In my previous post in this series, I touched on African Americans and crime. The context was the level of ‘marriageability’ of young black men as opposed to young white men. The study What We Get Wrong About Closing the Racial Wealth Gap mentions the fact that so many young black men are incarcerated or killed as one explanation for the higher number of single-mother households among blacks.
For this post I will focus mainly on the disparity between black and white incarceration for the same crimes, rather than start with the crimes themselves. It will become apparent that, where the mass incarceration of African Americans is concerned, the punishment came largely before the crime, especially violent crime. The high number of young black men killed needs a post of its own.
In 1865, the Thirteenth Amendment to the Constitution put an end to slavery, but for the famous loophole: no more slavery or involuntary servitude, except as punishment for a crime. Prisons have continued to use slave labor up to this day; they aren’t even circumspect about it. A maximum security prison in Louisiana that was originally a plantation is still referred to by the same name, Angola. It went straight from being a plantation where slaves worked the cotton fields to being a prison where inmates work the cotton fields.
One way former slave owners forced former slaves to keep working for them for next to nothing or actually without any pay after the Civil War was through the Black Code. Almost every Southern state had a version of the law that prohibited blacks from roaming around without proof of employment and housing, or from wandering too far away from their workplace. Those who broke the law were arrested and could be put to work as prisoners until they could pay the exorbitant fines, which could take a long time. We will see how this has been carried over to the present as well.
For private prisons, slave labor is a business. The directors of these prisons are against legalizing marijuana because that will result in a decrease in the number of “good guys” they can hire out. The police department in the Bronx, NYC, has an officially non-existent quota that the cops must meet of non-violent people they arrest who can then be funneled on to prison. Of course, the most vulnerable — the easiest target, the folks who are least likely to have effective counsel that will get them off — are poor black teenagers, so the cops arrest these kids for jaywalking, spitting on the sidewalk, you name it. And hey presto, the prison has its free labor and the black kids have a criminal record. (Shaun King has a gob-smacking (and yet not really surprising) five-part series of investigative posts about this, called Soul Snatchers.)
I might write a separate post on the business of prison slave labor at a later point. For now I’m going to focus more on the history of black arrests and incarceration as a means to ‘fight crime’.
In Part 2 of this series I discussed the Great Migration — large numbers of blacks from the rural South who began moving to the cities in the North and eventually the West Coast as well, starting around 1915. This is when white American men were being pulled out of factories and other workplaces to contribute to the war (WWI) effort. This provided job opportunities for Southern blacks, and the chance to escape Jim Crow, or so they thought. Urban politicians and the private sector responded to these huge influxes of (unwelcome) blacks by herding them into segregated areas, which they then red-lined. It was predictable that crime would become a problem in such conditions.
In fact, urban politicians and private citizens had been confronted with similar circumstances before, and they did indeed predict that crime would become a problem in such conditions. In the previous century and earlier in the twentieth century, large waves of immigrants from Ireland and southern and central Europe arrived in U.S. cities, prompting “widespread fears and predictions of social deterioration,” concerns that urban crime would get out of control as these immigrants kept coming.
At first white Americans thought that these European immigrants had such a problem with crime because it was their culture. By the early twentieth century, however, sociologists, policy makers, politicians, social activists, and wealthy donors had begun to believe that this criminality was not a character flaw of immigrants, but largely the result of industrial capitalism. Everything was ultimately about the bottom line, which led to overcrowded, unhealthy housing that landlords didn’t maintain, child labor, unsafe working conditions, etc. So if a lot of money and time was pumped into housing, infrastructure, education, healthcare, work safety measures, etc., social deterioration would end and crime would go down. That’s what the cities did, and all the sociologists, policy makers, politicians, social activists, and wealthy donors were right. These white immigrants eventually assimilated and proved to be just like white Americans. Yay!
Then came the Great Migration of African Americans to the Northern cities. Now the cities responded differently. Around this time the notion that blacks were biologically incapable of achieving the same levels of ‘civilization’ as white Americans had been largely dismissed by the mainstream, but it was replaced by the notion that it was culturally impossible for blacks to be just like whites. As with the great waves of white European immigrants, the vast majority of the Great Migration blacks lived in poverty and squalid conditions. And indeed, as in the early years of the European neighborhoods, crime in black neighborhoods was much higher than elsewhere, and blacks had a much higher chance of being the victim of a crime.
Even though plenty of sociologists and social activists argued against the cultural determination theory, many policy makers and urban government officials believed that African Americans were just culturally more prone to crime. No understanding here that crime is determined by one’s environment, as with the white, European immigrants. So no investment in housing, infrastructure, education, healthcare, work safety measures, etc. for the black migrants. Quite the opposite, as I discussed in Part 2 of this series. Instead, the response to black crime in these neighborhoods was purely punitive.
This was the scene when the Civil Rights Movement happened in the 1950s and 60s.
Lyndon Johnson’s War on Crime
According to many, President Johnson saw the demonstrations during the Civil Rights Movement not as groups of people demanding their rights as free citizens but as criminal riots that would turn into complete chaos if they weren’t beaten down decisively. To some — and this is apparently controversial — he was at least in part also responding to demands for more law and order in black neighborhoods by leaders in black urban communities. Either way, in 1965 he signed the Law Enforcement Assistance Act. Upon signing, he said:
Until every woman in this land can walk the streets of her city at night, unafraid and unharmed, then we have work to do in law enforcement. Out of this conviction, I submitted last March to the Congress a message on law enforcement. Yesterday and today I have signed into law two important instruments in our search for better ways to insure the supremacy–not of fear but of the law.
It put in place a grant-making agency within the Department of Justice that provided training, money and equipment to local and state police departments:
This act will make funds available to States, localities, and private organizations to improve methods of law enforcement, court administration, and prison operation. For years we have provided Federal assistance in the fields of housing, employment, mental health, education, transportation, and welfare. Because the anchor of society must be an abiding respect for law and order, it is appropriate that the Federal Government provide material aid to resist crime and promote the rule of law on the local level.
It’s ironic that he points out all the Federal assistance that was being provided in other areas, because that assistance was systematically being withheld from blacks. But now they, too, were going to feel some “Federal assistance.”
Johnson felt that it would help the police and the prosecution greatly if the court process was sped up:
We recognize that speedy justice is both an essential of fairness and a meaningful deterrent to crime; yet we have permitted our criminal courts to flounder in delay, lack of dignity, and the tortuous disposition of criminal cases. Swift, fair, and effective justice is an objective of the Law Enforcement Assistance Act.
And he encouraged the police to view themselves as soldiers, fighting the enemy:
The policeman is the frontline soldier in our war against crime. He bears a burden which increases each day. We must give him modern training, organization, and equipment if he is to succeed in saving our cities from the malignancy of crime. This is a major objective of the Law Enforcement Assistance Act.
To be fair, he also mentions rehabilitation in prisons, but almost as an afterthought. The emphasis was on the war on crime, arming the police — the frontline soldiers — with the weapons they needed to enforce the rule of law. And Johnson did also expand social services like housing, employment, mental health, education, transportation, and welfare for blacks during his presidency, but in 1965 many blacks still had to begin seeing the benefits.
Everyone in their right mind was shocked to see the images of tanks in the streets of Ferguson in the summer of 2014 — surplus from the War in Iraq — but Elizabeth Hinton points out that this is nothing new. In 1965, Johnson’s Law Enforcement Assistance agency had the present-day equivalent of over $200 million to spend on military-grade hardware for the police. They handed out bullet-proof vests, helicopters, tanks, gas masks — much of it army surplus from the Vietnam War.
In 1968, one of President Johnson’s last bills was the Omnibus Crime Control and Safe Streets Act, which promoted the grant-making agency into the permanent Law Enforcement Assistance Administration, thus increasing the Justice Department’s influence on social policy even more. The War on Crime has since been one of the main elements of social policy programs. In 1968, the theme of Richard Nixon’s presidential election campaign was ‘Law and Order’, probably in part to distract from the Vietnam War.
So President Johnson’s Law Enforcement Assistance Act was aimed at crime in black neighborhoods. Those federal grants Johnson doled out often depended on local police meeting arrest quotas. New criminal categories and new sentencing guidelines led to blacks being arrested in larger numbers in already hyper-segregated neighborhoods, sped-up trials, and longer prison terms for blacks than for whites. Although black leaders had asked for safer neighborhoods, they didn’t intend for their neighborhoods to be treated like war zones and their citizens like enemies, whether they were criminals or not, but in those days plenty of police departments took the opportunity to do just that.
By reacting punitively to the crime problem in urban black neighborhoods, the politicians made a bad situation much, much worse. In 1965 the violent crime rate was 200.2 per 100,000 population, and in 1995 it was 684.6 per 100,000, more than three times as high! In this and the following couple of posts I will discuss how this and other policies that followed Johnson’s Law Enforcement Assistance Act helped make this happen.
The pressure on the justice system from black, urban communities like those of Washington, D.C. in the mid to late 1960s, to come down harder on crime in black neighborhoods than they had been doing was understandable, since blacks are usually the victims of black crime, and, like with every other public service in black neighborhoods, as far as police presence and crime prevention was concerned, their neighborhoods were being neglected — a budget afterthought.
We can only look back at this with twenty-twenty hindsight; there was definitely violent crime going on in black neighborhoods in the 1960s — since at least the 1930s, homicide rates in poor black urban areas was ten times higher than in white neighborhoods, but those had a larger police presence and more time and money spent on crime prevention. However, the violent crime rate among blacks was nothing compared to the violence that resulted from the mass incarcerations that began in the late 1960s. In their attempts to get law and order in their neighborhoods, in their urging of the police to come down hard on young black criminals and drug users, in their demands that the justice system throw any black man in jail for the possession of even one joint, black leaders of urban communities invited the monster in — the criminal justice system that up to this day encourages racial profiling and the mass incarceration of blacks, especially young black men.
If the crime that occurred in poor black neighborhoods as a result of the Great Migration had been approached the same as the crime that arose as the result of the great poverty and cramped urban neighborhoods when white Europeans immigrated in large waves, if there had been equal attention paid to crime and crime prevention in black and white neighborhoods, and if blacks had been treated the same as whites by the police, it’s likely none of this would have happened.
The Rockefeller Drug Laws
One of the results of Johnson’s Law Enforcement Assistance Act was passed into law in 1973 in the state of New York: the Rockefeller Drug Laws, or RDL — a series of laws that allowed direct targeting of young blacks and arresting them for possession of small amounts of illegal drugs and rushing them through sentencing. Judges were required to give minimum sentences based solely on the quantity of the drugs found on a person; they had no discretionary powers to take any mitigating circumstances into account. Basically, the sentencing process was taken from the judges and given to the prosecutors.
The idea behind the RDL was purportedly to get to the kingpins in the drug trade, so offenders who had useful information bargained for a lesser sentence (the police would change the amount they found on their person in the report), but the average Joe User and first-time offenders, who were of no use to the police, went to prison for the full sentence.
The chart above shows how suddenly and how extreme the rise of non-violent drug-offence incarcerations in New York State was, starting in 1973. Between 1973 and 2002, the New York State prison population increased almost five times in size.
The Fourth Amendment to the Constitution states that the people have the right to “be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” That is why the police have to have probable cause to believe that someone has committed, is committing, or is about to commit a crime in order to arrest and search them. ‘Stop-and-frisk’ is called such to differentiate it from ‘arrest-and-search’.
In Terry v Ohio (1968), the US Supreme Court decided to allow stop-and-frisk as a police tactic. The case before the court was that of a long-time police detective in Cleveland, Ohio in 1963, who was observing two black men (Terry and someone else) standing at a street corner, taking turns walking along the street and stopping to look in the same shop window about 24 times, then being met by a third person and following that person a few blocks further up. The detective felt he had reasonable suspicion that they were going to rob the store, so he questioned them, and frisked them as well, because he had reason to believe they were armed and dangerous, and sure enough, they had guns on them, at which point he arrested them.
The Supreme Court decided to allow ‘stop’, only in cases where an officer could so clearly articulate why he had a suspicion that something was up as in this one:
[…] The police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. […] Anything less would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches, a result this Court has consistently refused to sanction.
They also allowed the ‘frisk’ in cases such as this one, where an officer has a reasonable suspicion that the person is armed and dangerous, simply for their own safety. But they made it clear that the Fourth Amendment was the only law preventing police misconduct and that it shouldn’t be taken lightly. They felt that ‘stop-and-frisk’ was semantics:
It must be recognized that, whenever a police officer accosts an individual and restrains his freedom to walk away, he has “seized” that person. And it is nothing less than sheer torture of the English language to suggest that a careful exploration of the outer surfaces of a person’s clothing all over his or her body in an attempt to find weapons is not a “search.” Moreover, it is simply fantastic to urge that such a procedure performed in public by a policeman while the citizen stands helpless, perhaps facing a wall with his hands raised, is a “petty indignity.” It is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly.
So it could not be used to hide from the Fourth Amendment the first step in an approach of a person by a police officer.
The Supreme Court was aware that stop and frisk could get out of hand and they warned that “a search which is reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity and scope.” They were also aware that especially the black community was subject to stop and frisk, when they claimed that “the wholesale harassment by certain elements of the police community, of which minority groups, particularly Negroes, frequently complain,” would not be stopped by banning stop-and-frisk.
The Court emphasized that:
Nothing we say today is to be taken as indicating approval of police conduct outside the legitimate investigative sphere. Under our decision, courts still retain their traditional responsibility to guard against police conduct which is overbearing or harassing, or which trenches upon personal security without the objective evidentiary justification which the Constitution requires.
In the 1980s, Rudy Giuliani was state prosecutor for the Southern District of New York and in the 1990s (1994-2001) he was mayor of New York City. He was a hard-nosed Republican who wanted to be seen as tough on crime. He adopted the ‘Broken-Windows Policy‘, the idea that a city can fight violent crime by going after minor stuff like graffitti and public urination. It is within this context that he allowed the NYPD to use the stop-and-frisk strategy. The police would stop “suspicious-looking” people and search them for guns and drugs and check if they had outstanding warrants. Many other cities followed New York’s lead and Mayor Bloomberg continued the policy in New York after Giuliani.
SCOTUS has given the police more freedom from the Fourth Amendment since that 1968 ruling, and especially in stopping people to check if they had outstanding warrants it’s clear how far the NYPD overstepped the boundaries SCOTUS originally put on the use of stop-and-frisk in 1968. Another problem was that New York police performance was measured in part by the number of stop-and-frisks, so there were unofficial quotas. Of course it added to racial profiling and to the number of unnecessary police encounters the black community had to endure. Statistics show that over 80% never resulted in a fine or conviction, and I imagine that of those that did, many were based on finding outstanding warrants for unpaid fines and tickets and other crimes and misdemeanors in an unconstitutional way.
In 2013 a Federal judge ruled the New York Police Department’s stop-and-frisk tactics unconstitutional. Not only were people stopped on mere hunches, but blacks and Hispanics were clearly targeted, and once stopped, blacks and Hispanics were more often subjected to police violence than whites, even though whites who were stopped actually were more often found to have guns or drugs on their person. The judge appointed a former attorney in the Manhattan District Attorney’s office to monitor the police and oversee reforms, and she ordered several officers to wear body cameras. Stop-and-frisk is still used, but it’s no longer an NYPD policy.
Even though stop-and-frisk doesn’t result in many incarcerations, I discuss it here because it is a large part of police contact with blacks in poor neighborhoods, and it affects how both groups see each other, which in the long run does influence incarceration rates.
Some Numbers Related to Black Incarceration
The United States imprisons by far the most people in the world. And look who its closest neighbors are.
The approximate number of people in jail or prison per 100,000 population:
(From: Mass incarceration and children’s outcomes)
The main reason our prison population is so high is the number of black and Hispanic inmates. Nationwide, in 2015, blacks were only 13% of the overall U.S. population, but 40% of those incarcerated. Hispanics were 16% of the population but 19% of those incarcerated. Whites made up 64% of the overall population but only 39% of those incarcerated.
A study in the American Journal for Public Health mentions that more black men and women were imprisoned in all age groups, and the group with the highest incarceration rate was that of black men between 25 and 39 years old. Also, more black men have a previous history of incarceration. In 2001, almost 17% of black prisoners had been in prison before compared with only 2.6% of white men.
As mentioned earlier, black males also get longer sentences than their white counterparts for similar crimes. According to the U.S. Sentencing Commission, between 2007 and 2011, sentences for black males were 19.5 percent longer than those for whites. Furthermore, black men were 25 percent less likely to receive sentences below the sentencing guidelines for the crime of which they were convicted. And, interestingly, during the increase of mass incarcerations since the 1970s, the number of blacks incarcerated for violent crimes decreased.
Of all the African-Americans in prison, about a third are doing time for a violent crime, a third are in for drug charges and a third for property crimes or technical violations like not showing up for a court date or a probation officer appointment; not meeting other conditions of release, like steady employment; or not paying (usually from inability to pay) traffic tickets or similar fines.
An Economic Policy report found that blacks get stopped more often for not using their blinker to change lanes, and they get ticketed more often, and since poor blacks often can’t pay the fines, they then get caught up in the criminal justice system and end up doing time — for not blinking! After the police violence and the ensuing riots in Ferguson, Missouri, the Justice Department investigated and found that in Ferguson blacks were more often stopped and searched than whites, but, as was the case in New York City with their stop-and-frisk policy, of those stopped and searched, whites were more often found to carry illicit drugs.
Once out of prison, a person’s problems aren’t over. This is where collateral consequences come in — “invisible” punishments after the prison term. About 20% of the American population has some kind of criminal record, and with that record come restrictions. Some restrictions, as a prevention, if relevant to the type of crime committed, are reasonable, such as a pedophile not being allowed to work with children. But according to this article in the ABA Journal, the number of official collateral consequences has gone up dramatically since the 1980s, suggesting they have gotten out of hand.
There are about 50,000 collateral consequences nationwide. You can find an inventory here. In Texas, folks who were in prison for controlled substances alone can be ineligible for public housing, public housing assistance, food stamps, other supplemental nutritional programs, medicaid programs, child health insurance programs, temporary assistance for needy families, voting by mailing ballot, a driver’s license, a commercial driver’s license, a posthumous high school diploma, entry to a public college/university; they are ineligible for tuition grants and must forfeit grants and scholarships they were already granted; they get no federal income tax refund for child arrearages (whatever that means); and they pay increased car insurance rates if they do get a driver’s license. Lots of collateral consequences are discretionary, others are mandatory or automatic. And these are just a few. It also looks like the ex-offender can be banned from his previous profession, regardless what it was, while at the same time getting training in another area can also be made practically impossible due to not being eligible for all the education opportunities poor people rely on to get ahead.
On top of the collateral consequences there are the escalating fines and court fees, which ex-offenders can’t pay because someone with a criminal record has a hard time getting a job, especially a black man with a criminal record. A 2009 study showed that all job applicants with a criminal record had 50% less chance of being called back and that the chances were twice as slim for blacks as for whites. And lots of jobs require a driver’s license, or the location requires a car drive to get there, so not having a driver’s license makes things even harder. Since they’re damned if they do and they’re damned if they don’t, many ex-offenders drive anyway, because — the only difference is that with a car they might stay out of prison a little longer because they can keep the job if they can drive there and they can keep their probation officer appointments if they can drive there, and if they’re lucky it takes a while before they’re stopped by a cop for not blinking while changing lanes. “Licence and registration, please.”
President Johnson, in 1965, set off a mass black incarceration effort. His War on Crime, though directly aimed at blacks, had nothing to do with a black crime epidemic. Even crime in general was not at a high point in 1965. There was no black crime epidemic that had to be quashed. There was just black crime like there was white crime, and the black communities wanted to feel as safe as white communities did, with their police presence and crime prevention programs. And in the late 1960s, especially when Nixon was running for and later got elected as president, there was political motivation to use ‘Law and Order’ as a distraction from Vietnam, and as something where Nixon could claim small victories.
So what happened was a black incarceration epidemic that’s still ongoing. When a young man is sent to prison for no more than being found in possession of some drugs, or for not using his blinker when changing lanes, he is thrown in with inmates who are in for actual crimes, and he needs to survive. So of all those hundreds of thousands of blacks who were imprisoned for often barely any reason at all — sure, plenty come out criminalized. And those that aren’t still have all the odds stacked against them on the outside, so the chance is big that it won’t be long before they’re back in prison.
In previous posts in this series I have described how the inner-city ghettos were created by government policies. The criminal subculture in those inner-city areas has also been created by government policies. The government decided to wage this war on blacks, the government — federal, state and local governments — decided to criminalize drug possession by blacks and to throw non-violent young people in prison by the hundred-thousands. And the government didn’t think of the effects this would have on black communities and on the next generations of black kids.
In the next post I will discuss how mass black incarceration affects entire communities in general and the children of the incarcerated in particular and how it not only creates a revolving door for the offenders, but a vicious cycle of structural disadvantage from generation to generation.
8 Facts You Should Know About the Criminal Justice System and People of Color / Jamal Hagler. – Center for American Progress. – May 28, 2015. – amhttps://www.americanprogress.org/issues/race/news/2015/05/28/113436/8-facts-you-should-know-about-the-criminal-justice-system-and-people-of-color/
Associations of Fathers’ History of Incarceration With Sons’ Delinquency and arrest Among Black, White, and Hispanic Males in the United States / Michael E. Roettger, Raymond R. Swisher. Researchgate, 2009. -https://onlinelibrary.wiley.com/doi/abs/10.1111/j.1745-9125.2011.00253.x
Background on New York’s Draconian Rockefeller Drug Laws. – The Drug Policy Alliance. – https://www.drugpolicy.org/sites/default/files/FactSheet_NY_Background%20on%20RDL%20Reforms.pdf
Ex-offenders face tens of thousands of legal restrictions, bias and limits on their rights (In: ABA Journal, June 2013). – Lorelei Laird . -http://www.abajournal.com/magazine/article/ex-offenders_face_tens_of_thousands_of_legal_restrictions
The High Prevalence of Incarceration History Among Black Men Who Have Sex With Men in the United States: Associations and Implications (In: American Journal for Public Health) / Russell A. Brewer [et al]. – NCBI, March 2014. – https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3953792/
Inner-City Violence in the Age of Mass Incarceration / Heather Ann Thompson. – The Atlantic, [Crazy/Genius podcast with Dere]. – October 13, 2014. – https://www.theatlantic.com/national/archive/2014/10/inner-city-violence-in-the-age-of-mass-incarceration/382154/
Mass incarceration and children’s outcomes : Criminal justice policy is education policy: Executive Summary / Leila Morsy, Richard Rothstein. – Economic Policy Institute: December 15, 2016. – https://www.epi.org/publication/mass-incarceration-and-childrens-outcomes/
National Inventory of Collateral Consequences of Convictions. – Justice Center. – https://niccc.csgjusticecenter.org/
Population Impact of Mass Incarceration under New York’s Rockefeller Drug Laws: an Analysis of Years of Life Lost (In:Journal of Urban Health: Bulletin of the New York Academy of Medicine, Vol.79, No. 3 September 2002) / Ernest Drucker. – New York : The New York Academy of Medicine, 2002. – http://plagueofprisons.com/research/journalofurbanhealth1.pdf
Statement by the President Following the Signing of Law Enforcement Assistance Bills / Lyndon B. Johnson. – The American Presidency Project, September 22, 1965. – http://www.presidency.ucsb.edu/ws/index.php?pid=27270
Terry v. Ohio / Chief Justice Warren. – (U.S. Supreme Court 392 US 1, 1968). – Justia. – https://supreme.justia.com/cases/federal/us/392/1/case.html
What We Get Wrong About Closing the Racial Wealth Gap / William Darity Jr., Darrick Hamilton, Mark Paul, Alan Aja, Anne Price, Antonio Moore, and Caterina Chiopris. – Samuel DuBois Cook Center on Social Equity Insight, Center for Community Economic Development. – April 2018. – https://socialequity.duke.edu/sites/socialequity.duke.edu/files/site-images/FINAL%20COMPLETE%20REPORT_.pdf
When Black America Was Pro-Police / Paul Butler (In: The Atlantic: June 2017). – https://www.theatlantic.com/magazine/archive/2017/06/when-black-america-was-pro-police/524481/
Why We Should Reconsider the War on Crime / Elizabeth Hinton. – Time, March 20, 2015. – http://time.com/3746059/war-on-crime-history/