Is It Really Fair to Call It Our 'Justice System'?
On March 18, Stephon Clark was shot and killed by law enforcement officers in his grandparents’ backyard in Sacramento, California. Officers claimed they saw a gun in Clark’s hand. He was actually carrying a cell phone. In the heat of the moment, the police officers had the presence of mind to turn off the audio on their body cameras, but not to discern a cell phone from a gun. The officers discharged 20 bullets in Clark's direction; he was shot eight times.
Clark’s family called upon the district attorney’s office to file criminal charges against the officers involved in Clark’s death. The California Department of Justice and the Sacramento County District Attorney have since launched an investigation into the incident. Sequita Thompson, Clark’s grandmother, insisted, “I want justice for my baby. I want justice for Stephon Clark.”
Justice for the black victims of police shootings has been hard to come by. In late March, the Louisiana state attorney general announced that no criminal charges would be filed against the two officers involved in the shooting death of Alton Sterling.
Can the criminal justice system, which encompasses the network of entities tasked with arresting, prosecuting, sentencing, and punishing those accused and convicted of crimes, continue to be known as the justice system when historically it has failed to provide justice for all?
Black Americans’ interactions with the system provide some insight.
Reconstruction offered black Americans unprecedented gains. The Thirteenth, Fourteenth and Fifteenth Amendments, better known as the Reconstruction Amendments, embraced black Americans as newly enfranchised, in multiple senses of the word, members of the American body politic. Yet for as many advancements as black Americans made, they encountered challenges that threatened to frustrate their progress. Many of these challenges came from the state itself.
Rising public wariness over the continuation of Reconstruction coincided with (or perhaps precipitated) similar fatigue on the part of the federal government. As the federal government pulled out of the Southern states, Southern elites with an interest in re-subjugating blacks began to regain their power. A loophole in the Thirteenth Amendment, which forbade slavery except for its use as punishment for a crime, would prove to be especially fruitful in achieving these aims.
New versions of the Black Codes cropped up throughout the South. Minor infractions became major criminal offenses that mandated harsh punishments; stealing a pig in Mississippi could earn one a five-year stint in prison. Stealing a fence rail, priced at eight cents, in Tennessee could result in years of forced hard labor. The most notorious among these laws were the vagrancy laws, which made the inability to provide proof of employment a criminal act in states across the South.
These reimagined laws had the same targets as the originals—black people. Scores of black Americans were rounded up for various, often petty, offenses, tried without regard for their constitutional rights, convicted, punished either with forced labor or with fines and fees their poverty would not permit them to pay, and imprisoned. It is estimated that more than two-thirds of those in Alabama’s prison population in the late-1870s were convicted on questionable charges.
So thoroughly were black people targeted by the criminal justice system in the South that at one point only 10 percent of those arrested were white. State governments and private entities colluded to use black convicts as laborers, constructing a profitable system popularly referred to as convict labor leasing. States earned money by renting out black convicts and selling their labor to private industry and employers. They saved money by pushing the costs of caring for these convicts on employers. In 1874, its first year of convict labor leasing, Alabama earned $14,000 from this enterprise alone. By 1890, its revenue stream had grown to approximately $164,000.
Private companies, in return, received cheap labor: Convict miners cost 50 to 80 percent less than paid miners. They could also be required to work six days a week, allowing companies to squeeze more labor out of them for less. As of 1886, some 15,000 convicts, the vast majority of them black, worked in various private industries throughout the South.
When companies needed more labor, either to expand their operations or to replace those who had died, sweeps for black Americans were carried out. Increases in the arrests of black men often coincided with the start of the fall cotton harvest in Alabama.
Convict labor leasing within the criminal justice system provided Southern states, all of which by the 1890s participated in the system to some degree or form, giving them a tight grip on black communities. By 1890, 90 percent of the 19,000 enmeshed within the Southern prison population were black. Many were guilty of no crime other than being black.
The 20th Century
New Orleans during the 1920s, where blacks made up two-thirds of homicide victims, provides an interesting case study in the consequences of the absence of the state’s monopoly on violence. This monopoly sets the parameters of the relationship between the state and its citizens, exclusively empowering states to use force in the protection of citizens. The vast majority of these victims were killed by other black Americans. The justice system’s lack of interest in intraracial crimes involving black perpetrators and black victims—often dismissively called black-on-black crime—was palpable: District attorneys in the South often declined to prosecute such crimes. When they did, it was, as one New Orleans official claimed, “almost impossible to get a jury who will convict a negro for killing another negro.” The result was that only six percent of cases of intraracial homicide ended in convictions, proving what one white Tennessean observed in the midst of Reconstruction, “Nigger life’s cheap now.”
Neglect gave way to control as American perceptions of crime came to be understood as synonymous with the black community. Even as the number of violent crimes committed by black Americans fell during the latter half of the 1920s, the criminal justice system tightened its grip on the black community. Law enforcement behaved like an occupying force, abusing black Americans in their own communities, violently interrogating them in stationhouses and operating extensive dragnets. In one egregious example, New Orleans police officers responded to the murder of a shipyard worker by arresting 1,000 black men around the area and filing vagrancy and loitering charges against those without “legitimate occupations.” None of the men turned out to be involved in the murder.
Prosecutors, in a reversal from earlier trends, eagerly pursued intraracial homicides for the opportunities they presented to subjugate blacks. In the wake of Norris v Alabama, in which the Supreme Court insisted upon the constitutional right of black Americans to serve on juries, Southern prosecutors sought to bypass trials, and the subsequent indignity of acknowledging black jurors, as much as possible. Plea bargains proved to be especially useful in this endeavor: Black suspects, frightened by the prospect of a death sentence, pleaded down to life imprisonment.
That the full resources of the criminal justice system were brought to bear on black Americans was reflected in both local and national trends. The black prison population at Louisiana’s Angola State Penal Farm grew overwhelmingly compared to the white population during the 1930s, 143 percent versus 39 percent. Between 1933 and 1940, the homicide arrest rate for black Americans increased by 25 percent, undoubtedly stimulating an increase in the proportion of black people represented among the incarcerated between 1926 and 1940. The rate actually decreased for whites. Execution rates told the same story: By 1940, black people came to comprise 60 percent of all executions.
These disparities were not driven by increases in black criminal activity. In fact, over the course of the 1930s, the homicide rates among blacks in Louisiana and Illinois decreased by 46 percent and 67 percent, respectively. Both witnessed greater decreases than the corresponding rates for whites. The rate of lethal violence perpetrated by blacks in New Orleans, which fell by 64 percent during the same period, validated this national trend. In short, rates of criminal activity in the black community fell, yet was criminalized more frequently and harshly.
Policies from the Johnson administration during the 1960s would only exacerbate these justice disparities.
President Lyndon Johnson’s war on poverty, the centerpiece of his administration’s vision of a Great Society, was to be complemented by the war on crime: “Warring on poverty, inadequate housing and unemployment, is warring on crime,” read the final report of the National Commission on Law Enforcement and Administration of Justice, commonly referred to as the Crime Commission. Established in 1965, the original purpose of the Crime Commission was to structure the war on crime in a way that built off the work started by the Law Enforcement Assistance Act. The March 1965 Act, which, for the first time, directly involved the federal government in the affairs of local and state criminal justice systems, started the Office of Law Enforcement Assistance to offer grants via the Department of Justice that provided local police departments with “bulletproof vests, helicopters, tanks, rifles, gas masks, and other military-grade hardware.”
Initially, Great Society programs meant to serve black communities, chief among them the Model Cities program, weaving law enforcement officers into the community. Officers were dispatched to public schools and sent on patrol in targeted neighborhoods. The Model Cities program empowered the criminal justice system to execute its operations in tandem with job counseling programs, health clinics and recreational facilities. However, as the war on poverty subsided and the war on crime ramped up, the integration of police officers into communities became more about racial control via than social advancement. As both police militarization and surveillance increased, tensions boiled over in the form of riots like those in Newark and Detroit in 1967.
These riots, which deepened the racist tendency to associate blackness with crime, launched the Omnibus Crime Control and Safe Streets Act of 1968. Thanks to its creation of the Law Enforcement Assistance Administration, the Act offered state and local law enforcement $300 million in support of their operations. These funds allowed states to purchase more military equipment and provided local police with reimbursement for so-called riot-prevention programs. Most perversely, in the wake of the legislation, law enforcement was encouraged with promises of more funding, and sometimes required to increase its presence in the black communities it already occupied on a daily basis.
Black communities, having been labeled hotbeds of criminal pathology by the Johnson administration, became war zones. The American prison population began to soar in the 1970s only to be propelled forward exponentially by a chain of events set off by President Richard Nixon who sought to launch his own war: The war on drugs.
By the 1970s, concern over drug use in America had grown, intensified by the various cultural revolutions that had come to characterize the 1960s. In the confluence of these factors, fear over increasingly casual attitudes toward drug use and highly publicized black political organizing in the civil rights movement, the Nixon administration saw an opportunity. As Nixon aide John Ehrlichman admitted years later, the administration realized it could use drug policy, and the criminal justice system by extension, in the same way as the reimagined Black Codes: to control and subjugate black Americans. “We knew we couldn’t make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and the blacks with heroin, and then criminalizing both, we could disrupt those communities… Did we know we were lying about the drugs? Of course we did," Ehrlichman said.
President Ronald Reagan elevated the war on drugs to realize its full racist potential. In 1986, Reagan signed the Anti-Drug Abuse Act, which called for $1.7 billion to sustain the war on drugs, $97 million of which was to go toward the construction of new prisons. Most tellingly, the Act created new mandatory minimum sentences for certain drugs, including crack. Crack, a more impure grade of cocaine, had come to be associated with the black community, especially by law enforcement officers who decried a growing connection between crack and crime. The Reagan administration responded by imposing higher mandatory minimum sentences on crack than cocaine, which was generally more popular among whites. So intent was the administration on incarcerating black Americans that the chosen amount ratio that triggered a mandatory minimum sentence for crack versus cocaine was 100 to 1.
Arrests of black Americans noticeably grew during the Reagan administration, more than doubling between 1985 and 1989. They grew comparatively too: After 1970, the drug arrest rates for white Americans stabilized at slightly under 300 per 100,000. After 1980, the arrest rates for non-whites, which had consistently been higher than those for whites, increased precipitously. By 1988, the rates were five times higher than white rates.
Along with the deployment of law enforcement officers to operate extensive sweeps and arrests came increased convictions, flooding prisons with drug offenders. The representation of black men in the Pennsylvania prison system for drug offenses increased by 1,613 percent between 1980 and 1990, as compared to 477 percent for white men. In Virginia, the representation of incarcerated non-white drug offenders increased from 38 percent in 1983 to 65 percent in 1989. Over that same period of time, White representation was almost cut in half from 62 percent to 35 percent. As the rise in black representation in the Southern prison population during the heyday of the convict labor leasing system falsely spoke to a black crime wave, the harsh punishment of black drug use tells a similar story. Criminologist Michael Tonry called these disparities in the punishment of black Americans “grossly out of proportion to their numbers in the general population or among drug users.”
In the 150 years since the end of slavery, black Americans' interactions with the criminal justice system serve to remind them of their subjugated place in American society. The architects of the convict labor leasing system, the Southern criminal justice system, the war on crime, and the war on drugs, all of which enforced metastasized forms of the white supremacy that characterized American hegemony, constructed a uniquely American criminal justice system emphasizing racial control rather than the administration of justice. Seeds of these racist practices are still bearing fruit.
Convict labor leasing created an opportunity to use the criminal justice system to both accumulate profit and exercise racial control in ways that persist to this day: A 2017 study found that greater black residency corresponded to greater reliance on fines and fees as means of generating city revenue. Cash-anemic states push their financial burdens on the backs of their equally poor black residents. As of 2015, black Americans represented 67 percent of the residents of Ferguson, Missouri, yet constituted a disproportionate 85 percent of those stopped by law enforcement and 90 percent of those punished with a citation. Unable to pay these fines and fees, black people fall into debt and into the hold of the criminal justice system in ways indistinguishable from their antecedents who were forced to satisfy their criminal justice debts with their leased labor as convicts. Much like the Black Codes, the crimes that ensnare black Americans like the residents of Ferguson are petty violations like speeding or failure to wear a seat belt.
So-called criminal justice in the South treated black criminal activity, even as it was on the decline at certain points, as if it were somehow more worthy of punishment than white crime. The modern criminal justice system has demonstrated the same tendency to distribute unequal punishment. Data showed that between fiscal years 2012 and 2016, black men received sentences that were 19.1 percent longer than those given to whites for having committed the same federal crime. Not only are black Americans more likely to be arrested, accounting for 28 percent of arrests, they are also more likely to die in the course of such arrests. Black Americans face “arrest-related death” at a rate of 5.6 out of 100,000 as compared to that of white Americans at 3 out of 100,000.
Drug raids by SWAT teams armed with military-level equipment are more commonly deployed in black communities than white communities—a function of the complementary aims of the war on crime and the war on drugs. To this day, although black Americans still use drugs at rates comparable to those of white Americans, they are still more likely to be arrested for drugs, and once convicted, punished with longer sentences.
Words have power: The term criminal justice implies that the criminal justice system meets certain expectations and maintains a certain culture. Both of which, given promise to promote democratic norms, should be oriented around fairness. Blacks do not engage in jaywalking or robbery more than whites. They do not use drugs more often than whites either. The difference is that their participation in (sometimes supposed) illicit activity is treated differently and that they are “stopped, searched, arrested and imprisoned” at higher rates, especially as compared to white Americans. Does a system that treats its citizens in nakedly biased ways deserve to be known as the criminal justice system in the first place? Do the many innocent Americans who become enmeshed in this system deserve to be labeled as criminals?
Historic and enduring justice disparities, which generate stories like Stephon Clark’s and Alton Sterling’s, reaffirm with painful clarity that the criminal justice system needs to be reformed. Political progressives and activists have argued in favor of greater police accountability, reduced sentences for nonviolent drug crimes and an increased focus on restorative justice rather than punishment. While reformers are tackling the practices of the system, it might also be worthwhile to examine the message that is communicated in the term “criminal justice," and consider whether the term is a misnomer. History offers a resounding yes.