Race Defense: Constructing Black Criminals

Since the colonial period, the world has witnessed the unfair conditions placed on African Americans unfold in America’s historical narrative. African people were objectified and enslaved as property unable to reap the benefits from toiling on brutal plantations. Over time, their status as chattel slaves evolved towards the condition of second-class citizens who were not afforded the same rights and material comforts as white citizens during the Jim Crow era. Today, affirmative action policies create a misleading impression that racism no longer exists. This is a time where explicit disenfranchisement of the African American community based on race alone has been deemed a problem of the past. The American government has historically used its laws to construct African Americans as criminals signaling the state's heavy involvement in marginalizing the black community based on racial discrimination.

The process of equating blackness to criminality began during the post-slavery period in the aftermath of the Civil War. Enslavement was an institution that forced Africans to work at the expense of their own personal freedom acting as a socially accepted method by which slaves were controlled because of their race. When slavery ended, laws were passed that relied on the sentiment that newly freed slaves posed a threat to the prosperity of white American citizens, and thus established the impetus to once again subjugate people of African descent. In her book, The New Jim Crow: Mass Incarceration in the Age of Colorblindness, Michelle Alexander describes the nature of these laws, “Nine Southern states adopted vagrancy laws--which essentially made it a criminal offense not to work and were applied selectively to blacks...Prisoners were forced to work for little or no pay” (28). By arresting newly freed slaves under the assumption that they were committing acts of vagrancy, the collective identity of former slaves was refortified as lazy and dangerous. Offenses punishable by the law which only applied to non-white individuals included, “...absence from work, breach of job contracts, the possession of firearms, and insulting gestures or acts”(Davis 28). The state repositioned itself as the necessary controller of black behavior through the penal codes resembling the prior system of bondage, thus normalizing the detention of black bodies. Under a new system of captivity, former slaves endured hardship as their identities took on the new meaning as being inherently criminal allowing racism to develop new hidden meaning.

During the time of Post-Emancipation, ex-slaves were further treated as disposable resources through the deployment of the convict lease system. This form of punishment was made possible by a clause in the Thirteenth Amendment that made it legal to enslave someone if they had committed a crime (Davis 28). Angela Davis observes how the convict lease system resembled the institution of enslavement, “The population of convicts, whose racial composition was dramatically transformed by the abolition of slavery, could be subjected to such intense exploitation and to such horrendous modes of punishment…” (33). The convict lease system served as an economic bridge to make sure that the state had a steady source of free labor post-slavery. Most of the convicts detained in work camps were mainly non-whites. Black people endured the same brutal treatment from the state that depended on their free labor for material benefit. Several years later, African Americans are still subject to being identified as criminals through the implementation of the War on Drugs which currently acts as the tool to subordinate the black community.

The War on Drugs resembles former tactics used by the state to create an impression that African Americans remain a threat to modern society. This criminal justice strategy was first carried out in 1982 by Ronald Reagan and was a federally sanctioned battle against African Americans impoverished during a downturn in the economy. The War on Drugs was waged by all aspects of the American penal system accompanied by a media campaign that further tarnished African American’s identities as incessant drug users addicted to crack cocaine (Alexander 49-50). Armaline and Ostertag point out the strict initiatives used to convict citizens for minor drug offenses which include harsh penalties for youth, surveillance of schools, and involuntary sentencing making it necessary for offenders to serve their entire prison sentence. These scholars further argue that “Due to the nature of law enforcement, urban geography, and a focus on drug-related crime, all of these practices disproportionately affect populations of color” (273). The new system of mass incarceration employs strict policies that unjustly limit the freedom of lawbreakers that are charged for minor offenses. The War on Drugs purposefully positions African American individuals as criminals through the false perception that their communities have debilitating drug problems. This gives the state public authority to carry out unbalanced corrective activities within African American neighborhoods under the guise of protection for other law-abiding citizens. Ronald Reagan built the War on Drugs using race-neutral propaganda distinguishing it from outwardly racist methods of state oppression towards African Americans during enslavement and Jim Crow.

The difference between the new tool of mass incarceration and the former racism surrounding the vagrancy laws involves the use of less explicit forms of discrimination to identify African Americans as the source of crime, “The absence of explicitly racist rhetoric afforded the racial nature of his[Reagan] coded appeals a certain plausible deniability” (Alexander 48). Reagan’s indirect way of labeling poor African Americans as threatening to the safety of white Americans due to socioeconomic factors contributed to current conceptions that America has entered into a post-racial society. The War on Drugs makes it normal to witness the policing of poor communities of color. Anyone can deny that these policing methods are racist because the media and the laws leave out any language associating crime with race. In order to make it even more difficult for African Americans to change the drug policies that negatively affect their communities, the state purposefully bars victims of the prison system from voting.

Disenfranchisement has always had an impact on African Americans and their ability to progress economically as citizens of the United States. Studies show that for every seven African American men, at least one has lost the right to vote based on their criminal record (Gottschalk 441). Michelle Alexander explains how felon disenfranchisement, which was characterized by mainly convicting former slaves, was the only Jim Crow racial policy that survived over the years. She even goes further comparing the current system of not allowing prisoners to vote to similar practices during enslavement, “White rural communities that house prisons wind up with more people in state legislatures representing them, while poor communities of color loose representatives...This policy is disturbingly reminiscent of the three-fifths clause in the original Constitution” (91). The current manner in which African American voters are being transferred to predominantly white communities is no different than old methods of preventing slaves to vote in the nineteenth century. African Americans who are imprisoned are among the poorest people in the country, but because of their incarcerated status, they often cannot enact political change by voting to improve their economic hardships. Voter disenfranchisement further shows that the state’s involvement in the oppression of African Americans has not changed much over the years. The belief that all Americans have equal rights comes from the ideal that citizens of the United States live in a post-racial society with laws that are just.

The belief that the criminal justice system is no longer racist is attributed to the different nature of racism in the 21st century. Even though race relations have seemed to improve on the surface, Schaefer and Kraska reveal the less obvious nature of institutionalized racism, “The overt racism of the past has diminished; however, covert discrimination remains and lies in the application of rules and legal decisions that do not take into account the discriminatory consequences of race” (313). Since the development of mass incarceration began, racism has become embedded within the structure of the American government, especially laws that delegate incarceration practices. Unfortunately, discrimination propagated by the state towards African Americans is rather invisible when contrasted to earlier forms of violence carried out against black people. The prison system operates on a foundation that automatically excludes African Americans from receiving fair treatment under the law. Even though a critical analysis of history elucidates how the government's tool of crime and punishment was originally established on a racist ideology that African Americans are inferior to whites, small gains in diversity within the social-political landscape often hide the truth of racism in America today.

Affirmative action acts as a distraction from the racist system of mass incarceration while simultaneously creating a false perception that African Americans have gained equal rights as citizens due to social reform initiatives. According to Alexander, affirmative action is superficial in obtaining true justice for African Americans:

The claim is that racial justice advocates should reconsider the traditional approach to affirmative action because (a) it has helped to render a new caste system largely invisible; (b) it has helped to perpetuate the myth that anyone can make it if they try; (c) it has encouraged the embrace of a "trickle-down theory of racial justice"; (d) it has greatly facilitated the divide-and-conquer tactics that gave rise to mass incarceration; and (e) it has inspired such polarization and media attention that the general public now (wrongly) assumes that affirmative action is the main battlefront in U.S. race relations. (122)

Affirmative action exacerbates the struggle of those who strive to identify racism within the state’s prison system. This diversification project diverts public attention towards the illusion that everyone has a fair chance at success in America and creates a false standard that there are more economic opportunities available for marginalized communities than in previous decades. Focusing on affirmative action normalizes the attitude which supports the penal system’s culture of domination while placing elite gain of material status at the forefront of the Civil Rights Movement. Even the academic community falls into the trap of addressing the atrocities of mass incarceration in a colorblind context.

Many people are convinced that America is no longer plagued by racial discrimination. Some experts argue that race is secondary to the discussion on the fundamental problems of the American prison system. Gottschalk highlights this post-racial view in her argument, “This approach seeks to solve the crime and punishment dilemma by focusing on ameliorating structural problems like widespread poverty, high unemployment, dysfunctional schools...and outcomes dramatically stratified by race”(466). Simply observing the socioeconomic climate of neighborhoods where mass incarceration occurs ignores how race defines the structure of the prison system. Alexander considers how a colorblind approach is detrimental in addressing oppression within poor communities, “Our blindness also prevents us from seeing the racial and structural divisions that persist in society: the segregated, unequal schools...the jobless ghettos...Our commitment to colorblindness extends beyond individuals to social institutions and arrangements”(119). Alleviating poverty and poor education is non-different than placing the racist constitution of the system of mass incarceration at the center of these discussions. The communities that are most impoverished and unequal are mainly African Americans making the distinction of race a focal point in the issue of comprehensive penal reform.

In conclusion, African American identity has been clearly defined within the set parameters of the American penal system. After the Civil War, liberated slaves were convicted as vagrants and detained in labor camps based on discriminatory laws. The War on Drugs originally depended on deep-rooted racial animosity towards African Americans. Racism has been deemed irrelevant in the political arena when it comes to equal access to voting rights. Affirmative action clouds the public’s ability to acknowledge that racism still functions to marginalize minority groups. Overall, there is no question as to whether the state deploys a government-regulated attack towards African Americans through mass incarceration.

Works Cited

Alexander, Michelle. The New Jim Crow: Mass Incarceration in the Age of Colorblindness. New York: New Press, 2010.

Davis, Angela. "Slavery, Civil Rights, and Abolitionist Perspectives Toward Prison." Are Prisons Obsolete?. New York: Seven Stories Press, 2003. pp. 22-39.

Gottschalk, Marie. "The Long Reach of The Carceral State: The Politics of Crime, Mass Imprisonment, and Penal Reform in The United States and Abroad." Law & Social Inquiry, vol. 34, no. 2, (2009): pp. 439-472.

Ostertag, S. F., and W. T. Armaline. "Image Isn't Everything: Contemporary Systemic Racism and Antiracism in the Age of Obama." Humanity & Society, vol 35, no. 3, (2011): pp. 261-289.

Schaefer, B. P., and P. B. Kraska. "Felon Disenfranchisement: The Judiciary's Role in Renegotiating Racial Divisions." Race and Justice, vol. 2, no. 4, (2012): pp. 304-321.