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The backlash

Meanwhile, anti-Vietnam war demonstrations were taking place across the globe, including 10,000 protesting outside the Democrat Convention in Chicago. In Mexico City, Tommie Smith and John Carlos raised their black-gloved fists in a recognised salute to the Black Power movement when collecting their Olympic medals.

But revolt was also met by reaction. Regimes cracked down on dissent in bloody fashion, while the US offensive in Vietnam was becoming more deadly and unpopular. In March 1968 Martin Luther King, Jr. was assassinated in Memphis, and two months later this was followed by the murder of Robert F. Kennedy, who seemed on course to win the Democratic Presidential nomination.

These were turbulent times, rapidly replacing the hopes achieved by the Civil Rights Movement in the middle of the decade.

Fear and hate resurface

In November 1968 Richard Nixon was elected President of the United States on a right-wing and reactionary platform. The party of Abraham Lincoln, for so long the political home of African Americans, had turned to the white South with a combination of a backlash against civil rights gains, urban violence and a whipped-up fear of the radical left and Black Power movements.

The origins of Nixon’s success lay in the Republican reaction to its 1960 and 1964 President defeats, which appeared to herald a generation of Democrat control as African Americans switched party allegiance and more liberally minded northern voters backed civil rights legislation.

Lyndon Johnson’s 1964 victory, when he took 486 votes in the Electoral College to Barry Goldwater’s mere 52, sent the Republican Party into a tailspin. There some like George Romney, the moderate Republican frontrunner for the 1968 presidential nomination (and father to Senator Mitt Romney), who called on party to discard Goldwater’s pro-segregationist ideas and adopt the civil rights and equality legislation.

Yet Nixon’s message remained essentially the same as Goldwater’s. He secured the Republican nomination with the help of avowed segregationist Senator Storm Thurmond. His vice presidential running mate was Spiro Agnew, who ran with the Southern Strategy, whereby the party sought to win the votes of white Southern Democrats disillusioned by their party’s embrace of reforms aimed at racial equity.

Agnew earned his place as Nixon’s running mate in a public intervention in the hours immediately after Martin Luther King, Jr.’s death and the resulting violence that erupted in several U.S. cities including in Maryland, where Agnew was Governor. With President Johnson ordering the Army onto the streets to regain control, Agnew called a meeting of African American community leaders in Baltimore, the scene of major rioting, 11 April for “a frank and far-reaching discussion”.

Of course, he had no intention of engaging in a real discussion, but rather was setting a trap. Agnew immediately attacked the community leaders for standing by as rioters ransacked stores and set cars on fire. When their leadership was needed most, he charged, “you ran”.

Quite predictably, most of the audience stormed out, only to be confronted by a media scrum, which had been tipped off by the Governor. His confrontation was instantly national news and almost as quickly Agnew had become the darling of the right.

It was a remarkable turnaround for a politician who had, until that time, appeared moderate. Agnew later conceded that his “manners” at the meeting may have contributed to tensions there, but he had no regrets.

Very quickly, Jules Witcover wrote in his book on the Nixon-Agnew relationship that Agnew, “was openly wearing his confrontation with the Black leaders in Baltimore as a badge of honor, and a not-so-subtle advertisement of his political value to the law-and-order campaign that Nixon was already running on his own.”

Nixon was also on a political journey. Having long been considered a moderate and a supporter of civil rights reforms, he began adopting a more hardline approach as he sought the 1968 Republican nomination – with law and order being central to his campaign.

Like Agnew, Nixon successfully used the growing urban disturbances and the anti-war protests to his advantage. In Nixon’s case, the anti-war protest outside the Democratic National Convention in August 1968, which saw 10,000 protesters being attacked by 23,000 Chicago police and the National Guard, was his key focal point. While the protesters would point to the police being the instigators of the trouble, to the onlooking nation this merely confirmed the idea of Chicago as a lawless city. So when Nixon paraded through the city a week later, cheered on by 400,000 supporters, he immediately earned the mantle as the unflinching law and order candidate.

A week later, when quizzed on a television forum by a lone Black panellist for his definition of the phrase “law and order”, Nixon replied:

“I have often said that you cannot have order unless you have justice, because if you stifle dissent, if you just stifle progress, you’re going to have an explosion and you’re going to have disorder.

"On the other hand, you can’t have progress without order, because when you have disorder, and revolution, you destroy all of the progress you have.”

In that one moment, Nixon differentiated himself from George Wallace, whilst also appealing to the same audience.

The Southern Strategy

The Republican Party’s adoption of racist undertones to its domestic policies became known as the Southern Strategy. It was deliberately crafted to win over those voters who still supported segregation and others uneasy about the civil rights agenda.

Years later, Republican political strategist Lee Atwater, who was credited with transforming and sanitising the Southern Strategy from its overtly racist roots, explained how Republican language had to change even if the general thrust of its racist approach did not.

“You start out in 1954 by saying, “N*****, n*****, n*****.” By 1968 you can’t say “n*****”—that hurts you, backfires. So you say stuff like, uh, forced busing, states’ rights, and all that stuff, and you’re getting so abstract. Now, you’re talking about cutting taxes, and all these things you’re talking about are totally economic things and a by-product of them is, Blacks get hurt worse than whites.… “We want to cut this,” is much more abstract than even the busing thing, uh, and a hell of a lot more abstract than “n*****, n*****.”

Spiro Agnew was the embodiment of the Southern Strategy, as Clay Risen wrote in The New York Times: “His rise during the spring of 1968 is instructive because suddenly it feels so familiar: a white Republican who claimed to speak against radicalism and for the forgotten man, but in fact ran on exacerbating racial animosity. Far from a bit player, Agnew marked a watershed moment in American history, when the Republican Party committed itself to the shift from being the party of Lincoln to the party of white racial backlash.”

“Nixon tweaked this strategy,” says Angie Maxwell, author of the Long Southern Strategy. “And it coded the language a little bit, softened it a little bit.”

The War on Drugs

In office, Nixon turned his law-and-order rhetoric into a policy platform that was to have a profound impact on the African American community for the next 50 years. At a press conference on 17 June 1971, President Nixon declared drug abuse “public enemy number one”. “In order to fight and defeat this enemy,” he said, “it is necessary to wage a new, all-out offensive.”

With that statement, the “war on drugs” began and so with it the criminalisation of the African American community.

Between 1925 and the early 1970s, the male incarceration rate had been remarkably stable, at about 200 men per 100,000 population, or equivalent to one in 500 U.S. males. By 1986, this rate had doubled to 400 per 100,000 population. Within another decade, the male incarceration rate doubled again to more than 800 and in 2008 reached a peak of 956 in 2008 (about one in 100). By 2009, 4.7% of African American adult males were incarcerated.

This had a devastating impact on African American communities – economically, socially, culturally and politically. The urban centres spiralled economically downwards as whole swathes of the Black community was imprisoned, while others found escapism through drugs and too many children grew up without male adults in their lives.

Almost 40 years later, one of the architects of Nixon’s war on drugs, John Ehrlichman, admitted that it had been a deliberate ploy to demonise the anti-war left and the African American community.

"The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the antiwar left and Black people. You understand what I'm saying? We knew we couldn't make it illegal to be either against the war or Black, but by getting the public to associate the hippies with marijuana and Blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news.

“Did we know we were lying about the drugs? Of course we did.”

Author Dan Blaum has talked of the enduring political legacy of this strategy.

“Nixon’s invention of the War on Drugs as a political tool was cynical, but every president since – Democrat and Republican alike – has found it equally useful for one reason or another.

“Meanwhile, the growing cost of the Drug War is now impossible to ignore: billions of dollars wasted, bloodshed in Latin America and on the streets of our own cities, and millions of lives destroyed by draconian punishment that doesn’t end at the prison gate; one of every eight Black men has been disenfranchised because of a felony conviction.”

Over the next several decades, successive U.S. governments took Nixon’s lead and imprisoned millions of people for drug offences, including a disproportionate number of African American men.

The prison population rocketed under Ronald Reagan, who, like Nixon, made the war on drugs central to his domestic agenda, racialising it by prosecuting offences relating to crack cocaine far more severely than cocaine, which was increasingly the drug of choice of the white community.

However, the real explosion in the U.S. prison population took place under Bill Clinton’s administration, as a consequence of his 1994 Violent Crime Control and Law Enforcement Act. At a cost of $30 billion, it was the largest crime bill in American history and it introduced draconian rules such as the “three strikes” mandatory life sentence for repeat offenders – regardless of the severity of the crime – 100,000 more police officers, $10 billion for expanding prison provision, and an expansion of death penalty-eligible offences.

Clinton and others pointed to the rising homicide rate among the African American community as the reason behind the Act, but of course there was little in its provision that addressed the wider causes of crime.

"Policy makers pointed to Black support for greater punishment and surveillance, without recognizing accompanying demands to redirect power and economic resources to low-income minority communities," according to an article in the New York Times written by three Ivy League professors of history and African American studies.

"When Blacks ask for ‘better’ policing, legislators tend to hear ‘more’ instead.”

The federal prison population exploded as a consequence of this legislation, from 94,000 in 1994 to 214,000 in 2016. While the Act only covered federal crimes and institutions, the reality was that where the Federal government led, states followed. And indeed, many went further. By 2016, the overall prison population was 2.3m, one in four of all people imprisoned across the world.

The 13th Amendment

The law and order offensive was used to exploit a provision in the 13th Amendment of the U.S. Constitution, which made it unconstitutional for someone to be held as a slave. One of the exceptions is for criminals.

In the aftermath of the Civil War and the ending of slavery, the 13th Amendment loophole was immediately exploited by many Southern states to force criminals to work on the plantations.

“After the Civil War, African Americans were arrested en masse,” recalls Michelle Alexander, writer and civil rights advocate, in the award-winning documentary, The 13th Amendment. “It was our nation’s first prison boom.”

To justify this, a narrative was created that centred on the aggressive Black male, out of control and in particular a threat to white women, that continues to this day. Even in the most recent Presidential election, President Trump tried to use the threat of the Black Lives Matter protests, combined with the growing movement of more affluent African Americans and Latinos into the suburbs, to scare middle class white women into voting Republican.

Michelle Alexander, in her 2010 book The New Jim Crow, shows that by targeting Black men through the War on Drugs and decimating communities of colour, the U.S. criminal justice system functions as a contemporary system of racial control.

“In the era of colorblindness, it is no longer socially permissible to use race, explicitly, as a justification for discrimination, exclusion, and social contempt. So we don’t. Rather than rely on race, we use our criminal justice system to label people of color “criminals” and then engage in all the practices we supposedly left behind. Today it is perfectly legal to discriminate against criminals in nearly all the ways that it was once legal to discriminate against African Americans. Once you’re labeled a felon, the old forms of discrimination—employment discrimination, housing discrimination, denial of the right to vote, denial of educational opportunity, denial of food stamps and other public benefits, and exclusion from jury service—are suddenly legal. As a criminal, you have scarcely more rights, and arguably less respect, than a Black man living in Alabama at the height of Jim Crow. We have not ended racial caste in America; we have merely redesigned it.”

One of the most pernicious consequences of the law and order agenda has been the disenfranchisement of millions of people – overwhelmingly African American – with criminal records. Twenty states, overwhelmingly in the South, ban felons from voting for a period after their conviction, with three states – Iowa, Kentucky and Virginia – banning them for life.

It is estimated that five million people with criminal records were prevented from voting in the most recent Presidential elections. Just as the ‘equal but separate’ was the legal underpinning of Jim Crow, so the law and order crackdown, and with it the mass incarceration of so many African Americans, created a new barrier to their ability to be full citizens in American society.