Racism in the US justice system and the shift coming into view

2014 has seen a return of the prison debate in the US with new emphasis on issues ranging from racial disparity in the criminal justice system, to the ill effects of solitary confinement, as well as the death penalty, and the gray areas surrounding the use of private prisons. This marks a shift in discourse compared to the debates of decades past influenced by the “get tough on crime” attitude upheld by politicians. 

The press coverage has been remarkable. Rick Raemisch, Executive Director of the Colorado Department of Corrections, had himself locked up in one his own state penitentiaries and wrote an Op-ed in the New York Times in February called “My Night in Solitary”. It was a high-profile and effective attempt to prove what many state governments now agree on:  solitary confinement is detrimental and in overuse in the US. “(…) every prison in America has become a dumping ground for the mentally ill,” wrote Raemisch, “and often the ‘worst of the worst’ – some of society’s most unsound minds are dumped in Ad Seg (Administrative Segregation, i.e. solitary confinement).”

Then there was what the press called the “botched” execution of Clayton Lockett in Oklahoma. In April, Lockett died from a heart attack more than 40 minutes after receiving the lethal injection. The case resulted in calls for a moratorium on capital punishment and – if that weren’t impressive enough in pro-death penalty America – the face of a black, convicted murderer and rapist, was on TV screens prompting rage and pity among viewers.

The question of cutting costs and generating revenue at the expense of the imprisoned even came under scrutiny this year (notable considering America’s deeply-rooted pro-capitalist stance) as critics began to look at the inner-workings of private prisons. An article published on the Huffington Post in February pointed out that harsh drug policies are an asset to private prison companies as they are allowed to hand-pick their prisoners, choosing the least expensive to manage: younger inmates, who are more likely to be drug offenders of color. “Based on historical sentencing patterns, if you are a prisoner today, and you are over 50 years old, there is a greater likelihood that you are white,” Christopher Petrella, a doctoral candidate at UC-Berkeley and author of a study on the topic told Huffington. “If you are under 50 years old (…) you’re more likely to be a person of color.” The point: Older prisoners who are more likely to be white cost more – sometimes almost double the cost of housing a younger prisoner, who is more likely to be of color.

It is evident that Americans are taking a closer look at who is being incarcerated, under what conditions and at what cost. It is as if, in a historical moment of US retrenchment from the world stage, following a massive economic crisis and over a decade of foreign wars gone astray, many people now want to focus, in great detail, on problems at home. At the heart of this new shift in attention is the colossal issue of race disparity in the criminal justice system. People of color are disproportionally monitored by police, arrested, imprisoned and even sentenced to death at higher rates than whites. The numbers are well-known and astonishing: People of color make up about one third of the US population, but 60% of the prison population; one in 15 African-American men and one in 36 Hispanic men are in prison today. The truth is, Americans have known this for years, but the “get tough on crime” rhetoric surrounding the “war on drugs” often overshadowed the issue. Now critics have America’s ear when they openly and primarily blame the war on drugs itself for racial disparity in the criminal justice system.

The massive campaign started in the 1970s by then-President Richard Nixon (intended to discourage drugs production, trade and use), resulted in very harsh sentences and racial profiling, including significantly higher police monitoring in neighborhoods where citizens of color live. Advocacy groups estimate that it was precisely the war on drugs (that was greatly fueled during the Reagan years) that contributed to an overwhelming 500% increase in the US prison population since the 1970s.

Luckily, crime rates began to decline slowly in the mid-90s as some sentencing reform began to take place. Plus, Americans grew weary and even skeptical of the costly war on drugs that largely ignored treatment and prevention.  As a result the “crack down” on crime approach lost its appeal. Even President Barack Obama has chosen to exclude the infamous term from his vocabulary (even though the war on drugs policies are still largely intact).

Telling statistics have also come to the forefront, as they always have, but now Americans seem to be listening. For example, according to the US Sentencing Commission, blacks in the federal system receive sentences that are up to 20% longer than those received by whites. One of the most shocking numbers comes from the Bureau of Justice Statistics: one in three black males born after 2001 can expect to end up behind bars at some point in his life.

Furthermore, there is the difficult issue of felony disenfranchisement and its impact on the social and political systems. By some counts, more than five million Americans, and up to 13% of the African-American male population, have lost their right to vote because of felony disenfranchisement laws. Sometimes even social services and educational aid are denied to felons and studies have proven that blacks’ wages increase at a slower rate after prison than those of whites.

Communities of color are clearly threatened here, and young black men are the hardest hit. Interestingly, the gender issue itself has come up in public discourse as men are clearly overwhelmingly represented among prisoners of color. In a recent interview published on The Atlantic, author Noah Berlatsky asked Adam Jones, a political scientist at the University of British Columbia and Executive Director of Gendercide Watch, “Wouldn’t it make sense to see discrimination against black men in the prison system as discrimination on the basis of race, rather than on the basis of gender?” Jones responded, “There has always been a tradition in the US of demonizing the black (or Latino or Chinese or Jewish) male, and depicting him as violent, rebellious, stupid/incompetent/lazy, sexually predatory, and so on.”

The Reverend Al Sharpton (influential – and controversial – leader in the African-American community) pointed out in an Op-ed in the Huffington Post earlier this year that students of color face harsher punishment in school, and make up the vast majority of school-related arrests. The commentary called My Brother’s Keeper took its name from a White House initiative that Sharpton was promoting aimed at empowering boys and young men of color.

Still very relevant to the  debate and taking the issue of race and incarceration to a new level, is the 2010 bestseller “The New Jim Crow: Mass Incarceration in the Age of Colorblindness”. Author Michelle Alexander, Associate Professor of Law at Ohio State University, compares the mass of incarceration of blacks to the Jim Crow laws – systems of control aimed specifically at holding back African Americans. Alexander’s controversial book put the civil rights issue back at center stage, contributing greatly not only to the national debate on oversized prison populations and disparity in the criminal justice system, but ultimately on racial progress in America. Now “Jim Crow”, a pejorative term dating back the 1930s, when it was used to express “negro” and originating from a popular satiric caricature of blacks in the late 1800s, has returned to the American vocabulary in the context of the debate on race in criminal justice.

Race relations are clearly under stress in the US and this may be another reason these issues are coming to the forefront. The protests following the shooting death of Michael Brown in Ferguson, Missouri were proof that the pot is indeed boiling over. An evident deterioration was also seen after the Trayvon Martin murder case verdict in July 2013. Martin was a 17-year-old African-American from Florida who was visiting his father’s girlfriend’s neighborhood when he was shot and killed. Martin was unarmed. George Zimmerman, a neighborhood watch volunteer, who was charged in the death, was acquitted. These types of cases are not uncommon in America and have widened the divide between races time and time again making it clear that the days of the Rodney King riots (1992) are not over.

All of these elements, along with the failure of the Obama administration to tackle inequalities and widening economic gaps in the US, have led to new and interesting discourse in an America that seems more open to looking in earnest at the nation’s problems. What has led the country to have one of the most severe criminal justice systems in the world and a massive prison population composed primarily of people of color is a complex question. A simplistic “how we got here” explanation likely has roots in a Puritan culture with its commonly-heard “an eye for an eye” mantra, along with deep-rooted racism tied to the still relatively recent experience with slavery, and a predominantly “not in my backyard” approach.

But, at a time when the prison population begins to decrease, another layer of the American psyche is now coming to the forefront. As the shady truths behind the war on terror and its consequences become clearer, the citizens of the New World are simply losing their “youth” – a characteristic that has historically distinguished them from their far more skeptical European neighbors. More than before, many Americans want to understand the details and the collateral damage caused by their legislative decisions. So, when it comes to light that housing one single inmate costs an average of $25,000 per year, and even twice that for older prisoners, one begs the question: if instead these people were given the opportunity to earn a salary equivalent the cost associated with their annual prison stay, wouldn’t America’s public safety, and American society in general, be in a better place? Or when it emerges that the percentage of black drug users is significantly less than the percentage of backs imprisoned for drug offenses, one wonders: are there indeed underlying mechanisms of control that have caused America to lose ground 50 years after the Civil Rights Act?

The America of days gone by focused on harsh punishment as a key solution to safety and it paid the price both financially and in terms of race relations. By taking a good look inside, this new wide-eyed America has the opportunity to see what its communities really need and work towards efficient and colorblind solutions to problems lingering from the past.

For a deeper understanding of this issue, please see the related article: US prisons, racial disparity and civil rights in the 21st century, a conversation with Marc Mauer.