Crime’s Only Color

Earnest Bickerstaff
Sep 5, 2018 · 15 min read

A History of Racial Bias in American Prisons from the 13th Amendment, The Prison Industrial Complex, and Kalief Browder

In the last few decades there has been no greater injustice in America, typically at the expense of minorities, than the plight of Mass Incarceration. Currently, staggering numbers of black and brown men, predominately, ranging from adolescent to adult sit within the walls of the country’s overcrowded prisons. A recent study, done in 2016, highlights the disparity among prisoner’s ethnicity according to data collected from the Bureau of Justice Statistics.

The data shows that Black representation triple the number that both Whites and Hispanics contribute, on average rate of incarceration by race and ethnicity per 100,000 U.S. population per capita. Blacks are overall incarcerated at a rate of 1,408 per 100,000, Whites 275 per 100,000. Blacks are incarcerated at five times the rate of Whites, and Hispanics are showed to emerge into prisons at 378 per 100,000. The trajectory of race relations, heavily concerning Black and White ethnicity, shifted the dynamic of how race is conducted since the dawn of the 1960s Civil Rights Movement.

United States Department of Justice. Office of Justice Programs. Bureau of Justice Statistics. National Prisoner Statistics, 1978–2014.

Of this larger work attempts to unfold how and why the racial disparity of inmates is accounted for by racism, biased legislation, and the profitability of housing prisoners. In part one of this study, I draw upon the history of American’s relationship with the African American race. The thirteenth Amendment would allow former slaves, under Southern Democratic rule, to be put back into a slave-like condition of indentured servitude. Exercising their power, Southerners would use the amendment to their advantage and successfully acquire the labor of freed slaves.

The late 1960s into the seventies would resemble a similar way of life for blacks. Still, the thirteenth amendment made imprisonment possible to lock up blacks as crimes were ostensibly easy for blacks to commit as had been after emancipation. The effects of the Thirteenth Amendment are drawn out to exemplify the stalled progress of poor African Americans through generations. In part two, I focus in directly on the problem that sprouts the epidemic of mass incarceration. The Prison Industrial Complex saw a rise in criminalization of drug possession, under the Nixon Administration, and harsher sentencing. President Reagan’s economic policies, through anti-black rhetoric, crippled the larger image of the black race in effort to sway potential voters.

Finally, to administrative legislation, in 1994 particularly, which extended mass imprisonment, creating the three strikes rule under Bill Clinton and hurting black communities in the long run. In part three, Kalief Browder’s unjust sentencing in 2010 is used to greater convey the conditions, mentally, of inmates both inside and outside of prison. The story accentuates the bias of the criminal justice system in current times. Part four, shows the rates of recidivism and reentry of prisoners after release. Racial disparity is most prominent among those who re-offend and re-enter. All parts communicate, individually, the success of the criminal justice system to criminalize color, through racism, legislation and profitability.

One: Thirteenth Amendment & the New Slavery

History is the driving force behind mass incarceration, as prior events have shifted the American psyche. The Thirteenth Amendment of the U.S. Constitution is considerably the catalyst for the problem of incarceration. The amendment is often regarded as an extension of slavery and primarily affects minorities who are more susceptible to fall in line with the revision’s guideline. The ruling of the 13th Amendment states “Neither slavery nor involuntary servitude, except as punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, nor any place to their jurisdiction.”

The creation of this law came about following the emancipation of some four million black slaves. The prospect of true freedom for blacks in the late 1800s was challenged by the consistent racism of Southern Whites. In order to maintain power and sustain the South, powerful whites created the ‘Black Codes,’ which were laws that restricted the freedom of former slaves. For example, in Jackson, Mississippi black people were not allowed outside after dusk. In the state of Louisiana’s Ordinance, written in 1865, section 9 states “Any negro found drunk within the said parish shall pay a fine of five dollars, or default thereof work five days on the public road, or suffer corporeal punishment as hereinafter provided.”

The codes under Southern ruling, in Mississippi, Louisiana and elsewhere made it very difficult for blacks not to violate these laws, as their freedom made them more susceptible to the laws. If a black person were to be in violation of these laws they were forced into labor for very low wages and gathered an unaccountable amount of debt. White southerners used the black codes, under an amendment that permits its use, to further confine and oppress freed slaves — in a larger effort to stop political and economic progress.

In author Douglas A. Blackmon’s Slavery by Another Name, he argues against the notion that slavery ended following the Civil War. He details how free black men and women were forcibly put into indentured servitude, chain-ganged, and tortured in attempt for Southern Whites to find profit in farming and mining by exploiting the labor of blacks.

Southern chain gang in 1898.

The Thirteenth Amendment would continue to work as intended, and more effectively, as decades progressed. There were no longer overt, race-based trivial rules designed for blacks to fall victim to, however a wave of restrictions under twentieth century legislation may have proven otherwise. Heightened drug and crime laws shifted the dynamic of poor areas throughout the United States. Laws were made, seemingly, to target poor minorities in deliberate spaces. Declarations of war against whatever issue or abuse Presidential administrations wanted to incriminate people for, ultimately won out in effort to segregate prisoners and exploit their labor.

Two: Prison Industrial Complex, 1971–1994

African Americans are subjected to be criminalized and sent to prison more frequently, at alarming higher rates, than any other race. Since the beginning of the early 1970s, the conditions for poor Black Americans seemed to worsen within the development of the country’s strategy to hunker down on crime. In 1971 President Richard Nixon would declare the War on Drugs, in attempt to stop the nation’s problem of drug abuse. This solidified a blueprint structure for how similar Administrations would handle issues, and set forth a path to further handicap poor citizens of every race.

Nelson Rockefeller, New York governor, on January 1973 gave a state address demanding that every illegal drug-dealer be punished with a mandatory prison sentence without parole. As a result, the criminalization for drug possession grew thoroughly, and most affected were those in custody of drugs, typically poor blacks — who were possibly dealers or strung out addicts. Statistical data shows that disparity among those who were arrested the most for drug offenses were black, as they were twice more likely to be arrested than whites.

Arrests would increase within the next decade, under Reagan, with blacks being the fastest growing population of American prisons. It had been later confirmed by Nixon’s aide at the time that the war on drugs policy was a mere plan to, he said, “In fact criminalize and disrupt black and hippie communities and their leaders.”

Daily News Newspaper cover story, March 23, 2016

During his presidency, Ronald Reagan’s administration would continue to uphold strict crime laws, as he promoted the worst stereotypes of black people. Reagan’s economic policies, coined “Reaganomics,” proved to be unfavorable to blacks. Reagan’s welfare queen angle would propel him to success among voters in the election. He attracted voters by race-baited attacks against black people, in ways his supporters wouldn’t recognize. Reagan put blame on the shoulders of blacks, black women in particular, as “welfare lazy crack-whores,” suppressing one group in order to garner the attention and vote of another, using blacks as the scapegoat for the current economic problems.

Comic portraying Reagan’s rhetoric of Black female Democrats

In 1982, he would solidify the War on Drugs, later bringing media attention to the epidemic of crack-cocaine into black inner-cities, while having ignored the fact of the CIA’s involvement of the drugs being brought into the country initially. In his eight year run, the executive branch turned a blind eye to the progress of civil rights. It reduced welfare programs, and staffed key agencies and federal judiciary with opponents of affirmative action. By this time in 1983 comes the creation of the Corrections Corporations of America (CCA) that soon grew to become the largest for-profit prison company in America. Prison was undoubtedly becoming a business venture, and provided capital gains from inmate’s labor.

Emerging into the 1990s a host of obstacles stood in the way of poor blacks under the criminal justice system. Countless black men were being arrested, especially, for non-violent drug offenses from previous generations, creating a pipeline from rough neighborhoods to prison cells. In 1994, during Clinton’s administration, the president would officially mandate the Three Strikes Rule under the Violent Crime Control and Law Enforcement Act, which gave mandatory life sentences, without parole, to federal offenders with three or more convictions for felonies or trafficking crimes. The policy generated an increase of inmates in the number of prisons throughout the United States. The bill would provide major funding for prisons and a submergence of privatizing prisons occurred.

President Bill Clinton signing $30 billion crime bill at the White House on Sept. 13, 1994.

Journalist Eric Schlosser notes that “the administration had encouraged the Justice Department to place illegal aliens (immigrants) and minimum-security inmates in private correctional facilities, as part of the drive to reduce the federal work force.” This allowed government to monopolize profit from private prisons. Private-prison companies worked with the U.S. government operating facilities from government agencies, as both parties, respectively, benefited. Twenty- seven states in the late nineties made use of private prisons, and approximately 90,000 inmates were being held in prisons run for profit.

The conditions for America’s poor increasingly worsened as the decades transpired from the early 1970s to the late 1990s and beyond. The Constraints of black development persisted of a recurring nature. According to the U.S Department’s Bureau of Justice Statistics, highlighting the number of arrests collectively, ranging in issues from Violence, Property, and Drugs showed that Whites, in sum, were estimated to total the biggest number of all these offenses in 2010. This data proves the bias of the criminal justice system as Black representation was dominant that year, according to research done years later by Prison Policy Initiative in 2014.

Though whites accounted for a large portion of the prison population in 2010, Prison Policy initiative’s data shows that black representation slightly wins out over white. The U.S. Department’s Prisoners in 2010 report comes to the same conclusion. Whites did make up a large sum of the greater total, of 436,500 inmates, but blacks would continue to be the primary subjects of incarceration at 572, 900. Whites progressively contributed to the larger epidemic of mass incarceration, but the data collectively relates the rate at which blacks are targeted and conveys the uniform prejudice of the criminal justice system against poor black people.

Three: Browder vs. The State of New York

One Saturday night in May of 2010, sixteen year old Kalief Browder and friend walked along the borough streets of the Bronx, NY heading home from a night of partying. The pair was soon stopped by a horde of squad cars, squatting in the cold pavement, subjected to routine profiling. One of the officers informs Browder and his friend of a call received from a young man whose brother’s backpack had been stolen. Reportedly, the man who called had been driving all night with police in search for who may have stolen the bag. Browder was certain of his innocence, giving the officer permission to search him. Finding nothing in either’s possession, the officer walks back to his car, where the victim changed his story that he was robbed, not that night, but two weeks prior. Browder and friend were then arrested, charged with the victim’s accusations, and taken into custody.

At the Forty-Eighth Precinct, both were fingerprinted and locked in a holding cell. The following day, Browder learned of his charges: robbery, grand larceny, and assault. Having been on probation for prior charges, which were dropped, the judge had ordered he be held and set a bail of three-thousand dollars. Simply submitting to a plea deal would ensure Browder his freedom, but in refusal to take it, he protested the unjust arrest and challenged the system that had wronged him. The denial for plea would mean Browder had to await trial — his mother did not have sufficient funds for his bail.

Pictured: Kalief Browder

The next three years Kalief Browder sat confined inside one of America’s harshest prisons, Riker’s Island, where he had been transferred. There, he faced many challenges. He suffered beatings, from both inmates and guards, attempted to take his own life multiple times, and realized an ugly truth that speaks to the larger degree which America views its black citizens. Failure of the witness to appear in court, the same witness who sat in the back of the squad car and turned Browder’s life around and later learned biases from the prosecutor and judge against the case, stalled any hopes of a fair trial and for Browder’s freedom.

Upon his release in 2013, after the court finally reviews his case, under a new judge, Browder and attorney make rounds via media outlets to highlight the conditions Browder faced while incarcerated. Readjusting to society after a three year stint, assumedly, challenges the psyche and lifestyle once released. Browder would hope to find solace in counseling, redirecting focus on his studies as a college student, and spending time with family. “I felt relieved,” Browder says in a 2013 interview when asked how he felt when he heard he would be released, “I felt like that was the best feeling I ever had in my life.”

Sadly, with a dying mother, all that had encapsulated him while incarcerated and struggles, still, on the outside of Riker’s walls, in 2015 Kalief Browder took his own life outside his home. Shortly after, the Browder family would sue the state of New York for twenty million dollars. The city agreed to thirty-eight thousand. The case of Kalief Browder is one, likely common among American inner-cities where he lived, where the unveiling of the criminal justice system, or police’s, bias was greatly exposed. The fact that Browder’s arrest had not been made on the basis of real evidence, that proves his accused guilt, further validates the perception of young black males, and the intent to criminalize them. In this case at any cost.

Four: Recidivism and Reentry

The rates at which released inmates re-offend and return to prison are as disproportionate by race as the prisons are themselves. According to a Recidivism Report, conducted in May of 2001 by the Florida Department of Corrections, black male inmates are 43.6% more likely to re-offend than non-blacks. Generally male inmates re-offend more than females, reportedly by 24.2%. A reason believed to account for this, from the data’s gathering, is that a difference in black and white male recidivism rates is that the race difference is larger for males than females. The Bureau of Justice Statistic’s 2014 Recidivism of Prisoners report shows a high rate of re-incarceration and a case study that followed a significant amount of inmates after their release. Within three years of release, 67% were rearrested, within five 76% and more than half of those arrested were rearrested within the first year of being released.

2005 Graph shows the rate at which released offenders reenter by large being blacks/minorities.

What this tells is that inmates have a difficult time restoring old lifestyles, as conditions previously before going in are changed upon release. Perhaps inmates become institutionalized, virtually unaccepted in society for past mistakes, dependent on crime as a way to combat social conditions. This has certainly been documented of young black males, having come from one troubled place to another, from ghetto to prison, leaving little opportunity for reform, if anything, to be done within the neighborhoods to affect positive change, as well as in the prison system.

If the main objective of the prison is to make profit, like any business, then the large housing of inmates will continue to prevail. Many hands involved in the prison industry gain capital. Prisoners’ cheap, often unpaid labor, ensure their income. The ex inmate who re-offends and returns to the institution that produces broken men, in greater respects finances a wealthy, privileged corporate interest, whom never meets the prisoner or experiences his position. Thus, the greater of all tragedies.

Conclusion

Presented are key arguments in favor of America’s bias, under the criminal justice system to criminalize on the basis of skin color. Understandably these are not all the contributing factors. Violence, or criminal act, is one that likely stands out — and certainly minorities are guilty, just as any race, of such crimes. Though I would argue that the high number of non-violent offenses — such as drug possession — ramp up the total sum of inmates in U.S. prisons.

Graph depicting the high rate a which possession of drugs are criminalized. Source: 2012 Federal Bureau of Prisons.

Young black males are arrested for drugs (marijuana) and housed with violent offenders — both parties respectfully contributing to the staggering numbers we often see when discussing mass incarceration. The problem is that both crimes are distinctly unalike, but treated in a similar matter. We also know, as data shows, that African-Americans are criminalized for drug possession at higher rates than other races.

The stark representation of color among American jails and prisons often comes at the expense of pretrial detention, where the convicted sit in cells awaiting trial. A recent study done by researchers from Harvard, Stanford and Princeton shows that the U.S. has half a million people sitting in jail before a trial. The analysis argues that by keeping people in jail before their trial, the system persuades them to plead guilty — innocent or otherwise.

Mass incarceration continues to be a problem of the twenty-first century as great numbers of men and women make up prisons. The American Criminal Justice system holds more than 2.3 million people in 1,719 state prisons. Of that, black people stand at the forefront of the prison population in over-representation of the total sum. The epidemic of mass captivity are all encompassing of the history, legislation, rhetoric, and hopelessness that transpires generations of deprived black Americans.

Sources

A Marylander. The Law of Slavery in the State of Louisiana, 1847. Washington, D.C.:The National Era. African American Newspapers. Sept 2, 1847. Web

Blackmon, Douglas A. Slavery by Another Name: The Re-Enslavement of Black Americans from the Civil War to World War II. New York: Doubleday Press, 2008. Print.

Schlosser, Eric. The Prison-Industrial Complex. The Atlantic. Dec, 1998. Web.

Tonry, Malign Neglect, p. 111; Blumstein, “Racial Disproportionality.” Blacks constituted 26.8 percent of all adult drug arrests in 1980 but 40 percent of those arrested on drug charges in 1990. The black share of drug arrests decreased slightly to 37 percent in 1998. U.S. Department of Justice, Federal Bureau of Investigation

DOJ/FBI), Uniform Crime Reports: Crime in the United States, (Washington, D.C.:USGPO, 1980, 1990, and 1998). Juvenile drug arrests followed a similar trend. Black youth comprised 14.5 percent of all drug arrests in 1980; in 1990 they comprised 48.8 percent of drug arrests. Data obtained from the Federal Bureau of Investigation; on file at HRW

LoBianco, Tom. Report: Aide Says Nixon’s War on Drugs Targeted Blacks, Hippies.” Report: Nixon Aide Says War on Drugs Targeted Blacks, Hippies — CNN Politics. N.p., n.d. Web. 9 Oct. 2017.

Hine, Darlene Clark, William C. Hine, and Stanley Harrold. The African American Odyssey: Combined Volume. New Jersey: Pearson Prentice Hall, 2007. P.673

Snyder, Howard N. Arrests in the United States, 1990–2010. Innovation Partnerships. Safer Neighborhoods U.S. Department of Justice: Office of Justice Programs. Bureau of Justice Statistics. October, 2012, NCJ.

Guerino, Paul. Prisoners in 2010. Innovation Partnerships. Safer Neighborhoods. U.S. Department of Justice:Office of Justice Programs. Bureau of Justice Statistics. December, 2011, NCJ.

Gonnerman, Jennifer. “Before the Law.” The New Yorker, 6 Oct. 2014. Web.

Factors Affecting Recidivism Rates: Total Recidivism Rates at Selected-Follow Up Periods. All Prison Releases since 1993. 2001. Florida Department of Corrections. Web.

Durose, Matthew R., Alexia D. Cooper, and Howard N. Snyder, Recidivism of Prisoners Released in 30 States in 2005: Patterns from 2005 to 2010 (pdf, 31 pages), Bureau of Justice Statistics Special Report, April 2014, NCJ 244205.

Dobbie, Will, Goldin, Jacob, and Yang, Crystal S. The Effects of Pretrial Detention on Conviction, Future Crime, and Employment: Evidence from Randomly Assigned Judges. American Economic Review 2018, 108(2): 201–240

Earnest Bickerstaff

Written by

History and African-American Studies undergrad @ Roosevelt Univerity. McNair Research Scholar. Aspirant historian, educator, and academic.

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