Race and Justice in America
… a bird that stalks
down his narrow cage
can seldom see through
his bars of rage
his wings are clipped and
his feet are tied
so he opens his throat to sing.
The caged bird sings
with a fearful trill
of things unknown
but longed for still
and his tune is heard
on the distant hill
for the caged bird
sings of freedom.
– Maya Angelou, an extract from "Caged Bird"
(Protests at newly renamed Black Lives Matter Plaza)
America comprises less than 5% of the world's population yet maintains more than 25% of the world's criminals. Why is it, in the land of the free, that so many people are put behind bars? Since 1970, the American prison population has skyrocketed – increasing by over 700%.
Approximately 2.3 million individuals are currently being confined in American local, state, and federal prisons(Wagner & Wendy, 2020). Sadly this phenomenon disproportionately affects African American communities: the chances of being incarcerated as an African American male in the United States are around 32%, nearly five times the national average(Nellis, 2019).
With the recognition of the #BlackLivesMatter Movement in 2020, an election-year, calls for reforms within the criminal justice system have once again become a point of political contention. As the next administration takes office in January, tackling the flawed justice system will be a severe legislative concern.
Stemming from centuries of discrimination, humiliation, and violence, the African American pursuit of justice hinges on securing a fair and just legal system, but why is the American Criminal Justice system so flawed in the first place? This essay concludes that America's history of racial inequality created environments where discrimination and mass incarceration of predominately African American citizens was encouraged at the corporate and political level.
Mass incarceration in America was initially normalized under the original sin of slavery. Professor Philip Morgan, winner of the Bancroft Prize and a specialist of Early American history, characterizes Africans' enslavement in The New World as commercial in nature and highly profitable in practice (Morgan & Hamilton, 1999). Due to the economic boom that free labor brought, the institution of slavery was quickly embraced (and upheld) by white landowners who eagerly exploited this newfound avenue of wealth. Gradually, the dehumanization of slaves for economic purposes lead to a horrific social acceptance of racism and white racial superiority.
As history progressed to January 1st of 1863, President Lincoln would issue the emancipation proclamation, and, in 1865, the 13th amendment would be formally ratified by the United States Senate. "Neither slavery nor involuntary servitude ... shall exist within the United States." – so reads the 13th amendment, forever sealing America's stance against slavery within its very constitution. However, the quote above omits an important clause– the full excerpt of the 13th amendment reads: "Neither slavery nor involuntary servitude, *except as a punishment for crime whereof the party shall have been duly convicted,* shall exist within the United States." (13th Amendment to the U.S. Constitution) Through this provision, convicts were barred from the constitutional right to be free from involuntary servitude – slave labor was exchanged for convict labor. Quickly this loophole was discovered and capitalized upon, plantation owners turned to convicts as a main source of production, and, through convict-lease programs, were able to maintain racial and economic control (Forde & Bowman, 2020).
In a broader context, the Southern economy of the 1870s was in tatters. After losing a civil war and having the main component of their production system (slave labor) taken away, the Southern states were desperate to rebuild. No longer able to rely on African slaves, the South began to industrialize and reform its economy through extensive infrastructural initiatives. Still, to build this infrastructure, companies needed – as cheaply as could be acquired – enormous numbers of able-bodied workers to jump-start production. Conveniently, the convict lease program allowed private companies "borrow" teams of convicted criminals to do dehumanizing, back-breaking labor (Benns, 2015). Teams of men would be cheaply rented to construct coal mines, build railways, harvest timber, and re-plant cotton.
As the 13th amendment does not protect the "duly convicted" from "involuntary servitude," the South's convict lease programs shifted the burden of providing cheap labor off the backs of slaves and onto convicts. Sadly, it was often the same (black) communities that were being affected. To ensure that there would always be a continuous supply of convicts, white state legislators started to severely criminalize petty offenses designed to disproportionately affect black communities. By setting hefty fines on crimes like "loitering" and "vagrancy," states could force the black citizens, who were generally of lower economic status, back into chains(Oshinsky, 1997). As a result, black Americans were incarcerated in the thousands, fueling the growing convict-lease system. Reports of that time show that at least nine-tenths of all leased convicts were black(Forde & Bowman, 2020). This was America's first prison boom.
The American prison system of the 21st century still operates under a similar premise. Convicts are put to work for multi-billion-dollar companies like McDonalds or Verizon at cents an hour(Wendy, 2017). Inmate workers are not granted the status of an "employee" and therefore are not afforded the protections laid out by the Fair Labor Standard Act (FLSA). In the cases where convicts have sued in protest, courts have ruled that the relationship between a penitentiary and its inmate workers is not primarily economic in nature, thus severely limiting convicts' ability to secure fair wages through legal systems (Benns, 2015). Ultimately, because of the 13th amendment loophole, inmates simply lack the constitutional right to be free from forced servitude. As a result, private companies continue to have a direct financial incentive to increase the number of prison workers in the United States. By forming multi- corporation organizations like ALEC, companies can influence politicians into implementing harsher, lengthier sentencing laws (such as the "three-strikes" policy, mandatory minimums, or true sentencing) in an attempt to maintain the prison population (Elk & Sloan, 2015). By eliminating the need to pay decent wages to their workers, firms are profiting off the American Criminal Justice systems, creating a corporate interest in punishment, and establishing systematic ties between prisons and industries – the prison-industrial system.
Even as large corporations are economically incentivized to increase the U.S. prison population, politicians have also exploited the racial nature of mass incarceration for personal and political gains. Apart from allowing themselves to be lobbied into supporting unjustified sentencing laws, politicians have continuously used the racist stereotypes surrounding African Americans, which originate from long years of enslavement and humiliation, to drive forward their campaigns.
Even as slavery began as an economic concept, the dehumanization of slaves made it easier for American plantation owners to maintain control and justify exploitation. As a result, racism was slowly woven into the fabric of American society, particularly in the Southern States. Politicians, recognizing this, were quick to capitalize on the effects of racial pandering. However, not being able to claim white-racial- superiority directly, politicians began to implicate racial control by running on policies that would disproportionately benefit white communities, which would mainly appeal to conservative Southern communities (Foster & Rehner, 2011). The most notable instances in which this has happened was during Richard Nixon and Ronald Reagan's 1964 and 1980 presidential campaigns, respectively. Richard Nixon promised to be "Tough on Drugs," clean up America's streets and create more peaceful communities. However, this was all misleading political rhetoric. In the words of John Ehrlichman (Ehrlichman, 1994), Nixon's domestic policy advisor at the time, Nixon's real intent becomes apparent.
“We knew we couldn't make it illegal to be either against the (Vietnam) War or black, but by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after break up their meetings, and vilify them night after night on the evening news."
(Nixon seated with Ehrlichman)
Similarly, after observing Nixon's successful political rhetoric, Reagan also promised to be "Tough on Crime," continue Nixon's "War on Drugs," and uphold law and order in the country. Although the strategy was politically successful, Reagan's campaign manager Lee Atwater (Atwater, 1981) stated this in a 1981 interview:
"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, and you're getting so abstract. Now, you're talking about cutting taxes, and all these things you're talking about are totally economic things, and a byproduct of them is, blacks get hurt worse than whites....“
It can be seen that by vilifying specific communities, namely African American ones, political leaders were able to present a common enemy to the American public and unify the country against them. This strategy was immensely successful in Southern states, where the tendrils of racism were still rooted deeply into the fabric of society. By pursuing this "tough on crime" rhetoric and playing to the fears of the American public, both Reagan and Nixon were able to achieve personal political success, realigning the staunchly democratic South of the 1950s to win the presidency. However, this mass incarceration had immensely damaging effects: by the end of the Reagan presidency, over half a million people would be behind bars, cut away from families, ostracized and forgotten by mainstream society (Grawert et al., 2020).
As of 2020, there are nearly 2.3 million individuals trapped in the American Prison-Industrial Complex. However, incarceration rates have been on a downward trend since 2008, and, as the next administration takes office in 2021, compromises across the aisle are essential in creating policy to reform the over-burden Criminal Justice System of America.
Citations:
“13th Amendment to the U.S. Constitution: Abolition of Slavery.” National Archives and Records Administration, National Archives and Records Administration, www.archives.gov/historical-docs/13th-amendment.
Benns, Whitney. “American Slavery, Reinvented.” The Atlantic, Atlantic Media Company, 21 Sept. 2015, www.theatlantic.com/business/archive/2015/09/prison-labor-in-america/406177/.
Elk, Mike, and Bob Sloan. “The Hidden History of ALEC and Prison Labor.” The Nation, 29 June 2015, www.thenation.com/article/archive/hidden-history-alec-and-prison-labor/.
Forde, Kathy, and Bryan Bowman. “Exploiting Black Labor after the Abolition of Slavery.” The Conversation, 10 June 2020, theconversation.com/exploiting-black-labor-after-the-abolition-of-slavery-72482.
Forster, Michael D., and Tim Rehner. “The White Male Southern Democrat: Endangered Species or Already Extinct?” Race, Gender & Class, vol. 18, no. 3/4, 2011, pp. 230–237. JSTOR, www.jstor.org/stable/43496845. Accessed 29 Nov. 2020.
Grawert, Ames, et al. “The History of Mass Incarceration.” Brennan Center for Justice, 4 Nov. 2020, www.brennancenter.org/our-work/analysis-opinion/history-mass-incarceration.
Hamilton, Phillip, and Philip D. Morgan. International Social Science Review, vol. 74, no. 3/4, 1999, pp. 140–142. JSTOR, www.jstor.org/stable/41887010. Accessed 29 Nov. 2020.
Longley, Robert. “Was Convict Leasing Just Legalized Enslavement?” ThoughtCo, 2020, www.thoughtco.com/convict-leasing-4160457.
Nellis, Ashley. “The Color of Justice: Racial and Ethnic Disparity in State Prisons.” The Sentencing Project, 10 Jan. 2019, www.sentencingproject.org/publications/color-of-justice-racial-and-ethnic-disparity-in-state-prisons/.
Oshinsky, David M. "Worse than Slavery": Parchman Farm and the Ordeal of Jim Crow Justice. Free Press Paperbacks Published by Simon & Schuster, 1997.
Wagner, Peter, and Wendy Sawyer. “Mass Incarceration: The Whole Pie 2020.” Mass Incarceration: The Whole Pie 2020 | Prison Policy Initiative, 2020, www.prisonpolicy.org/reports/pie2020.html.
Wendy, Sawyer. “How Much Do Incarcerated People Earn in Each State?” Prison Policy Initiative, Apr. 2017, www.prisonpolicy.org/blog/2017/04/10/wages/.
