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Diversity and Inclusion

Racism in criminal justice

This piece is part of a series on systemic racism that’s a small part of Hive Learning’s Inclusion Works program. Here’s why we encourage you to see this content as a jumping-off point for your learning journey rather than the final word.

📌 We researched and wrote this series to try to make sense of systemic racism, an incredibly broad and complex topic. Our aim was to demystify this type of racism for the everyday person who doesn’t have time to read lots of books on the subject, let alone trawl through hundreds of pieces of academic research to really wrap their arms around it.

📌 We’ve curated 350 sources to give a flavor of how systemic racism emerges through a limited set of areas (housing, education, healthcare, criminal justice, media representation), introducing the barriers and injustices of these institutions using a single example from history and from the present day, and focuses solely on racism directed at Black Americans.

📌 We appreciate that there is much much more to say on this topic and we’d love to do that justice in future content. For now, take a look at the further resources linked to take your next step, start to question how the systems you’re a part of are propping up racism in our society today, and seek out actions you can take to dismantle it.

The criminal justice system has long been used to maintain America’s racial hierarchy.

It’s just as easy to see the inequities of this system in history as it is today, from the history of enslaved people being denied a fair trial, through to the 2020 Amy Cooper incident where a white woman weaponized the police to come to her defense against a Black man who dared call her out for breaking the rules in Central Park.

The scale and scope of the system is enormous, covering institutions like the police, federal law enforcement agencies, prosecution and defense lawyers, the courts, prisons and lawmakers who enact legislation on all of the above.

We couldn’t possibly cover it all here, so we’ve chosen a couple of examples that illustrate how the criminal justice system has perpetuated oppression of Black Americans in the past and today.

An example from history: Black Codes and the convict lease system

In the years following the end of the Civil War in 1865, the US entered a period of rapid progress known as Reconstruction, where formerly enslaved people made huge strides socially, politically and economically. But these advances were short-lived. By 1873 many Southerners were calling for “Redemption” — a rollback of progress, and a return to the old order of white supremacy and limited rights for Black Americans — enforced (extralegally) by a reign of terror.

Meanwhile, the South was in terrible shape after the war — its economy and currency were in shambles, infrastructure like roads and railroads were destroyed, and plantation wealth evaporated overnight with the abolishment of slavery.

So Southern states passed laws known as Black Codes in an effort to control newly freed Black Americans. These laws criminalized petty offenses like gambling, changing jobs or even being unemployed — that’s right, via vagrancy laws Black people without a yearly labor contract could be arrested and fined. In some states like South Carolina, orphaned children or children of “paupers” or “vagrants” could also be leased into labor from the age of 2 until the age of 18 for Black girls and age of 21 for Black boys.

Fines for these minor offenses were so exorbitantly high that many “criminals” couldn’t possibly afford to pay — and so they had to pay it off through forced labor. These laws exploited the 13th Amendment (yes, the very amendment that outlawed slavery), which had allowed for one exception: criminals could be subjected to forced labor as punishment for their crime.

Orphaned and “criminal” children under forced labor in 1903, by John L. Spivak via Library of Congress.

And that’s how the system of convict leasing began. Private businesses, planters and large corporations alike colluded with the government to exploit Black people as a low-cost labor source. The responsibility for feeding and housing these convicts was shifted from the state to the private lessor, but according to records the conditions were dangerous and inhumane, and convicts were routinely subjected to violence and torture. States profited massively, too, from the fines they collected.

Story Justice GIF by @primerstories.

This labor system was instrumental in rebuilding the Southern war-torn economy — ironically off the backs of Black men and women who had just been emancipated and were once again enslaved by this system. In fact, convict leasing has been called “slavery by another name” by Douglas A. Blackmon, who wrote a Pulitzer Prize-winning book in 2008 by the same name. Blackmon explains why:

“It was a form of bondage distinctly different from that of the antebellum South in that for most men, and the relatively few women drawn in, this slavery did not last a lifetime and did not automatically extend from one generation to the next. But it was nonetheless slavery – a system in which armies of free men, guilty of no crimes and entitled by law to freedom, were compelled to labor without compensation, were repeatedly bought and sold, and were forced to do the bidding of white masters through the regular application of extraordinary physical coercion.”

The practice of convict leasing spanned nearly a century in the South, from as early as 1844 in Louisiana to as late as 1928, when it was outlawed by the last holdout, the state of Alabama (though it reportedly continued there beyond 1928 in many counties). Convict leasing was swiftly replaced by “chain gangs”, another brutal form of convict labor on public sector projects like highway construction, which in turn was formally outlawed in 1941. But as you’ll see in the section ahead, similar forms of convict labor persist today and continue to reinforce a racial hierarchy in America.

By the numbers
🔢 In the state of Alabama alone, an estimated 200,000 Black men, women and children were forced into labor under convict leasing between 1868-1941. Across the South, it’s estimated that tens of millions of Black people were forced onto a farm, lumber camp, or into convict leasing during this period.

🔢 Death rates were 10X higher for leased convicts than prisoner death rates in states that didn’t engage in convict leasing.

🔢 At its peak in 1889, 73% of the total annual revenue the state of Alabama collected was from convict leasing, up from 10% in 1846.

Look Out Black Lives Matter GIF by @Barbara_Pozzi.

An example from today: mass incarceration

America has a mass incarceration problem.

There are more Americans with a criminal arrest record than a four-year college degree. Imprisonment rates have quintupled since the 1970s, and are now at a historical high, particularly for Black Americans (despite the fact that national crime rates are at a historic low).

📺 Watch this 2-minute video to see the magnitude of the issue.

Today people of color make up 37% of the U.S. population but 67% of the prison population. Black men are imprisoned at 7X the rate of white men. And according to the ACLU, one in three Black boys born today can expect to be imprisoned in their lifetime.

The Sentencing Project likens these racial disparities to an avalanche that grows cumulatively through every layer of the criminal justice system: Black Americans are more likely than white Americans to be arrested, and once arrested they are more likely to be convicted, and once convicted they are more likely to face tough sentences.

Michelle Alexander, civil rights lawyer and author of the bestselling book The New Jim Crow, argues that incarceration is a form of social and racial control that leaves felons second-class citizens for life. After all, a felony conviction means you can’t vote again, you can be legally discriminated against in jobs and housing, and you can’t claim public benefits like food stamps or public housing. Alexander compares mass incarceration to Jim Crow era inequality, and even slavery:

“Today there are more African-American adults under correctional control in prison or jail, on probation or parole, than were enslaved in 1850 — a decade before the Civil War began. As of 2004, more Black men were denied the right to vote than in 1870, the year the 18th Amendment was ratified, prohibiting laws that explicitly deny the right to vote on the basis of race.”

🚨 But surely incarceration rates reflect rising crime rates?

You might be surprised to learn that crime rates in America aren’t rising. In fact, they’re falling. Over the past 50 years, violent crime rates have fluctuated, peaking in 1991 and steadily falling since then. The criminal justice system hasn’t adapted.

The University of Minnesota criminology professor Michael Tonry argues that governments decide how much punishment they want — and so incarceration rates are often unrelated to crime rates. He backs this up with data that shows the U.S., Finland and Germany had roughly the same crime rates between 1960-1990, but in that period U.S. incarceration rates quadrupled, Finland’s incarceration rate declined by 60%, and Germany’s held steady.

And research shows that the steep decline in crime since the 1990s isn’t a result of incarceration rates. Unfortunately getting criminals “off the streets” has had a negligible impact on crime rates since 2000 (and a very minimal effect before then).

GIF_by_juliewinegard.gif

The policies and practices fuelling mass incarceration

Here are just a few of the key drivers of mass incarceration since the 1970s, through The War on Drugs / Get Tough on Crime era. You’ll see that most of these policies appear race-neutral. But in practice, they disproportionately affect Black people and Black neighborhoods.

⚖️ The War on Drugs’ punitive practices and punishments. Drug convictions alone accounted for two-thirds of the increase in prisoners between 1985-2000.

  • Studies have consistently shown that Black people are no more likely than white to use or sell drugs (in fact, white youth are slightly more likely to use) — but a look at the demographics of drug arrests shows Black people were between 2.8X to 5.5X more likely to be arrested than white people between 1980-2007 — presumably a direct result of biased policing.
  • Stop and frisk practices are at the discretion of police officers, so are prone to racial bias. Police choose who they want to stop, interrogate and search provided they get “consent” (which the vast majority of people give).
  • You may be aware of the much harsher sentencing for crack vs cocaine offenses, which has been widely credited for  until Congress passed the Fair Sentencing Act in 2010, which reduced the disparity in sentencing between crack and powder cocaine offenses.

⚖️ Harsh sentencing laws from the Get Tough on Crime era mean that convicts serve more time in prison, and many more serving life sentences. For instance, the “three strikes” laws passed by many states, which mandate a life sentence for so-called habitual criminals who’ve committed three crimes. Even though some states have rolled back these laws, prisons are still filled with prisoners who are serving out those life terms.

⚖️ Drug enforcement incentives quite simply reward police departments for their continued focus on fighting The War on Drugs: police are able to keep the proceeds of drug busts (i.e., cash and other seized property), plus federal grants and support from the DEA and the Pentagon are available for agencies that prioritize drug enforcement.

⚖️ Prosecutors are a powerful piece of the system as they decide how they want to charge suspects. Data shows they’re more likely to charge Black defendants with crimes that carry heavier sentences than white defendants.

⚖️ Plea bargains are deals made between prosecutors and defendants where the defendant (whether actually guilty or not) pleads guilty in order to avoid a trial by jury. Some 90% of court cases end in plea bargain rather than trial, and the deal struck is at a prosecutor’s discretion thus susceptible to their personal bias. Plea bargains deny people their constitutional right to a trial by jury.

⚖️ Bail allows folks with resources to pay their way out of jail as they await trial. An estimated 6 million people each year are kept in jail (often for minor offenses) because they can’t make bail, then let off.

Sick_Civil_Rights_by_IntoAction.gif

Sick Civil Rights by @IntoAction.

📚 Further resources

To better understand the convict leasing system and many other policies and practices that oppressed Black Americans in the post-emancipation period, watch the 90-minute PBS documentary Slavery By Another Name.

…or read the original text it’s based on, Douglas A. Blackmon’s book Slavery By Another Name.

For a deeper dive into how today’s criminal justice system perpetuates racial oppression through mass incarceration, read the bestselling book The New Jim Crow by Michelle Alexander. If you don’t have time to read the whole book, her 23-minute TED Talk from 2013 is a good starting point.

Watch the 2016 documentary 13TH on Youtube (full feature available for free as of July 2020) or on Netflix for a close look at the system of mass incarceration in America, its legacy and how it disproportionately disenfranchises Black Americans by design.

🗝️ Your key takeaway

The criminal justice system has long been used to maintain America’s racial hierarchy, and you can see that clearly in the practices of the Redemption era Black Codes and convict leasing system, through to today’s issue of mass incarceration. A complex web of institutions continues to stack the deck against Black people in America, ensuring that they’re more likely than white Americans to be arrested, and once arrested they’re more likely to be convicted, and once convicted they’re more likely to face tough sentences.

Racism in criminal justice

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Inclusion Works

This resource was taken from our Inclusion Works programme, which was created with a network of more than +100 diverse contributors and advisers. We learn from, amplify and cite creators of different races, ethnicities, genders and cognitive styles and continually work to represent all dimensions of diversity.