We're very pleased today to have Nikki Lacey back with us to talk to us.
And Nikki is a school professor of law, gender and social policy at the LSC.
And before she went back to the LSC, she was here for a number of years here in this college.
It also was, and she was part of the Centre for Criminology, so we're very pleased to see her today.
But I have this long list that the administrator always sends me and it's incredibly long finished.
It tells us all about the various things she's done.
Senior Research Fellow previously, also a professor of criminal law and legal theory here at the University of Oxford.
She's held a number of visiting appointments, most recently at Harvard Law School.
She's an honorary fellow of New College Oxford and of University College Oxford Fellow of the British Academy,
and in 2017 was awarded the CBE for services to law, justice and gender politics.
So very impressive. And today Nikki will be talking to us about her ongoing work about democracy and the title of her paper,
It's Historic Sizing American Exceptionalism in Crime, Punishment and Inequality.
Thank you. Thank you, Mary. Thank you so much for the invitation.
It's lovely to be here. She's back here among family, friends and former colleagues and all of you students, all my former LSC students as well.
It is lovely to see this seminar has been a source of pleasure and stimulation to me for most of my career,
so it's always a very special thing to be asked to contribute to it. And I shall try not to lower the standard, the average standard too badly.
I've actually not. A line between us decided that we were going to keep things low stress and not struggle with the PowerPoint.
But I've got a very short handout, which is really just a few sort of data and table slides to give a little bit of background to, as it were.
What we're trying to explain in this paper, and I should say this paper is part of a joint project with David Solstice,
who's a political scientist for The Economist.
A comparative this and the particular sort of background to this paper is that it was written for a conference that we organised with two colleagues,
Leo, to assist insofar as the locus at the conference in general is looking at the relationship or the question of what,
if any, relationship there is between crime, punishment and inequality.
And we are focusing on America, which we've worked on in the past.
And I will sort of summarise some of our past work very briefly as part of this paper,
and the paper is probably a bit long, so please excuse me if I'm correct.
There's a bit of crashing gears while I do some impromptu cuts.
So by any standards,
the US presents itself as a really fascinating case study in any effort to understand the complex and contested links between crime,
punishment and inequality. We know that societies with high levels of inequality tend also to exit exhibit
both high levels of crime and particularly violent crime and punishment.
But actually, most of the exemplary cases feature either an insecure or pretty recent democratic political
system and the late or incomplete imposition of an advanced capitalist economic system.
Amid long standing democracies with advanced capitalist economies, the US really does stand out in terms of a number of key features.
Inequality is as measured by a number of economic standards, notably the Gini coefficient levels of serious violent crime,
imprisonment rates, rates of penal surveillance and post-conviction disqualifications.
These are very well known to everybody in the room.
So even among the more unequal, more criminal genic, more punitive liberal market economies of the advanced democracies,
the US occupies the unenviable position of being an outlier in all the wrong ways.
Why should that be so? Now, in all previous work,
David and I've argued that the exceptional rise in violent crime and punishment in the US the mid seventies to
the early 1990s could be explained by the interaction of four political economic variables based on change.
In other words, the collapse of food ism, varieties of capitalism and varieties of welfare state.
The US obviously is a liberal market economy and a liberal welfare state and asking understand this typology type of political system.
The US has a competitive majoritarian rather than negotiated proportional representation system.
But critically and specifically, we focussed in our work on another unusual feature of the US political system,
and that is that the US is a radical outlier in the degree of local democracy,
with policies on residential zoning, public education, policing, prosecution, justice, transport, you name it, all decided at local level.
So what's on the handout? You know, you don't need to really look at it, but essentially just an updated version of the abstracts.
And then there is a couple of charts that really look at what we're trying to explain here,
that the imprisonment and homicide rates and you can see unfortunately because I didn't have a colour print,
so you can't really see the differences between the other countries, but you can see that the US has been on a sort of journey of its own.
And then over leaf we've got residential segregation, imprisonment rates, homicide rates,
literacy score at the bottom and child poverty in the US is sort of an outlier in all of these ways.
And then across time I just basically compare the US and England and Wales in terms of the locus of policy making and decision making in
fields that are either part of criminal justice or cognate to things that might affect dispositions to punish or to offend and so on.
So a very broad argument has been that violent crime, for example, came from the poverty,
lack of welfare, limited education and lack of effective policing,
particularly in the traps to which zoning policies segregate segregated the
disadvantaged losers from the collapse of 47 policies which favoured median voters,
local voters, by bolstering house prices and reducing property taxation.
These same dynamics shaped we all views as in a paper published and published in
Punishment and Society four years ago shaped a distinctive toxic politics of punishment,
particularly from the 1970s on, and in particular electorally driven patterns of residential segregation.
We argued, reinforced and aggravated the radical racial inequality, which is, of course, a further and striking feature of American history.
Since we did that work,
there's been quite a lot further research across a number of disciplines that I think has bolstered the evidential case for that broad thesis.
So the tendency of American political fragmentation to unleash what we might call or the historian calls sort of centrifugal forces,
polarising forces, has been very central to recent US history,
his his historical scholarship and the impact of local democracy and locally based criminal justice institutions
on the development of criminal justice policy has been confirmed in a very broad range of criminological work.
Recent studies have also confirmed the decisive impact of electoral cycles on both judicial and prosecutorial decision making,
finding that under conditions prevailing from the 1970s on local electoral dynamics have set an upward trajectory of punitive.
This indeed in recent work, John Pfaff, who's done some pretty meticulous empirical research on this,
has gone so far as to claim that the single most important reform needed to make further progress
in dismantling American mass imprisonment would be a move away from the election of prosecutors.
So as a result, we're gradually sort of accumulating a bit of a better understanding of the mechanisms through
which these extraordinary outcomes captured very crudely in these tables and figures in crime,
punishment and inequality have been produced and maintained.
And some pieces are emerging that promise to perhaps explain how the distinctive American political,
economic and social structure has sustained those outcomes in time.
But of course, the institutions which shaped these outcomes today are the products of very long historical processes.
And a historical focus is very important in developing the argument that America's outlier position among
contemporary advanced democracies is shaped by its distinctively institutionalised political system.
So in this paper, we're focusing on that history and we're asking three questions which are implied by our past work, but not really covered by it.
First, we confront a very fundamental question, which is why do such distinctive patterns of local democracy arise in America?
And in light of the overt representation of African-Americans in the criminal justice system today, we're particularly interested in how.
It's a tool that political structure is tied up with the distinctive American history and politics of race.
Second, we ask what, if any, this political economic history implied about the development of specifically criminal justice institutions.
And third, we go on to ask why the burden of violent crime and punishment continue to fall so disproportionately on African Americans?
But now we also have to think about Hispanics. So, first of all, let's look at political economy more or less.
So most of the modern institutional structures of advanced economies which industrialised in the 19th
century derive from the ways in which those nations were organised before and during industrialisation,
and how governments, given those political economic preconditions,
shaped the institutions which they found necessary for the formulation of an industrial economy.
Economic historians distinguish between three or four industrial revolution as corresponding to what they call different technology regimes.
The original Industrial Revolution, which was based on iron and steam,
gave way in the middle of the 19th century to the much more sophisticated so-called scientific revolution,
which was based on electricity and produced very large, complex corporations that then subsequently morphed into feudalism, much more familiar to us.
And when faltered and collapsed in the 1970s and 1980s, with deindustrialisation,
advanced economies painfully and often conflicts literally began to absorb the
information revolution based on information and communications technologies.
And of course, we're still in the midst of that change.
Now, the scientific revolution, as distinct from the original industrial revolution, required a huge range of infrastructural rules and institutions.
And in the U.K., as in all other industrialised countries, apart from the US,
in the context of the public goods that were needed to to underpin ever more sophisticated industrialisation.
The second half of the 19th century saw consolidation of power by national governments.
This consolidation tended to be based on disciplined national parties and the creation of effective ministries
so as to foster control and counter what in every country were quite conservative forces of reaction against,
as it were, public spending and redistribution to produce the public goods that were needed for industrialisation.
A particularly important focus for that kind of opposition was compulsory education,
which existing elites would have to pay for and which would enable agricultural workers whose labour was of course,
crucial to the power of those elites to leave for industrial jobs with significant implications for the balance not only of the economy,
but of political and social power.
So the newly centralising political systems of most countries crafted a raft of legislation covering things like finance,
accounting, transport, labour, a wide range of standards security, sanitation and crucially, education.
So the key thing from the point of view of all comparison with the US,
this included in the UK the establishment of a national top down control from
Westminster over municipalities to a degree that had not been the case before.
By contrast, the US mainly through presidential choices during the long Republican ascendancy from the 1870s on by cities after the Civil War,
in cooperation with presidential appointments, the Supreme Court,
a topical matter and one that has been we've been here before, went in completely opposite direction from this country.
And it did so in spite of the fact that the Republican ascendancy was just as concerned to industrialise and therefore faced
and needed to solve very similar problems about how to create public goods and to foster incentives to sustain them over time.
But they confronted this task under very different institutional preconditions.
So what are the key features of the US political economic history for that point, from that point of view?
And I'm just really, you know, painting with very broad brushstrokes here.
And the first thing to note is that the US essentially opted for a two region solution.
The core conservative opposition to industrialisation within the southern.
Guys and presidents think we're just coming out of the trauma of the Civil War precedent.
So it is far too costly to remove this opposition to counter it because it was very PC resistance.
So, of course, highly tied up with the race system, a system of racial oppression and access to cheap labour that that applied to Southern elites.
But moreover, the Republican presidents began to realise, I suppose,
that Southern states weren't actually needed for industrialisation so long as the South accepted common
U.S. manufacturing tariffs to protect developing northern industries against European competition,
they would be forced to buy northern goods. So essentially very neat.
You just keep the south outside of the industrialisation project.
And the North really had no economic reason to impose proper education on the South.
And that of course had in a way, ways the punch line of our paper had terrible long term effects for the black Americans.
So this settlement, in contrast to the UK,
where we managed to neuter the Lords Opposition with reform legislation such that the start of 1867 and 1884,
the US simply didn't eliminate conservative opposition in the 19th century.
Rather it contained it, roughly speaking, within a region.
That's obviously a gross oversimplification, but that's the basic argument.
So the second point is that education was left to local autonomy.
So education, as we saw, was key to industrialisation. Why was it left to localities?
Well, here we come to the US Constitution because of course, the presidency didn't have any constitutional power to impose universal education.
What it saw, however,
was that northern cities and counties had their own strong incentives to develop universal elementary and later high school education.
And that was because given flexible labour markets, education was pretty key to income levels as far as local meeting voters were concerned.
And secondly,
municipalities needed at least semi educated workforces to attract the large corporations that were really the engine of industrialisation in America.
So actually the US education system really developed out of local autonomous systems based on democratic choices.
And this produced, interestingly,
only outside the South a pretty effective education system that's entirely different from the way compulsory education developed in this country.
Now that also meant a broader degree of autonomy for municipalities and counties.
The absence of effective federal bureaucracies covering the US implied more generally the role for minor municipalities in economic development,
particularly for large places in most of the northern states in the 19th century,
mean this municipalities were significantly more important administratively.
Even the states now, police powers were, of course, given by the Constitution to the states,
but de facto they were passed on in large part to municipalities and counties.
And in the historian William Novak's words, in contrast to the modern idea of the state as a centralised bureaucracy,
the prevailing U.S. conception of the regular, well-regulated society emphasised local control and autonomy.
This reflected the historical origins in much of the northern US of government being based in cities.
And as Richard Benson has argued, key to the dynamics favouring a de facto grants of major autonomy to big cities in the interests
of industrial development was that the Supreme Court could impose the Interstate Commerce Clause,
suitably interpreted by the carefully chosen justices,
so that local areas and indeed big cities didn't put up local tariffs and controls on competition.
So you're sort of creating a national economy, industrialised economy, that through all these decentralised mechanisms,
therefore, and this was really critical for American industrialisation,
big cities really had to attract large corporations who could bring in wealth and employment
by providing labour forces who were educated and preferably for the good corporations.
Non-unionized has very low levels of unionisation in the US over time.
Cities further took on the role of educating the next. Serene migrants enclosed in the 19th century and guaranteeing the corporations that
unionisation and strikes would be controlled by the city in exchange for migrant votes.
So it is quite a complex system and I'm obviously massively oversimplifying it, but that's that's the key things.
Now, given what I've said so far, and this is the next sort of headline point,
it's not all that surprising that an enormous amount of autonomy was given to big corporations
because they were really largely the drivers of what was happening along with the cities in Europe,
nation states played a key role in developing the infrastructure necessary for industrialisation.
In the US, the federal government simply lacked the institutional and legal capacity to do that.
And at least until at least until the mid-19th century, mid 20th century, really.
As Ghoshal argues, the constitutional constitution implied that national power had to be exercised by subterfuge,
via strategies like exemptions and constitutional restraint, surrogate navigation of responsibility,
or contracting out of what in other systems would have been public responsibilities,
core governmental functions, creating in a state a kind of hybrid public private governance structure.
So no wonder that the US had difficulty in crafting that alone, in forcing centralised policies, redistribution or capacity building,
able to tackle radical levels of inequality which tend to come alongside this kind of rapid capitalist development.
Bancel in particular, has argued that the Supreme Court, loaded with judicial appointments from the by the Republicans,
from the highly successful railroad operations, who are, of course, a big driver of industrialisation.
Supreme Court understood the possibility of great the great economies of scale and
scope from giant corporation corporations if they had the freedom to dominate markets.
This led to very sophisticated court interpretations of the Clayton and Sherman Anti-Monopoly legislation with a precedent using Break-Up Powers.
Only one companies failed to develop the desired economies of scale and scope.
In effect, what Bancel argues is that the Republican ascendancy presidency used the Supreme Court to deploy the Interstate Commerce Clause
to prevent protectionist behaviour by states or cities and take away powers from all levels to regulate industrial relations.
This meant the cities had to compete to get the giant corporations in order to develop and grow and build labour markets to their requirements.
And that brings me to the final headline, melody of this part, the paper,
which is this the so-called book political scientists call the sort of deal that was done in cities at this time of American history,
as it's well known city centre to be run by sort of party bosses.
And the incentive, incentive structure for those party bosses in big cities was very much too up till the 1920s to encourage and absorb immigration.
In order to provide labour, the city bosses wanted large companies to bring prosperity, raising the price of property and creating employment.
As they as immigrants moved in, they either had political leadership or organisation from coming with them,
or they joined an already partially established migrant groups.
This is basically documented, by the way, anybody's interested in. Desmond Cain's book Making Americans and Implicit Bargains was struck between their
leaders and city bosses within the so-called Tammany Hall system significantly.
So they were basically trading jobs for folks.
That's really what was going on significantly. However, and this again,
this sort of punch line of our paper really is that this deal was not available
in the same way for African-Americans who might migrated north from 19 states,
particularly from 1963 to 1970, to fill the manufacturing demand for labour when European migration slowed.
And I'll come back to that now, of course, given that those corporations are making big investments and literally central to the whole project,
they had a lot of power and they wanted to feel protected by the political system.
So the ability to invest in politicians was pretty important to them.
From this perspective. We think that sort of reasonable hypothesis would be that British companies.
Who couldn't invest in politicians because actually individual politicians here have never had very much power.
Some were less prepared to make massive long term investments for these huge US corporations because they had quite a lot of political clout.
Did. And of course, cities, given their major role in policymaking,
wanted protection from the broader federal, fiscal, federal and state political systems.
So everything was stacking up in favour of local power.
And that also applies I won't go into this to the party system, which remained very undisciplined.
And although it was within a national framework, essentially parties were run at the local level.
So to sum up that part of the paper, the US political economic system was from way back fundamentally different
from the political systems of the UK and of other northern European countries,
negatively in terms of the absence of highly disciplined political parties,
driving national policy positively in terms of the power vested in localities and corporations as drivers of economic development.
So while those differences are decisively shaped by the history and politics of race,
notably, of course, by the legacy of the Civil War and of slavery,
which shaped the political and cultural world of the South and fostered this reasonably bifurcated equilibrium.
Local autonomy in the US wasn't driven by race in a simple way.
It's very deeply driven by race, but it's kind of indirectly driven, I think, if you're looking at it historically,
because race was sort of mediated by political economy and vice versa in that it was
the racial policies of the politics of the South which pushed industrialisation north,
and it was the ability to industrialise without the South which kept the southern system of racial oppression in place.
So it is an intimate link with race, but it's a slightly more complex one than it's perhaps sometimes appears.
Now let's pass the paper, which deals with the question of how this maps on to the development, if at all, of criminal justice institutions.
And I'm pretty sensitive about this paper because I'm not really in America, I'm not really a historian.
So there are doubtless lots of people in the room who know more about bits of this paper than David might do.
But I'm going to have a go at sketching out the ways in which I think the development of the American criminal
justice system is similar in very cognate ways to that picture I just give me of the political economy.
So in the 19th century in Europe, many countries,
most countries saw a sort of gradual process of state building, which in a lot of literature, you know,
evokes vapour kind of standardly, is all about modernisation through centralisation and professionalisation,
standardisation through the construction of governmental bureaucracies.
That's the sort of picture of modernisation.
And by that sort of template in the US, that process is state building in a sense just remains incomplete.
I mean that that's as it were, to judge the US by the European standard, but it's very,
very different and it, as we've seen in that is an exceptional amount of power at local level.
So how did that affect criminal justice?
Now at first sight, actually, I think the development of criminal justice institutions in the US from the colonial era right up to the 20th century,
looks quite similar to England. What happened in England and Wales in both countries.
If you go back to, you know, the 18th or very early 19th century, you have a lot of local action.
You know, there's a significant local and lay elements to the delivery of criminal justice, even as a sort of key decision making in this area.
You have local officials, you have enforcement in the context of a very dense,
normative system of social control, listed variously churches, families,
landowning structures and the disciplinary power over particularly agricultural and domestic workers, which these structures entailed in America.
Following the revolution, the establishment of the Republic in 1789, the constitutional settlement was interpreted,
interpreted as mandating only very limited federal criminalising paths.
We know scholars actually differ a bit on how determinate the original constitution itself was on this point with Novak in particular, and.
So I think that the early Republican conception of government as existing to assure the public welfare embodied a certain
kind of welfare system which actually could have led in quite a different trajectory and quite a different direction.
One But his argument is that that was basically undermined ultimately by the move towards a more rights based,
legalistic conception of government after the Civil War.
But the fact is that neither in the early decades of the public nor republic, nor in the period of reconstruction after the Civil War,
was there a coalition with either the interest or the capacity to shape that original allocation of police powers to states
in such a way as to facilitate the development of central government institutions of the kind that were emerging in Europe.
Nonetheless, both countries saw developments which sort of in a way, conform to a standard picture of modernisation,
the emergence of police and a prison conceived as a humane and rationally organised institution.
A more organised system and hierarchy of courts assisted in part by a more organised and numerous legal profession.
Beneath this appearance similarity, I think there were some quite important differences.
And in this section, I'm going to leave aside capital punishment,
which is usually the sort of go to difference historically with between America and Europe on criminal justice,
to concentrate on three other areas in which I think the differences are quite
clearly related to the differences in political economy that I've already described.
These are the development of the police, the arrangements for decisions on and conduct of prosecutions and the role of popular justice.
First, the police. So in both countries, the institution of a public police force was a pretty controversial matter, evoking,
as it did some worries about centralised state power, which were associated, albeit in somewhat different ways with tyrannical government.
In England, the creation of the Metropolitan Police was premised famously on the idea of a of a citizen, but a citizen in uniform.
It was meant to be as a disciplined, professional force.
Now, whether or not the early force entirely conforms this model of the gradual expansion and development tools and nationwide police
force sort of conformed to the idea of an independent force seen as a professional rather than a political organisation.
Now, the structure of the American policy, obviously it implied that the emergence of policing would be decentralised.
And although the development of police forces in the middle of the 19th century at both state and city levels,
was often inspired by and actually evoked invokes the Peale model.
What emerged was something different forces which were staff, not by men joining an emerging profession, as it were,
but rather men who were recruited by local officials who didn't enjoy any job security because
their positions might be swept away by the next electoral contest at city councils or state level,
who mostly didn't wear uniforms, which identifies them as public servants.
The American police were being tendentious here, but I think they were, in effect, an arm of local government,
a tool of local political interests, vulnerable to the sway of political power and to the temptation of various forms of corruption.
Probably the most spectacular well known example of this is the New York Police Department during the era of local machine politics,
with policing in significant part funded by informal systems of charging for licenses, exemptions and services.
And the police in the service, the local politicians, and in fact, part of the Tammany Hall patronage system.
Despite efforts to further professionalise the police throughout the latter part of the 19th century,
these important institutional differences persisted well into the 20th.
Will be it subject to the local variations, which are a key feature of the US case,
even in the form reforms that the progressive area of the early 20th century local political control,
rather than professional autonomy, was the dominant characteristic of policing.
What about prosecution? At the start of the 19th century, prosecution in both both countries was in lay hands,
initiated by private citizens with the assistance of local lay officials such as justices,
constables and sheriffs,
mediated by deliberations of grand juries and sometimes facilitated by the existence of private arrangements such as prosecution associations.
In England and Wales, the grand jury declined,
and the gradual development of a nationwide police force transferred much of the responsibility for prosecutions to the police.
With more serious cases handled by ordinary lawyers, engaged by the police, or in the case of private prosecutions, the victim.
In the US, however,
there was a key institutional innovation which was to be hugely consequential for the development of criminal justice over the next 150 years.
This was the invention in the early decades of the 19th century of the public prosecutor,
a public official like prosecutors in North European Systems, but locally based as in England and Wales.
In the years after the revolution, most states provided for the appointment of prosecutors by judges, governors or legislators.
But concerns gradually emerged about the vulnerability of appointed prosecutors to the sway of political patronage.
And between 1832 and 1861, almost three quarters of states moved to a system of elected rather than appointed prosecutors.
The aim, ironically, given what we know about behaviour of prosecutors today, was to guarantee their political independence.
But as a result of the extraordinarily dense system of electoral democracy,
which the US political economy has spawned, they were of course elected at local level.
So even more directly than the police, they in a sense became part of the state and local political systems,
subject to the sway of electoral pressures at the local level and contrary to the intentions of the reformers.
Very much subject to political influence, broadly conceived.
Not party political influence, of course. But the influence of politics at the local level.
With what's arguably the single most important filter for criminalisation exposed to the power of popular opinion in such a disaggregated way,
the potential for any potential capacity to shape a national criminal justice policy is really quite seriously undermined.
Even indeed at state level was somewhat compromised.
And that really brings me to the question of life or popular justice.
So another difference, I think, between 19th century developments in England and the of states lies in the degree
to which social control continued to be exerted by private or popular justice.
Now, of course, it's important not to exaggerate this.
Legal historians, criminal justice historians have shown that even in the relatively centralised British system,
as it was by the end of the 19th century,
practices of local shaming, such as so-called rock music persisted, particularly in rural areas right up to the 20th century.
And of course, internalised norms and a range of private institutions remain in all countries,
probably much more important to social ordering than the criminal justice system,
which is inevitably partial and patchy in its effects and quite often counterproductive to petty juries.
What we call here now, just the jury, of course, also remains central features of those systems.
Nonetheless, I think there's strong evidence that a continued reliance on and indeed attachment to the idea of
popular sovereignty in the delivery of criminal justice remained distinctively high in the US,
with significant implications for a sort of incomplete process of modernising the criminal justice system.
So arguably the sway of public private hybrid roles such as elected local justices,
sheriffs and constables, along with the slow and still at the end of the 19th century,
incomplete professionalisation of the police in America itself implied a large element of lay justice at the heart of even state criminal justice,
as indeed did the continued role of late decision makers, although of course that was true here as well.
But a range of other accepted practices in the US doesn't, don't really find a clear parallel in this country with weak policing.
In many parts of the country, private militias remained an important residual tool of de facto public control throughout the 19th century,
employing state and local government authorities reliance on popular sentiment and support among those groups.
The link, of course, with today's continuing attachment to gun rights is signified.
Come here. MOBBING and rotting continues in many parts of the country as a form of law and order intervention to a degree.
More analogies with 18th and 19th century England.
While the horrifying practices of lynching employed vivid limits to state and legal standards, the criminalisation well into the 20th century.
Equally important, the creation of vigilance committees,
which asserted to themselves the right of law enforcement in many areas of the country right into the 20th century.
And an entirely, of course, random newspaper sampling is still going on today on the the border with Mexico, Michoacan,
a sort of lack of of not merely of centralisation,
but of standardisation of the rule of law in a way which finds, I think, not a parallel in northern Europe.
The criminal justice systems of late 19th century America amounted to sort of public,
private, hybrid hotchpotch of public yet politicised, professional,
yet not centralised, private and uncoordinated or hybrid organisations employing radical local variation in both institutional structure and outcome.
Private bodies were being used to deliver governmental functions in a sort of echoing
what happened in the political economy and I think a sort of summarise here.
But I think that the comparison actually between juries in the US and UK is really interesting here because although you could say,
well, the jury is, is a counterexample that because we've still got juries.
What happened here was that quite certainly as part of the system of modernisation,
it became very much more robustly understood that juries only decide questions of fact,
whereas in the US has been a much more vigorous and long lasting argument about the issues,
so-called jury nullification, whether it is part of the public role of the jury to invalidate unjust laws.
And I think that the tokens of very, very different conception of what the role of the lay voice in the criminal trial is.
I think it's difficult to see how this sort of fragmented, fragmented,
fragmented and significantly privatised trajectory of the US political economy in the case of industrialisation would contribute to this.
Similarly, the decentralised and public private structure of criminal justice.
But a further interesting question arises, I think,
about the political mentalities which these associated institutional structures face reflected and reinforced.
As many historians have noted, American Republic has less and less who is shaped by strong attachment to freedom and a suspicion of centralised power,
which has, as its correlate, a strong attachment to popular sovereignty and to the development of highly responsive institutions.
In this context, Randall Randolph Ross Really magisterial study of patterns of homicide is quite instructive.
I think over the whole sweep of American history,
Ross finds that the level of homicide is positively related to periods of high social
conflict and to low levels of trust in government and faith in strong national identity.
These striking correlations raise important questions about the extent to which American policy in society has been able to
achieve sort of internalisation of norms and mechanisms of social control on the same sort of level as other countries,
particularly countries with coordinated systems. And this sort of echoes a point that David Gordon makes in his book on capital punishment.
This, in turn, invites the thought that there's a correlation not just between not just two, but three features of the US social landscape,
the institutional structure of the political economy and the criminal justice,
informal institutions of social control and social mentalities in relation to state and in particular, federal, state power.
I think the time goes on a 15 minute. Okay. So there's one more quick point I make we make in that section,
which is that there's a lot of scholarship that argues not to of people like Heather Schoenfeld or Mary Gottschalk.
That really the key thing,
the structure of the American criminal justice system the way it is today was the accretion of federal power during the Roosevelt era,
which produced a certain kind of increased capacity, which was then used to produce to effect mass imprisonment.
And we don't disagree with that, but we don't think it addresses the question of why that happens.
And so we think there's still a reason to go go back into history.
Okay.
Let me come to the last section of the paper, which has to do with the upshot of this history for racial disproportion in criminal justice today.
So how the how have these associated historical trajectories affected the gross racial disproportionality and patterns of crime,
criminal victimisation and punishment today?
Now, obviously,
race and racism have long occupied a central place in the explanations of distinctive American patterns of crime and especially punishment,
as indeed a social organisation more generally.
And recently, as a result of Michelle Alexander's very striking argument,
race has really been absolutely the heart of debates about American criminal justice,
and the explanation of the prison build up with her race is striking.
Nice, clear argument that the Jim Crow, that in effect mass imprisonment is that, as she puts it in the title book, The New Jim Crow.
So it's a system geared to perpetuating structural exclusion and has a Schoenfeld makes an analogous argument in her recent book.
But as James Forman argues in his book and I think very persuasively,
an explanation founded wholly in racial exclusion encounters some quite significant difficulties,
not least in explaining the class aspects of racial patterns of crime, of punishment with mass imprisonment.
Unlike Jim Crow leaving a substantial black middle class pretty much untouched and while having a significant impact on poor whites,
whites and Hispanics, it also, I think the full Jim Crow argument has some difficulty in explaining black political support for tough crime policies,
as witnessed by policy choices in black majority jurisdictions such as Washington, D.C.,
as well as in explaining the role of violent crime in which black Americans are disproportionately
both victims and offenders in moving crime up the political agenda from the 1960s,
as argued, I think, very effectively in Lisa miller's work.
So we argue that we need a more of a pluralistic interpretation here,
albeit one at which the history and politics of race is central and acknowledged to have large and continuing effects.
And the stark facts of racial inequality in the US, as graphically charted by many, many scholars,
are clearly direct and indirect consequences of Southern racism in and before the 19th century and the continuing echoes of slavery,
the Jim Crow regime which replaced it, and a host of institutional arrangements, particularly in relation to residential segregation.
And of course, the continuing existence of racism, which persists not of course,
just in the U.S. but also in other countries, including this country, but also has very consequential implications.
The criminal justice outcomes have been thrown in the US into ever greater relief by Black Lives Matters,
Black Lives Matter by, you know, other features of the Trump era.
But of course, these things long predate the era of mass incarceration.
I think the interesting question for this paper is what we know. What precisely how is that history resonating?
And I think our arguments about the impacts of this local autonomy really in its impact on race disproportionality today,
really of race primarily via the arguments about how local democracy has produced segregation, particularly in the beginning.
Austria's cities of the Northeast and Midwest, along with a very, very entrenched educational disadvantage,
which is extremely difficult to escape because, of course, education is highly local.
So we argue that the centrifugal dynamics set up by local autonomy have driven demographic divisions within as well as between racial groups.
And they've given local black political leaders disincentives to combat segregation because
their power base tends to be based in highly segregated areas because the logic of elections.
So our sort of underlying argument is that once those sorts of divisions get mapped on to space,
the possibilities of reversal, notably through education, steadily diminish.
And these local institutional arrangements have often through zoning, which is a really very distinctive feature of American local power,
fostered this toxic spatial concentration of disadvantage and very, very brilliantly analysed, I think, in a very recent book by Jessica Greenstein.
But of course, that spatial concentration of disadvantage predated the great migration of the early 20th century, the northward migration.
And you'll notice, by the way, just to follow that you said that that the on these this this is work.
This is the second page, I believe, the first line of that table.
This is work by geographers showing. You can see that that residential segregation was really, really, really very high in the US.
And so our argument is that this long term structural difference helps to explain the fact
that although you have forms of quite toxic racism in the whole number of countries,
they have not seen quite the same scale of either build up of penalising or
explosion of violent crime in in the latest period of technological disruption,
technology, regime change. And really, the core argument is that in America's radically decentralised system,
it hasn't proved possible to frame and find consistent support for political strategist combat segregation.
And at various points, notably in the 1930s, racially motivated, racist federal policies, we have to say,
such as discriminatory rules about mortgage eligibility, make things significantly worse.
Hence, racial disadvantage has continued to accumulate and to radiate out from the criminal justice system,
producing highly in egalitarian social affairs,
the segregation, promoting dynamic of local politics that consolidated the problem of black and now also Hispanic disadvantage.
So while American localism can't be argued to have been motivated directly by racism,
it was shaped in a sense by racism because of its relationship to industrialisation and the two region solution.
So the long history of racism in the US was a key indirect driver of localism itself,
which today consolidates racial disadvantage because the persistence of segregation and racial
disadvantage in the North is indeed a consequence of the American path to industrialisation,
which simply left black Americans to their fate in the South.
And I've got more detail in that section, but I think I'm just going to race to the conclusion because I suspect,
yeah, 5 minutes and so is the when you just to sum up,
the upshot of all this is that the racial justice to which the civil rights movement aspired and still aspires remains,
alas, distant as social outcomes in education, crime,
punishment and housing all too clearly attest or argument in this paper has been that the decentralisation and fragmentation of power in the
American political system and the political sway which this gives to parochial self-interest is one important reason why that's the case,
and that this decentralisation has long historical and institutional roots, which depend as much on political economy as on.
The distinctive features of the US Constitution and conclusion it's perhaps worth pondering a counterfactual imagine,
if you will, a mid-19th century equivalent to President Trump who,
instead of prosecuting a civil war, decided that the solution was to build a wall between North and South so as to foreclose northward migration.
Well, of course, negotiating a trade deal featuring extensive tariffs.
Now, one way of thinking about the upshot. The argument is that if it's roughly right,
then the institutional structure of the northern political economy and criminal
justice system would have developed in quite similar ways to those they followed.
In America's natural history and inequalities in crime,
punishment and broader social indices like housing and education would nonetheless have eventuated even without that north and namely black migration.
And I think here the fate recently of Hispanics, Hispanic-Americans and migrants,
migrants with unequal access to forms of education and organisation needed to assimilate.
And as King's work has really shown, I think that integration in America, probably elsewhere, has always, in effect, meant assimilation.
So I think that the recent fate of Hispanics is is actually quite suggestive here.
So broadly political, economic reasons, the American project of nation state building, even of pacification,
has remained, and I think now will remain by the standards of other advanced economies,
with democratic political systems incomplete, as Ross puts it, as compared with its closest competitors,
the ironically named United States has suffered a failure to coalesce as a nation.
America's distinctive patterns of inequality and of racial inequality in particular,
are a tragic effect of America's distinctive and decentralised paths to modernity.