Chapter I
Mass Incarceration
I think of the growth of the penal system not so much as a manifestation of discrimination, but as … an institutionalization of racial hierarchy and the law, which is color-blind on its face, has been written and enforced in such a way that it imposed a massively disparate burden on African-Americans, particularly those with little schooling.
Bruce Western
The mission of the United States Department of Justice is: “To enforce the law and defend the interests of the United States according to the law; to ensure public safety against threats foreign and domestic; to provide federal leadership in preventing and controlling crime; to seek just punishment for those guilty of unlawful behavior; and to ensure fair and impartial administration of justice for all Americans.” The state attorneys general have similar missions. If White Americans have problems with the American criminal justice system, those problems are not often personal. Some think the criminal justice system is “not tough enough on crime.” Others think that it is not tough enough on Wall Street. But these are usually simply theoretical concerns. In the country of wide lawns and friendly trees it is usually possible to believe that the police and the other components of the criminal justice system are really there “to serve and protect.” And yet, the primary effect of the American criminal justice system on African-Americans is to remove an extraordinary proportion of working age Black men from their com-munities, impoverishing their families and those communities, condemning their children to inferior schools where they will be prepared for little other than prison. This complex of factors perpetuates a caste-like system of immobilized intergenerational poverty for African-Americans.
America is still overwhelmingly White: 78% according to the 2010 census. The ratio between African-Americans and White Americans in the general population is either six- or five-to-one, depending on how Hispanics are classified. That ratio is quite different in the prisons, where there are over 800,000 adult Black males as compared to just over a million adult White, non-Hispanic, males. In other words, there are at least four times as many African-Americans imprisoned than would be expected from their share in the general population. Although Texas and California, which are notable for mass incarceration, imprison many more White, non-Hispanics, than African-Americans, Florida—which is also notable for extraordinary mass incarceration —imprisons approximately the same number of African-Americans as White, non-Hispanics, and Georgia, New York state, Pennsylvania, Louisiana, Illinois, Virginia and North Carolina imprison more African-Americans than White, non-Hispanics, despite the fact that White, non-Hispanics, are very much in the majority in each of those states.
The disproportionate incarceration rate of Black men is integral to the American system of continued subordination of the descendents of enslaved Africans. That subordination, which Gunnar Myrdal and some of his contemporaries described as a caste system, continues to mock our ideals and frustrate our aspirations. It has been integral to the structure of our society from the beginning. It has become common the last few years, but still morally shocking, to consider the paradox of Thomas Jefferson in his beautiful house, his beautiful mind a repository of Enlightenment learning and neo-classical diagrams, living in the midst of slaves, many of whom were his own children. “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness …” So he wrote as, year after year, he enslaved, kept as slaves, his own children. He and many other Founders traded in people as if they were simply commodities: as they were. One can imagine—one cannot imagine—the scenes that took place as men sold their children in the town marketplace. That this was a moral problem did in fact occur to Jefferson: “Indeed”, he wrote in his Notes on Virginia, “I tremble for my country when I reflect that God is just; that His justice cannot sleep forever.”
The institution of slavery was not unique to the United States. There were slaves in China, most of whom were Chinese; there were (and still are) slaves in North Africa, some African, some of whom were European and some White Americans. The Marines, we recall, were sent—by Jefferson—to “the shores of Tripoli” to free the latter. There had been European slaves in Virginia, but these had soon enough been replaced by Africans. What catches our attention is the eventual identification of slavery in the United States solely with Africans and their descendents. It came to be assumed in the United States that slaves were Africans—and, to a great extent, visa versa. (According to Professor Becky Pettit, “Prior to the abolishment of slavery … Although not all black Americans were slaves, evidence suggests that Census enumerators often miscategorized free blacks as slaves.” ) For many White Americans, particularly in the South, this identification was so complete that it became inconceivable that African-Americans could have a civil existence that was not that of a subordinate caste. According to George Fitzhugh, a leading Southern apologist for slavery, “As a general and abstract question, negro slavery has no other claims over other forms of slavery, except that from inferiority, or rather peculiarity, of race, almost all negroes require masters.” The masters, in return, benefitted from, believed that they required, the unpaid labor of the slaves. A fair enough exchange, the George Fitzhughs of this world would have thought: slavery for Black men; profits for Whites.
This ideology and its profits underlay the continuing efforts to maintain a race-based system of subordination long after legal eman-cipation. The abortive revolution called Reconstruction threatened this system, but Reconstruction ended in 1876 with the withdrawal of the United States Army from the South. Although there were for the next twenty years a scattering of Black elected officials in the South, African-Americans in those states were nearly totally disenfranchised by the end of the nineteenth century, not to be able to participate in American democracy again until the 1960s. W. E. B. Du Bois observed in 1935 that “In the former slave states, from Virginia to Texas, excepting Missouri, there are no Negro state officials; no Negro members of legislatures; no judges on the bench; and usually no jurors. There are no colored county officials of any sort. In the towns and cities, there are no colored administrative officers, no members of the city councils, no magistrates, no constables and very seldom even a policeman.” Control of the police, the courts, the prisons and the legislatures of the South were the prerogatives of White men. As a result, Du Bois wrote, the “police courts and magistrates’ courts [under Jim Crow] were in the hands of a wretched set of white Negro-hating politicians, and nine-tenths of the Negro court cases ended here and filled the chain-gangs with Negroes … It was the policy of the state to keep the Negro laborer poor, to confine him as far as possible to menial occupations, to make him a surplus labor reservoir and to force him into peonage and unpaid toil.”
At any time between the end of Reconstruction and the Truman administration, a Black man, arrested on any pretext or no pretext at all by a White sheriff, brought before a White judge or a White notary public, could be charged, swiftly convicted and more or less inevitably punished with a fine carefully calculated to be beyond his means to pay. A White farmer or business man, happening to be nearby, would pay the fine, thus securing the labor of the Black man in return for this debt, which, in the way of such things, would rarely be allowed to be paid off. It was this “debt peonage” that Douglas Blackmon calls “slavery by another name.” In 1908, the then-U.S. Assistant Attorney General, Charles Russell, wrote: “I have no doubt from my investigations and experiences that the chief support of peonage is the peculiar system of State laws prevailing in the South, intended evidently to compel services on the part of the working man … it is difficult to draw a distinction between the condition of a man who remains in service against his will, because the State has passed a certain law under which he can be arrested and returned to work, and the condition of a man on a nearby farm who is actually made to stay at work by arrest and actual threats of force under the same law.” Debt peonage prevailed unchallenged across the South until 1942, when Attorney General Francis Biddle brought a case under the Slavery Kidnapping Act. It took nearly another decade to end such legal involuntary servitude. While slavery was abolished in the British Empire in 1833, to hold a person in slavery became a crime in the United States not in 1865, but in 1951. Between those dates, African-Americans could, and often were, enslaved by means of the operations of the criminal justice system. The 1871 Virginia Supreme Court decision in the case of Ruffin v. Commonwealth held that a convict was “a slave of the State.” That decision stood until the 1960s.
“Slavery by another name” is what Blackmon calls “The Re-Enslavement of Black Americans from the Civil War to World War II.” He centers his account around the operations of the vagrancy laws in the South at the end of the nineteenth century, epitomized by that which required “all free negroes and mulattoes over the age of eighteen” to have at all times written proof of employment or be deemed vagrants. “Vagrancy,” according to Blackmon, “the offense of a person not being able to prove at a given moment that he or she is employed … was capriciously enforced by local sheriffs and constables, adjudicated by mayors and notaries public … and … was reserved almost exclusively for black men.” (The racialist application of laws that were on the face of it race-neutral recurs in this story). Blackmon believes that hundreds of thousands of Black men and boys (and some Black women and some White men) were held in debt peonage between the end of Reconstruction and the end of the Second World War. One effect of this was to provide quasi-slave labor for the plantations and factories of wealthy White families; another effect was the subordination of the region’s Black population as a whole. If any Black person could at any moment be stopped, searched and perhaps sent off in chains to, say, a turpentine camp, then all Black people were without security in their persons.
Yet another effect was to lower the average cost of both White and free Black labor. As the labor of Black men in the fields, forests and factories of the South was obtainable at a cost close to, if not below, that necessary for bare survival, all wages, White as well as Black, were liable to being lowered in parallel. This system was maintained in the first instance by continual actual and threatened violence against African-Americans. The support of those White men who were not themselves employers of Black labor was secured not economically, by the provision of employment at fair wages, but ideologically: by the continual invocation of racial (as well as gender) superiority. As Du Bois reminded his readers in Black Reconstruction:
“It must be remembered that the white group of laborers, while they received a low wage, were compensated in part by a sort of public and psychological wage. There were given public deference and titles of courtesy because they were white …
The police were drawn from their ranks, and the courts, dependent upon their votes, treated them with such leniency as to encourage lawlessness. Their vote selected public officials and while this had small effect upon their economic situation, it had great effect upon their personal treatment and the deference shown them. White schoolhouses were the best in the community, and conspicuously placed, and they cost anywhere from twice to ten times as much per capita as the colored schools. The newspapers specialized on news that flattered the poor whites and almost utterly ignored the Negro except in crime and ridicule.”
Economic self-interest is not an all-encompassing motivation in a racist society. In much of the South, White poverty was the price more or less gladly paid for Black subordination. The system worked. It still works today.