The Criminal Justice System and Structural Discrimination:
How Racism Doesn’t Simply ‘Disappear’ after the Election of Barack Obama
By Stephen F. Ostertag, Ph.D.
Tulane University
New Orleans, LA
To be submitted for publication (04/29/09)
The election of Barack Obama as president of the United States may serve as a signal to many people that the significance of race as a focus of national discourse is no longer needed. They may argue that we should shift our national discussions to other issues of greater importance. In this essay, I discuss some of the structural barriers to racial equality that remain very much intact despite Barack Obama’s successful presidential campaign. I focus on the Criminal Justice system and discuss issues of law, crime, sentencing, policing, felon disenfranchisement, cultural representations and other related issues to explain how people of color continue to suffer institutionalized discrimination. The goal is to highlight significant structural hurdles that continue to weigh heavily on people of color, and that while the election of Barack Obama signals important changes over the years, there remain significant institutionalized barriers to racial equality.
Keywords: Structural Racism, Criminal Justice, Race, Crime, Barack Obama
Introduction
With the election of Barack Obama as president of the United States, some people may be inclined to see an African-American commander-in-chief as signaling the end of racism. They may argue that the country has turned an important corner regarding race relations and now we must focus our gaze on other things. In this essay, I discuss some of the structural barriers to racial equality that remain very much intact despite Barack Obama’s successful presidential campaign. While a truly thorough analysis of structural racism must consider the numerous institutions existing today and how people of color are situated within them, in the interest of parsimony I focus on the criminal justice system. In what follows, I discuss how the criminal justice system, including police, laws, incarceration, and other related issues intersect to constitute a form of structural racism so entrenched in contemporary criminal justice practices that the simple election of one person to the presidency does little to change it. I focus mostly on urban, African-American men, since they are uniquely situated in relation to the criminal justice system, though I do so keeping in mind the material conditions, structural racism and patriarchy ingrained in the legal system in ways that devastate women of color and their families, as well as people of color who live in suburban and rural areas. Furthermore, any such analysis must also consider the reverberating effects of structural racism on the communities from which so many incarcerated men and women come. While I do not go into depth about these equally important issues they are no doubt real and substantial in that they demonstrate the far-reaching effects of structural discrimination and marginalization more broadly. While the election of Barack Obama symbolizes important successes regarding race in the US, and I do not want to downplay the magnitude of this election, to ignore structural and institutionalized racism, such as that ingrained into the criminal justice system, is to ignore some of the most challenging hurdles that continue toobstruct steps towards racial equality.
On CNN, November 04, 2008, during their election coverage, host Anderson Cooper asked a panel of speakers what the election of Barack Obama means for race relations in the US. One of his guests, William Bennett, former Secretary of Education under President Reagan and Director of the Office of National Drug Control Policy under President George H. W. Bush, responded in a way that demonstrates both ignorance of structural discrimination and a dangerous lack of insight about white privilege. Responding to Cooper, Bennett said “Well, I’ll tell you one thing it means, as a former Secretary of Education…You don’t take any excuses anymore from anybody who says ‘the deck is stacked, I can’t do anything, there’s so much in-built this and that’.” Bennett’s statement islikely uttered at dinner tables and living-rooms across the US. And, it is even more likely that many similar beliefs go unuttered while people wait in line at fast-food restaurants, sit in traffic, or go to work.
Scholars who study racism have termed beliefs like those implied in Bennett’s statement as “modern” or “symbolic” racism (Entman, 1992; Sears, 1988). Here, people see African-Americans not as biologically different from whites, but as receiving unfair advantages in everyday life, such as getting a job or being accepted into a competitive university. The same ideological system tends to equate programs like affirmative action with a form of “reverse racism” rather than what it actually is; a requirement by employers who receive federal funding to advertise job openings to diverse populations (Reskin, 1998). With symbolic racism, people see manyAfrican-Americans as whiners, they complain too often, don’t work hard, and don’t earn their place in society. Instead, it is believed, they look for handouts from the government or other hard working people. These beliefs are often reinforced through familial histories where Italians, Irish, Germans, and other ethnic groups who were denied the advantages of full membership in society before the Second World War, were able to eventually raise their standards of living. Common narratives many of us may have heard before include “if my grandparent were able to ‘make it’ then why can’t they [i.e. blacks]?”
We should be careful, however, not to fall victim to such misguided and superficial beliefs. Policy changes or the appointment of historically discriminated people into positions of power, while important in many ways, rarelyimmediately change popular ideologies and the practices they inform. Our own history warns us as much. The abolishment of slavery did not automatically result in the full social acceptance of recently freed slaves. Instead slave states initiated “Black Codes” where new criminal categories were created and enforced towards blacks. Later, the 1896 Supreme Court decision of Plessey vs. Ferguson paved the way for the legal backing of overtly racist practices in the form of separate but equal. More recently, the Civil Rights movement of the 1950s and 1960s, while resulting in considerable policy changes for blacks in the US subsequently struggled against a reactionary public angered and threatened by societal steps towards racial inclusion and equality. Such a reaction manifested itself in punitive ways and helped incite the great prison boom that began in the 1970s and exists to this day, as conservatives reacted to the turbulent 1960s and the racial progress of the Civil Rights movement (Beckett, 1997; Waquant, 2000).
No doubt, the election of Barack Obama as president signals change for the better regarding race relations and racism in the US, just as did the abolition of slavery and the Civil Rights movement. Yet, it would be to ignore the history of social change, particularly regarding race in the US and a dangerous mistake to believe that the simple election of a black man as president automatically translates into equality. After all, few would argue that the addition of Clarence Thomas as a Supreme Court Justice directly resulted in a fairer system of justice for African-Americans. Similarly, the increasing number of African-American journalists and broadcasters has done little to change their rather negative portrayal in the news (Benson, 2005). In fact,as Bennett’s statement above implies, it may indeed, introduce additional hurdles for the everyday person of color. Serious structural and ideological barriers remain, and new ones may indeed be created as conservatives react to what they see as both unfair treatment and a threat to their social comfort.
Institutionalized and structural forms of racism bypasses the simple ‘he said, she said’ attitudes and opinions about people that we hear so commonly in popular discourse. Instead, it emphasizes power, its institutionalization in various social organizations, and the overlapping ideologies found among the people who occupy positions of power within said organizations. What matters is the ability to put attitude and beliefs into practice and on a scale that reverberates significantly in broader society. Racism structured into the criminal justice system involves a complex relationship among legal policies, political and economic interests, cultural representations and their ideological baggage, policing practices, imprisonment, and crime. In what follows, I discuss each ingredient’s contributionto the deeply structured racism embedded in the US criminal justice system. I discuss them independently, but emphasize their inter-relationships so as to contribute to a system-wide form of racism that is so entrenched in ourcriminal justice system, ideologies about crime, justice and punishment, and our broader social system that the simple election of a black president, constrained by the political, cultural, and ideological systems within which he operates, can only do so much in a four or eight year presidency.
In US prisons virtually all inmates are poor, and black and Hispanic inmates are dramatically overrepresented when compared to their proportion of the US population or the state from which they originally resided. Data from 2006 indicate that black men represented approximately 35 percent of people incarcerated in state and federal prisons (about 534,000 inmates), a drop from 40 percent in 2000 (Sabol, Couture & Harrison, 2007). As of thelate 1990s, young black men who do not have a high school education stand a 46 percent chance of being incarcerated in state prisons and a 38 percent chance in federal prisons (Pettit & Western, 2004). More recently, reports suggest there are more black men living in prison than in college dorms (‘More Blacks’, 2007). These features are both directly and indirectlya result of social and legal policies instituted over the past 150 years. They remain strongly intact and reinforced through our penal policies of the past 40 years.
Constructing laws
Over the past 50 years, critical criminologists and deviance scholars have noted the constructed nature of many laws and crimes. They point to the development and encouragement of laws and crime through cultural and group interests and morals. A classic example involves the Nuremberg laws of Nazi Germany. Among other things, these laws made it illegal for Jews to marry, or have other relations with “true” Germans for fear that such relations would jeopardize the purity of German blood. The Nuremberg laws were inspired by Anti-Miscegenation laws in the United States, which prohibited inter-racial marriage. Laws have long been constructed to control populations deemed undesirable or a threat to dominant groups, and the US has its share of such laws.
The period of slavery brokered with it the creation of many laws designed to control African slaves. Punishable offenses included such things as speaking rudely to a white person, or striking a white person in self-defense. Slaves were also prohibited from congregating in groups of five or more without a white person present, buying alcohol, being off the plantation without a pass, and being out of their quarters past curfew (Meier & Rudwick, 1976 as cited in Alexander & Gyamerah, 1997; Sellin, 1976). Quickly after the abolition of slavery, many southern states created what were called “Black Codes.” These policies codified in law the criminalization of a handful of vague and broadly defined behaviors. They included such things as vagrancy, insulting gestures or acts, drunkenness, careless finances, or inappropriate speech (Davis, 2003), and they were enforced solely on newly freed slaves. Many black men were subsequently arrested, tried and incarcerated in the newly emergingpenitentiaries. Due to a caveat in the thirteenth amendment claiming that forced labor was permissible as punishment for a crime, ex-slave owners sought to reestablish through imprisonment the loss of man-power they experienced due to the abolishment of slavery. As Davis (2003) points out, many newly freed slaves and their children ended up “working” for the slave owners who once owned them. Furthermore, after the Supreme Court case of Plessy vs. Ferguson (1896) legalized segregation, a variety of new laws emerged to distance and isolate African-Americans from whites. From town ordinances to state laws, African-Americans suffered a variety of legal and social distinctions established to separate them from the benefits of mainstream society. Those who dared to challenge or resist these laws quickly suffered verbal threats, physical assaults and even death (Wacquant, 2000).
Throughout the 20th century, drug laws became a popular method of incarcerating people not considered white, and for controlling newly arriving immigrants. In efforts to criminalize a number of drugs, moral crusaders relied on a variety of methods to rouse public fears and garner support for their causes. Subsequent drug laws became a means to control drugs, but more importantly a means to control undesirable and threatening populations. In what Gusfield (1963) termed ‘symbolic crusades’ these efforts to criminalized different drugs were really efforts to symbolically demonize and control “other” people. Anti-Marijuana crusades began as a means to control recently immigrating Mexicans in the early 1900s while simultaneously neutralizing the threat hemp oil posed to the growing petro-chemical industry. Opium laws arose in the wake of Chinese immigrants who moved to the west coast to work on the railroads. Alcohol prohibition was a way for largely native born, middle-class, non-urban Protestants to neutralize the threat they felt from working-class, Catholics who immigrated to the US from many Western European countries (Gusfield, 1963). Similarly, the criminalization of cocaine was initially encouraged through its association with US blacks. More recently, in the 1980s the use of crack cocaine scares were linked to urban black men who were portrayed as violent and unpredictable (Beckett, 1997; Reinarman, 2006). The construction of these laws and their implications for particular populations frequently deemed non-white and denied full social acceptance were the result of successful crusades created to control populations classified as non-white and stabilize political, economic, and social power among white dominant groups. The media served as a key venue for moral crusaders to reach broader publics and convince them of the dangers they faced. Polls showed that public opinion frequently followed these scare tactics (Beckett, 1997).
Incarceration
The creation, enforcement, and stricter use of drug laws are commonly offered as key reasons for the dramatic growth in the prison population since the 1970s and in the aftermath of the Civil Rights era in the US. In the 1950s and 1960s the number of inmates housed in state and federal prisons hovered around 300,000, and averaged about 110 people per 100,000 citizens. Today, the US leads the world in the rate of people it incarcerates with over 700 people per 100,000. This equates to roughly 2.3 million people in US federal and state prisons and jails. When probation and parole are included, the number spikes to around 7 million people under state supervision. In federal prisons, approximately 53% of inmates housed are there for drug offenses (about 10 percent are there on immigration charges) (Federal Bureau of Prisons, 2008). With respect to state and federal prisons, approximately 23 percent of inmates are there due to drug charges. Drug offenders have risen considerably as a percentage of the total prison population since 1980, going from 8 percent of the population to 26 percent as of the mid-1990s (Currie, 1998). A great majority of those incarcerated on drug charges fit the lowest category of drug offenses and 9 out of 10 were convicted on non-weapons related charges (Currie, 1998). This is because much of the penal policies in the US address nonviolent and drug offenders who are staying in prison for longer periods of time than was the case years before. Other reasons for the drastic increase in the number of people incarcerated in the US include sentencing policies, such as mandatory minimums, three-strikes laws, and “Truth in Sentencing” laws which mandate that people complete at least 85% of their sentence before being released. Today, the chance of someone going to jail or prison for a drug offense has increased fivefold over the past 20 years.
Unsurprisingly, the trend to ‘get tough’ on crime through more stringent sentencing policies which focus heavily on drug offenses disproportionately affects people of color. According to Marc Mauer of The Sentencing Project, over 60 percent of people in prison are non-whites, and three-quarters of all people in prison for drug offenses are people of color. Until 2007, in the US the most overt sentencing disparity was in regards to federal sentencing for crack cocaine versus powder cocaine. Five grams of crack cocaine, a mixture of baking soda and water combined with powder cocaine and cooked together, was punishable with a 5-year mandatory minimum sentence, whereas 500 grams of powder cocaine was needed to yield the same 5-year mandatory minimum. For possession of quantities less than 25 grams, crack cocaine sentences average 65 months compared to 14 months for powder cocaine. Over 80 percent of crack defendants were black, with over half being street-level dealers.