On Racism and Criminal Justice

While pursuing my political science degree, I took an online summer course titled "Culture, Ideology, and Prisons". The final paper was a summation of the material and my thoughts on incarceration and the viability of its continuation. Although this essay is nearing two years old now, it remains tragically current and likely stands to remain so for the foreseeable future. I apologize for not including a list of references for the included citations., but I have no idea what I did with it. If it ever turns up, I'll be sure to add it. (If anyone specifically wants that information, I could make some time to reconstruct it.) I present the work in its original form, despite my impulse to make edits for readability.

In western culture, the American justice system is a beast all its own, from arbitrarily long sentences for seemingly trivial crimes to the continued use of capital punishment. Although the system is unique, its history is rooted in a system brought to the shores of North America by Dutch and English settlers, although the past centuries ultimately led to a divergence in prerogative, as Europeans entered into a reform movement just as the United States was denouncing colonial rule by Great Britain. While this disassociation contributed to the means and general intent of incarceration, the use of prisons for racial oppression and social control stand among industrialized nations as a uniquely American tradition.

Imprisonment as a form of punishment is one of the newer ideas out there. As discussed by Edward Peters in “Prison Before the Prison”, ancient criminal justice systems were based on symmetrical retribution, with death and exile being common sentences. Public humiliation, property forfeiture, and forced servitude were also common, but structured systems of incarceration were not prevalent until the twelfth century in Europe as an alternative to the harsher punishments. These systems would increasingly normalize as the centuries passed and the ancient methods faded into obscurity.

The natural progression continued in England in the eighteenth century, as disease outbreaks prompted improvements in the living conditions for prisoners, if only to protect the general public from the diseases they could be carrying. These actions were precursors to the work of Nonconformists like John Howard, who sought to recreate the prisons as institutions of moral reform through hard labor and reflection in solitary confinement. Howard was dedicated to inspecting prison conditions and his work was pivotal to this reform, but his efforts to improve conditions and eliminate systemic corruption were not received in the American colonies, as they were in the midst of a war for independence from Howard’s native Great Britain (Ignatieff).

The changes in the punitive systems at this time were centered on cultural reprioritization. According to Michel Foucault, “We no longer want to cause the criminal pain; we want to train him; we want to reeducate his ‘spirit’.” This shift embodied a dramatic change in the organization of authority, from the demonstrative brutality of absolute monarchy to the reformation by an enlightened society. In “Prison Talk”, Foucalt implies the influence of convenience in this change, as “it was more efficient and profitable in terms of the economy of power to place people under surveillance than to subject them to some exemplary penalty.” (pg. 38) The greatest change identified by Foucalt is in the ultimate intent of a structured prison system, devolving from an institution for reform to a pipeline for cheap labor (pg. 40).

This shift features prominently in Michelle Alexander’s racial caste system in The New Jim Crow, as it is the underlying functionality that allows for de facto enslavement of black Americans after the Civil War and the ratification of the Thirteenth Amendment to the U. S. Constitution. This was the original Jim Crow era, fueled by foolish white supremacist notions and enforced through “black codes”. Alexander references W. E. B. Du Bois, who wrote, “The codes spoke for themselves … No open-minded student can read them without being convinced they meant nothing more nor less than slavery in daily toil.” (pg. 28) The era fueled the rise of the myth of the dangerous “criminal black man” which persists today and is evident in the approach of law enforcement in direct interactions. This system of racial oppression remained in place until the passage of the Civil Rights Act in 1964, but the inauguration of Richard Nixon in 1969 brought his war on drugs

While the Nixon administration started the war with the criminalization of marijuana with the express intent of incarcerating hippies and African Americans, the effect on the prison population was miniscule in comparison to Ronald Reagan’s presidency from 1981-89 with the overly publicized threat from crack cocaine and the subsequent sentencing requirements. As crack is predominantly associated with black communities, a strict 100-1 sentencing ratio compared to powder cocaine popular with affluent whites combined with selective enforcement of impoverished areas where residents lacked the means for legal defense drove a massive increase in U. S. prison population that was and still remains disproportionately black and Hispanic. While this may seem unfair and blatantly illegal, the Supreme Court has repeatedly protected law enforcement agencies in their practices, from “consent searches” conducted after arbitrary traffic stops to racially biased charging practices by prosecutors. Because plaintiffs were unable to explicitly prove they were the direct victims of prejudicial actions, their cases were ruled to not be subject to the Fourteenth Amendment’s equal protection clause.

While this method of initial imprisonment is problematic enough, the hypothetical branding of felons severely limits the ability of formerly incarcerated individuals to sustain themselves, thus promoting a culture of recidivism. Legalized discrimination is a Mount Everest standing between them and finding work, obtaining housing, and applying for aid programs. Even under the most favorable of circumstances, service fees pursuant to the terms of release can render an individual unable to pay any other bills, even leading some to intentionally seek reincarceration. While this cycle of poverty and imprisonment generally affects all of the formerly incarcerated, given that this population is disproportionately black, the system serves as a means of racial oppression much like that described by Noam Chomsky in “Drug Policy as Social Control”, with one in three black males and only one in seventeen white males being the “superfluous people” who will go to prison at some point in their life.

This system of legal racial oppression has been instituted against Native Americans, as Luana Ross discusses in Inventing the Savage with a similar historical arc of demonization and segregation meant to permanently cement them as second-class citizens. As with blacks, Native Americans are still contained predominantly within their own communities—although many tribes hold some semblance of sovereignty of the land on which they reside—and are excluded from the more robust social and economic infrastructure of the majority white communities.

Ross focuses her writing on the specific experience of females in the prison system and the personal history that led them there. She uses her observations at the Women’s Correctional Center in Billings, Montana as a case study to illustrate the unique problems encountered by incarcerated women and specifically highlight the prejudicial conditions encountered by Natives in the system.

The commonalities among the incarcerated women begin with their history, as many of them had been exposed to violence in their past with a majority of this group having been sexually assaulted. This experience triggered emotional problems that led to poverty and substance abuse, two prevalent factors in criminal behavior. Once incarcerated, further exposure to violence was almost certain, be it from another inmate or via an invasive strip search from one of the guards, with the potential for trapping them in a cycle of imprisonment similar to that discussed in The New Jim Crow.

The conditions for women in prison as portrayed by Ross are dangerously inhumane, with substandard living structures, toxic food, and inadequate health care. Even the rehabilitation programs supposedly available to the inmates are so poorly run as to be generally dismissed. Counseling programs are inadequate, often using medication to control the population rather than offering genuine aid for any diagnosed symptoms or emotional struggles. While these issues are likely to be experienced by any incarcerated women, Native Americans are subjected to further degradation through treatment based on racist stereotyping and exemption of their religion from any weekly service options.

The U. S. justice system as discussed by Michelle Alexander and Luana Ross is a grim institution that preys on the financially and emotionally vulnerable as a means of oppressing minority populations through physical and economic exclusion. The nebulous idea of prison reform is bandied about often, but the many tiers of incarceration render a single legislative solution impossible, even if one could provoke some sort of consensus on the desired actions. The abolition of prisons has a strong activist movement, led by Angela Davis, but any immediate action in that direction will crash into the same wall as general reform. Even if practical in the short term, prison reform or abolition would only be guaranteed to remedy the problem that is a resultant of systemic cultural issues that span centuries. If a real difference is to be made, a prolonged titanic push must be applied to the barriers erected by explicit racism and implicit bias that have segregated society according to property value, and some form of reparations will need to be made. The foolish idea of “colorblindness” often promoted by insecure white people should be given no consideration, as ignoring race after generations of legal racism prohibiting economic advancement is actually denying blacks their right to equal protection.

Despite the challenges, members of Critical Resistance discuss in Abolition Now that the cause of prison abolition is both an aspirational end goal and current strategy, informing organizational decisions and activist pursuits (pg. 11). Success can only be achieved through incremental victories that contribute to a broader protracted plan. For Ruth Wilson Gilmore, this plan involves the government reallocation of prison funding into jobs, education, housing, and health care in order to minimize the socio-economic factors that contribute to crimes and violence (Kushner, pg. 3).

The elimination of incarceration as it is currently understood is necessary if cultural equity is to be achieved, but wholly doing away with criminal exclusion is an unreasonable objective. Some form of “contained rehabilitation” would need to be implemented as a means of both assuaging public fears and filling any gaps in the remedy proposed above by Gilmore.

Current facilities are dreadfully inadequate for such a program, as social interaction is imperative to emotional stability, so clever fiscal maneuvering would be necessary. To ensure robust oversight, private prisons should be eliminated from the system entirely. Finally, the practice of convict leasing must be banished to history. Successful implementation of this program would allow the U. S. prison system to meet its original objective as stated by Foucalt of the re-education of a criminal’s spirit.