan in an attempt to reach the International Amphitheatre where the Democrats were meeting, four miles away. The police and Guardsmen used clubs, rifle butts, tear gas and Chemical Mace on anything moving along Michigan Avenue and the narrow streets of the Loop area.” November 5, 2008 “Celebrating obama in Grant Park” monica Davey, The New York Times “By late morning Tuesday, Chicago seemed to have been taken captive—albeit willingly—by plans for an enormous election party in the city’s front yard, Grant Park, where Senator Barack Obama, would spend election night. By the time of Mr. Obama’s victory speech, according to city officials, an estimated 240,000 people had gathered in the park and its surrounding streets.” xiii

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o n A pril 4, 1968, as news of martin luther king’s assassination spread through the nation, riots broke out in 110 cities with major disturbances in Chicago and washington, D.C., President lyndon B. Johnson dispatched nearly 14,000 federal troops, including 1,750 federalized D.C. National Guard troops to assist the local police. on April 5th, rioting reached within two blocks of the white House before rioters retreated. The occupation of washington was the largest of any American city since the Civil war. The National Guard patrolled the streets of Chicago. The king riots seemed a dangerous addition to race riots that had been breaking out in the U.S. in the twentieth century, from the Chicago riots of 1919 to the los Angeles watts riot in 1965. As if the king assassination was not enough for the nation to bear, robert F. kennedy was assassinated three months later, in the early morning hours of June 5, 1968, after addressing his supporters in a ballroom at the Ambassador Hotel in los Angeles. By the time of kennedy’s assassination, domestic tranquility had already been shattered—most recently after the king assassination—and the Vietnam war seemed out of control. Black, student, and anti-war protests were so familiar in the nation’s newspapers and television screens that they were almost an American institution. The protest movements of the 1960’s cast a long and still divisive shadow on the nation. The movement energized the left, but also led to decades of conservative political dominance, beginning with richard Nixon’s election in 1968. indeed, the rise of ronald reagan can be traced to the backlash against the Free Speech movement (FSm) protests at the University of California, Berkeley. workingclass Californians resented college students who were not taking advantage of the educational opportunities offered by the state. reagan, then a movie star who had not previously held political office, capitalized on widespread anger at the protesting students as he campaigned for governor. Against the advice of his campaign consultants, he made the FSM—which he scorned as the “filthy speech movement”—the centerpiece of his campaign, and vowed to “clean up the mess” at Berkeley. reagan’s harsh opinion of the widely televised FSm protests was largely shared by white, unionized, blue collar, roosevelt democrats, who viewed the Berkeley students (and faculty) as irresponsible elitists. Blue collar support helped ronald reagan defeat centrist Democratic governor edmund G. “Pat” Brown

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in 1966—the same Governor Brown who had defeated richard Nixon in his attempted political comeback in California’s 1962 governor’s race. (Nixon nevertheless reemerged to win the Presidency in 1968.) The working class shift in 1966, away from the Democrats to the republicans, was to be as politically consequential as the defection of southern Democrats to the republican Party had been earlier in the decade, after the passage of the 1964 Civil rights bill. when ronald reagan became President in 1980, republicans maintained their blue collar advantage, and thus mostly dominated “law and order” politics from Nixon’s “wars” on crime and drugs, begun in 1968, through the two terms of the second George Bush in 2008. in what follows, i shall offer a brief history and analysis of the profound changes in American life that were directly or indirectly affected by the protests—the university, policing, sentencing and imprisonment, and protest itself. There is a fourth, of course— the movement to equalize the opportunities, status and pay of, women, which was in many respects modeled on the civil rights movement. A fifth was recently shown in the movie Milk about the San Francisco gay activist who adapted tactics formed in the 1960’s student and black protests to the lGBT community in San Francisco. After the 1960’s, protest became a recognized feature of American life, as strikes by labor unions had earlier in the century. The women’s movement, in particular, adopted tactics employed by the Civil rights movement. Similar tactics were adapted by the community of the disabled, resulting in the American Disabilities Act of 1990.

Findings from the Original Report Our main findings were: 1. There was relatively little violence associated with protest. 2. When violence occurred, it was difficult to determine who was most responsible, the protestors or the authorities. 3. Contrary to the theories of some sociologists and psychologists, mass protest, we argued in Chapter iX, represented a response to government policy, such as the Vietnam war, or social and economic disadvantage, especially in communities of

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color. To explain mass protest as the irrational behavior of crowds, as some sociologists of collective behavior had argued, was simplistic. Protest arose in connection with crises or unfairness in American policies and institutions, from the Vietnam war, to the conduct of the police, to the economy, to inferior educational opportunities and segregated housing. Protestors, we argued, may have been angry and sometimes violent, but they were not simply “irrational.”

Student and Anti-War Protest The report begins with student and closely linked anti-Vietnam war protest. Protest against the war in Vietnam was so familiar by 1968 that it had almost acquired the status of an institution, and continued with even greater intensity as the war escalated into Cambodia in spring of 1969. Anti-iraq war protest has been relatively muted by comparison. Yet the similarities are striking: both were wars of choice. The reason given for the Vietnam war, that a ship was attacked at sea, was scarcely credible. The war in iraq was falsely grounded in a claim that iraq was producing “weapons of mass destruction.” Both were premised on reasons that turned out to be untrue or misleading. in neither war was the United States attacked by the nation against whom the war was fought. There was no “Pearl Harbor” attack against United States territory and its military. Both wars were costly to the United States in blood and treasure—lyndon B. Johnson’s “war on Poverty” was a victim of the Vietnam war, while U.S. infrastructure and national health services declined during the iraq war. Both wars were severely criticized in universities across the nation. Both lyndon B. Johnson and George w. Bush suffered major declines in popularity. Yet no anti-war protest movement emerged during the iraq war with the scale and intensity of the anti-Vietnam war movement. one governmental policy likely explains the difference—the conscription of college students in one, and its absence in the other. Few protests arose during the korean war, even though young men faced conscription in an unpopular war. The draft was in force, but college students were deferred. Chapter ii discusses in detail how the invocation of the draft mobilized anti-Vietnam war senti-

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ment and protests on university campuses and how the deferment of students led to increasing hostility among blue collar workers, who were drafted to fight the war, against students whose status allowed them to be deferred, out of reach of the draft. Conscription ended in June 1973, following the end of active U.S. ground participation in Vietnam, but anti-Vietnam war protest effectively ended conscription. it may be true that a voluntary military is more effective than an army of conscripts, particularly in a war where the United States has not been directly attacked. Drafted soldiers fought well in wwii, but not as well in korea or Vietnam. Nevertheless, the claim is hardly compelling when we are told of the scarcity of troops to fight in Afghanistan and to “police” in iraq. The Bush administration and the republican Congress learned one of the lessons of the Vietnam war—national conscription mobilizes anti-war protest, especially in university towns and cities across the nation.

What Has Changed? Despite occasional sit-ins or other campus protests, there is no longer a student movement resembling the one that spread across the nation in the 1960’s. The universities were transformed by the upheavals. During the 1950’s, the prevailing ideology insisted that the university be an apolitical ivory tower. All that changed in the fall of 1964 when students returned to the campus following a summer of civil rights activism. Some students were beaten by southern authorities and three, James Chaney, Andrew Goodman, and michael Schwerner, were murdered and became legends. Students returned to the campus and were politicized into martin luther king’s non-violent, but unlawful, protests. Universities could no longer serve as substitute parents and students were—eventually—offered greater freedom in their personal lives. Some continued in politics while others gravitated toward sex, drugs, and rock ‘n roll. The student movements of the 1960’s largely achieved their goals of greater freedom and autonomy. in 1968, linda leclair, a Barnard college sophomore was threatened with expulsion for the then serious offense—living off campus with her boyfriend. it was her open challenge to the rules that made her story into media blitz.

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linda leclair’s struggle was more than a titillating event. it marked an abrupt generational change in which the white middle class “transformed itself quite deliberately, and from the inside out, changing its costumes, its sexual mores, its family arrangements and its religious patterns.”1 it also changed the nature of university— student relationships, insofar as the universities tried to control the private lives of its students. we attempted to describe, and explain the nature of student, anti-Vietnam war protest and the societal responses to it. Perhaps the most important change over forty years has been in the racial attitudes of white Americans (Chapter V). Civil rights leaders like Jesse Jackson and John lewis cried when Barack obama took the oath of office. They believed they would never live to see a black President. Neither did i. The racial attitudes of white Americans, which we discuss in Chapters V and Vi, especially those of younger white Americans, have shifted dramatically over the previous forty years. our chapter on “Black militancy” sought to understand its root causes. Blacks were largely excluded from urban, statewide, or national governance 40 years ago. America has been transformed in the intervening decades. Black officials—mayors, police chiefs, Congressional representatives—are commonplace. And, of course, the nation elected a black president with the strange African name of his kenyan father—not with an adopted American slave name like John lewis or Jesse Jackson. The election of a black man named Barack Hussein obama to be President of the United States was simply unimaginable 40 years ago. President obama’s election must be counted as the most profound change of the intervening 40 years. The 1960’s protests sparked “affirmative action” to admit blacks to colleges and universities, and to positions in government and the private sector. This led to the emergence of a black middle and professional class, best represented by Barack and michelle obama. michelle obama is also part of a generation of women who graduated from America’s top law schools, and who have achieved prominence in legal and civic affairs. With time, affirmative action became increasingly controversial, and eventually, unlawful.2 But it served its purpose of integrating blacks and browns and—eventually—women into positions from

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which they had formerly been excluded—from bank tellers, to automobile salespersons, to TV anchors, to university professors and university Presidents. The protests of the 1960’s generated two contrasting responses. one was opportunity for those formerly excluded. The other was a heightened capacity for social and legal control. we feared in our conclusion that the control prong would dominate among the black urban poor, as it mostly has. we have evolved into, as David Garland has documented, a “culture of control” with a vast expansion of policing and prisons housing mostly black and brown males.3

Policing Although The Politics of Protest focuses on student, antiwar protest, and black militancy, these social movements are of the past. But the police remain. moreover, since police—black confrontations were the immediate cause of most, if not all urban confrontations and riots, the significance of the police can scarcely be overestimated, then and now. Chapter Vii discusses law enforcement and concludes that the police—who were virtually all white and male—were underpaid, under trained, politically active, and very conservative. Has the culture of policing changed? There is no consensus among police scholars. i am one of those who believe that police culture develops from essential features of the occupation—the use of force, associated danger, and the assertion of authority; and that recruits of whatever color, ethnicity, or gender become assimilated into how other police see their responsibilities, and the world around them—or they leave. As edward Conlon writes in his memoir of policing in New York City, “[o]ver time, and in the main, cops tend to think like other cops.”4 Today’s police look like they did in 1968—sort of. They wear similar dark blue uniforms and drive standard patrol cars with flashing lights and sirens. Still true is that whatever the assignment—protecting the assaulted, managing the emotionally disturbed, arresting a speeder, enforcing a warrant, abating a nuisance, or negotiating a domestic violence dispute—police continue to maintain “above all the capacity and authority to

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overcome resistance.”5 Every stop, frisk, search, and handcuffing imposes force on an unwilling person. Those imposing force are nearly as likely to be black or female as white male.

Race, Gender, and Prejudice Scarcely any city or its police department volunteered to introduce racial and gender diversity into policing. Police unions, made up of white male cops, resented the idea that an officer should be hired or promoted “because” of race or gender, and especially resented the promotion of “less qualified” minority or female officers. That objection can sound like a principled, meritocratic opposition to affirmative action, but it wasn’t. Most white male police of the 1960’s were unabashed racists, or tolerated racism by their fellow officers. William Westley, in his classic 1951 study of police in Gary, indiana, found that all the white cops he followed and interviewed were outspokenly, unashamedly, racist. in 1968, the west coast police, especially those in los Angeles and oakland, enjoyed a reputation as a professionalized model of efficient and incorruptible policing, in contrast to police departments in places like Newark, Chicago, Detroit, Boston, and New York, which were systemically inefficient and corrupt. The west coast policing style was called “legalistic” by James Q. wilson.6 it combined a high level of enforcement activity, as expressed by aggressive preventive patrol, with an absence of corruption. wilson reported that every Negro interviewed for his study of the oakland police claimed that police harassed Negroes, a charge wilson dismissed as a misperception, a side effect of the policing style, rather than a consequence of racism. But most white cops were racists—as was the white working class from which they were recruited—at a time when the black population was growing in cities across the nation. So pronounced was racism among the “legalistic” Oakland cops that the police chief ordered rank-and-file police to cease using a breathtaking catalogue of racist epithets: Boy, spade, nigger, jig, blue, smoke, coon, spook, headhunter, junglebunny, boogie, stud, burrhead, cat, blackboy, black, shine, ape, spick, mau-mau.7

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Virulent racism is simply not possible today. Contemporary police have come to accept —after considerable litigation and with some grumbling from older white cops—differences in color, ethnicity, and gender as part of the job environment. The oakland, California’s Police Department operates under a federal consent agreement (as does the lAPD).8 oakland’s website features five “representative” Oakland police officers—a white, black, and Hispanic male; and a white and an Asian female. Gay and lesbian officers are not pictured, but they are openly gay, and part of the mix. Despite the early introduction of minorities into policing, 23 years later, the beating of rodney king in los Angeles exposed persistent racism and a “blue wall of silence.” The videotape confirmed charges of brutality and racism that had repeatedly been leveled at the lAPD, and had already resulted in millions of dollars in legal damages. in 1992, when the police who had administered the beating were acquitted on assault charges by a suburban jury, los Angeles experienced a riot larger and more destructive than any in the history of the United States. Around the same period, changes in the diversity of police departments demonstrated the power of court ordered mandates. white police executives, whom i studied in the 1980’s, were torn between fulfilling the orders of the courts, and dealing with the resentments of white cops they had sometimes known and worked with for years. By now, it is normal for white cops to work with and be supervised by black, Asian, Hispanic, and female officers. The NYPD’s recruit class reached a major marker in 2005—what used to be called minority became the first majority. The class was 45.2 percent non-Hispanic white, 18.3 percent black, 28.2 percent Hispanic and 8 percent Asian American.9 Nor did the majority of the whites present familiar NYPD names like murphy and kelly. many of the white recruits were themselves immigrants, mostly from eastern europe. A 2008 internal study by the NYPD reveals a similar breakdown by race. like major urban police departments across the United States, the NYPD is “Not Your Father’s Police Department,” the title of David Sklansky’s article on the status and implications of the new ethnic and gender diversity in policing.10

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Effect of Change? what is the effect of race, gender, or sexual preference on patrol officers? The police literature is ambiguous, but I do not believe there is much difference. Being a police officer is a defining identity, like being a priest, doctor, or lawyer and tends to unify police. Paradoxically, police identity may prove more consequential for women or police of darker complexion. in some circles, a Black police officer is considered a race traitor. Black police understand this potential, and meet it with different reactions. most identify themselves mainly as police. others like the NYPD’s “100 Blacks in Law Enforcement Who Care” and the “Latino Officers Association” see themselves as champions of minority rights, and publicly make reform demands on the higher authorities to take various actions, especially to promote minorities. Some turn against the job, leave, and develop counter identities, as anti-police. Although affirmative action was initially mandated by courts, non-whites and women have gained political power in urban areas, first in cities like Washington D.C., and Detroit, and now across the nation. whites in New York City, for example, constitute only 34 percent of the population. Yet issues of race and gender in policing can sometimes be delicate, complex, and the third rail of police reform. Since American cities tend to have sizable populations of people of color, mayors and police executives have had to be responsive to the demands of those communities. At the same time, police executives must deal with a variety of communities— especially men and women who may be sensitive to public safety issues. So when we think about police reform, we cannot ignore its politics. And what may seem like reform to one group—like community oriented policing—may appear to be “soft on crime” to another. Some police executives, like some politicians, have been able to finesse these problems. Others have not. Race and gender distinctions have and should become increasingly insignificant.

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The Blue Wall of Silence Patrol police work in an unpredictable environment. The potential danger of the workplace and their authority to use force to overcome resistance make it unsurprising that police actions can have brutal, even fatal, consequences—sometimes for innocent victims. it is also not surprising that, to cope with potential violence, police have developed a close-knit culture that prevails irrespective of the race, ethnicity, or gender of the officer. Officers in the New York City Police Department’s 70th precinct did not protest on August 9, 1997, when they saw Abner louima being marched around the station house with his pants down to his ankles. Officer Justin Volpe proudly showed off the results of his sadistic anal assault. He waved a broken broomstick stained with blood and feces for his fellow officers to see, even bragging to Sergeant kenneth wernick that “i took a man down tonight.” Yet no police officer came forward that night to report Volpe. Why not? “Cops don’t tell on cops,” explained Officer Bernard Cawley in his testimony before the 1993 mollen Commission, which investigated various cases involving police corruption: And if they did tell on them, just say if a cop decided to tell on me, his career’s ruined. He’s going to be labeled as a rat. So if he’s got 15 more years to go on the job, he’s going to be miserable because it follows you wherever you go. And he could be in a precinct—he’s going to have nobody to work with. And chances are if it comes down to it, they’re going to let him get hurt.

The general public, police, and city officials, and especially the Haitian and other communities of color, were outraged by the brutal assault. An estimated 7,000 protestors marched to Brooklyn’s 70th precinct station house, where the attack took place. Police authorities, fearing a riot, stationed black officers outside the precinct. How should police management have responded to this delicate racial issue? Virtually all the white police who had been assigned to the 70th precinct were transferred out, and Black police from other Brooklyn precincts were transferred in. The black police sued, claiming that it was improper to use race as a basis for

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assignment. A Federal District Court Judge upheld the black police claim, on grounds that, since a race based transfer demanded “strict scrutiny,” the city had not proved the need for black officers in the 70th precinct.11 (Disclosure: i was an expert witness for New York City, testifying that race mattered in gaining community support in policing, especially after a horrific incident like the Louima torture.) Eventually, officers of mixed race and gender were transferred to the precinct. The case raised larger and still unresolved questions: race, ethnicity, and gender are taken into account in undercover assignments. Female police are assigned to take the statements of female rape victims. when is it—or is not—appropriate to employ race or gender as a factor in police assignments? Following the assault on Abner louima, did it make sense to protect the 70th precinct from a potential riot by overwhelmingly black protestors by stationing black police outside? Given the diversity of current policing, units of mixed ethnicity and gender are increasingly common—but, as we saw above, that does not prevent police brutality, or undermine the blue wall of silence. it does, however, undermine the visceral racism that white male police expressed in most of the twentieth century.

Anti-Terror Policing Since 9/11 large urban police departments, like those in washington, D.C., Chicago, and los Angeles—and especially in New York City—must consider the possibility of a terrorist attack far more destructive than any episode of violence seen in the l960’s. Aside from day-to-day responses to reduce ordinary crime (which have become far more sophisticated, and which will be discussed later) the threat of a terrorist attack has mostly—but not entirely—replaced protest and riot as the major public order concern of the police in the twenty-first century. even those who criticize some of the provisions of the USA Patriot Act, passed by Congress on october 25, 2001, have welcomed its emphasis on better coordination among federal, state, and local agencies, particularly in their intelligence gathering functions. Nevertheless, cautionary critics have attacked the Act for eroding civil liberties, with provisions giving the FBi

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access to the personal information of Americans, such as internet, telephone, education, and library records, without their knowledge and without a specific showing that they are involved or suspected to be involved in terrorism.12 At the local level, the New York City Police Commissioner, raymond kelly, has developed the NYPD’s own, extraordinary, anti-terrorism capacity. kelly believes that, since New York “has twice taken the hit for the nation” the city cannot depend solely on the federal government to protect it—and remains publicly at odds with the FBi over intelligence.13 A terrorist attack has become the NYPD’s prime anxiety and concern—even more than ordinary crime, which is familiar, predictable, and well controlled. Not relying for New York City’s protection on Homeland Security or the FBi, the NYPD has branched out internationally. Officers are stationed in London, working with New Scotland Yard; in lyon, at the headquarters of interpol; and in Tel Aviv, Hamburg, madrid, Toronto, and other cities. New York City police have conducted interrogations in Afghanistan, egypt, Pakistan, Yemen, and the Philippines NYPD detectives were sent to investigate madrid’s commuter train bombing in 2004. They had no official status and were not vetted by the State department. They were sent in the belief that any information they could gather from local madrid police to prevent a New York subway or commuter train attack would be valuable.14 The subtext, of course, is that the since the FBi, the CiA, and the Bush administration did not prevent the 9/11 attack on New York City, perhaps savvy New York detectives, mentored by former CiA and counterterrorism specialists, could do better. Smaller American police departments engage in anti-terror training and analysis, but at nothing like the scale of the NYPD. 15

From the Politics of Protest to the Culture of Control in the presidential election year 1988, willie Horton—a furloughed Massachusetts criminal who had fled to Maryland where he robbed, raped, and pistol-whipped his victims—starred in a republican campaign ad used to successfully smear Democratic presidential nominee michael Dukakis as soft on crime. The ad was a high (or low) point of the campaign, but 20 years later, it

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seems almost puzzling. looking back from 2008, after an election where the economy (and race) was an issue, but crime a non-issue, it is easy to forget how salient a theme crime once was in national politics. The Horton ad appeared at the crest of the rising fear of crime in American cities, which spanned the late 1970’s through the early ‘90’s. State and federal politicians prescribed long criminal sentences, most notably in the Federal Sentencing Guidelines and in California’s “three strikes” law. in the years following the Horton ad, conservative thinkers warned that because of a rising teenage population the nation would experience an unprecedented crime wave. in 1996, william Bennett, John Diiulio, and John walters declared that, “America’s beleaguered cities are about to be victimized by a paradigm-shattering wave of ultra-violent, morally vacuous young people” they called “super predators.”16 But their heated rhetoric was published just as American crime was beginning to decline. every year between 1992 and 2004, the FBi reported a national crime drop of several percentage points. Although declines occurred nationwide, the most noteworthy was in New York City, which has experienced a larger, and more consistent crime drop than any other American city through 2008; and which accounts for about half of America’s overall crime drop. Why did crime decline so significantly in New York and in other U.S. cities? The “usual suspects,” of imprisonment, the economy, and demography, can explain some of the variation but not definitively, concludes Franklin Zimring in a recent book that carefully explores the subject.17 He acknowledges that each has some effect, but none has proven consistently meaningful. There are no unwavering correlates of crime, and thus it is difficult, if not impossible, to develop a public policy prescription for cities across the nation. The great American crime decline may be reaching its end, with some police experts predicting that a current rise in juvenile crime could be a harbinger of another crime wave. Nevertheless, when the FBi recently compared its data for 2007 with 2006, violent crime declined 0.7 percent across the United States.18 FBi crime data is gathered nationally from police departments on crimes with victims: homicide, rape, robbery, aggravated assault, burglary, auto theft, and larceny, together called “index crimes.” These data facilitate comparison of crime rates in differ-

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ent parts of the United States, and they are useful for statistical analysis. Yet they have a serious limitation. Although drug-related crimes constitute a significant portion—as much as 40 percent—of arrests, convictions, and imprisonments in the United States, purchasers of drugs (or sex) rarely, if ever, have their transactions reported to the police. Consequently, there are no numbers to report, and most drug crimes do not appear in the FBi crime rate. Drug crime does have a strong influence on the imprisonment rate, which may account for the seeming paradox of higher imprisonment even as FBi “index” crime declines. America’s most talked about crime decline has been in New York City which had fewer than 500 homicides in 2007—by far the lowest number in a 12-month period since reliable Police Department statistics became available in 1963. only about 100 of those were homicides committed by strangers, so small a number in a city of more than 8 million, that one wonders if it is possible to reduce homicides further. The low number of killings by strangers challenges the long held idea that New Yorkers are especially vulnerable to arbitrary attacks on “mean streets,” or to die in robberies that turn fatal. For years, most criminologists were skeptical of claims that— as compared to social and economic conditions—police actually could impact crime. in 1986, as crime was rising throughout America, David Bayley and i wrote that: • • • • •

•

Neither enlarging police numbers nor budgetary expenditures seem to have much effect. Neither does randomized motor patrolling. Two person patrol cars have made police feel safer, but are no more effective in reducing crime. The faster police responded to calls made little difference— except in domestic violence calls. The chances of police catching a burglary or robbery suspect on the spot are virtually nil. The criminal is usually long gone by the time the police arrive. Crime reduction by police seemed, if not hopeless, implausible.19

The crime reduction success of the NYPD challenged criminologists. it took some time to convince most of us that policing

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could actually reduce crime. Nor would criminologists have predicted that New York City, a place that william Bratton—who was initially responsible for the decline when he served as New York’s police commissioner from 1994 to 1996—once called “the crime capital of the world,” would be the site of a singularly steep crime decline. There were good reasons to be skeptical, especially as social scientists attributed the rising crime of the late 1980’s and early ‘90’s to underlying social and economic conditions, as well as to the crack epidemic, and we weren’t entirely wrong. As Franklin Zimring reports, New York City had 75 percent fewer homicides, robberies, and thefts of autos in 2006 than it had in 1990, but essentially the “same populations, schools, transportation, and economy.”20 Computerization of crime data has been a major factor. Before computerization, months could pass before crime statistics from the NYPD’s 76 precincts would be hand-delivered to one Police Plaza, the department’s central headquarters. By the time the data arrived and was reviewed, they were long out-of-date. Top brass themselves believed police could and should not be held accountable for crime reduction. Furthermore, in an earlier era New York cops were too often lazy and corrupt. The scandals investigated by the 1972 knapp Commission began when a New York Times reporter discovered that police routinely engaged in “cooping,” resting in out-of-theway places—like closed movie theaters—in the high-crime early morning hours.21 Twenty years later, the mollen Commission uncovered corruption and brutality, and discovered “testalying”—a routine practice of giving false testimony, especially in drug-possession cases. All of which makes the NYPD’s world-renowned and relatively scandal-free record of crime control over the last dozen years all the more remarkable—and helps explain why better management was the key to New York’s crime decline.22 william Bratton, who was appointed by mayor rudolph Giuliani, made major managerial innovations that have become world renowned. The most significant is the famed “Compstat,” methodology which combines a sophisticated crime-mapping instrument, with intense questioning of precinct brass. Timely and accurate precinct crime data were essential as a base to question precinct

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commanders (New York City has 76 precincts) about their crime control strategies and practices. i attended some of the early Compstat meetings, which could lead to personnel changes when the precinct brass failed in answering tough questions about their preparation and decision-making. By now, and especially since raymond kelly became commissioner in 2002, the briefings have become more institutionalized; precinct commanders have learned that if their crime numbers rise, they will be held accountable—and current precinct commanders have been promoted because they understand and fulfill expectations. Consequently, they have been given more authority over the 200 to 400 officers they manage, leading to more efficient day-today management. while these steps have been successful, they have also generated controversy. Bratton’s most controversial innovation was “broken windows” policing, a policy suggested by James Q. wilson and George kelling in a famous 1982 Atlantic article.23 wilson and kelling argued that if you accepted a neighborhood’s declining appearance and street behavior, crime would follow. This led Bratton to insist upon the enforcement of “quality of life” offenses, such as spray-painting, drinking alcohol in the street, loitering, panhandling, prostitution, and loud music. Such offenses take place mostly in high-density minority neighborhoods, which tend to have a more active street life than more affluent areas. The NYPD has been sharply criticized by the New York Civil liberties Union for its stop-and-frisk policies and practices in a back and forth that is likely to continue for some time, since the NYPD management believes these tactics are necessary for crime control.24

The Rise of “The Prison Industrial Complex” Although protest, confrontation, and violence had become, in the words of the 1960’s Black Power activist, H. rap Brown, “as American as apple pie,” crime and prison occupancy rates were low in the 1960’s. The U.S. incarceration rate was stable between 1920 and 1970.25 California’s prisons, operating under a system of indeterminate sentencing, maintained empty beds. As protest and civil disorders were forcibly suppressed, crime rates began to rise,

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but not nearly as much as prison populations. These were to double in the 1970’s and triple in the 1980’s, as sentencing laws became increasingly punitive across the nation. Could there be a connection between the repression of civil disorder and the rise in crime? The Commissions of the 1960’s, especially the kerner Commission, recognized that the nation’s ghettos were in crisis, and argued that responsibility lay with white society, which was deeply implicated in the ghetto’s segregated and subjugated status. “white institutions created it, white institutions maintain it, and white society condones it,” they wrote.26 The Politics of Protest had also cautioned about the underlying social and economic needs of America’s urban black communities, but lyndon Johnson’s vaunted “war on poverty” had yielded the country’s resources to the war in Vietnam. The nation under Nixon mostly turned to a policy of repression instead of investment in schools, and training for jobs. This policy—of supporting criminal punishment and unprecedented prison expansion, while scarcely addressing the needs of the nation’s ghettos—was made explicit when, in his 1973 State of the Union Address, Nixon said: Americans in the last decade were often told that the criminal was not responsible for his crimes against society, but that society was responsible. i totally disagree with this permissive philosophy. Society is guilty of crime only when we fail to bring the criminal to justice.

who were the “criminals” and what would be “justice” for them? The kerner Commission reported that a large proportion of riot participants were black males between the ages of 15 and 24.27 This is the age group mostly responsible for gangs, crime, and drug dealing in the inner cities, and this is the age group with the lowest levels of education, training, and employment. Although the inverse relationship between crime, education, and employment is complex, there is little question that there is one. legitimate employment and a steady income are a form of social control. The duties of work discipline one’s daily life and encourage family responsibilities. By contrast, “high rates of joblessness trigger neighborhood problems that undermine social organization, ranging from crime, gang violence, and drug

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trafficking to family breakups, and the organization of family life” writes william Julius wilson.28 Wilson’s observations have been confirmed more recently by Bruce western, who writes, “Unemployment, family instability, and neighborhood disorder combine to produce especially high rates of violence among young black men.” western singles out unemployment as a main cause of black youth violence. “Although black men made large economic strides between 1940 and 1970, their unemployment rate has been double that of whites since the 1970’s.”29 Jobless—or school dropout—young men tend to be impetuous, engage in male bonding activities that we call gangs, and are more likely than other jobless men to be free of ordinary social constraints. Nor are they likely to be deterred by the threat of imprisonment, partly because they are not rational cost-benefit calculators, partly because the threat is not always credible, but mostly because they have few alternatives. if they are arrested, even if not convicted, their chances of obtaining a job are further diminished.30 As opportunities increased for segments of African American communities through “selective incorporation,”31 so did social stratification within the black community. The middle class did well. Following the protests of the 1960’s, unemployed young black males, of roughly the age of the protestors, turned to gangs, drug dealing, and eventually faced imprisonment under a hard, older and regenerated philosophy of “just deserts” sentencing and incarceration.

Sentencing Earlier twentieth century notions of prisons were influenced by a philosophy of rehabilitation for criminals, called “penal welfarism” by David Garland.32 The most notable change occurred in California, which had enjoyed an international reputation for its indeterminate sentencing policy and practice. Nevertheless, many prisoners believed that under indeterminate sentencing, the parole board’s vast discretion produced unfair disparities since those convicted of the same crime could serve significantly different sentences. During the same time period,

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conservatives were opposing indeterminate sentencing as soft on criminals and advocated “just deserts” imprisonment. Given the rare and surprising consensus of the left and the right opposing indeterminate sentencing, Governor Jerry Brown signed the bill into law in 1977. Under indeterminate sentencing for felony offenders a vicious criminal might receive a sentence of 1 to 25 years, or even one year to life, for such felonies as second-degree murder, robbery, and rape. in fact, those are precisely the sentences apportioned to richard Allen Davis for the major crimes he had committed in 1976—kidnapping, assault, robbery, and burglary. it is useful to review Davis’s criminal career, since he became California’s most notorious criminal, and was imprisoned under both indeterminate and determinate regimes. when the legislature, spurred by critics from both political sides, changed to a determinate sentencing system, Davis had spent enough prison time to earn an automatic release. Following his release, Davis and an accomplice robbed, kidnapped, and assaulted a redwood City woman in 1984. Convicted and sentenced to a “determinate” 16 years, he earned time off for work and good behavior and was required to be released in eight. if indeterminate sentencing had been in effect, someone with Davis’ personality and criminal history might have been imprisoned, if not for life, then for decades. Not richard Allen Davis. After his second determinate sentence release, Davis kidnapped, raped, and strangled 12-year-old Polly klass on october 1, 1993. Polly klass became a national symbol of innocence betrayed. Her horrific rape and murder were widely exploited by then Governor Pete wilson and Attorney. General Dan lungren, who had proposed a ballot initiative to the voters that, used the catchy title, Three Strikes and You’re Out— referring to life imprisonment after three violent or serious felonies had been committed. California voters approved ballet Proposition 184 in 1994 by an overwhelming majority: 72 percent in favor to 28 percent against. with the introduction of “three strikes” the California prison population increased substantially, with little impact on public safety or fear of crime, and at a huge cost. indeed, in response to the street violence that pushed oakland’s homicide rate to a 7-year high in 2002, former Governor, and then a frustrated oakland mayor, Jerry Brown (and in 2008 California Attorney Gen-

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eral), criticized state prisons for dumping unprepared, unreformed parolees back on oakland’s streets under determinate sentencing. “That is a total reversal of what used to be the practice in California,” mayor Brown said in his state-of-the-city address in 2003. “Under the indeterminate sentencing law, an inmate did not get even a date, let alone get released, unless there was a plan for a job, housing and where this individual was going.” That is true, but it is only one side of the indeterminate sentencing story. indeterminate sentencing cannot succeed in a “three strikes” overcrowded, philosophically punitive correctional environment. To work properly, indeterminate sentencing requires rehabilitative principles and the resources to infuse them. it would be sheer hypocrisy to introduce indeterminate sentencing into the vast warehousing of prisoners that “three strikes” has brought to the state. in those circumstances, its main use would likely be to imprison inmates for even longer sentences, to meet the concerns of local officials, like the understandably frustrated Mayor Brown—and to further overcrowd California’s prisons. “Three strikes” was challenged in two U.S. Supreme Court cases when repeat offenders were given life sentences for minor repeat offenses, such as stealing video tapes in one case, and golf clubs in the other. The court declined to overturn the law, deferring to the legislature’s authority to regulate crime, despite the glaring disproportion between the life sentences and the low level triggering offences.34 “Three strikes” sentencing helps explain why California prisons, designed to house around 100,000 prisoners, have soared to more than 170,000, undermining the safety of prisoners and their guardians. These overcrowded prisons have long been dominated by ethnic gangs who protect their own members inside and outside prison. Consequently, overcrowded prisons become an opportunity for gang identification, criminal networking, and violence. Assaults on inmates and staff in California prisons increased from 6,225 in 1997 to 9,900 in 2006. To reduce violence against prisoners and guards an unusual alliance of inmate rights attorneys and correctional officers are petitioning the Federal Courts to order the state to reduce the prison population.35 The nation’s response to the protests and riots of the 1960’s was largely a policy and practice of repression and imprisonment. in 1970, the federal government and most states—not California

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alone—maintained indeterminate sentencing systems, where legislatures formulated penalties, judges interpreted the penalties, correctional and parole officers made recommendations to parole boards who decided on release. These decision makers could be arbitrary and unfair, but on the whole sentences were lighter and inmates—and the public—were relatively safe. Since then, sentences have been lengthened, especially, but not only for violent offenders. with “three strikes” laws and federal sentencing guidelines dominating criminal punishment practices, state and federal prosecutors have become the main arbiters of the fate of defendants. At both the federal and state levels, defendants overwhelmingly plead guilty before trial, bargaining with prosecutors over the severity of sentences associated with different offenses. Prosecutorial authority at the federal level has diminished somewhat since the U.S. Supreme Court decided United States v. Booker, an opinion restoring to Federal judges much of the discretion that Congress had taken when it introduced mandatory sentencing guidelines.36 Nevertheless, most judges follow the sentencing guidelines, which they are obliged to consider before deviating. Furthermore, most Federal judges have been appointed since the passage of the guidelines and have become familiar with its complicated schema. Prison growth is also attributable to interest groups. Unionized correctional officers have become powerful legislative actors, and are supported by local legislators who seek prison growth to stimulate the economy in their districts. These interest groups are likely to oppose most attempts to close prisons and reduce prison populations. California has become an ironic exception—as prison population growth has begun to threaten the safety of correctional officers, as well as of prisoners, correctional officers are themselves seeking change. Although California maintains one of the largest prison populations in the United States, it is by no means the only state confronting overcrowded prisons. After four decades, from the protest era of 1968 to 2008, the United States has fashioned its own archipelago of imprisonment. For the first time in history, more than 1 out of every 100 American adults are confined in a jail or prison—and the prisoners are disproportionately black and male. one out of every 21 black males is imprisoned, while the number for whites is 1 out of 136.37

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America’s imprisonment binge has generated fiscal consequences that will affect the capacity of states to address public sector needs for years to come, and especially their ability to fund education. Indeed, five states—Vermont, Michigan, Oregon, Connecticut, and Delaware— maintained a higher ratio of corrections to education spending in 2007. Although states do not make explicit decisions to reduce education funding in favor of supporting prisons and jails, it is self evident that funds allocated to corrections cannot be used for other public needs, especially education.38

Downsizing and Re-entry is it possible to reduce imprisonment in the United States? Yes, but not by much, and with considerable difficulty. As Michael Jacobsen reports in his major study, Downsizing Prisons, legislators would need to be persuaded—contrary to their intuition—that prisons scarcely reduce crime.39 Jacobsen, like most criminologists, acknowledges that we need some imprisonment for controlling crime—but that is not the salient question. Prison populations are proportionately smaller in New York than in California, and with lower state crime. The New York crime decline has been widely attributed to the advances taken by the New York City police, not by overcrowded and unmanageable prisons. According to Jacobson, three factors account for prison overcrowding: technical violations of probation and parole; mandatory minimum sentences; and the rise in length of sentences. of the three, those mandated by legislatures or by popular vote are the most difficult to change. Nevertheless, California’s “three strikes” law was amended on November 7, 2000, to provide drug treatment instead of life in prison for most of those convicted of possessing drugs after the amendment went into effect—but the California amendment is a rare exception, and California’s prisons remain critically overcrowded. if we want to reduce prison populations, we need to modify parole and probation policies. Jacobson calls the rate of parole failure “astounding.” Criminologists recommend major revisions in parole and probation policies and practices as the most effective and fairest means of reducing prison populations. 40 even if

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we do reduce prison populations (and even if we do not) the states and the nation face a major problem. How are we to manage the hundreds of thousands of prisoners who will re-enter society ever year? Joan Petersilia and Jeremy Travis have written admirable, important books alerting the nation to the re-entry problem, and offer sensible, humane and wise policies.41 whether these will be adopted remains to be seen.

A New Era? in sum, the nation’s response to the commissions of the 1970’s has been what David Garland has interpreted as a “culture of control,” and Jonathan Simon has called “governing through crime.”42 it features lengthened sentences, empowerment of prosecutors over judges, worsened prison conditions through overcrowding, and, especially at the state level, reduction of spending for public services, especially education, to build and operate jails and prisons. Will the nation heed the twenty-first century criminal justice reformers any more than it did the riot commissions of the 1960’s? Perhaps, with a new administration and congress, we can hope for some changes. Yet crime is a volatile issue, and even the most thoughtful and gifted politicians fear being labeled “soft on crime.” As i write this conclusion in march 2009, the nation—and the world—is in economic crisis. Businesses are closing and U.S. unemployment rates are rising to levels not seen for a quarter of a century. wall Street investment banks are deeply troubled and major commercial banks are failing. will crime rise as the economy plunges? Property crimes—robberies and burglaries—tend to rise in times of economic distress, but the economy scarcely affects murder and rape. Crime began to rise 40 years ago as well, and was followed by an imprisonment boom. reviewing the 1960’s as an historical era, some historians have linked the years of protest and upheaval to the previous decade as part of “the affluent society.” Revolutions have typically broken out not in the worst of times, but in times of rising expectations. The post wwii era was such a period. By the late 1940’s, for the first time, a majority of the population was on the comfortable side

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of the poverty line, and by the middle of the fifties, 60 percent had attained a middle class standard of living.43 moreover, in spite of cold war anxieties the mood of the country was hopeful—the future would be better than the present. it was a time of seemingly limitless possibilities. John kennedy’s 1960 promise to send men to the moon by the end of the decade did not seem impossible. most Americans, experts and the general public alike, conservatives and liberals, assumed that the nation’s remaining social problems—its “pockets of poverty,” for example, could be eliminated. The founding document of Students for a Democratic Society—the Port Huron Statement—expressed this spirit of possibility. lyndon B. Johnson was elected in a landslide in 1964, carrying 44 out of 50 states, while promising a “war on poverty.” But domestic needs were soon overtaken as resources were shifted to support an increasingly costly and unpopular war. President Johnson’s personal popularity also plummeted, and the earlier optimism of the decade was replaced by the student, anti-war and black protest that we discuss in The Politics of Protest. As the war dragged on, a saddened and exhausted Johnson declined to run for reelection. The anti-war candidacy of Senator eugene mcCarthy drew large numbers of students into electoral politics; it would the last hurrah of the 1960’s student movement. robert F. kennedy was thought to be the best candidate for election the Democrats could nominate. Tragically, his assassination ended that. Hubert Humphrey was nominated in the tumultuous Chicago Democratic Convention of 1968, and lost the November election to richard Nixon. Only five years later, by 1973, the “sixties” years of protest, woodstock, and hippies, gave way to a post sixties era marked by defeat in Vietnam, watergate, Roe v. Wade, an oil embargo, American hostages in iran, and the culture wars that have marked American politics ever since. The election of ronald reagan in 1980 began an era of conservative dominance—modified during the Clinton presidency—that endured until the election of Barack Hussein obama as President of the United State in 2008. of the sixties protests discussed in The Politics of Protest, two of the three, student and anti-Vietnam war protests, were ephemeral. They ended by the mid 1970’s, but black protest continued on many fronts, demanding educational and employment opportunities.

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The presidential election of Barack Hussein obama heralds the beginning of the end of a long, often dispiriting struggle, begun in slavery by michelle obama’s family, followed by segregation; and the beginning of the fulfillment of the American Dream of equality and opportunity for blacks and others historically denied full access to the rights of citizenship. Jerome Skolnick march 2009

Notes to the Introduction 1. Frances Fitzgerald, Cities on a Hill: A Journey through Contemporary American Cultures (New York: Simon & Schuster, 1987). 2. Gratz v. Bollinger, 539 U.S. 244 (2003). 3. David Garland, The Culture of Control: Crime and Social Order in Contemporary Society (Chicago: University of Chicago Press, 2003), chapter 8. 4. edward Conlon, Blue Blood (New York: riverhead Books, 2004), 320. 5. rubén G. rumbaut and egon Bittner, “Changing Conceptions of the Police role: A Sociological review,” Crime and Justice: Annual Review of Research 1 (1979): 265. 6. James Q. wilson, Varieties of Police Behavior: The Management of Law & Order in Eight Communities (Cambridge: Harvard University Press, 1968), chapter 6. 7. Jerome H. Skolnick, Justice Without Trial: Law Enforcement in Democratic Society, 3rd ed. (New York: macmillan, 1978), 78. 8. The oakland Police Department’s consent agreement is available at: www.oaklandpolice.com/agree/agreemen.pdf. The lAPD’s consent agreement is available at: www.lapdonline.org/assets/pdf/final_consent _decree.pdf 9. Jennifer lee, “in Police Class, Blue Comes in many Colors,” The New York Times (July 8, 2005): B1. 10. David Alan Sklansky, “Not Your Father’s Police Department: making Sense of the New Demographics of law enforcement,” Journal of Criminal Law & Criminology 96 (Spring 2006): 1209–1243. 11. Patrolmen’s Benevolent Association of the City of New York v. The City of New York, 74 F.Supp. 2d 321 (S.D.N.Y. 1999). 12. Jerome H. Skolnick, “Democratic Policing Confronts Terror and Protest,” Syracuse Journal of International Law and Commerce (Fall 2005): 194–95.

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13. David Johnston and william k. rashbaum, “New York Police Fight with U.S. on Surveillance,” The New York Times (November 20, 2008): A1. 14. Skolnick, “Democratic Policing,” at 196. 15. Christopher Dickey, Securing the City: Inside America’s Best Counter Terror Force—The NYPD (New York: Simon & Schuster, 2009). 16. william J. Bennett, John J. Diiulio, and John P. walters, Body Count: Moral Poverty . . . And How to Win America’s War against Crime and Drugs (New York: Simon & Schuster, 1996). 17. Franklin e. Zimring, The Great American Crime Decline (New York: oxford University Press, 2006). 18. Data from the FBi’s 2007 Crime in the United States study is available at: www.fbi.gov/ucr/cius2007/offenses/violent_crime/index.html. 19. Jerome H. Skolnick and David H. Bayley, The New Blue Line: Police Innovation in Six American Cities (New York: Free Press, 1986), 4. 20. Zimring, The Great American Crime Decline. 21. knapp Commission, The Knapp Commission Report on Police Corruption (New York: George Braziller, 1973). 22. Commission to investigate Allegations of Police Corruption and the Anti-Corruption Procedures of the Police Department, Commission Report (New York: The Commission, 1994). 23. George l. kelling and James Q. wilson, “Broken windows,” The Atlantic Monthly (march 1982): 29–38. 24. American Civil liberties Union, “NYClU Says New NYPD Stop-andFrisk Database raises major Privacy Concerns,” (February 5, 2007), available at: www.aclu.org/police/searchseizure/28315prs20070205. html. 25. Alfred Blumstein and Jacqueline Cohen, “A Theory of the Stability of Punishment,” The Journal of Criminal Law and Criminology 64 (1973): 198–207. 26. Report of the National Advisory Commission on Civil Disorders (New York: Bantam, 1968), 2. 27. Report of the National Advisory Commission on Civil Disorders, at 128. 28. william Julius wilson, When Work Disappears: The World of the New Urban Poor (New York: knopf, 1987), 21. 29. Bruce western, Punishment and Inequality in America (New York: russell Sage, 2006), 36. 30. Devah Pager, “The mark of a Criminal record,” American Journal of Sociology 108 (march 2003): 937–75. 31. michael katz, “why Aren’t U.S. Cities Burning?” Dissent (Summer 2007): 23. For a more detailed account: michael katz, “why Don’t American Cities Burn more often?” Journal of Urban History 34:2 (January 2008) 185–208. 32. For a theoretically sophisticated analysis of the change, see David Garland, The Culture of Control: Crime and Social Order

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33. 34. 35. 36. 37.

38. 39. 40. 41.

42. 43.

in Contemporary Society (Chicago: University of Chicago Press, 2003), chapters 2 and 3. Janine DeFao, “Jerry Brown’s About-Face on Criminal Sentencing,” The San Francisco Chronicle (February 18, 2003): A1. Ewing v. California, 538 U.S. 11 (2003); Lockyer v. Andrade, 538 U.S. 63 (2003). Don Thompson, “California Prisons rocked by Problems,” USA Today (April 5, 2008). 543 U.S. 220 (2005). The Pew Center on the States, One in 100: Behind Bars in America 2008 (February 28, 2008), 34, available at: www.pewcenteronthestates. org/uploadedFiles/8015PCTS_Prison08_FINAL_2-1-1_FORWEB. pdf. The Pew Center on the States, One in 100: Behind Bars in America 2008, at 16. michael Jacobson, Downsizing Prisons: How to Reduce Crime and End Mass Incarceration (New York: New York University Press, 2006), 107. Jacobson, Downsizing Prisons, at 141. Joan Petersilia, When Prisoners Come Home: Parole and Prisoner Reentry (Chicago: University of Chicago Press, 2003); Jeremy Travis, But They All Come Back: Facing the Challenges of Prisoner Reentry (washington, D.C.: Urban institute Press, 2005). Jonathan Simon, Governing Through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear (New York: oxford University Press, 2007). william H. Chafe, The Unfinished Journey: America Since World War II (oxford: oxford University Press, 1986), 11.

Preface

This report is not an investigation, it is an analysis. It is based on facts collected from many sources over many years, plus some original field research begun and completed in a period of less than five months. The contract for the report was signed on August 28, 1968, and the final draft of the report was sent to the Commission on March 21, 1969. It is an attempt to understand the nature and causes of protest and confrontation in the United States, and their occasional eruption into violence. Our aim has been as much to describe what contemporary protest is not as to determine what contemporary protest is. The public response to protest is surrounded by misconceptions concerning the extent, nature, and goals of contemporary protest and the composition of protest groups. A major goal of our analysis, therefore, has been to challenge these misconceptions in order that responsible discussion may take place unencumbered by misunderstanding and distortion. The assignment we were given was far-ranging, as the Table of Contents indicates. We have tried to be as objective as possible in our analysis, but objectivity is not synonymous with a lack of perspective. Our analysis makes no pretense at being "value-free." Our operating bias may be made explicit; we are partial to the values of equality, participation, and lexii

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gality-in short, to those values we think of as the values of a constitutional democracy. We believe in due process of law and look toward a society in which order is achieved through consent, not coercion. As social analysts we recognize, however, that violence has often been employed in human history, in America as elsewhere, to obtain social, political, and economic goals, and that it has been used both by officials and by ordinary citizens. For us, it is not enough to deplore violence-we seek to understand what it is and what it is not, as well as its nature and causes. Our title reflects our emphasis. This point of view was recently expressed in an article by Bruce L. R. Smith, coincidentally titled "The Politics of Protest." He writes: Violence has always been part of the political process. Politics does not merely encompass the actions of legislative assemblies, political parties, electoral contests and the other formal trappings of a modem government. Protest activities of one form or another, efforts to dramatize grievances in a fashion that will attract attention, and ultimately the destruction or threatened destruction of life and property appear as expressions of political grievances even in stable, consensual societies. In one sense, to speak of violence in the political process is to speak of the political process; the ultima ratio of political action is force. Political activity below the threshold of force is normally carried on with the knowledge that an issue may be escalated into overt violence if a party feels sufficiently aggrieved.

The intellectual freedom offered to us was absolute. Except for agonizing limitations of time, we were offered the best conceivable terms under which to do the job. In addition, the Commission staff was generous with its encouragement. No institution or affiliated organization, nor the Commission itself, nor the Task Force staff, is to be held responsible for the final report as it appears here. That responsibility rests solely with the Director of the Task Force. The question of responsibility aside, however, whatever merit the report may have, and that it was completed on time, is to be attributed to a tireless and devoted staff and group of consultants. Five people should be singled out. Ira M. Heyman bore principal responsibility for organizing and

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conducting hearings before the Commission, and contributed wise counsel throughout the writing of the report. Elliott Currie, Anthony Platt, and Edmund C. Ursin were the workhorses of the staff. They not only drafted major portions of the report, they also were companions in the development of the tone and direction of the report as a whole. Sharon Dunkle Marks' title of staff administrator does not wholly indicate her contribution. In addition to administration, she made an intellectual contribution through discussion, writing, and interviewing. Besides, she brought some badly needed charm to the whole enterprise. There were two classes of consultants: those who submitted papers ( staff consultants) , and those who submitted critiques ( advisory consultants). The contributions of consultants to particular chapters were as follows: Chapter I drew heavily upon a paper by Richard Rubenstein and was informed by Amitai Etzioni's research; Chapter II drew heavily from a paper by Frederick Crews, and was further informed by a research contribution from Irving Louis Horowitz; both of them, moreover, contributed wise counsel at different times in the enterprise. Chapter III relied heavily upon the research of Richard Flacks and Joseph Gusfield and also drew upon a paper by Marie-Helene leDivelec; Chapter IV was informed by interviews conducted by, and in consultation with, Kermit Coleman; Chapter VI was informed by a paper submitted by David Chalmers. Thomas Crawford's paper served as the basis for Chapter V. Chapter VII drew upon a paper submitted by Rodney Stark and made use of materials collected by Ed Cray. Chapter VIII relies upon a variety of materials on courts during crisis, as well as some written materials prepared by Sheldon Messinger. Chapter IX was informed by a contribution from Martin Liebowitz. Our base of operations was the Center for the Study of Law and Society, University of California, Berkeley. Its Chairman, Philip Selznick, and its Vice-Chairman, Sheldon Messinger, were gracious and generous with the facilities of the Center. As guests we were made to feel not merely welcome, but at home. Moreover, Drs. Selznick and Messinger were significant consultants throughout the development of the manuscript. Nine seminars on chapters and consultant pa-

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pers were attended by Center Associates and guests. The seminars ranged in size from twenty to fifty persons, and especially valuable comments were made by Howard Becker, Herbert Blumer, Robert Cole, Sanford Kadish, William Kornhauser, David Matza, Neil Smelser, and Allen Grimshaw, among others. The seminars were an enormously valuable experience, and all the participants listed and unlisted deserve our gratitude. Our advisory consultants are listed on a separate page. Opinion research organizations generously provided helpful advice, numerous reports and tables summarizing opinion polls, and permission to publish data and tables: American Institute of Public Opinion; Louis Harris and Associates; Louis Harris Political Data Center; National Opinion Research Center; Roper Research Associates; and the University of Michigan Survey Research Center. Naturally, these organizations and their representatives are not responsible for the conclusions and interpretations we have drawn that may have differed from theirs. Other members of the staff worked tirelessly to finish on time: Charles Carey, Howard Erlanger, Sam McCormick, and Richard Speiglman. Nancy Leonard was our Washington, D.C., research assistant, and was invaluable in getting necessary materials to the Berkeley staff. Our office staff was tireless, devoted, intelligent, and tolerant. Given our deadlines, we needed tolerance most of all. Finally, my wife, Dr. Arlene Skolnick, served as a consultant on social psychology, helped with the editing, and, best of all, gave birth to Michael's brother, Alexander, on September 29, 1968. Jerome H. Skolnick, Center for the Study of Law and Society University of California Berkeley, California March 21, 1969

Summary Chapter I: Protest and Politics There are three critical points about protest and violence in America: -There has been relatively little violence accompanying contemporary demonstration and group protest. It is often difficult to determine who was "responsible" for the violence when it does occur. The evidence in the Walker Report and other similar studies suggests that authorities often bear a major part of the responsibility. -Mass protest, whether or not its outcome is violent, must be analyzed in relation to crises in American institutions. For these reasons, serious analysis of the connections between protest and violence cannot focus solely on the character or culture of those who protest the current state of the American political and social order. Rather, our research finds that mass protest is an essentially political phenomenon engaged in by normal people; that demonstrations are increasingly being employed by a variety of groups, ranging from students and blacks to middle-class professionals, public employees, and policemen; that violence, when it occurs, is usually not planned, but arises out of an interaction between protesters and responding authorities; that violence has frexlv

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quently accompanied the efforts of deprived groups to achieve status in American society; and that recommendations concerning the prevention of violence which do not address the issue of fundamental social and political change are fated to be largely irrelevant and frequently self-defeating.

Chapter II: Anti-War Protest Reasons for the existence of a broadly based and durable Vietnam peace movement must be sought in the reassessment of Cold War attitudes; in the absence of a "Pearl Harbor" to mobilize patriotic unity; and in the gradual accumulation of public knowledge about the history of America's involvement in Vietnam. Other sustaining factors have been the "credibility gap," the frustrating progress of the war, reports of extraordinary brutality toward civilians, and reliance on an unpopular system of conscription. In particular, critics of the war have been most successful in pointing up the relation between the war and the American domestic crisis; the need to "reorder priorities" has been a repeated theme. Anti-war feelings have been sustained by criticism of administration policy from highly placed sources in this country and abroad. The movement's main base of support has been among white professionals, students, and clergy. A segment of the movement has been drifting towards "confrontationism"; physical injuries, however, have more often resulted from the actions of authorities and counter demonstrators. The most meaningful grouping of protesters separates those for whom tactics are chiefly a moral question from those who see tactics chiefly as the means to political ends. Most of the latter, though not ethically committed to nonviolence, have repeatedly turned away from possible bloody encounters. Having no single ideology or clearly formulated goals beyond an end to the war, the movement is dependent on government policy for its survival, growth, and tactical evolution. Still, the political consequences of the war may be profound since, in its wake, there has been a continuing reassessment of American politics and institutions, especially among students at leading colleges and universities.

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Chapter Ill: Student Protest The current student generation is more morally and politically serious and better educated than the generation of the 1950's. Its participation in the civil rights movement, in the Peace Corps, and in university protest reflects an idealism expressed in direct action. The increasing disaffection of student activists, their pessimism over the possibility of genuine reform in the university and larger society, and their frequent resort to tactics of confrontation cannot be explained away by referring to personality problems or to youthful intransigence or delinquency. On the contrary, research indicates that activists have usually been good students with liberal ideals not unlike those of their parents. Stridency has increased with political frustration related to civil rights and the Vietnam War. Campuses have become the headquarters of anti-war protest. Not only have students challenged the war on its merits; they have also questioned whether a free society should force young men to fight a war they do not support, and whether school attendance and grades should be criteria for exemption from military service. They have been especially critical of the university's cooperation with the Selective Service System and of that system's policy of "channeling" students into careers and occupations deemed to be in the national interest by the director of Selective Service. They have come to see the university as implicated in the industrial, military, and racial status quo. Disaffection has been intensified by the response of certain university administrations, which have been perceived as more susceptible to conservative pressures than to underlying issues. The introduction of police onto the campus, with its attendant violence, usually has reinforced these perceptions and aggravated campus conflict while decreasing support for the university outside the campus and diverting attention from substantive issues.

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Chapter IV: Black Militancy Black militants today-including black college students, a group that only a few years ago was individualistic, assimilationist, and politically indifferent-are repudiating conventional American culture and values. The theme of "independence" is stressed rather than "integration," and the concept of "non-violence" is being replaced by a concept of "self-defense." Four factors have influenced this transition. First, the failure of the civil rights movement to improve significantly the social, economic, and political position of most Negro Americans has led to doubts about the possibility of meaningful progress through law. Second, urban riots in the 1960's, which symbolized this frustration, have been met with armed force, which in turn has mobilized militant sentiment within black communities. Third, the worldwide revolution against colonialism has induced a new sense of racial consciousness, pride, and affirmative identity. Fourth, the war in Vietnam has diverted resources away from pressing urban needs and reinforced the prevailing skepticism about white America's capacity or interest in addressing itself to the social, economic, and political requirements of black communities. As a result, there has been_ increasing dissatisfaction with the United States and its institutions, and increasing identification with nonwhite peoples who have achieved independence from colonial powers. In response to the challenge of black militancy, Negroes of all occupations and ages are becoming increasingly unwilling to accept the assumptions of white culture, white values, and white power. The thrust toward militancy is especially pronounced among black youth, who tend to view the more militant leadership as heroic figures. As college students, these youth provide a fertile base for campus militancy.

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Chapter V: The Racial Attitudes of White Americans Recent studies indicate a long-term decrease in anti-Negro prejudice since the 1940's. While the social roots of prejudice are complex, it is especially characteristic of the less educated, older, rural segments of the population. Major trends in contemporary society, including urbanization and increasing educational opportunity, have undermined the roots of prejudice and may be expected to have a continuing effect in the future. Although surveys show continuing rejection by many whites of the means by which blacks attempt to redress their grievances, most whites express support of the goal of increased opportunity for black Americans. Not surprisingly, blacks express less satisfaction with the quality of their lives, and are less optimistic about their opportunities, than are whites. Correspondingly, whites feel the need for change less urgently than do blacks. Nevertheless, recent studies show that a clear majority of whites would support federal programs to tear down the ghettos and to realize the goals of full employment, better education, and better housing for blacks, even if they would have to pay more taxes to support such programs.

Chapter VI: White Militancy The most violent single force in American history outside of war has been a minority of militant whites, defending home, family, or country from forces considered alien or threatening. Historically, a tradition of direct vigilante action has joined with racist and nativist cultural themes to create intermittent reigns of terror against racial and ethnic minorities and against those considered "un-American." It is difficult to exaggerate the extent to which violence, often aided by community support and encouragement from political leaders is embedded in our history.

Although most white Americans repudiate violence and support the goals of increased opportunity for blacks, there has been a resurgence of militant white protest, largely directed against the gains of the black communities. The roots of such protest lie in the political and economic sources of white marginality and insecurity. In this sense, white militancy-like student, anti-war, and black protestreflects a fundamental crisis of American political and social institutions. White protest is not simply the work of "extremists" whose behavior is peripheral to the main currents of American society. Similarly, capitulation to the rhetoric of white militancy, through simplistic demands for "law and order," cannot substitute adequately for concrete programs aimed at the roots of white discontent.

Chapter VII: The Police in Protest The policeman in America is overworked, undertrained, underpaid, and undereducated. His job, moreover, is increasingly difficult, forcing him into the almost impossible position of repressing deeply felt demands for social and political change. In this role, he is unappreciated and at times despised. His difficulties are compounded by a view of protest that gives little consideration to the effects of such social factors as poverty and discrimination and virtually ignores the possibility of legitimate social discontent. Typically, it attributes mass protest instead to a conspiracy promulgated by agitators, often Communists, who mislead otherwise contented people. This view leaves the police ill-equipped to understand or deal with dissident groups. Given their social role, the police have become increasingly frustrated, alienated, and angry. These emotions are being expressed in a growing militancy and political activism. The police are protesting. Police slowdowns and other forms of strike activity, usually of questionable legality, have been to gain greater material benefits or changes in governmental policy (such as the "unleashing of the police"). Di-

SUMMARY

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rect police challenges to departmental and civic authority have followed recent urban disorders, and criticisms of the judiciary have escalated to "court-watching" by police. These developments are a part of a larger phenomenonthe emergence of the police as a self-conscious, independent political power. In many cities and states the police lobby rivals even duly elected officials in influence. Yet courts and police are expected to be neutral and nonpolitical, for even the perception of a lack of impartiality impairs public confidence in and reliance upon the legal system. Police response to mass protest has often resulted in an escalation of conflict, hostility, and violence. The police violence during the Democratic National Convention in Chicago was not a unique phenomenon. We have found numerous other instances where violence has qeen initiated or exacerbated by police actions and attitudes, although violence also has been avoided by judicious planning and supervision. Police violence is the antithesis of both law and order. It leaqs only to increased hostility, polarization, and violenceboth in the immediate situation and in the future. Certainly it is clear today that effective policing ultimately depends upon the cooperation and goodwill of the policed, and these resources are quickly being exhausted by present attitudes and practices.

Chapter VIII: Judicial Response in Crisis The actions of the judicial system in times of civil crisis are an important test of a society's capacity to uphold democratic values and protect civil liberties. Our analysis, as the Kerner Commission found, finds that during recent urban riots defendants were deprived of adequate representation, subjected to indignities in overcrowded facilities, and held in custody by the imposition of high bail amounting to preventive detention and the suspension of due process. This was done under a "feedback to riot" theory that both lacks evidence and is implausible. The inability of the courts to cope with civil emergencies encourages a further decline in respect for legal authority.

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Black, student, and anti-war protesters have come to share a common view that legal institutions serve power and are incapable of remedying social and political grievances. The crisis in the courts is explained by three considerations. First, the quality of justice in the lower criminal courts during routine operations is quite low; one would not expect more during emergencies. Second, in response to community and political pressures for immediate restoration of order, the counts tend to adopt a police perspective on "riot control," becoming in effect an instrument of social control, relatively unrestrained by considerations of legality. Finally, the courts are not suited to the task of resolving the political conflicts which occasion civil crisis and mass arrests. Thus, reforms in the operations of the courts during crisis are only a temporary palliative, leaving untouched the political crisis. We nevertheless urge such reform to protect the constitutional rights of defendants and to increase the dignity and influence of the courts. We are especially concerned that the present trend toward devising "emergency measures" not become routinized as the main social response to crises that go deeper than the need to restore order.

Chapter IX: Social Response to Collective Behavior Governmental responses to civil disorder have historically combined long-run recommendations for social change with short-run calls for better strategy and technology to contain disruption. We offer the following reasons for questioning such a two-pronged approach to the question of violence: 1. American society urgently requires fundamental social and political change, not more firepower in official hands. As the National Advisory Commission on Civil Disorders stated, "This nation will deserve neither safety nor progress unless it can demonstrate the wisdom and the will to undertake decisive action against the root causes of racial disorder." 2. We must set realistic priorities. Historical experience suggests that firepower measures-so seemingly simple, practicable, and programmatic-will receive favorable consideration over reform measures. We believe that the law must be

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enforced fairly, and that the machinery of law enforcement needs upgrading; but we must carefully distinguish between increased firepower and enlightened law enforcement. 3. Police, soldiers, and other agents of social control have been implicated in triggering and intensifying violence in riots and other forms of protest. Sophisticated weaponry will not solve the social problems of America. To the young man in the ghetto, the "nonlethal" weapon is not seen as a humane response to his condition; to him it is still a weapon-aimed at him-and is viewed with hostility. 4. Evidence shows that it is incorrect to interpret riots merely as pathological behavior engaged in by riffraff. Neither are they "carnivals." More accurately, they are spontaneous political acts expressing enormous frustration and genuine grievance. Forceful control techniques may channel grievances into organized revolutionary and guerrilla patterns, promising a cycle of increased military force and covert surveillance. 5. In measuring the consequences of domestic military escalation, we must add the political and social dangers of depending on espionage as an instrument of social control, including its potential for eroding constitutional guarantees of political freedom. If American society concentrates on the development of sophisticated control techniques, it will move itself into the destructive and self-defeating position of meeting a political problem with armed force, which will eventually threaten domestic freedom. The combination of long-range reform and short-range order sounds plausible, but we fear that the strategy of force will continue to prevail. In the long run this nation cannot have it both ways: either it will carry through a firm commitment to massive and widespread political and social reform, or it will become a society of garrison cities where order is enforced with less and less concern for due process of law and the consent of the governed.

Chapter I

Protest and Politics

Problems of Definition the work of this Task Force by considering the relation between protest and group violence. Discussion and consultation with a variety of scholars made clear to us that the posing of the question biased the answer. As posed, the question seemed to imply that protest itself is the critical social problem demanding investigation and action. Furthermore, as our factual material grew, we began to recognize three critical points about protest and violence in America, all of which will become more apparent in the chapters that follow: 1. One of our consultants examined every incident of protest reported in the New York Times and the Washington Post from September 16 to October 15, 1968. Of 216 incidents, 35 percent reportedly involved violence. Since protests resulting in violence are more likely to be reported, the actual proportion of violent incidents is doubtless much lower. 1 2. It is often difficult to determine who was "responsible" for the violence. The reports of our study teams, however, clearly suggest that authorities bear a major responsibility. 2 The Kerner Commission :findings reveal a similar pattern. 3 Of WE BEGAN

3

4

the violent incidents reported above, in only half did the violence seem to have been initiated by the demonstrators, i.e., in only 17.5 percent of the total number of demonstrations. 4 3. Mass protest, whether or not violence occurs, must be analyzed in relation to crises in American institutions. On all of these counts it may be suggested that a serious analysis of the connections between protest and violence cannot focus solely on the character or culture of those who protest the current state of the American political and social order. Nor does it appreciably advance our understanding to suggest, as has one commentator, that "the decisive seat of evil in this world is not in social and political institutions, and not even, as a rule, in the will or iniquities of statesmen, but simply in the weakness of the human soul itself." 5 Rather, the results of our research suggest that mass protest is an outgrowth of social, economic, and political conditions; that such violence as occurs is usually not planned, but arises out of an interaction between protesters and the reaction of authorities; and that recommendations concerning the prevention of violence which do not address the issue of fundamental social, economic, and political change are fated to be largely irrelevant and frequently self-defeating. We have found the political character of these phenomena to be evident for at least five reasons. First, "violence" is an ambiguous term whose meaning is established through political processes. The kinds of acts that become classified as "violent," and, equally important, those which do not become so classified, vary according to who provides the definition and who has superior resources for disseminating and enforcing his definitions. The most obvious example of this is the way, in a war, each side typically labels the other side as the aggressor and calls many of the latter's violent acts atrocities. The definition of the winner usually prevails. Within a given society, political regimes often exaggerate the violence of those challenging established institutions. The term "violence" is frequently employed to discredit forms of behavior considered improper, reprehensible, or threatening by specific groups which, in turn, may mask their own violent response with the rhetoric of order or progress. In the eyes of those accustomed to immediate deference, back talk, profan-

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5

ity, insult, or disobedience may appear violent. In the South, for example, at least until recently, the lynching of an "uppity" black man was often considered less shocking than the violation of caste etiquette which provoked it. In line with the tendency to see violence as a quality of those individuals and groups who challenge existing arrangements, rather than of those who uphold them, some groups today see all instances of contemporary demonstration and protest as "violent." Such an equation obscures the very significant fact that protest takes various forms: verbal criticism; written criticism; petitions; picketing; marches; nonviolent confrontation, e.g., obstruction; nonviolent lawbreaking, e.g., "sitting-in"; obscene language; rock-throwing; milling; wild running; looting; burning; guerrilla warfare. Some of these forms are violent, others are not, others are hard to classify. Some protests begin peacefully and, depending on the response, may end violently. Most protest, we have found, is nonviolent. Second, the concept of violence always refers to a disruption of some condition of order; but order, like violence, is politically defined. From the perspective of a given state of "order," violence appears as the worst of all possible social conditions and presumably the most costly in terms of human values. We have found this to be a questionable assumption. Less dramatic but equally destructive processes may occur well within the routine operation of "orderly" social life. Foreign military ventures come quickly to mind. Domestically, many more people are killed or injured annually through failure to build safe highways, automobiles, or appliances than through riots or demonstrations. And as the late Senator Robert Kennedy pointed out, the indifference, inaction, and slow decay that routinely afflict the poor are far more destructive than the bomb in the night. 6 High infant mortality rates or rates of preventable disease, perpetuated through discrimination, take a far greater toll than civil disorders. It would not be implausible to call these outcomes "institutional violence," the overall effect of which far outweighs those of the more immediately observable kinds of social violence. For the sake of some precision, however, we have come to employ a less comprehensive definition of violence:

6

violence is the intentional use of force to injure, to kill, or to destroy property. Protest may be quite forceful without being violent, as the occupation of dozens of French factories in the summer of 1968 or the occupation of many campus facilities in America during the last few years testifies. This observation is not intended to applaud or condone the use of force; merely to recognize that it differs from violence-the point, after all, of an important legal distinction. Such a distinction should be helpful in separating violent and nonviolent forms of collective protest. There is a difference between a nonviolent "sit-in" and rock-throwing. But whatever the definition, there will always be marginal cases. Third, even as here defined, "violence" is not always forbidden or unequivocally condemned in American society. Exuberant football crowds or fraternal conventions frequently produce considerable property damage, yet are rarely condemned. The violence of the poor against each other is substantially ignored until it spills out into the communities of the more comfortable, where it is called "crime in the streets." Generally, American society tends to applaud violence conducted in approved channels, while condemning as "violent" lesser actions which are not supportive of existing social and political arrangements. In contrast to the findings of the Chicago Study Team, a majority of the American people did not perceive the Chicago police as violent during the days of the recent Democratic National Convention. 7 A young black man setting fire to a Vietnamese hut is considered a dutiful citizen; the same man burning a grocery store is a dangerous criminal, condemned for "resorting to violence" and subject to the lawful exercise of deadly force. Violence, then, is proscribed or condoned through political processes and decisions. The violence of the warrior in the service of the state is applauded; that of the rebel or insurgent against the state condemned. Fourth, the decision to use or not to use such violent tactics as "deadly force" in the control of protest is a political one. The interplay of protest and official violence, therefore, cannot be understood solely through an analysis of demonstrators and police. It must be seen in the light of the sur-

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roundmg structure of authority and power and the conceptions that authorities hold of the nature of protest and the proper uses of official violence. Official violence is frequently overlooked. Through abstraction, the technical and instrumental elements of official violence are emphasized and its moral and political aspects obscured. Thus, "crowd control" may mean splitting open the heads of bystanders; a "looter" may in fact be an ordinary ghetto resident involved in a collective act of expropriating a pair of shoes or case of beer, or an ordinary ghetto resident trying to get off the street. By invoking the concept of "looter," however, public officials can conjure the picture of heinous crime, can sidestep the normal penalty structure of the criminal law, call for the use of deadly force, and be applauded for a firm stand on "law and order." This consideration prompted us to adopt a general methodological position. Instead of accepting at face value the meaning of such terms as "police," "looters," "demonstrators," and "social control," we have found it wise to review the attitudes and behavior suggested by these abstractions. Too often, am1lyses of protest and disorder arbitrarily follow the analyst's preconception of motivation and purpose. We have tried to avoid this error. Therefore, we have tried to pay close attention to the viewpoints and the actual behavior of the participants in protest situations, whether demonstrators or police. When the viewpoint of participants is taken seriously, a fifth aspect of the political character of protest becomes evident. Almost uniformly, the participants in mass protest today see their grievances as rooted in the existing arrangements of power and authority in contemporary society, and they view their own activity as political action-on a direct or symbolic level-aimed at altering those arrangements. A common theme, from the ghetto to the university, is the rejection of dependency and external control, a staking of new boundaries, and a demand for significant control over events within those boundaries. This theme is far from new in American history. There have been violent clashes over institutional control in this country from its beginnings. In the

8

following section, we will examine some of these clashes in the hope that they will throw historical light on the political problems that now confront us.

Political Violence in American History

8

Many commentators continue to write as if domestic political violence were a creation of the 1960's, as if the past had nothing to say to the present. It seems, as Clifford Geertz has said, that . . . we do not want to learn too much about ourselves too quickly. The fact is that the present state of domestic disorder in the United States is not the product of some destructive quality mysteriously ingrained in the substance of American life. It is a product of a long sequence of particular events whose interconnections our received categories of self-understanding are not only inadequate to reveal but are designed to conceal. We do not know very well what kind of society we live in, what kind of people we are. We are just now beginning to find out, the hard way .... 9

Leading scholars of the 1950's believed that the United States was tht> one nation in which diverse groups had learned to compromise differences peaceably. American society had somehow succeeded in blurring divisions among a multiplicity of economic, social, political, and ethnic groups. For one reason or another ( either because the land was fertile and the people hard-working, or because no true aristocracy or proletariat ever developed on American soil, or because the two-party system worked so well), any sizable domestic group could gain its share of power, prosperity, and respectability merely by playing the game according to the rules. In the process, the group itself would tend to lose coherence and to be incorporated into the great middle class. The result, these scholars argued, was something unique in world history: genuine progress without violent group conflict. In such an America there was no need-there never had been a need-for political violence. Rising domestic groups had not been compelled to be revolutionary, nor had the "ins" generally resorted to force to keep them out. 10 The con-

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clusion drawn by many was that America, having mastered the art of peaceful change, could in good conscience presume to lead the Free World, if not the whole world. This was the myth of peaceful progress, which, since the racial uprisings beginning in 1964, has spawned a corollary myth-that community violence is a uniquely Negro phenomenon-for clearly the only way to explain what happened in Watts, Newark, or Detroit, without challenging anyone's belief in the essential workability of established machinery for peaceful group advancement, was to assume that black people were the great exception to the law of peaceful progress. A "conservative" could emphasize black laziness, loose morality, and disrespect for law. A "liberal" could discuss the weakness of Negro family structure inherited from slavery, the prevalence of racial discrimination or the culture of poverty. Either way, it was assumed that the existing political and economic system could make good on its promise to blacks without radical institutional change. 11 The situation could be salvaged, white faith in America confirmed, and violence ended without any great national political upheaval, provided the government was willing to spend enough money on both reform programs and law enforcement. "This then is the mood of America's absolutism," wrote Louis Hartz, "the sober faith that its norms are selfevident." 12 What if the black community were not unique, however, but rather the latest of a long line of domestic groups motivated to resort to political violence? What if the institutions designed to make economic and political advancement possible had broken down frequently in the past, and other groups had embraced the politics of violence? What if political violence on a large scale was, as H. Rap Brown stated, "as American as cherry pie"? Then, clearly, the myth of peaceful progress-and the immunity of hallowed political institutions from fundamental criticism-would be in danger. Especially if prior outbreaks of violent revolt in the United States fell into a pattern, the suspicion would arise that not just "violence-prone" or "exceptional" groups were responsible, but rather American institutions themselves-or, at least, the relationship between certain groups and certain institutions. In such an event, modern Americans might be corn-

10

pelled to wonder whether something fundamental was wrong -something not merely capricious and temporary, but socially structured and predictable. That this has not yet happened testifies to the remarkable tenacity of the myth of peaceful progress. We are therefore compelled to analyze in more detail the ways in which this myth has shaped American attitudes toward political violence, in order to clear away some of the ideological underbrush which has so hampered exploration in the past. Whether in Congress or in the streets, reactions to modern outbreaks of political violence have demonstrated a widely held belief that such outbreaks were "un-American": that they had occurred infrequently in the past, and that they bore little relationship to the way past domestic groups had succeeded in gaining political power, property, and prestige. (Those most vociferous in denouncing the violent were often those who believed, rightly or wrongly, that their ethnic, economic, or occupational groups had "made it" in American society without resorting to violent conduct.) Historical study, on the other hand, reveals that under certain circumstances the United States has regularly experienced episodes of mass violence directly related to the achievement of social, political, and economic objectives. The following is a partial list of major groups which have been involved in violent political movements: 13 1. Beginning early in the seventeenth century, American Indians engaged in a series of revolts aimed at securing their land and liberty against invasion by white settlers supported by colonial, state, and federal governments. In the eighteenth century, following Britain's victory over France, Eastern tribes participated in such upri~ings as Pontiac's Conspiracy, Little Turtle's War, the Blackhawk War, the Revolt of the Creeks and Cherokees, and the Seminole War-a series of unsuccessful resistances to white settlement and "removal" to Indian territories west of the Mississippi. For the Indians of the West who fought in the post-Civil War rebellions of the Sioux, Sac and Fox, Navajo, Apache, and others, the price of defeat was imprisonment on reservations and the loss not only of land but also of liberty and livelihood. Calling these conflicts "wars" against Indian "nations" does not, of course,

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alter their character; they were armed insurrections by domestic groups to which the United States had determined to deny the privileges of citizenship as well as the perquisites of nationhood. The suppression of Indian revolts was the chief occupation of the U.S. Army for more than a century after its creation. 2. Appalachian farmers living in the western regions of the Eastern Seaboard states participated in civil disorder from the 1740's, when Massachusetts farmers marched on Boston in support of a land bank law, until the 1790's, when farmers and mountain men fomented the Whiskey and Fries Rebellions in Pennsylvania. The series of revolts now known as the Wars of the Regulators (North and South Carolina), the War of the New Hampshire Grants (New York-Vermont), Shays's Rebellion (Massachusetts), and the Whiskey Rebellion (Pennsylvania) were the principal actions engaged in by debtor farmers protesting half a century of economic exploitation, political exclusion, and social discrimination by the East Coast merchants, shippers, and planters who were in substantial control of the machinery of government. In state after state, civil disobedience of hated laws was followed by intimidation of, or physical attacks on, tax collectors and other law enforcers, by the closing down of courts to prevent indictments and mortgage foreclosures from being issued, by the rejection of halfway compromises proffered by Eastern legislatures, and finally by military organization to resist the state militia. Although most insurgent groups were finally defeated and dispersed by superior military force, the rebellions did not end until Jefferson's election provided access for Westerners to the political system, and new land created fresh economic opportunity. Where political and economic systems were especially rigid, as in New York's Hudson Valley, agitation and sporadic violence continued well into the nineteenth century. 3. American colonists, as we know, gained their independence from Britain after a decade of civil strife and eight years of revolutionary war. What is now becoming clearer is the extent to which the struggle pitted Americans against Americans, with the insurgents resorting to political violence and the authorities to repression. This pattern was repeated again

12

and again in American history. The decade beginning in 1765 with the Stamp Tax controversy saw a steady rise in civil disorder in the forms of massive civil disobedience, urban rioting, economic boycotts, sabotage of government property, terrorism of government officials, and finally military organization-paralleled, of course, by simultaneous escalation of attempts at suppression by the colonial authorities and their local supporters. Such groups as the Sons of Liberty, operating chiefly out of East Coast cities, organized campaigns against British colonial legislation, directing both economic and physical coercion against Tories, merchants who refused to participate in boycotts of British goods, and other "collaborators." With the outbreak of hostilities against the British, civil strife increased in both intensity and scope, spreading into rural areas such as New Jersey and South Carolina, where roving guerrilla bands played nightmare games of armed hide-and-seek with the Tories. The violence of the rebellious guerrillas resulted in a massive Tory emigration. Indeed, it seems likely that this emigration, which began in the last years of the war, probably saved the United States from the sort of prolonged revolutionary violence and emigre retaliation which characterized the French Revolution. 4, 5. In the years between 1820 and 1860, white Southerners became a conscious minority. This was the period in which Southerners committed themselves economically to an agricultural system based on slave-breeding and plantation farming; in which the dream of emancipation fled the South and became the exclusive property of Northern abolitionists; and in which thinkers such as John C. Calhoun constructed vain theoretical defenses against increasing Northern economic and political power, while Southerners, with a pride born of increasing desperation, dreamed the "purple dream" of a Southern Empire stretching from the Mason-Dixon Line to Tierra de! Fuego. How Southerners moved from abortive civil disobedience (the Nullification Controversy of 1828 to 1830) to war by proxy ( in "bleeding Kansas" during the 185 0' s) and finally to outright secession is well known, as is the parallel movement of Northern abolitionists from disobedience of the Fugitive Slave laws to the fielding of a settler army in Kansas, support of John Brown's raid on Harpers

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Ferry, and (in coalition with Northern Whigs) the election of a President committed to the preservation of the Union by force. Less well known, however, is the guerrilla war waged after the surrender at Appomattox by terrorist groups (principally the Ku Klux Klan) supported by the mass of white Southerners. The purposes of this struggle-to prevent freed Negroes from voting or participating in politics; to restore the substance of the prewar Southern social and economic systems; and to drive "carpetbagger" officials and their "scalawag" collaborators out of office and out of the South-were largely realized by 1876, when President Hayes withdrew the last of the Northern troops. This was not the end of Southern violence, however; continued racial domination was maintained in postwar years by the lynching of great numbers of blacks, the driving of dissenting whites out of the South, and the meting out to "outside agitators" of painful and sometimes deadly punishment. 6, 7. White, Anglo-Saxon, Protestant Americans (WASPs) engaged in a long series of riots, lynchings, mob actions, and abuses of power in their effort to protect their political preeminence, property values, and life-styles against the immigrant onslaught. W ASPs, organized politically as "Native Americans," tore apart the Irish section of Philadelphia in 1844; similar riots occurred in Baltimore, Boston, and other port cities. On the West Coast, Chinese and Japanese immigrants were victims of both riots and discrimination. Italians were lynched in New Orleans and Jews attacked in New York, and W ASPs resorted to fierce violence in collaboration with other American groups against German-Americans during World War I (riots, intimidation, boycotts, etc.) and against Japanese during World War II (internment in concentration camps, regardless of citizenship or alienage). For their part, later immigrant groups sometimes responded in kind, although their hostility was more often directed socially downward, toward the blacks and newer-arrived immigrants who were often the "scabs" in labor disputes. During the terrible New York Draft Riots in 1863, for example, the Irish of New York not only burned draft offices

14

and Yankee homes but went on a rampage against the blacks, numbers of whom were left swinging from New York lampposts. Following the Civil War, attacks on ghetto blacks in border state cities became frequent, and when, in the present century, race riots struck Northern cities like Chicago, more recent immigrant groups fearful of the black "invasion" were in the forefront of the white attackers. 8. Beginning in the l 870's, workingmen attempting to organize for collective action engaged in more than half a century of violent warfare with industrialists, their private armies, and workers employed to break strikes, as well as with police and troops. The anthracite fields of western Pennsylvania were Molly Maguire territory during the 1870's; after losing a coal strike early in the period, the Mollys sought to regain control of the area by systematic use of violence, including sabotage and assassination, and were successful until penetrated and exposed by a Pinkerton spy. In 1877, when a railroad strike spread throughout the nation, unorganized workers engaged in a series of immensely destructive riots to protest wage cuts, the use of scabs, and probably loss of jobs during a depression. Baltimore and Pittsburgh were hardest hit; although the total cost in life and property has never been estimated accurately, one commentator has reported that the destruction in Pittsburgh alone was greater than that experienced during all the labor and racial riots of 1919. The Haymarket Square bombing and retaliation against anarchists in 1886 followed the railroad strike of 1877; the Homestead Strike at the Carnegie Steel plant was followed by an anarchist attempt to kill Henry Clay Frick in 1892; the Pullman Strike became particularly violent after President Grover Cleveland called in troops over the protest of the Governor of Illinois in 1894; the Los Angeles Times was bombed by persons associated with the AFL in 1910; the IWW led a textile strike at Lowell, Massachusetts, in 1912; and there were national strikes against railroads and steel, with troops called out in several cities, in 1919. These are just a few of the major battles. Meanwhile, in the mining and timber industries of the West, an initial blowup in the Coeur d'Alene region of Idaho ( 1892) was followed by twenty years of the most intense and

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sanguinary struggle, ranging from Goldfields, Nevada, and Ludlow, Colorado, to the West Virginia-Kentucky border. On the eve of passage of the New Deal's pro-union Wagner Act, CIO auto workers were engaging in sit-down strikes in Michigan auto plants and fighting pitched battles with strikebreakers and police. Legislative transformation of tabor-management relations, especially provisions for grievance and arbitration machinery, ended this principal period of labor war in the United States, although continued skirmishes accompanying hard-fought strikes seem now a part of our way of life. 9. Black Americans participated during the years of slavery in at least 250 abortive insurrections and were, after the end of the Civil War, the victims of white attacks in dozens of cities ranging from Cincinnati ( 1866) to East St. Louis ( 1917). Blacks retaliated violently against white attacks in the Chicago and Washington, D.C., race riots of 1919 and in the Detroit riot of 1943. 10. Prior to the passage, in 1920, of the Nineteenth Amendment granting female suffrage, women engaged in militant action to protest their exclusion from American politics. The idea of women gaining a voice in politics was widely considered to amount to a radical assault not only on the political order but on the very fabric of society. "Were our state a pure democracy," wrote Thomas Jefferson, "there would still be excluded from our deliberations . . . women, who, to prevent deprivation of morals and ambiguity of issues, should not mix promiscuously in gatherings of men." 14 Although the struggle for woman suffrage did not include mass political violence of the kind that marked the struggles o~ many other groups for a share of political power, it frequently involved aggressively militant tactics. In 1917, for example, militant women engaged in hunger strikes, picketed the White House, and burned copies of Presidential speeches. 15 This list, although incomplete, 16 does provide a historical background against which to test the most important implication of the myth of peaceful progress-the idea that political violence in the United States is, and always has been, relatively rare, needless, without purpose, and irrational. The proposition that domestic political violence has been unneces-

16

sary to achieve political goals is ambiguous, but it is historically fallacious no matter how one interprets it. If it means that the established machinery has permitted major "outgroups" to move nonviolently up the politicoeconomic ladder, it is demonstrably false. On the contrary, American institutions seem designed to facilitate the advancement of talented individuals rather than of oppressed groups. Groups engaging in mass violence have done so only after a long period of fruitless, relatively nonviolent struggle. Similarly, the proposition is false if it means that the established order is self-transforming, in that groups in power will always or generally share that power with newcomers without the pressure of actual or potential violence. The Appalachian farmer revolts, as well as tumultous urban demonstrations in sympathy with the French Revolution, were used by Jeffersonians to create a new two-party system over the horrified protests of the Federalists. Northern violence ended Southern slavery, and Southern terrorism ended radical Reconstruction. The transformation of labor-management relations was achieved during a wave of bloody strikes, in the midst of a depression and widespread fear of revolution. And black people made their greatest political gains, both in Congress and in the cities, during the racial strife of the 1960's. All this does not mean, however, that violence is always effective or always necessary. Such a belief would merely create a new myth-a myth of violent progress-which could easily be refuted by citing examples of violence without progress ( such as the American Indian revolts) and progress without violence (such as the accession of Jews to positions of influence) . The point, really, is to understand the inertia of political and economic power, which is not as easily shared or turned over to powerless outsiders as the myth of peaceful progress suggests. The demands of some domestic groups for equality and power have been impossible to meet within the existing political and economic systems. The admission of Indian tribes, members of labor unions, or the mass of oppressed black people to full membership in American society would have meant that existing systems would have had to be transformed, at least in part, to make room for the previously ex-

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eluded and that, in the transformation, land-hungry settlers, large corporations, or urban political machines and real estate interests would have had to give ground. Transformation and concomitant power realignments were refused to the Indians; were granted, at least partially and after great social disorder, to workers; and are currently in question for black people in American society. The moral is not that America is a "sick society" but that, like all other societies, it has to confront the oldest problem of politics-the problem of the nonviolent transfer of power. Disposing of the myth of peaceful progress may also shed some light on another current illusion: the notion that domestic ethnic groups that escaped from their ghettos nonviolently are somehow superior to those that did not. In the first place, "nonviolence" is a misleading term. European immigrants participated, at various times and in differing proportions, in political movements often productive of disorder -socialist, anarchist, populist, and fascist. Whether German, English, Irish, Italian, East European, or Russian, their struggle to unionize implicated them deeply in labor-management warfare. Immigrants in urban areas fought each other for control of the streets, participated in race riots, and engaged in a kind of politics not meant for those with weak stomachs or weak fists. They sometimes used criminal activity both as a way of exercising community control and as a method of economic advancement when other routes were closed. 17 And they did not hesitate, once some power had been obtained, to employ official violence through control of local governments and police forces against emerging groups as militant as they had once been. Second, it is clear that those groups which rose rapidly up the politicoeconomic ladder ( and not all immigrant groups did) were the beneficiaries of a happy correspondence between their group characteristics (including economic skills) and the needs of a changing economic and political system. To put it baldly, they were lucky, since collective virtues which are an advantage at one stage of national development may be irrelevant or disadvantageous at another. Were immigrants of rural peasant stock, such as the Irish or the southern Italians, to come to the United States today, they would

18

find themselves in a position very similar to that of rural Southern blacks and whites now entering Northern cities, their skills almost valueless and their traditional social institutions irrelevant. Even immigrants with crafts or commercial skills and an urban outlook, such as the Jewish arrivals of 1890-1920, would find themselves less mobile today, small entrepreneurs in an age of corporate concentration and postindustrial automation, like the Puerto Ricans of present-day New York. Politically, earlier immigrants reaped the benefits of decentralization-the possibility of taking over an urban machine or a state legislature-and were the chief beneficiaries of the political realignment created by the Great Depression. In short, the steady pace of national centralization and unification on all levels, political as well as economic, has made it progressively more difficult for powerless groups to break into the power structure. The myth of peaceful progress offers intellectual support for existing political arrangements and validates the suppression of protest. It also serves to conceal the role of official violence in the maintenance of these arrangements. Official violence has been a major element in the pattern of domestic mass violence discussed thus far. Ever since the eighteenth century, those wishing to justify individual instances of revolt on grounds of self-defense have pointed to prior acts of violence by those in authority. In the midst of the Green Mountain Boys' uprising, for example, Ethan Allen wrote the Governor of New York, "Though they style us rioters for opposing them and seek to catch and punish us as such, yet in reality themselves are the rioters, the tumultuous, disorderly, stimulating factors . . . " 18 Once mass revolt has begun, the most common question is whether "official violence," reform, or some combination of force and reform will end it. Military suppression has ended some rebellions, such as those of the Indian peoples; capitulation to the insurgents, as in the case of the Klan during Reconstruction, terminated others. At most times during their history, however, Americans confronted by violent uprisings have responded ambiguously, alternating the carrot of moderate reform with the stick of mild suppression. During the ghetto uprisings of the past few years, police and troops

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called in to suppress disorders have often used excessive violence, as in Newark and Detroit, but have not committed massacres-for example, by machine-gunning looters. With a few exceptions (such as the U.S. Army's treatment of the Indians) this has been the recurrent pattern of attempted suppression of domestic revolts: frequent excesses of official violence without mass murder. And along with suppression has gone moderate reform, from the offers of state and colonial legislatures to remedy some of the grievances of the Appalachian farmers to the civil rights legislation of the 1960's, enacted almost directly in response to Southern sit-ins and Northern rioting. The problem, however, is that these methods are seldom effective. The historical data suggest that once law-abiding Americans reach the point of mass disobedience to law, their revolts will be ended neither by moderate force nor by moderate reform. Both techniques were attempted during the eighteenth-century farmer uprisings; revolts in New Jersey, the Carolinas, Pennsylvania, New York, and Massachusetts were squelched in relatively bloodless battles, while legislatures held out the olive branch of compromise on such issues as legislative apportionment, taxation, and court procedure. Still, until the Jeffersonian accession, the revolts continued. Similarly, the North-West axis which came to control Congress in the decades before the Civil War attempted to end Southern insurgency by combining law enforcement ( e.g., Jackson's Force Act, passed in response to South Carolinian "nullification" of the Tariff of 1828) with a series of famous compromises on the issue of slavery. Despite the offer of the Crittenden Compromise of 1860, the South seceded. Even during the labor-management warfare of the later nineteenth and early twentieth centuries, the pattern persisted. The force used to suppress strikes and riots was not massive enough to destroy the entire labor movement; reforms achieved in the form of recognition of some unions, victory in some strikes, and a pro-labor attitude on the part of the Wilson administration were not sufficient to meet the movement's demands and needs. At present, it appears that gentle enforcement of civil rights laws and court decisions in the South will not integrate Southern schools or alter fundamental patterns of racial dis-

20

crimination, while a similar combination of police action and legislative reform is proving ineffective to end the revolt of ghetto blacks in the North. Whether on the frontier on in the factory, in rural Southern communities or in urban ghettos, what rebels have demanded is the satisfaction of their group interests, including interests in exercising political and economic power and in controlling their own social systems. Metaphorically, these desires translate into "independence"-the integration into American society not just of scattered members of the group but of the entire group considered as a cultural, economic, political, and occasionally territorial unit. Prior to and during their struggle for greater autonomy, insurgent groups experience a sharp increase in collective pride and in political awareness. They reject old-style leaders and choose new ones reflecting this new awareness. Old links with outside society are discarded as obsolete; new ones are forged in the heat of revolt. The achievement of a greater degree of local autonomy makes possible the creation of group economic institutions, more rapid internal modernization, and an increase in national political power based on group solidarity ( e.g., the "bloc vote"). Therefore, paradoxically, revolts or insurrections seen by those in power as divisive, separatist, or even anarchic have often had the effects of restoring social order to the group and reuniting the insurgents on a new basis with the larger body politic. "Independence," then, implies a new interdependence, based no longer on favors asked and received but on the respect which power owes to power. It may be argued, of course, that this is not a final state but a phase of group development. Even so, it would seem to be an essential phase; all successful American groups, including WASPs, have passed or are passing through it on their way to maturity and power. At the same time, the official approach to the problem of violent mass revolt has been to offer the rebels the benefits of individualism-reforms which promise members of the insurgent group fairer treatment, more votes, more jobs, and so on-provided only that they give up "unrealistic" demands for control of territory, recognition of collective political and economic interests, and the like. Naturally, such offers are rejected by the insurgents.

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This compromise has been repeatedly acted out. American colonists, Western farmers, Southern secessionists, labor union men, urban blacks, and others have all been offered the benefit of integration as individuals into a preexisting social system, provided that they renounce the goal of exercising independent, collective power. In each case, rejection of such compromises paved the way for escalated conflict. In each case, what finally terminated the conflict was either massive military suppression or some collection of events which so transformed the preexisting social system as to permit integration of the insurgent group, not just some of its members individually, into American society. It is worth noting that, as a rule, the means of such integration have been either accidental or improvised, since our individualistic political and economic systems have lacked the machinery for advancing the interests of groups qua groups. Methods of group advancement which now seem "traditional"--e.g., political parties, political machines, business corporations, labor unions, and community organizationswere all considered at their inception as dangerous and unAmerican. Moreover, the integration of large out-groups into American society generally took place not as a result of ingroup generosity or reform but in the wake of system-transforming "explosions," such as westward expansion, civil or world war, and depression. That the great immigration waves of 1880-1920 coincided with the transformation of the United States from an agricultural-rural to an industrial-urban society goes far to explain why some groups were able to achieve integration fairly quickly and with a minimum of organized violence, although even among these immigrants both the pace of integration and the frequency of recourse to violence varied significantly from group to group.

Contemporary American Protest The number of participants in demonstrative protest seems to be increasing and includes an ever larger proportion of the members of society. Anti-war demonstrations in the United States, for example, are estimated to have grown almost con-

22

tinuously from the spring of 1965 to the spring of 1968.19 The student population, castigated in the 1950's as the "silent generation," produced at least 221 demonstrations in 101 colleges between January 1 and June 15, 1968, involving 38,911 participants, according to a study conducted by the National Student Association. Demonstrations are often viewed as the political tool of only a few dissident factions, such as students and Negroes. Actually, the number and variety of social groups resorting to this mechanism seem to be increasing. Various middle-class groups as well as "respectable" professionals have been involved in demonstrations. Teachers have picketed schools in New York City. 20 Doctors, nurses, researchers, and others from the medical profession have demonstrated against the war in Vietnam. 21 Clergymen have similarly protested. On several Sundays in September and October, 1968, parishioners demonstrated near Catholic churches in Washington, D.C., to protest sanctions against priests who did not support the Pope's edict against artificial birth control. Even the staffs of law enforcement agencies have not refrained from demonstrating. For instance, on October 1, 1968, one hundred "welfare patrolmen" picketed New York City's Social Services Department. Nor are the demonstrators all of one particular political persuasion. Among those who have resorted to this mode of expression are stµdents who demonstrated for Humphrey (urging Senator Eugene J. McCarthy to support him) outside the San Francisco Civic Center Auditorium on October 15, 1968, against the sit-in at Columbia University, for the war in Vietnam, and for stricter enforcement of the law. Wide segments of the public condemn protest indiscriminately. James Reston observed that "the prevailing mood of the country is against the demonstrators in the black ghettos and the universities," even though most of the demonstrations are peaceful. 22 Life magazine states, "Certainly it is a matter of concern when Americans find the ordinary channels of discussion and decision so unresponsive that they feel forced to take their grievances to the street." 23 The majority of the citizenry tends to focus its attention on the communicative

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acts themselves, condemning both them and their participants. For instance, 74 percent of the adult public in a California poll expressed disapproval of the student demonstrations at Berkeley in 1964, 24 although those demonstrations were actually nonviolent. Perhaps media reports of the "Berkeley riots" shaped public opinion. Asked explicitly about the right to engage in "peaceful" demonstrations ("against the war in Vietnam") 40 percent of the people sampled in both December, 1966, and July, 1967, felt that the citizenry had no such right. Fifty-eight percent were prepared to "accept" such demonstrations "as long as they are peaceful." So a major segment of the public seems unaware that such demonstrations have the same legal status as writing to a congressman or speaking up at a town meeting. 25 The situation is somewhat similar to the first appearances of organized labor strikes. Not only the owners and managers of industrial plants but also broad segments of the public at the beginning of the century did not recognize the rights of workers to strike and to picket factories if their grievances were unheeded. Strikes are more widely accepted now, even though they have frequently been associated with violence by workers, management, and the police. According to a Harris poll, "The majority (77 percent of those sampled) feel that the refusal to work is the ultimate and legitimate recourse for union members engaged in the process of collective bargaining. . . . " 26 It is important to note that as more of the public learned to accept strikes, they erupted less frequently into violent confrontations; the most important factor seems to have been an increased readiness to respond to the issues raised by the strikers rather than merely responding to the act of striking. Perhaps contemporary social protest will provoke similar transformations both in the public mind and in social institutions. In the chapters that follow, we present a social history of anti-war, student, and black protest. Our analysis is intended to illuminate the reasons for the development of these protest movements, with the hope that such an exposition will both

24

contribute to increasing understanding of how and why these movements came about, and serve as background for consideration of what society's response to these movements ought to be.

Chapter II

Anti-War Protest

IN THE past three years, protest against American involvement and conduct in Vietnam has become so familiar to our national life that it has almost acquired the status of an institution. Few people today would think of asking why this social force came into existence or how it has sustained itself and grown; even the movement's opponents seem resigned to its inevitability. In many respects, however, the very existence of a broadly based, militant opposition to foreign policy marks a sharp departure from long-standing and deeply embedded traditions, and future historians will probably marvel at the outpouring of protest and seek to explain it by reference to unprecedented conditions. In some advanced countries, such as Japan, protest has been virtually ritualized over the years. Attendant street violence is predictable and the issues are likewise stable-military pacts, foreign bases on native soil, delay in the return of confiscated territory, hospitality to nuclear submarines, and so forth. American war protest, by contrast, has until recently been a marginal, easily ignored phenomenon. The 1863 antidraft riots had more to do with ethnic rivalries than with 27

28

principled objections to the Civil War, and in other wars a magnified patriotism has obscured the voices of dissent. 1 Once a war has gotten under way, those who formerly counseled against participation in it have sometimes emerged as its staunchest champions; World War II is perhaps the best example of this. Furthermore, although American wars have varied in the enthusiasm of their reception at home, nothing like the Vietnam protest movement has previously appeared. It is especially interesting that the wars most closely resembling the current one did not generate a comparable reaction. In the 1840's the United States annexed a large portion of Mexico and suppressed a "native uprising" under the cover of dubious legal arguments. Few listened to Henry Thoreau's protests against this action, and when Abraham Lincoln rose in the House of Representatives to detail the President's sophistries, he doomed his chances for reelection. In the 1890's the United States aligned itself temporarily with Philippine nationalism in order to destroy Spain's colonial power, and then turned to suppression of the nationalists themselves. Despite the fact that there were more than 100,000 Filipino casualties, mostly civilians, no concerted protest was heard; indeed, American historians are still reluctant to see the Philippine episode as the cynical and brutal adventure described by Mark Twain. 2 A similar mental blackout has accompanied the numerous American incursions into Latin America, first by private filibustering expeditions and later by the Marines. There were no significant protests when Secretary of State Knox remarked, upon the sending of Marines into Cuba in 1908, that "The United States does not undertake first to consult the Cuban Government if a crisis arises requiring a temporary landing somewhere." 3 Turning to recent history, we must note that the chief public objection to the invasion-by-proxy of Cuba in 1961 was that the invasion failed. And President Johnson was able to mobilize congressional and public support for the invasion of the Dominican Republic in 1965, first on grounds of protecting American civilians and then with the retrospective justification that the "Sino-Soviet military bloc" had been behind the Dominican revolution. 4 This support was mobilized de-

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spite organized opposition that may have been a precursor to the anti-Vietnam war movement. There have actually been significant exercises of American power that the American public has hardly noticed at all: few Americans are aware of the United States' invasion of Russia after World War I, coups in Iran and Guatemala, the intervention of U.S. troops in Lebanon, the attempted overthrow of the neutralist government of Laos, and the quiet deployment of 55,000 troops in Thailand. Finally, in seeking to explain recent protest it is especially useful, for purposes of contrast, to recall the Korean War, which resembled the Vietnam War in several respects and occurred within the memory of many current protesters. Though the similarities between South Korea under Syngman Rhee and South Vietnam under Ngo Dinh Diem were extensive and profound, no mass protest against intervention occurred. Even today, fifteen years after the Panmunjom Truce, few Americans know about, and fewer question, the presence of more than 50,000 American troops in South Korea. It is thus evident that a tradition of anti-interventionism is not in itself a significant factor in the shaping of American public opinion. Obviously, something more is required to account for the growth of a broad protest movement in this country. The case of Vietnam would thus appear to be a unique exception to the support which the American public habitually grants its leaders in matters of national security. There is, of course, a correlation between the degree of our military involvement and the size of protest; the first significant dissent against the war was heard in the spring of 1965, when the first "nonretaliatory" air attacks against North Vietnam began and the first acknowledged combat troops were landed in South Vietnam. Since then, the scope of protest has grown with the scope of hostilities. But the Korean example reminds us that the degree of American involvement and sacrifice cannot account for the level of protest; it was not until the spring of 1967 that American casualties in Vietnam surpassed those in Korea, and the total number of American combat deaths is still (November, 1968) lower for this war than for its predecessor.5 Whereas the high casualties in Korea chiefly

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served the arguments of those who wanted to extend the war into China, the high casualties in Vietnam have chiefly been emphasized by proponents of negotiation or withdrawal. It is plain, therefore, that an unprecedented constellation of factors must have gone into the making of the anti-war sentiment that prevails today. In analyzing these factors, we begin with an examination of the organization of the anti-war movement. This examination indicates that organizational structure per se is of little value in accounting for its growth. Indeed, the movement is best understood as a result of events, not as a generator of future actions. These events, which were widely communicated, led to a deep skepticism about the war among wide segments of the American public and also led an amorphous set of organizations to oppose the war. Thus our analysis turns to an examination of these events and why they had the effect they did.

The Disorganization of the Anti-War Movement There is little general agreement about the makeup and nature of the Vietnam protest movement. From within, the movement seems disorganized to the point of chaos, with literally hundreds of ad hoe groups springing up in response to specific issues, with endless formation and disbanding of coalitions, and with perpetual doubts as to where things are headed and whether the effort is worthwhile at all. From without, as in the view taken by some investigating committees and grand juries, the movement often looks quite different-a conspiracy, admittedly complex but single-minded in its obstruction of American policy. In the latter interpretation, leaders and ideology are of paramount importance; in the former, the movement is simply people "doing their own thing." The interpretation offered here will be that the peace movement does have some broad continuities and tendencies, well understood by the most prominent leaders, but that its loosely participatory, unstructured aspect can scarcely be overestimated. Would-be spokesmen can be found to corrobo-

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rate any generalization about the movement's ultimate purposes, but the spokesmen have few constituents and they are powerless to shape events. Tom Hayden's influence on the developments outside the Democratic Convention in Chicago, for example, was probably minuscule compared to that of the Chicago authorities; and Hayden's subsequent call for "two, three, many Chicagos" has no status as a strategical commitment. If there are to be more "Chicagos" it will require similar occasions, similar attitudes on the part of civic and police authorities, similar causes for political desperation, and similar masses of people who have decided on their own to risk their safety. No one, not even Tom Hayden, is likely to show up for ideological reasons alone or because someone told him to. The more one learns about the organizational structure and development of the peace movement, the more reluctant one must be to speak of its concerted direction. As the following pages will show, the movement has been and remains in a posture of responding to events outside its control; the chief milestones in its growth have been its days of widespread outrage at escalations, bombing resumptions, draft policies, and prosecutions. As Chart II-1 shows, the size of demonstrations varies directly with the popular opposition to the war during the period 1965 to 1968. Thus, the strength of the movement would seem to be causally related to widespread American attitudes and sentiments toward the war. When we reflect on the variety of the critics of the war, we can well understand why the movement has never yet had the luxury, or perhaps the embarrassment, of defining either its parameters or its long-term aims. There is a widespread feeling among those who participate in active criticism of the war that the movement would collapse without the presence of a worsening military situation and a domestic social crisis, and this feeling gains credence from the slackening of protest after President Johnson's speech of March 31, 1968, and the preoccupation with "straight" politics during the McCarthy and Kennedy campaigns. Although it may seem tautological to say so, one must bear in mind that the chief sustaining element in the Vietnam protest movement has been the war in

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Chart 11-1: Size of Anti-War Demonstrations and Percentage of Anti-War Sentiment

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:: ,9

~

O Percent disapproval

"'... ":::"' 80 t,

D Numbers demonstrating

70 .§ ',:,

ii...

;;; :: 0 E: " Q

400

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