Chapter I
Mass Incarceration (cont.)
As in the time of the Fugitive Slave Act, when the reach of the “drivers of Negroes” legally extended across the entire country, under Jim Crow the condition of Black people in the South, and the attitudes of White Southerners, infected much of the rest of the country ideologically. In order to gain the acceptance of the North for ending Reconstruction “the South had to make Negroes into thieves, monsters and idiots” as Du Bois put it. If it occurred to White observers in the North to think about Black debt peonage, the chain gangs, lynchings and other aspects of the Southern criminal justice system, they soon were provided with the explanation that there was a very high rate of criminal behavior among former slaves and their descendents and that “a firm hand”—strict enforcement of strict laws—was needed if there were not to be an epidemic of Black crime. This explanation was deemed sufficient. There was no more need for the average White American, North or South, to think about such things. They could simply watch The Birth of a Nation.
As it was posited that African-Americans were peculiarly likely to be violent criminals, the violent behavior of the police toward African-Americans followed—follows—as a matter of course. Myrdal observed that in the South under Jim Crow, it was “part of the policeman’s philosophy that Negro criminals or suspects, or any Negro who shows signs of insubordination, should be punished bodily … When once the beating habit has developed in a police department, it is … difficult to stop … Police brutality is greatest in the regions where murders are most numerous and death sentences are most frequent, which speaks against its having crime-preventing effects.” Myrdal found that the situation was not much different in the North: “In most Northern communities Negroes are more likely than whites to be arrested under any suspicious circumstances. They are more likely to be accorded discourteous or brutal treatment at the hands of the police than are whites. The rate of killing of Negroes by the police is high in many Northern cities …” And so forth. These matters have not changed. According to the late conservative scholar William J. Stuntz, “Today, black crime is mostly governed by white judges and white politicians, and by the white voters who elect them.” In New York City, for example, at the beginning of the twenty-first century, a young adult African-American man expects to be stopped and publicly searched by police at least once a year and is not surprised to be arrested for trespass at his own front door. Similar, more egregious, police practices, often mortal, take place there and in every part of the country. In the South they often take place in the schools.
The effect of such patterns of police behavior on African-Americans has not been such as to win their approval.
The Negro is coming more and more to look upon law and justice, not as protecting safeguards, but as sources of humiliation and oppression … The laws are made by men who have absolutely no motive for treating the black people with courtesy or consideration … the accused law-breaker is tried, not by his peers, but too often by men who would rather punish ten innocent Negroes than let on guilty one escape.
The quotation is again from Du Bois, this time from
The Souls of Black Folk, which, although published in 1903, seems familiar today, as it seemed to Myrdal a reasonable depiction of the situation in his day. A century after Du Bois’s book, more than half a century after that of Myrdal, we are told that there are more arrests of African-Americans than others because African-Americans (still depicted as “thieves, monsters and idiots”) live in high crime neighborhoods, which indeed they do. And, as crime statistics do not count the activities of criminals, but those of the police, the proof of this becomes the indisputable fact that there are many more arrests, stops and searches in African-American neighborhoods than elsewhere. Round and around we go: there are in fact large numbers of violent crimes in poor White and poor Black neighborhoods, but police are concentrated in poor Black neighborhoods; the concentration of police produces a high number of arrests; a high number of arrests is interpreted as a higher crime rate, which justifies concentrating yet more police in poor Black neighborhoods. Which, by removing extraordinary numbers of working age Black men, is one of the factors that makes them both poor and the foci of violent crime.
We have seen that the subordination of African-Americans, their status as a subordinate caste, has its origin in slavery, as an economic phenomenon, and the association of slavery with African-Americans, as an ideological phenomenon. And we have seen that the economic importance of the subordinate caste status of African-Americans to the dominant structure of the White South was such as to lead to the rebirth of slavery as debt peonage. Even after the mid-twentieth-century abolition of this type of slavery, the ideological force of the subordinate caste status of African-Americans has been maintained not only in the South, but throughout the country. A strong theme in this ideological construction, in Du Bois’s time and our own, is the association of African-Americans, especially African-American men, with criminality and therefore the acceptance of the extraordinary incarceration rate of Black men as something to be expected.
Bruce Western is perhaps the country’s leading expert on the sociology of the criminal justice system. His Punishment and Inequality in America documents the enormous increase in incarcerations in the United States that began in the last quarter of the twentieth century, perhaps coincidentally, just after the passage of the Civil Rights Act. In the course of doing so he focuses on two aspects of that increase: that it is to a significant extent an artifact of arrests for drug offenses and that most of those arrested are young adult male African-Americans. Western does not belabor the obvious: the drug laws are manifestly irrational, designating this substance as dangerous, that as a near social necessity. The behaviors criminalized differ little, if at all from behaviors—such as the consumption of alcohol and prescription drugs—that are not similarly criminalized. (It is widely acknowledged that the harms associated with the behaviors in question are generally the consequence of the laws, rather than the result of those behaviors.) The laws create artificial scarcities, impoverish addicts and enrich gangs and foreign criminal cartels. The enforcement of those laws, and their consequences in terms of incarcerations, are not applied evenly across society. They are enforced in neighborhoods of concentrated poverty, not in those of concentrated wealth; they are enforced for unemployed young Black men in the streets of central Brooklyn and not for, say, older White women working at fashion magazines.
Western has found that the consequences of the late-twentieth-century changes in the practices of the criminal justice system for their target group—Black men—were severe. By the year 2000 12% of Black men age twenty to forty, 17% of those without a college degree and 32% of those without high school diplomas were incarcerated. About the same number were on parole or probation. In some urban areas the statistics are even more dramatic. In Chicago, for example, it is said that the number of those with a felony record is equal to fifty-five percent of the black adult male population and 80 percent of the adult black male workforce. While for most White, non-Hispanic, Americans, the police and courts they are most aware of are those depicted on television, in video games and in the movies, for most Black men the streets of America are those of a police state. Most White Americans may not know any White men who are (or have been) incarcerated. Nearly every Black American knows a man from their community who is or has been incarcerated. Often enough, that will be a neighbor or family member. For Black men, that incarcerated or formerly incarcerated person is as often as not himself. Western and his colleague Becky Pettit have observed that “incarceration is so disproportionately concentrated among low-skill black men that it has become a routine life event.”
If this seems melodramatic, consider these statistics. On June 30, 2010, the most recent date for which this data is available, 4.3% of Black American adult males were inmates held in custody in state or federal prisons or in local jails. One in ten Black men in their early thirties were incarcerated. (By way of comparison, less than one percent of White, non-Hispanic, males and less than two percent of those in their early thirties were imprisoned.) An additional 814,000 adult male Black Americans were on probation and 320,000 on parole. At that moment, then, just under 10% of all Black males were under the control of the criminal justice system, rising, in some age groups, to one out of five. If we deduct boys 17 years of age and below and men over 55, we can estimate that of the ten million working age Black men in the general population remaining, 16% were either incarcerated, on probation or on parole in June 2010. It is commonly estimated that twice that percentage will be imprisoned at some time during their lives and it is projected that up to two-thirds of all Black men born in 2001 and the years following can expect to spend time in jail, state or federal prisons.
There are more incarcerated Black males than incarcerated White males in the vast majority of the states imprisoning 20,000 or more men of either race. The excess of Black over White male incarcerations in Georgia, New York state and Louisiana is particularly striking. In none of those states does the total Black population exceed one-third of the White population. The picture is quite different for incarcerated women, of whom there are 58,000 who are Black and 126,000 who are White, non-Hispanic. The incarceration rate for Black women as compared to that for White women is three times what would be expected from their respective shares in the general population, but half the degree of disproportionality of the male incarceration figures. There are only a handful of states with more incarcerated Black than White women, none of which are the mass incarceration states of Georgia, Florida, California and Texas. In other words, the comparative incarceration rates for Black and White women are inequitable, but not as egregiously so as those of Black and White men. If the incarceration proportions by race were the same for men as for women, half a million fewer Black men would have been incarcerated in 2010.
Why is that? Racism in the United States has always been gendered: few women were lynched. It was believed by slave owners that control of Black men would control the Black population. So it is still believed today. The White fear of African-American men, particularly of young adults, is a projection of that belief, operationalizing it in, among other ways, stop-and-frisk policing, trespass laws, mass incarceration, vigilante shootings.
It is well-established that incarceration rates vary with education: the more education, the less chance of incarceration. The education (or lack of education) effect is particularly strong for those who have not obtained a high school diploma. Three times the percentage of young adult Black men as White men who had not completed high school were incarcerated in 2008; four-and-a-half times the percentage of Black as White men who had completed high school were in prison; seven times the percentage of Black as White men who had some college were incarcerated.
The chances that a man will be incarcerated at some point while a young adult similarly vary with education and race. The chances of a White man without a high school diploma being incarcerated as a young adult are nearly one in three; those for a Black man without a high school diploma are more than two in three. A diploma brings that down sharply for White men, to 6%, less sharply for Black men, to one in five. Some college brings the odds for incarceration down close to one in a hundred for White men, but, again, down only to the level for White men with a high school diploma for Black men. There seems to be a variable at work—call it Blackness—that to some extent counterbalances educational attainment as a factor in vulnerability to incarceration.
The interpretation of these statistics is complicated by two related factors. One is the common definition of the group with a high school diploma, which almost always includes those with a GED. However, the GED is not actually the equivalent of a high school diploma. The requirements are not as great and its completion, by a test or through a waiver, is not at all evidence of equivalent effort. Second, Black men, who form a disproportionate number of those receiving a GED, characteristically do so while in prison. According to De los Santos and Heckman: “GEDs earned while incarcerated account for as many as 20 percent of GED credentials issued to men in the US … 68 percent of GED credentials issued to black men are likely to have been obtained while incarcerated, compared with 35 percent for Hispanic and 9 percent for white men.” Thus the counts of high school completion/GED among those incarcerated are doubly inflated. We should, therefore, move the GED data in regard to incarcerated Black men with high school diplomas or GEDs to the “less than high school” category, bringing the incarceration rate for the latter to perhaps 40% and that for the former to, say, 6%. The statistics for White men form a close-to-normal distribution: there are approximately equal numbers of men with a GED or no diploma as with graduate degrees. The statistics for Black men are more strongly skewed to the left: it is only one-fifth as likely that a Black man will have a graduate degree as it is that he will have a GED or no diploma. We can then compare these numbers with cumulative risk of imprisonment percentages given by Pettit.
For six million of the ten and a half million young adult Black men the odds are more than two in three that they will spend time in prison. For another three million the chances are more than one in five. For only 1.6 million young adult Black men are the chances of incarceration the same as they are for young adult White men. Pettit concludes that “Spending time in prison has become more common than completing a four-year college degree or military service among young black men. And young, black, male high school dropouts are more likely to spend at least a year in prison than they are to get married. In short, among low-skill black men, spending time in prison [furthers] … their segregation from mainstream society.” Furthers, in fact, the segregation of impoverished Black communities as a whole from “mainstream society.” Of course “impoverished Black communities” is nearly a tautology: as we will see, the vast majority of Black communities are impoverished.