Some notes on the various ways we criminalize blackness.

Some notes on the various ways we criminalize blackness.

Although slavery was ostensibly abolished 155 years ago, it’s no real secret that white Americans have maintained their dominant group status in this country thanks to implicit and institutional biases and a monumental (and increasing) wealth gap, and, too, thanks to practices which turn institutions to overtly racist ends. The exemplum primi here is the US criminal justice system, which historically was and remains to this day deeply dysfunctional, if one believes its purpose is to administer real justice. Consider for example the origins of law enforcement: our modern policing system was built, as the writer Ijeoma Uluo notes, during the slavery era, right on the bones of night patrols and slave patrols, whose primary responsibility, often self-appointed, was to catch and return escaped slaves. In the south after Reconstruction, “local police sometimes joined in on the terrorizing of black communities that left thousands of black Americans dead,” Uluo writes in So You Want to Talk About Race. Local and state police were the primary enforcers of Jim Crow law from the late nineteenth century to the mid-1960s, and in the Civil Rights era of the 50s and 60s, they often broke up protests and marches with a horrifying brutality which echoes the tactics of oppressive regimes, turning dogs and high-powered hoses against peaceful marchers, in addition to just beating, kicking, and jailing many hundreds of them. Among the most demoralizing features of a country which claims to believe in progress and equity was the discovery, after the death of Michael Brown in Ferguson in 2014, that these tactics are still taught and deployed.

As Uluo notes, our police force “was created to police black Americans and serve white Americans.” Public opinion reflects her observation: a 2017 Gallup poll measuring confidence in police finds a full 61 percent of white Americans have confidence in police, while just 30 percent of black Americans do. The poll is also split ideologically – 69 percent of Republicans versus 44 percent of Democrats – and by age – just 44 percent of Americans aged 18-34, versus 54 percent of those aged 35-54 and 63 percent of those aged 55 and older.

Law enforcement’s unacknowledged history and bias have perpetuated injustice in a constellation of ways. People of color lose, for example, many more years of their lives to police violence than white people do. They’re also effectively excluded from shared public spaces thanks to the implicit discomfort of white people – who often make that discomfort explicit by calling 911 or the police. Black drivers are more likely to be stopped by police, arrested by police, and, once they’re entrapped in the criminal justice system, to be misclassified as a high risk for recidivism.

The most horrific example of institutional injustice is the continual slaughter of unarmed black men. These killings have galvanized a new civil rights movement most famously personified in the Black Lives Matter activists. The widespread imprisonment of young men of color is equally devastating, both to the young men who are imprisoned, at disproportionate rates and with much longer sentences, on average, than white convicts, and to the communities which are stripped of entire generations of sons, brothers, fathers, earners, and potential community leaders: such fractured communities tend to stay poor, for lots of reasons (predatory financing schemes and informal redlining practices, disinvestment in infrastructure and education, a myriad of health issues thanks to polluted air and poorly constructed housing, the violence and drug trafficking that’s often engendered by poverty and unemployment), not the least of which is the simple fact that so many young men, who should be earning money and circulating that income among local businesses, are sitting in prison. These communities are also much less likely to participate in the political process – police harassment functions as a kind of suppression tactic – which of course tends to just perpetuate the injustice they experience.

These practices are well-documented. If you’re interested in some introductory explanations of institutional injustice, take a look at the Netflix documentary 13th, which explores the US criminal justice system in some detail. Or take a look at the recent Explained Weekly episode on the racial wealth gap, also on Netflix. Or you can read Uluo’s book or a host of others.

A recent study on the sentencing practice of US judges sheds light into another aspect of institutional injustice: after analyzing the sentencing habits of 1,400 US judges over the past 15 years, Alma Cohen and Crystal S. Yang, two Harvard Law professors, found that Republican-appointed judges tack three extra months on to the sentences of black defendants, as compared to the sentences dished out by Democrat-appointed judges. Cohen and Yang also confirm an overall sentencing gap, finding that black defendants are sentenced to 4.8 months more than non-black defendants. More math follows: as the authors note, the Republican bias accounts for “approximately 65 percent of the baseline racial sentence gap.”

This is what institutional injustice looks like: It’s implicit bias empowered.

Cohen and Yang note that the sentencing gap is driven by “violent offenses and drug offenses” – no surprise, since the Republican Party professes, vehemently, to being the “law and order” party.

I’m not in the business of speculation, but I fear this sentencing gap will grow in the next few years, as President Trump continues to fill the courts at a rapid clip with conservative judges (most of whom are white men) and his attorney general, Jeff Sessions, continues to set an astonishingly regressive tone for his Department of Justice. This fear is shared by the study’s authors, who in fact go ahead and quantify the potential effects:

Our estimates suggest that a 10-percentage point increase in the share of Republican-appointed judges in each court would increase the racial sentencing gap by approximately five percent…During an average four-year term, a Republican president has the potential to alter the partisan composition of the district courts by over 15 percentage points, potentially increasing the racial and gender sentencing gap by 7.5 and three percent, respectively.

The US prison population – the highest in the world and including, again, disproportionate numbers of people of color – comprise the new slave class. Prisoners are often forced to perform manual labor under threat of punishment. Thanks to Obama-era policies, the US prison population – among the highest in the world – fell to just under 2.2 million, or 860 per 100,000, its lowest rate in two decades, according to the Bureau of Justice Statistics, but there are still roughly 700,000 prisoners engaging in labor, either for the government or in “correctional industries” which net hundreds of millions of dollars in profit. They work in manufacturing, in agriculture, in kitchens – sometimes they even function as firefighters. The vast majority perform “institutional maintenance,” as Beth Schwartzapfel reports for The American Prospect: “They mop cellblock floors, prepare and serve food in the dining hall, mow the lawns, file papers in the warden’s office, and launder millions of tons of uniforms and bed linens.”

Sometimes this labor is uncompensated, but more often prisoners make less than a dollar a day. These practices grew directly out of slavery, as Whitney Benns notes at the Atlantic: “The proliferation of prison labor camps grew during the Reconstruction era following the Civil War, a time when southern states established large prisons throughout the region that they quickly filled, primarily with black men.” Most of these men were arrested on false pretense or else for minor crimes. Prison labor camps grew alongside the practice of convict leasing, Benns continues, “where, for a leasing fee, the state would lease out the labor of incarcerated workers as hired crews.” Convict leasing, Benns notes, “was cheaper than slavery, since farm owners and companies did not have to worry at all about the health of their workers.” Together, prison labor camps and convict leasing helped Southern economies recoup some of the losses they incurred when slavery was abolished.

Prison labor is not just legal: it’s constitutional. Enshrined in the thirteenth amendment of the US Constitution are these words: “Neither slavery nor involuntary servitude, except as punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” In other words: convicts can be slaves.

The reportage on prison labor is vast and underpublicized and often horrifying. The standard justifications for the practice, that it prevents idleness and works a kind of rehabilitative magic on the incarcerated, is dubious thanks to the way the system is set up: because judges have consistently ruled that prison labor’s primary function is penal and rehabilitative rather than economic, prison laborers are not provided a fair wage or any of the protections a normal employee would have. Studies show that recidivism rates fall when people leave prison with job prospects and a little extra cash; however, most prison laborers make, as mentioned earlier, less than a dollar an hour, much of which goes to legal fees and purchasing critical hygiene items and, in some states, “room and board” costs. Plus the vast majority of inmates aren’t performing the type of labor that will lead to work once they’re out. It’s no wonder, when one considers all of the variables, that recidivism rates are so high – according to a 2016 report by the US Sentencing Commission, about half of federal inmates are re-arrested within eight years and a quarter re-incarcerated.

For more on the subject, take a look at the Marshall Project’s Prison Labor section, which contains a host of links to news and research.

header image: "in chains," marcela / flickr

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