Inequality in the Criminal Justice System: A System of Racialized Social Control

Why Should I Care About Racial Social Inequality in the Criminal Justice System?

Race and racism are deeply entrenched in American society. To be more specific, systemic racism in America is a serious problem. Sadly, not everyone thinks its a problem. Others are more concerned about anti-white discrimination and problems that relate to the illegal immigration of people of color into the United States, which they associate with crime (pro tip: illegal immigration derives more from visa overstays than it does people running across desert borders – and the majority of those people arrive on airplanes; also, Americans commit more crime than immigrants). 

At any rate, this is not a topic that a lot of people feel comfortable talking about – even college students, in my experience, find it difficult to engage in conversations about social “structures” that they can’t see, as opposed to individual people and their decisions, which they feel they can see and have a better handle to grasp.

To be sure, social inequality in the criminal justice system might not be a problem that you believe affects you as an individual. But its a problem that ultimately affects everyone.

What is Mass Incarceration?

Mass incarceration has become so normalized in the American criminal justice system that unless you know someone who has been incarcerated, you probably don’t think much about it. Which is to say, it is not likely that you’ve paused long enough to think critically about how locking up so many people has become effectively normalized in the U.S., to the extent that it shapes almost everything about how you and many others perceive “what is a crime,”  “who is criminal,” “who is a citizen,” “who deserves rights,” and so on down the line.

What does it mean to think critically about corrections? The term “mass incarceration” only scratches the surface. On the one hand, prisons are structures, like warehouses. More to the point, as critics have pointed out, they constitute a massive system of social control that is highly racialized, given how it primarily incarcerates disproportionate numbers of people of color.

To engage in critical thinking on this topic, you must step outside of your personal beliefs and experiences. Instead, you must engage your powers of abstract reasoning – which is to say you must think in terms of structures and institutions and how they function – not just individuals alone, the decisions they make, and the crime they do. This includes understanding how different policies, practices, and social processes are bound up together and produce what we have traditionally come to think of as “prison.”

Mass incarceration refers to the process by which people are swept into the criminal justice system and branded criminals and felons; they are effectively removed from society. Put another way, mass incarceration occurs because of “mass arrests.” In the United States, we lock up more people for small crimes and for longer periods of time than most all of the other countries in the world who incarcerate people. The crimes of the wealthy and powerful are not treated the same way as the crimes of poor people – not even close.

Prison barge, New York City, 2018

The consequences of this unfair system of justice are far-reaching and profound. When we remove people from their communities, warehouse them, and later release them, we consign them to permanent second-class/”underclass” status. Often, they are stripped of basic civil and human rights, like the right to vote, the right to serve on juries, and the right to be free of legal discrimination in employment, housing, and access to public benefits.

Probation officers, who are trusted to monitor previous offenders, too often are incentivized to play “catch and release” games, which have the effect of recycling people right back into the system they came from.

British prison ship, circa 1700’s

This systematized activity calls into question the purpose of a system that aims to assert control over people from early ages so that virtually all aspects of their lives are put under scrutiny and surveillance, such that they are viewed as perpetual suspects for some kind of crime (Childress, 2014).

Check out the statistics that were recently published by the Organization for Economic Co-operation and Development (OECD). OECD is an intergovernmental economic organization with 38 member countries, founded in 1961 to stimulate economic progress and world trade.

The US has the highest incarceration rate out of any OECD country, as it clocks in at about 700 inmates per 100,000 residents (Glaze and Herberman, 2013; World Prison Population List). This rate is about five times the OECD average. Notably, the primary reason for this is the War on Drugs. What is not shown here is an additional statistic that also weighs heavily: the U.S. also has the largest population of formerly incarcerated people in the world.

But why does the OECD, an international organization focused on promoting international commerce, care about incarceration? Because incarceration policies interact with labor-force participation and commerce. High incarceration rates have likely contributed to the US’s decline in prime-age labor-force participation rates relative to other countries. According to a 2007 paper by Georgetown University’s Harry J. Holzer, even if there are not administrative and legal restrictions barring employment, employers are less likely to hire someone with a criminal record.

Obviously, putting someone in prison has an immediate impact on short-term labor force participation. But it also affects long-term labor force participation, due to the stigma of incarceration, which impacts the ongoing demand for the labor services among the formerly incarcerated. This appears as a lagging effect that goes on for years after they reenter society. 

And if that’s not enough, it is further likely that due to both employment discrimination and the degeneration of employment social networks, the formerly incarcerated face long-term employment difficulties as well as earnings losses.

A Sociological Perspective

Sociology is not only an intellectual discipline. It provides us with a conceptual “tool kit” that we can use to think about larger social issues, where they come from, and how we can connect them public policy and real-world solutions.

As it was briefly mentioned, it’s hard to get people to think beyond their immediate personal situation and to further think critically about how events and problems are structured within not only the criminal justice system but also the larger social system. To make sense of this, as well as out individual role in it, we need to take stock of the larger social context and the influence it exerts on us, including how wealth and power are distributed, and how this interacts with our cultural beliefs and practices.

In other words, you must use you “sociological imagination” to some degree – you can’t simply limit yourself to thinking about policing and incarceration in simplistic terms, where  the cops are simply engaged in a value-free “colorblind” endeavor to lock up the people who break the laws – the “bad people.” While some might do this, when we begin to study social patterns, it becomes obvious that there’s more to the story of what is happening here. This will open the door to a more enriched understanding of the social world. Even better, it helps us to become more informed knowing participants within it. 

One of the things that gets in the way that I explore in other posts on this website is the U.S. cultural emphasis on individualism. For more on this, refer to posts on The American Dream and From the War on Poverty to the War on Crime.

Americans are culturally indoctrinated to think about the world in terms of decisions that individuals make and nothing else. Crime is framed as a problem of “bad decisions made by bad people.” But thinking about crime in solely individualistic terms is not only a logical fallacy; its flat out dangerous for reasons that it precludes an understanding of larger systemic social forces that are at work.

Developing a more balanced understanding that incorporates a way to see how individual decisions may be impacted by larger social forces can add much needed nuance and complexity to the study of crime. Yet people remain entrenched in their simple beliefs and world views, which I suspect are just more satisfying in the long run – because they’d rather go with their “gut” instinct and the views that they were taught by their communities. They get to be “right”…or so they think.

If the focus remains fixed on the question of “What’s wrong with those people?” Then emphasis in crime solving will remain fixated on individual solutions that try to change people’s behavior, instead working toward solutions that resolve the social conditions that actually foster crime. 

In stating this, it should be made clear that this is not the same as saying there are no individual, psychological, or biological perspectives that contribute explanation to our understanding of crime. Far from it. A sociological perspective serves to help balance these approaches, because it helps us to look beyond individuals.

If one can  accept that social factors are implicated in crime, then the question we are left with is: how do we, as a society, mobilize solutions for problems with structural roots? This question is both essential and crucial for crime prevention.

If we were to look at the problems related to crime that impact local area residents, we would find that they are enormous: persistent poverty, drug use/abuse, and gun violence. Yet if we were to look into the statistics, we would find that average and middle class white folks use illicit drugs as much as any other group.  Note that when other people (non whites) do this it is considered a “moral failing” for which they should be severely punished (or left to die from overdose). Yet when they do it, it’s considered a “health crisis” that calls for sympathy and attention.

Let’s look at another example. Blacks involved in shootings or gang violence are singled out for attention and sanction, even though most of the guns (and most of the high-profile shootings) are claimed by white people. In the case of the latter, incidents of mass shootings combined with gun suicides (statistically the biggest killer) are perpetrated overwhelmingly by whites as compared to other groups. Politicians, however, remain overwhelmingly focused on “inner-city” crime, gangs, and guns, and ignore the larger problem as it relates to guns. Venture a guess why? What are we to make of these contradictions?

Absent a  sociological analysis, many of us will never realize the different ways we too are participating in systems of oppression that produce consequences in other people’s lives, despite the fact that we may not have conscious intent when we do so.

A person may not feel like they are a racist, because they don’t speak or act like a racist. They may even go so far as to profess a hatred for racism. Despite this, if they vote for social policies that help organize society in racist ways, where privileges for some are achieved by subjugating others, then that person is participating in systemic racism. 

The Carceral State

The term “carceral state,” as a concept, is one that might also be used to understand racial, social, political, and economic relations in the United States. It can help us to think about the control dynamics of prisons and how they have come to exist within our current nation-state system. Think about the “carceral state” as a state built on the model of a prison.

In this conceptual model, the nation-state itself is understood to operate like/exist like a prison; it polices physical boundaries in order to gain control of the distribution of people across urban and suburban space.

According to this model, public space is not neutral ground. Rather, urban public space has become transformed into defendable space. That space features the installation of walls, gates, fences, surveillance cameras, and security checkpoints. It is a space where people are continuously monitored, actively as well as passively. Under this model, police are often equipped and act like military soldiers, only the targets are U.S. citizens.

Consequently, we have events today taking place across the country today which are virtually identical to the historic riots that took place in Chicago, Harlem, Detroit, Newark, and Los Angeles – for the same reasons. Despite this, people still question why people are rioting. They overlook the fact that policing in many places continues to look and act like a military occupying force, especially in communities of color. The murder of George Floyd in Minneapolis in 2020 is only the most recent event to shine a light on what we keep getting wrong.

Is Prison Slavery?

To call prison “slavery” doesn’t require a stretch of the imagination. Nevertheless, because the problem of mass incarceration is both enormous and far beyond the individual experiences of many people in society, there is a tendency to oversimplify. For example, people believe and say things like: if you commit a crime you have to deal with the consequences/do the time. If people would simply stop committing crimes the prisons wouldn’t be filled. Or, to put it in the words of one PSU student: 

“Prison is for the world to feel safe. Prison is the place where criminals go when they commit a crime.” – PSU student

This is an example of overly simplified non-critical thinking. Alternatively, when we start to think about prison as not merely a place where we warehouse lawbreakers, but rather as a structural system of social control, this is where things start to get interesting. In making this conceptual shift, you’ll begin to get a better understanding of what prisons are, how they function, and how they are essentially “made” in our contemporary moment.

Slavery in the U.S. context was, among other things, a system of racialized social control that was predicated on the notion of providing free labor for wealthy white landowners, who were, for the most part, located in the American South.

When you look at the maps below, look at the patterns of slave ownership mapped onto land and how they correspond to our current system of incarceration. What do you see? If mass incarceration were a simple function of bad people doing bad things, you wouldn’t see the spatial geographic patterns reflected as shown here. 

Just about every entry-level criminal justice textbook talks about the history of the founding of police forces in the United States. While the London metropolitan police forces of Sir Robert Peel certainly helped serve as a model for many U.S. cities, including Boston and New York, those textbooks tend to overlook another far less benign influence that was exerted on American policing by the former “Slave patrols” of the American South.

Although first established in South Carolina in 1704, the idea spread throughout the colonies. Slave patrols came about from a combination of colonial and/or state government legislation. They consisted of mostly white citizens and, in some southern states, the militia and army provided the manpower that served as slave patrols. These people were specifically hired to enforce discipline upon black slaves in the antebellum southern states. 

In addition to being white, most people who worked with the slave patrols came from working and middle-class conditions. Slave patrols typically rode on horseback in groups of four or five and sometimes even in family groups. Patrollers were often equipped with guns and whips. They worked from sun-up to sun-down and varied their times as well as locations of patrol in order to reduce the chances of slaves escaping.

The purpose of slave patrols was to intimidate and police the behavior of slaves and former slaves, where the primary aim was to “catch” the runaways and defiant slaves.  Initially, slave patrollers focused on breaking up slave meetings, mostly on holidays, when slaves would gather together to plot their escape. Eventually, patrols expanded to be year-round, not just on holidays. Slowly, new duties and rights of patrollers were permitted, including: “apprehending runaways, monitoring the rigid pass requirements for blacks traversing the countryside, breaking up large gatherings and assemblies of blacks, visiting and searching slave quarters randomly, inflicting impromptu punishments, and as occasion arose, suppressing insurrections” (Hadden, 2001).

Despite all of this, blacks developed effective methods of challenging slave patrolling, occasionally fighting back violently. The American Civil War itself would later create opportunities for resistance against slave patrols because the war made it easier for enslaved people to escape.

Even though slavery and patrols were legally ended, the patrol system still survived. Almost immediately in the aftermath of the war, informal patrols sprang into action. Later, city and rural police squads, along with the help of Union army officers, revived patrolling practices among free men.

During the post-Civil War Reconstruction period of 1865–1877, old-style patrol methods resurfaced and were enforced by postwar Southern police officers and also by organizations such as the Ku Klux Klan (Hadden, 2001).

Do African Americans Suffer From Systemic Discrimination?

Michelle Alexander’s work among others demands that we move beyond the confines of personal experience to think critically, deliberately, and methodically about the roots of mass incarceration, race, crime, and discrimination in American society. She traces a thread that goes all the way back to the Civil War and in the process illustrates how we have arrived at a point today, where there are more black men behind bars or under the control of the criminal justice system than there were enslaved in 1850.

Certainly, some might argue “slavery is over” or “Jim Crow laws were wiped off the books decades ago.” Nonetheless, there is an extraordinarily large percentage of African Americans in the United States who are being warehoused in community jails and prisons.  As prisoners, many find they are trapped in a parallel social universe, where they are denied basic civil/human rights, chief among them the right to vote. Similarly, even if they manage to escape confinement, they face a life of discrimination when it comes to employment, housing, access to education and eligibility for public benefits like student loans.

As Alexander argues in her 2010 book, “The New Jim Crow: Mass Incarceration in the Age of Colorblindness,” that it remains legal to discriminate against convicted criminals in nearly all the ways in which it was once legal to discriminate against African Americans. Once labeled a felon, even for a minor drug crime, the old forms of discrimination are suddenly legal again. In her words, “we have not ended racial caste in America; we have merely redesigned it.”

Alexander shows that, by targeting black men through the War on Drugs and decimating communities of color, the U.S. criminal justice system functions as a contemporary system of racial control, even as it formally adheres to the principle of colorblindness.

Why Are So Many People Incarcerated?

For a long period of time in the United States, about 100 of 100,000 people, on average, were incarcerated. That rate remained constant up until into the early 1970s. After this time, there was a dramatic increase in incarceration rates in the United States – a near 600% increase over rates demonstrated from the mid-1960s until the year 2000. Paradoxically, the research shows that incarceration rates increased even as crime rates decreased. During this time, the number of African American men who are behind bars has increased, mainly due to a single law enforcement policy.

“Most of that increase,” Alexander argues, “is due to the War on Drugs, a war waged almost exclusively in poor communities of color.” That crime-fighting measure “is a big part of the reason that a black child born today is less likely to be raised by both parents than a black child born during slavery” (Alexander, 2010).

U.S. Rate of Incarceration, Eastern Penitentiary, Philadelphia, Pa (photo credit: S. Trappen)

Where Are They Incarcerated?

State policy, more than federal policy, drives the current rate of mass incarceration. Additionally, federal mandatory minimum sentencing guidelines further add gasoline onto a fire that fuels the process.

The War on Drugs was declared in the 1970’s by President Richard Nixon, who ironically was himself a reformer until his re-election poll numbers started to plummet. The “War,” as such, has been carried out and increased under every president since Nixon. Who does this war target? For the most part, it targets nonviolent drug offenders.

Ironically, at the time that the war on drugs was declared, drug crime was not on the rise. Furthermore, even though President Nixon was the first to coin the term a “War on Drugs.” Later, it was President Ronald Reagan who turned that rhetorical war into a literal one (Childress, 2014).

The Law & Order Movement (reblog from Childress)

Our system of mass incarceration can be traced back to the law-and-order movement that began in the 1950s and continued throughout the 1960s. Keep in mind now that the 1960s was a time when violent crime in America increased. Before that time, federal government-level initiatives had not achieved any substantive widespread impact. Crime was thought to be a matter better handled by the states.

During the 60’s, segregationists like George Wallace started to worry there was going to be no way to stem the tide of public opinion that was increasingly registering opposition to the system of segregation. In light of this, they started labeling people engaged in nonviolent civil disobedience and public protest as criminals and lawbreakers. They warned that people who violated segregation laws were engaging in reckless behavior that threatened the social order. To this end, they demanded an immediate crackdown on these “lawbreakers” and civil rights protesters. “Y’all know about law and order,” one Wallace supporter said. “It’s spelled n-i-g-g-e-r-s.”

Note that it was the 1968 election, where Wallace effectively split the Democratic vote against Hubert Humphrey, allowing Republican nominee Richard Nixon to win the presidency despite carrying only 43% of the popular vote.

Former activist and later Georgia Representative John Lewis crossing the Edmund Pettus bridge between Selma and Montgomery Alabama, in the 1960’s 

This rhetoric of law and order evolved as time went on, even though the old Jim Crow system fell and segregation was officially declared unconstitutional. Segregationists used the get-tough rhetoric as a way to appeal to poor and working-class whites in particular, who were resentful of and fearful of what they interpreted were “gangs” of African Americans stirring trouble in the civil rights movement.

At the apex of this movement, White voters were concerned about what they saw as the familiar social order coming under attack. Conservative politicians strategized to come up with a way to tap into these voters’ fears without appearing to talk about race.  Talking about “Law and order” was determined to be an effective strategy for reaching suburban white voters. Best of all, it precluded saying the ugly part out loud. This was a seen as a necessary development , considering how it was no longer socially permissible for polite White people to say they opposed equal rights for Blacks. Instead, they complained about “the urban uprisings” (today’s equivalent is “Crime in Chicago”).

Pollsters and political strategists found that thinly veiled promises to get tough on “them,” a group easily recognizable by their race, were enormously successful in persuading poor and working-class whites in the South to defect from the Democratic New Deal coalition and join the ranks of the Republican Party, which they did in droves.

Unfortunately, this backlash against the civil rights movement occurred at precisely the same moment that
there was economic collapse in communities of color in many inner-city locations across America.

Note (image above) how the 1984 Sentencing Reform Act, which led Congress to enact mandatory minimum sentence guidelines for certain crimes, drastically increased punishments for repeat offenders and fueled the upward climb of the number of people behind bars.

Later in the 1980’s, Lee Atwater took the strategy even further, while working as an advisor to Ronald Reagan. Reagan aimed to consolidate political power by continuing with a revised version of Nixon’s Southern Strategy. The original Southern strategy required converting of conservative Southern Democrats, who harbored racial antipathy, to become members of the Republican party. While Nixon’s strategy was focused on the South, Reagan’s reboot was intended to be more broadly successful in areas outside the South (i.e. Pittsburgh); places where people might identify themselves as  Wallace voters who could be “Reagan Democrats.”

It was during this time that Atwater gave an anonymous (and now famous) interview to political scientist Alexander P. Lamis. On November 13, 2012, The Nation magazine released a 42-minute audio recording of the interview about how the strategy was intended to work:

Questioner: But the fact is, isn’t it, that Reagan does get to the Wallace voter and to the racist side of the Wallace voter by doing away with legal services, by cutting down on food stamps?

Atwater: Y’all don’t quote me on this. You start out in 1954 by saying, “Nigger, nigger, nigger”. By 1968 you can’t say “nigger”—that hurts you. Backfires. So you say stuff like forced busing, states rights, and all that stuff. You’re getting so abstract now [that] you’re talking about cutting taxes, and all these things you’re talking about are totally economic things and a byproduct of them is [that] blacks get hurt worse than whites. And subconsciously maybe that is part of it. I’m not saying that. But I’m saying that if it is getting that abstract, and that coded, that we are doing away with the racial problem one way or the other. You follow me—because obviously sitting around saying, “We want to cut this”, is much more abstract than even the busing thing, and a hell of a lot more abstract than “Nigger, nigger”.

Atwater thus advised Reagan that he no longer needed to make overt racial appeals. He suggested more “colorblind” subtle language that was less obviously racist.

To make things a bit more complicated, Harvard scholar, Elizabeth Hinton, challenges the belief that America’s prison problem simply originated with the Reagan administration’s War on Drugs. Hinton leans toward an understanding there may be bipartisan Federal roots for mass incarceration in the United States.

Kennedy & Johnson

In order to understand what went wrong, she argues that we have to go further back to the administrations of Johnson and Kennedy to learn about early programs: the era of liberal reform and the social welfare programs of Lyndon Johnson’s Great Society, that declared a “War on Poverty.” 

Before you lapse into thinking “Of course, welfare programs are a waste of money and they make people lazy/criminal” you should note that this is not Hinton’s position. She’s making a far more nuanced argument than is typically refracted through the lens of partisan politics by directing us to follow policy and law changes over time. The seeming need people have, which is to reduce understanding of important issues to mere partisan politics (left vs. right or liberal vs. conservative) gets in the way of attaining a full understanding of what went wrong and what continues to go wrong; consequently, this makes it difficult to fix the problems and achieve any sort of progress.

Hinton is not saying that social welfare programs and poor people themselves are the cause of poverty and mass incarceration. Nor is she reducing what are massive social problems to a technical debate over a narrow set of economic issues. The story she is telling is more complicated.

Hinton says that the expansion of the welfare state under Johnson coincided with a new era of law enforcement. The social welfare programs that Johnson intended to use to fight future poverty – the “War on Poverty” – was combined with a “War on Crime” – surveillance and policing patrol programs designed to deal with the immediate effects of racial social inequality (they conveyed the added benefit of monitoring future criminals). Unfortunately, the War on Poverty lost its momentum as Johnson was forced to divert funds to another war – the War in Vietnam.

Put another way, the War on Poverty was never fully realized, but the policing and crime control approach that characterized the War on Crime became deeply entrenched and led to the “War on Drugs” in the years that followed. These “Wars” constituted a major job creation program for policing and corrections that continues to this day. Social problems and inequities, however, continued unchecked. Individual people alone were blamed for their own problems.

When Work Disappeared

In an excellent book by William Julius Wilson, entitled When Work Disappears, the author describes how in the ’60s and the ’70s, work literally vanished in many communities. Hundreds of thousands of black people, especially black men, suddenly found themselves jobless (Childress, 2014)

His main argument is that job-flight (or what others have called “economic structural adjustment” and “deindustrialization“) produces a culture of poverty as an adaptive response to work disappearing. Once economic factors set everything into motion, this culture then takes on a life of its own and becomes self-sustaining, creating more deeply entrenched poverty.

In other words, where previously we would identify the economic factors to be the independent variable associated with poverty, once the culture of poverty became entrenched, “culture” became an independent variable on its own. Most people only look at the tail end of this process. They blame individual people for their problems, which they attribute to bad culture, as they fail to recognize that failed economic systems are the original root cause. 

Consequently, as factories closed and jobs were shipped overseas, deindustrialization and globalization led to depression and a “culture of poverty” in many communities, especially those in urban areas. Nationwide, crime rates began to rise. And as they rose, the backlash against the civil rights movement reached a fever pitch. The get-tough movement exploded into a zeal for incarceration, and a war on drugs was declared (Childress, 2014).

Isn’t Increased Incarceration the Result of Increased Crime? (reblog Childress)

Many people imagine that our explosion in incarceration was simply driven by crime and crime rates, but that’s just not true. That is sheer myth, although there was a spike in crime rates in the 1960s and 1970s.

During the period of time that our prison population quintupled, crime rates fluctuated….[such that] today, as bad as crime rates are in some parts of the country, crime rates nationally are at historical lows, but incarceration rates have historically soared.

In fact, most criminologists and sociologists today will acknowledge that crime rates and incarceration rates in the United States have moved independently [of] each other. Incarceration rates, especially black incarceration rates, have soared regardless of whether crime is going up or down in any given community or the nation as a whole

Surprisingly, the United States actually has a crime rate that is lower than the international norm, yet our incarceration rate is six to 10 times higher than other countries’ around the world.

Crack is Wack (reblog Childress)

Many people assumed that the war on drugs was declared in response to the emergence of crack cocaine and the related violence, but that’s not true. The drug war had already been declared, but the emergence of crack cocaine in inner-city communities actually provided the Reagan administration precisely the fuel they needed to build greater public support for the war they had already declared.

So the Reagan administration actually launched a media campaign to publicize the crack epidemic in inner-city communities, hiring staff whose job it was to publicize inner-city crack babies, crack dealers or so-called crack whores and crack-related violence, in an effort to boost public support for this war they had already declared [and to inspire] Congress to devote millions more dollars to waging it.

The plan worked like a charm. Millions more dollars flowed to law enforcement. There was a militarization of law enforcement of the drug war as the Pentagon began giving tanks and military equipment to local law enforcement to wage this war. And Congress began giving harsh mandatory minimum sentences for minor drug offenses, sentences harsher than murderers receive, more than [other] Western democracies.

#MeToo Democrats Get Tough on Crime (reblog Childress)

Soon Democrats began competing with Republicans to prove they could be even tougher on them than their
Republican counterparts, and so it was President Bill Clinton who actually escalated the drug war far beyond
what his Republican predecessors even dreamed possible.

It was the Clinton administration that supported many of the laws and practices that now serve millions into a
permanent underclass, for example. It was the Clinton administration that supported federal legislation denying
financial aid to college students who had once been caught with drugs. It was the Clinton administration that
passed laws discriminating against people with criminal records, making it nearly impossible for them to have
access to public housing. And it was the Clinton administration that championed a federal law denying even food
stamps, food support to people convicted of drug felonies.

So we see, in the height of the war on drugs, a Democratic administration desperate to prove they could be as
tough as their Republican counterparts and helping to give birth to this penal system that would leave millions
of people, overwhelmingly people of color, permanently locked up or locked out.

Who Pays For & Who Benefits From Mass Incarceration?

Mass incarceration costs a lot of money. Instead of paying for college, roads, and other things that benefit the public, we are paying enormous sums of money to keep people locked in cages. The cost of imprisonment — including who benefits and who pays — is a major part of the national discussion around criminal justice policy. Yet it is important to distinguish here that prisons and jails constitute one piece of the puzzle that is the criminal justice system.

Infographic from the Prison Policy Initiative

From Slave Patrols to Ferguson

In the case of Ferguson, most of the police there were engaged in targeting the behavior of the town’s people because operating revenue had been cut at the state level for municipalities (tax cuts = no revenue). Given that there were limits placed on the amount of revenue that could be generated by property taxes, the Ferguson police department had to figure out another way to produce revenue for itself. As a result, the cash-starved municipality relied on its cops and courts to extract millions of dollars in fines and fees from its poorest residents, issuing thousands of citations each year. They penalized the smallest infractions and targeted the least powerful citizens because 1) the town was flat busted broke and 2) it was the easiest thing to do (raising taxes is far harder and plenty of voters won’t let you do it). Put another way, the Ferguson police were “catching” poor blacks to help pay for their for their own operating expenses. Now think about the towns that you know. Do you think that happens there?

The systematic effort to target poor black people led to the deteriorated state of affairs in Ferguson, which led to the killing of Michael Brown, and set off public rioting. (whereupon people castigated the rioters). The police harassment intended to enhance revenue led to the death of a young person, who was executed for the crime of public disobedience. And as morally repugnant as all of this is, don’t forget there are “many Fergusons” in the United States.

Now that you have shifted your thought process to begin thinking structurally about prisons and police and, furthermore, now that you have been given some background in some important history, is there anything that has shifted in your thinking? Do you still find it is hard to think critically about the role of police violence in the the justice system and the way it systematically targets black people, even though experts agree this has become a defining aspect of policing in our contemporary political moment?

Clearly, the violence perpetrated by slave patrols is of a different era. But do you not see any points of resonance with how contemporary police forces, who may on one level working to reduce crime in black communities, are still a root cause of the problem?

The outcomes in Ferguson are the direct result of social inequalities in the town, further exacerbated by the unequal application of the law and unequal police policies and practices. This is what you get when a town becomes so revenue starved that they provide a monetary incentive for police to arrest poor black people; you get fines, bench warrants, and imprisonment for the poor and powerless. You get statistics that feed into the current imbalances that characterize the criminal justice system.

Does Locking People Up for Drugs Work?

In a word – no. After almost 50 years of waging war, drugs are cheaper and more readily available than ever. Yet in spite of the enormous expenditure and evidence of the policy failure, you will be hard pressed to find a politician that doesn’t advocate for defending the war on drugs and, in some cases, continuing to escalate [former President Trump proposed executing people for drug offenses].

John Ehrlichman, Nixon’s former domestic-policy adviser (who went to prison for his role in the Watergate affair) once  admitted to the journalist Dan Baum that Nixon’s criminalization of the Black community was a nakedly political tactic. “By getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities,” Ehrlichman said in 2016. “We could arrest their leaders, raid their homes, break up their meetings and vilify them night after night on the evening news.” And the rest is history.

All of the research (and let’s face it, our eye balls confirm it too) arresting people simply doesn’t work. Alternatively, there is substantial evidence  to demonstrate that money spent on drug rehabilitation programs is effective. Likewise, by strengthening employment markets and increasing pay and wages for the poor, we can help mitigate the despair and despondency that often underlies drug abuse and addiction, as many people have essentially “given up” and shifted to placating their misery with drugs and alcohol.

“Law & Order” and the Trump Administration

Contemporary examples of politicians who use the “law and order” rhetoric coined in the previous era aren’t exactly in short supply these days. Trump’s speeches and Tweets document heavy use of the language employed by Goldwater and Nixon before him, as he has deftly woven the themes of “lawlessness,” “BLM” and race together to make claims that black people protesting and black criminality are cut from the same cloth. In one example, without ever making explicit reference to Blacks and the Black community, Trump Tweeted “America’s Suburbs will be OVERRUN with Low Income Projects, Anarchists, Agitators, Looters and, of course, ‘Friendly Protesters.’”

The former President has become notorious for the use of racist “dog whistles,” has failed to denounce white supremacy, even referring to white supremacists as “good people,” and has sometimes been explicitly and unapologetically racist, such as when he referred to Mexicans as rapists.

To be sure, Trump didn’t create racist politics in the United States. However, he has contributed to heightening divisions and tensions around race, to the extent that contemporary U.S. politics has become saturated in hate speech that will linger for years after he exits the center stage of politics. 

What is the Solution?

As we have seen here, the history of policing in the United States has been organized, that is, “structured” to produce the results we see before us. Nothing has changed fundamentally in that structure, which is producing what it was designed to produce.

Over and over, government commissions as well as other expert panels convened in cities and states across the country have examined mass incarceration, police brutality, and racial profiling; all of them have arrived at the same conclusion: in order to fix the problems associated with the criminal justice system and mass incarceration, we must simultaneously address the poverty and systemic racism that go hand in hand with policing communities of color. Progress is essential yet it remains slow and uneven.

Many have suggested a renewed focus on police professionalization, which includes additional training on implicit bias, mindfulness, de-escalation, and crisis intervention.  Further redouble efforts to diversify police departments and correction facilities management.  Likewise, adopt more rigorous use-of-force standards as well as standards for the use of body cameras, enhanced by added measures to foster police-community dialogues. Finally, implement enhanced early-warning systems to identify problem officers and expressly prohibit the “recycling/re-hiring” of problem officers. Sounds good right? The problem, unfortunately, is that all of these programs were in place in Minneapolis before George Floyd was killed. None of it worked.

This is why activists are increasingly calling for a top to bottom overhaul of policing organizations. We can’t simply intellectualize the problem and write up official findings and reports that are never implemented. Calls to divest funds from the police and direct them to other organizations better suited to address community social problems would eliminate the current one-size-fits all approach to combating social problems. As part of this process, there should be a recognition of the economic structural roots of many problems, accompanied by decriminalization and  reinvestment in communities of color. Additionally, you could incentivize the police to solve actual crimes, which could potentially result in the police actually accomplishing what we all hope for them to do: to serve and protect the interests of all citizens. For more on this, see Alex Vitale.

One of the major roadblocks to finding and implementing solutions to structural problems is one of recognition. For if you go so far as to recognize that structures are among the root of causes of social problems and crimes, then at some point have to allocate public money to fix/change those structures. Those structures are not only inclusive of police forces; they include judges, probation officers, Mayors. as well as County Executives. Opposition occurs naturally, because there are many people who are invested in the current structure staying the way it is (because they and others like them benefit from this arrangement). This needs to change.

Finally, it is only by taking a comprehensive look at history of racism in policing and incarceration that we can better understand why it’s not only  reform that is necessary, but a full transformation of the criminal justice system, which includes a substantial re-allocating of public resources. Nothing short of this will suffice. The problems discussed here are vast but they are fully known to anyone who has been paying attention. The solutions are also not a secret. What is required now is the political will to act. It is long past the time to do this.

Sources:

“Michele Alexander: A System of Racial and Social Control,” by Sarah Childress, 2014

Slave Patrols: Law and Violence in Virginia and the Carolinas. Harvard University Press, by Hadden, Sally E. (2001).

Learn More:

Here are some texts you can refer to in order to learn more on some of the subjects discussed here:

“The New Jim Crow: Mass Incarceration in the Age of Colorblindness,” by Michelle Alexander (2010).

“When Work Disappears: The World of the New Urban Poor,”  by William Julius Wilson (1996).

Discussion Questions:

Do you think that prison is a modern day form of slavery?

What do you see in policing that has changed from the past? What appears to be the same?

Do you think current problems with regard to mass incarceration, police racism, and police violence are different from the previous times in our history? If so, how so?

Do you think we have to choose between “law and order” and racial justice in America? Can we achieve both or are they necessarily opposed? 

What does this history contribute to our understanding of contemporary problems with regard to the use of force and violence in the modern police force?

What do you think about the concept of “profit” as it applies to prison? Should private companies be able to profit from locking people up in prison? 

Note: if your answer is yes to this, please explain what you think happens when they can’t fill the prisons with the typical sorts of criminals (violent, theft, drug dealing and using). Who will be next? Because the profit model demands (by contract) that the prisons stay full. Are you okay with creating a mechanism that operates to keep prisons full rather than working to find ways to reform criminals and empty prisons? Does this make moral sense? Does this make financial sense, considering that it costs more to keep someone in prison than it does to send them to college (or any training program)?

What does it mean to live in a democracy, where there are large financial incentives to lock people up? Who do you think will be the natural targets of such a system? What social groups do think might be structurally positioned to escape it?