BLACK LIVES (DO) MATTER / My Story – Part Three – Politics and Prosecution

When President Lyndon Johnson of Texas signed major Civil Rights legislation in the 1960s, he said with resignation that the Democratic Party would lose the South for a generation.  He was a son of the South, specifically the poor, rural South, and knew its people.  He knew that many in the South were capable of holding a grudge for generations.  He knew that many Southerners had still not accepted the verdict of the Civil War.  The mythology of the “Lost Cause” was very much alive.  He knew that George Wallace was no aberration.  He knew the people from whence he came were deeply racist and that they viewed the federal government with the same distrust as they would a foreign government or as the hated Yankees who had “invaded” the South. President Johnson was dead right about his party losing the solid South, but even he, a master politician, underestimated the length of time the South could hold a grudge.  You can see for yourself that Johnson’s prediction is still true today as shown by the South’s deep resentment of President Obama and by the hyper-aggressive actions of Southern legislatures to suppress voting by minorities.  For example, new legislation proposed in Georgia following the 2020 elections will require voters who want to vote by mail to provide a photocopy of a picture – ID to request a ballot and at the time the ballot is cast.  In Arizona, legislation is proposed which will allow their legislature to set aside the popular vote.  In Texas, Governor Abbott and other Republicans plan to offer new “election security” bills.  This is code for laws intended to make it harder for Blacks, Hispanics, immigrants and poor people to vote.  The map of the Confederacy and the map of “red” Southern states are very similar and the similarity can’t be totally explained by reference to non-racial issues.

By the time I became a prosecutor in Dallas, it was January of 1973.  As we were told, crime was increasing.  Because I was a baby lawyer living in a big city for the first time, I had no frame of reference and just accepted this as true.  There certainly seemed to be a lot of crime.  The policy of our office was to aggressively prosecute, get convictions and get juries to issue verdicts for long sentences.  It was thought that this policy would deter crime.  In other words, the fear of a long term in the penitentiary would scare criminals enough to deter them from committing crime. Our office became famous for aggressive prosecution and long sentences.  While we sometimes gave lip service to rehabilitation, no one genuinely believed that the Texas Department of Corrections rehabilitated anyone.  If you weren’t a hardened criminal before you entered the TDC, you probably would be by the time you got out.  We all knew conditions in the TDC were very tough and those conditions were considered to be part of the punishment which was expected to act as a deterrent to criminal behavior.  Jurors typically believed this, also.  We were successful in the sense that our conviction rate was high, the sentences were long and we were very productive, i.e., we handled lots and lots of cases with great efficiency.  However, we didn’t seem to be reducing crime.  It felt like we were trying to bail water out of a small boat that was trying to stay afloat in a hurricane.  Although marijuana use was somewhat common in the late 1960s, it became an epidemic in the 1970s.  Many, many people were sentenced to long prison terms for small quantities of marijuana.  Then we began to see more and more cases involving cocaine, heroin, LSD and speed.  The surging drug problem was seen as a crime problem and a decision was made to treat it just as we always had:  aggressive prosecution and long sentences.  This didn’t work.  Federal money was used to create new courts, called “Impact Courts,” to try only drug cases.  This was not successful in reducing drug crimes or drug use. Although there was a line of thought even back then that crime, drug crime and drug use were a byproduct of poverty, addiction, poor education, psychological issues, lack of economic opportunity, and social unrest, there was a public outcry for stricter law enforcement.  Politicians and law enforcement officials, including prosecutors, were happy to oblige.  A “war on drugs” was declared.  Jail and prison populations soared,.  Any politician who openly thought about underlying causes was said to be “coddling criminals”, “soft on crime”, a “do-gooder”, or worse, a liberal.  Anyone who dared to suggest a different path would lose office or not be elected and, if you were in law enforcement, you would be shunned.  Politicians, even judges, competed against each other politically based upon who would be tougher on crime, criminals, drug pushers and drug users. 

What, you may ask, does any of this have to do with racism?  My answer is that during all of this Blacks were being systematically excluded from jury service in the South and Blacks and Hispanics were seen by law enforcement and the white public as the primary source of the crime and the drug problem.  This is not to say whites were getting a free pass.  Whites were also prosecuted vigorously, but at least they were tried before white juries and those white juries were not harboring a racial prejudice against them in addition to the usual anti-crime, anti-drug prejudice.  It is also true that Blacks were most often represented by under-funded and overworked court-appointed lawyers.  The era of mass incarceration, particularly of Blacks, had begun and was gaining speed fueled by public fear, anger, deep frustration, and refusal to address the underlying educational, social, economic, addiction and psychological problems.  The federal mandatory sentencing guidelines, which are now the subject of much justified criticism, grew directly out of this era.  These guidelines disproportionately harmed Blacks. 

All in all, my experience as a prosecutor was eye opening and, ultimately, a somewhat dispiriting experience.  We tried very hard, but we didn’t win the war on crime and we didn’t win the war on drugs.  When Jeff Sessions was appointed by Trump as Attorney General of the United States, he began to announce retrogressive “law and order” policies that were straight out of the 1960s and 1970s prosecutorial playbook.  He was a throwback in every way.  Any former prosecutor of my era will immediately recognize his rhetoric as “old school”. The next Attorney General, Bill Barr, was no different, although he is more polished and devious.  All of his ominous, sanctimonious pronouncements about “riots,” “lawlessness,” and preserving law and order were racist dog whistles right out of the Civil Rights Era.  You also heard many other Republicans, including Governor Greg Abbott, using this language in this election cycle.  To these people and their type, the problem is always the protest (“riot”) and never the reason for the protest.  Of course, all these men answered directly or indirectly to Trump who is, in my opinion, a sociopath, narcissist and racist.  Trump relied upon the rhetoric of “law and order” (“when the looting starts the shooting starts”) because he believes it resonates with white voters, particularly older white voters, and is a winning wedge issue.  It is a combination of racist dog whistle and nostalgia for a time that never really existed.  If you don’t believe Trump  is a racist, why do so many white supremacist groups revere him?  They know the voice of their master and they know exactly what he means when he calls them.  This was all too obvious on January 6, 2021 when Trump and his pet attack dog, Rudy Guliani, incited a riot and an attack on the U.S. government.  Trump is by far the most dangerous racist in the country because he is more than willing to use our racism to further his selfish aims without regard to the cost to the country.  Only the great deceiver, our enemies and truly evil people encourage us to revel in our worst instincts. 

All of this is ancient history to a degree, but have times really changed?  And, if they have changed, how much have they changed and how long will it take until race is no longer a factor in the legal system and in society?