Engineered Injustice: Is the system really “broken?”

In theory, a criminal justice system should promote public safety. The system should maintain integrity and legitimacy by exhibiting fairness as it administers equal justice proportionally tailored to the offense. If that is our true goal, then yes — the system is undeniable broken. Many have persuasively argued that our system wasn’t designed to operate according to this model, and for that reason, I’m hesitant to say that we have a “broken” criminal justice system.[1] There’s a strong case for the assertion that the system is overly punitive and racially discriminatory by design — that the system is an incredibly effective tool of maintaining socioeconomic and racial hierarchy. Examining the criminal justice system within historical context ensures that scope of reform is sufficiently broad and demonstrate the dangers of colorblindness.

“[W]e remain imprisoned by the past as long as we deny its influence in the present.”
McCleskey v. Kemp (U.S. 1987) (J. Brennan, dissenting).

Prior to the Civil War, throughout the South, crimes were explicitly treated differently based on the race of the defendant and the victim.[2] In the aftermath of the Civil War we faced the task of rebuilding without slaves and with a limited population of young white men who had survived the war. Nowhere was this a more daunting task than in Mississippi, because nowhere was the institution of slavery more central to the economy as it was in Mississippi.[3] On November 22, 1865, the Mississippi legislature passed an act allowing white Mississippians to pay a fee for custody of black orphans as apprentices subject to criminal prosecution for refusal to perform forced labor. Two days later, the legislature criminalized the unemployment and assembly of blacks. Our economy and racial caste system were fragile, and in order to preserve both, we enacted black codes and invented convict leasing. Black men, women and children were arrested for vague violations of the law such as vagrancy or changing employment without permission. In effect, they were criminalized for being black and free, and they were leased to rail road companies and wealthy plantation owners for cheap labor.

Similar convict leasing systems operated for decades throughout the South, and although the practice continued in Georgia and Alabama into the 1940s, Mississippi halted convict leasing in the late 1890s.

In the summer of 1887, a Hinds County grand jury reviewing the convict leasing system concluded that “God will never smile on a State that treats its convicts as Mississippi does.” However, it was in response to the economic concerns of white laborers and small business owners dissatisfied with inability to compete with big business,[4] that the state ended the brutal practice that was arguably “worse than slavery,” and created its own convict labor camp.

“We found twenty-six inmates of the hospital, of whom several have been lately brought there off the farms and railroads. Many of them are afflicted with consumption and other incurable diseases, and all bear on their persons marks of the most inhuman and brutal treatment…. They are lying there dying, some of them on bare boards, so poor and emaciated that their bones almost come through the skin; many complaining for the want of food…. One poor fellow burst out crying and said he was literally starving to death. We actually saw live vermin crawling over their faces, and the little bedding and clothing they have is in tatters and stuff with filth.”
July 10, 1887 Grand Jury Report, Hinds County, Mississippi

Eventually, we’re told, the Civil Rights Movement triumphed over racial injustice, and Jim Crow laws were defeated in federal courts, but the rhetoric from post-Civil War hysteria resurfaced. The desire to address the perceived threat of the Black population in the absence of oppressive institutions marginalizing them, once again required innovation. Thus, our nation’s second prison boom commenced with Nixon’s coded language in calling for a “War on Crime” and the need for “law and order.” The Southern Strategy was born. Reagan’s stump speech at the Neshoba County Fair, echoed those same sentiments, and in the 1980s, the “War on Drugs” was initiated. On October 27, 1986, Reagan signed into law federal drug trafficking legislation attaching a mandatory minimum of ten years and maximum of life. For the next 14 years, one gram of crack cocaine was treated the same in federal courts at one-hundred grams of powder cocaine.

George H. W. Bush’s Willie Horton campaign advertisement has become an infamous illustration of racial subtext that hardly passes as subtext. In 1989, George H. W. Bush addressed the nation, “Our outrage unites us.” He stated, “the states need to match tougher federal laws with tougher laws of their own — stiffer bail, probation, parole, and sentencing.” On September 5, 1989, he told the nation, “We need more prisons, more jails, more courts, more prosecutors.” Bill Clinton’s insisted that no Republican could claim that he was soft on crime. In 1994, Bill Clinton championed legislation to fund the construction of more prisons and the employment of a hundred thousand more police officers. He also signed into law mandatory life in prison for third strike convictions.

We enacted truth in sentencing laws, three strikes laws, and mandatory minimums, and our nation’s prison population grew by more than 600%. In the decades of tough on crime sentiment and policies, however, we enacted more than tough sentencing laws. The tough on crime sentiment has affected more than just incarceration rates and the length of prison sentences.

Our law enforcement agencies became warriors — not guardians. The Fourth Amendment was steadily eroded. At a time when the Sixth Amendment right to counsel was most crucial, it went virtually unfulfilled. We attached crippling civil consequences to criminal justice involvement — disenfranchisement, lawful employment discrimination, housing discrimination, disqualification from government benefits, and so much more. What is most devastating is that appellate review of convictions is conducting through a color-blind lens, discounting the continued racial disproportionality in the criminal system.[5]

While the financial cost of over-incarceration are an important part of the conversation, the human cost can’t be ignored. Our criminal courts devastate lives. In an extraordinarily disproportionate manner, the criminal system rips black and brown fathers from their children, big sisters from little brothers, and sons from their mothers. Poor communities are more heavily policed, and their poverty ensures that from the moment of arrest there will be little legal resistance to the forcefully brutal gears of the criminal justice system. The presumption of innocence has become a legal fiction. A poor person charged with a crime is presumed guilty, with a burden that’s insurmountable without resources. Furthermore, we know that these policies damage, rather than protect, the community. We have to keep this in mind, not just so that we remain conscious of the scope of the problem, but so that we never abandon our sense of urgency. Every day without reform is a day of egregious injustice.

“all our phrasing — race relations, racial chasm, racial justice, racial profiling, white privilege, even white supremacy — serves to obscure that racism is a visceral experience, that it dislodges brains, blocks airways, rips muscle, extracts organs, cracks bones, breaks teeth. You must never look away from this. You must always remember that the sociology, the history, the economics, the graphs, the charts, the regressions all land, with great violence, upon the body.”
Ta-Nehisi Coates, Letter to My Son, The Atlantic (July 2015).

Whether or not you’re persuaded that mass incarceration is The New Jim Crow is not dispositive. Nonetheless, the history of our criminal justice system provides the context necessary to sufficiently broaden the scope of reform and demonstrate the dangers of colorblindness. Policymakers and those of us privileged enough to have not been affected by the system have to reject the false assumption that our system operates in a fair and proportional fashion.


[1] See, e.g., Michelle Alexander, The New Jim Crow (2010); Ta-Nehisi Coates, Letter to My Son, The Atlantic (July 2015)(“[A] society that protects some people through a safety net of schools, government-backed home loans, and ancestral wealth but can protect you only with the club of criminal justice has either failed at enforcing its good intentions or succeeded at something much darker.”).

See also, Charles M. Blow, Laquan McDonald and the ‘System,’ The New York Times (Nov. 30, 2015)(“When black people are the focus, punishments seem to be more severe than when whites are the focus of the very same circumstances…. Where were these people when young black and brown people in the inner city were being steamrolled by the ridiculous War on Drugs and having the book thrown at them? You see, we as a society make choices about what and whom we value and ask police departments and judicial systems to put those values into action. Police shootings are simply an extreme example of our disparity in valuation…. As long as people who look like McDonald are disproportionately affected, and those who don’t look like him are not, it is likely and even predictable, based on historical precedent, that the terrible silence of enough people will continue to sanction this carnage.”)

[2] See, McCleskey v. Kemp (U.S. 1987) (J. Brennan, dissenting) (“By the time of the Civil War, a dual system of crime and punishment was well established in Georgia. The state criminal code contained separate sections for ‘Slaves and Free Persons of Color,’ and for all other persons. The code provided, for instance, for an automatic death sentence for murder committed by blacks, but declared that anyone else convicted of murder might receive life imprisonment if the conviction were founded solely on circumstantial testimony or simply if the jury so recommended. The code established that the rape of a free white female by a black ‘shall be’ punishable by death. However, rape by anyone else of a free white female was punishable by a prison term not less than 2 nor more than 20 years. The rape of blacks was punishable ‘by fine and imprisonment, at the discretion of the court.’ A black convicted of assaulting a free white person with intent to murder could be put to death at the discretion of the court, but the same offense committed against a black, slave or free, was classified as a ‘minor’ offense whose punishment lay in the discretion of the court, as long as such punishment did not ‘extend to life, limb, or health.’”)

[3] Ta-Nehisi Coates, Letter to My Son, The Atlantic (July 2015). (“At the onset of the Civil War, our stolen bodies were worth $4 billion, more than all of American industry, all of American railroads, workshops, and factories combined, and the prime product rendered by our stolen bodies — cotton — was America’s primary export. The richest men in America lived in the Mississippi River Valley, and they made their riches off our stolen bodies…. ‘Our position is thoroughly identified with the institution of slavery,’ declared Mississippi as it left the Union, ‘the greatest material interest of the world.’”)

[4] See, Mississippi Abolishes Convict Lease System and Authorizes Creation of Parchman Farm Penitentiary, A History of Racial Injustice, Equal Justice Initiative. (“Rather than humanitarian concerns, the opposition to convict leasing that emerged in 1890 was spurred by economic competition. White laborers and owners of small farms felt the convict leasing system allowed the privileged plantation owners and railroad tycoons to maintain their economic dominance and displace white workers by leasing cheap black labor from the state…. Accordingly, on September 5, 1890, an overwhelming majority of delegates to the Mississippi constitutional convention voted to abolish convict leasing.”)

[5] In 1995 the Georgia Supreme Court failed to find a law that allowed a prosecutor to seek a life sentence for person convicted a second time for the sale or possession with intent to distribute drugs was discriminatorily applied when 98.4% of the 375 persons serving life sentences for a second drug offense were African-American. As Justice Thompson stated in his concurring opinion in Stephens v. State,

“[W]e are introduced to statewide statistical information which must give us pause: From 1990 to 1994, OCGA §16–13–30(d) was used to put 202 out of 1,107 eligible African-Americans in prison for life. During that same period, the statute was used to put 1 out of 167 eligible whites in prison for life. A life eligible African-American had a 1 in 6 chance of receiving a life sentence. A life eligible white had a 1 in 167 chance of receiving a life sentence. An African-American was 2,700 percent more likely to receive a life sentence than a white.“