What is the function of the law?
When asked this question, most of us would
answer easily: laws are intended to maintain
order and promote justice, and as members
of society we uphold them.
But what happens when those laws promote and
spread discrimination and bigotry?
In this episode of Origin of Everything we’ll
be analyzing the discriminatory history of
US law, tracing its origins in colonialism
to the present day penal system.
In order to deconstruct this troubling history
we’ll be looking at four distinct time periods
of US law:
First we’ll look at the foundation of legal
discrimination based on race during colonialism.
Next we’ll examine the system of chattel
slavery, to see how the legacies of colonialism
translated into ongoing legal subjugation
for black subjects in the US.
Third we’ll explore how Jim Crow laws extended
legal discrimination into the 20th century.
And finally we’ll discuss how the concepts
of being “tough on crime” in the latter
half of the 20th and early 21st century allowed
the continuation and expansion of discriminatory
laws under the umbrella of mass incarceration.
By tracing this timeline we’ll be looking
at the ways discriminatory legal practices
have always disproportionately impacted black
and brown communities and how these legacies
and laws continue to have adverse effects
on vulnerable communities to this day.
But before we get into the heart of how laws
and sentencing structures can be discriminatory,
we should clarify a few key terms.
Namely: crime and punishment.
And no I’m not talking about the Dostoevsky
novel of the same name.
I’m talking about crime (or the breaking
of laws) and punishment (as in the penalty
you pay as a result of being found guilty
of committing a crime).
Although we often think of these things as
directly correlated (think of the old adage
“if you do the crime you’ve got to do
the time”) there’s actually not a direct
relationship between how much crime is committed
and what types of punishments are meted out.
In his book Thinking about Crime: Sense and
Sensibility in American Penal Culture Professor
Michael Tonry notes that nations with remarkably
similar crime rates often have vastly different
sentencing and punishment standards.
He determines that crime rates and punishment
rates often don’t align and that governments
“decide how much punishment they want.”
He writes:
“This can be seen by comparing crime and
punishment trends in Finland, Germany, and
the United States between 1960 and 1990.
The trends are close to identical.
Violent crime rates in all three countries
grew by a factor of 3-to-4 and homicide rates
more than doubled.
Yet the U.S. imprisonment rate quadrupled
in that period, the Finnish rate fell by 60
percent, and the German rate was broadly stable.”
So in this example we see three countries
with almost identical crime trends, with three
starkly different ideas of punishment.
Therefore when we analyze how laws are broken
and punishment is assigned, we have to look
at why societies change their stances on crime
and punishment.
Tonry attributes this to a few factors, two
important ones being “moral panics” and
the sensibilities of a society.
“Moral panics” as he describes them occur
when a society sees a moral or social issue
and overreacts as a result, which usually
leads to increased rates of punishment or
more severe punishment for offenders.
Another cause is that societal “sensibilities”
(or the attitudes and beliefs of the society)
often change, which in turn changes the types
of acts we consider crimes and the types of
things we consider as just punishment.
So although we’re often taught to look at
crime as directly correlated to punishment,
there’s actually an argument to be made
that they’re working somewhat independently
of each other.
Which brings us to our first stop in the history
of legal discrimination in the United States:
colonialism and slavery.
After colonies were established in North America,
colonists were subject to the laws and customs
of England.
In their essay “Situating Colonialism, Race,
and Punishment” Professors Geeta Chowdhry
and Mark Beeman explain how the development
of slavery in the North American colonies
(and later in the early United States) became
dependent on the passage of discriminatory
laws that specifically targeted people of
African descent.
They detail how, although the concept of discrimination
based on ethnic or social groups dates back
to antiquity, the idea that race was based
entirely on skin tone and physical features
evolved alongside the emergence of chattel
slavery.
Then the idea was solidified with the emergence
of scientific racism in the 18th and 19th
century.
Chowdhry and Beeman go on to note that although
some of the original people of African descent
who entered the English colonies came as indentured
servants and were eventually set free (similar
to English indentured servants) this quickly
changed when colonists turned to chattel slavery
as a source of consistent, exploited, and
unpaid labor.
They write:
“In other words, slavery seems to have evolved,
in part, as a punishment reserved for Africans
originally indentured.
English indentured servants, presumably protected
by English rights and the Christianity they
shared with their masters, avoided such punishment.
From the 1640s through the 1660s, with the
principle of lifelong involuntary servitude
established for Africans in colonial America,
individual colonies began enacting legislation
declaring “negroes” sent to the colonies,
and their offspring, slaves for life.
In short, slavery in British colonial America
became a “punishment” for being black.”
With this important distinction, colonial
America created the system of chattel slavery
that sentenced black people to perpetual servitude.
Slavery created an explicit relationship between
race and the law from the earliest foundations
of American society.
And this new legal category meant that new
forms of punishment and torture were invented
to accomodate this shift in who could be considered
a full person under the law.
Soon laws and colonial codes were written
to regulate the control and punishment of
the enslaved.
Although slavery was not the first instance
of race being tied to laws in the new colonies.
The colonization of land in North America
was based on the assumption that Native Americans
did not have rights to the land they had inhabited
long before settler colonialism declared North
America as “uninhabited.”
Therefore laws that allowed white settlers
to displace and physically harm Native Americans
also established an early relationship between
race and the law in colonial America.
While most punishment was left up to slave
owners and could include torture, brutal beatings,
rape and other inhuman cruelties, more serious
punishment (such as execution) was sometimes
left up to the discretion of judges for supposed
offenses that occurred away from the plantation.
But whether it was being dealt by overseers
and owners or by the state, the result was
a system of exploitation and legally supported
subjugation that left black subjects almost
entirely outside of the protections of the
law.
This system remained firmly in place in parts
of the United States until 1865, with the
ratification of the 13th, 14th and 15th amendments.
But even these newly won freedoms could not
guarantee the continuation of legal and extra
legal methods of racial and social control.
Following the close of the Civil War in 1865,
the US entered into a period known as Reconstruction
which lasted until the 1870s.
Although there were some legal and societal
victories for black subjects during this time,
they were swiftly overturned and replaced
by Jim Crow laws.
Jim Crow introduced a set of laws that systematically
stripped black citizens of their rights while
also relegating them to inferior “separate
but equal” public facilities like schools,
washrooms, and sections of the bus (among
other indignities).
Black citizens were denied access to basic
rights, like voting, while also suffering
under the weight of racial terror imposed
by groups like the KKK and other white supremacists
who organized lynchings and other forms of
racialized violence.
Jim Crow laws effectively relegated black
subjects to second class citizenship based
on a racialized caste system where white citizens
were privileged above all others.
This system of disenfranchisement was also
supported by methods of financial control
like sharecropping, which effectively reinstated
the financial inequality of slavery through
unfair practices.
And systems like convict leasing guaranteed
that black people would be returned to a system
almost identical to slavery in everything
but name.
With “convict leasing” private businesses
could “rent” the labor of prisoners to
complete tasks.
The businesses would pay the state and the
prisoners would be forced to perform labor
for free.
As a result, Southern states started incarcerating
newly emancipated black citizens at a higher
rate, for anything from petty theft to vagrancy
or other vaguely defined laws.
This practice lasted from the late 19th c
into the early 20th c.
For more on the convict leasing system, check
out our episode “Why do we have private
prisons?”
right here on our channel.
The story of Jim Crow finally came to an official
end with the emergence of the modern Civil
Rights movement of the 1950s and 1960s, when
civil rights leaders and activists fought
to have these decades long practices rolled
back.
But that only led to new ways of racialized
legal discrimination.
In her book The New Jim Crow legal scholar,
civil rights lawyer and advocate Michelle
Alexander details the relationship between
race and continued legal discrimination in
the form of mass incarceration.
In the 1960s the prison population of the
United States was around 200,000.
But by the early 2000s that number had exploded
to over 1.5 million people in prison with
hundreds of thousands in other penal facilities
(think youth facilities, jails, and immigrant
detention centers).
And much of that increase can be attributed
to Reagan era “war on drugs” policies,
(although the “war on drugs” was first
popularized by the Nixon administration in
the 1970s).
Popular wisdom connects these policies to
the rise of crack cocaine across the US.
However according to Alexander, the official
political campaign in 1982 known as the “war
on drugs” actually predates the rise of
crack cocaine addiction it was commonly assumed
to address.
She writes:
“A few years after the drug war was declared,
crack began to spread rapidly in the poor
black neighborhoods of Los Angeles and later
emerged in cities across the country.
The Reagan administration hired staff to publicize
the emergence of crack cocaine in 1985 as
part of a strategic effort to build public
and legislative support for the war.
The media campaign was an extraordinary success...The
media bonanza surrounding the “new demon
drug” helped to catapult the War on Drugs
from an ambitious federal policy to an actual
war.”
Because of its cheaper price, crack cocaine
use spread more rapidly in poorer communities
than its more expensive counterpart powder
cocaine.
After the “war on drugs” picked up popularity
and speed, we began to see the rapid incarceration
of minorities (oftentimes for non-violent
drug based offenses) as a result.
And those arrested for crack cocaine related
charges faced much more severe sentences compared
to other drug offenses.
For example, it was common practice to follow
the “100-to-1” rule.
An op-ed in the NYTimes explains:
“In what’s known as the 100-to-1 rule,
federal law mandates a 10-year sentence for
anyone caught with 50 grams of crack, about
the weight of a candy bar.
To get a comparable sentence, a dealer selling
powdered cocaine would have to be caught with
5,000 grams, enough to fill a briefcase.”
This wasn’t rolled back until 2010 when
Congress passed the Fair Sentencing Act.
The Act reduced the disparities between sentencing
for crack and powder cocaine from 100 to 1,
to 18 to 1.
But despite the partial reversal of “war
on drugs” policies, the US still imprisons
more people per capita and overall than any
other country in the world.
And although African Americans made up only
roughly 13% of the US population in the 2010
Census, in many areas they are the majority
of the prison population, even though they
are not necessarily committing crime at a
higher rate than white populations.
As a result, Alexander writes:
“Although this new system of racialized
social control purports to be colorblind,
it creates and maintains racial hierarchy
much as earlier systems of control did.
Like Jim Crow (and slavery), mass incarceration
operates as a tightly networked system of
laws, policies, customs, and institutions
that operate collectively to ensure the subordinate
status of a group defined largely by race.”
In her book, she details the ways that those
convicted of crimes are permenently labelled
as felons and thus systematically barred from
access to the full rights of citizenship through
processes like employment discrimination,
being denied the right to vote and being excluded
from jury duty, although some activist groups
are fighting to reverse or lessen these discriminations.
So, this episode just scratches the surface
of the ways laws can be established to promote
unequal life outcomes for different citizens
based on race.
We haven’t even begun to cover other forms
of legal and extralegal discrimination that
occur on the basis of gender, immigration
status, sexuality, and class, not to mention
other minority groups that have been exposed
to increased policing, surveillance and punishment
as a result of legal discrimination.
It also raises fundamental questions about
the law, namely: who is it meant to protect
and at whose expense are some of these policies
enacted?
My hope is that this serves as a productive
primer to the ways the law can be manipulated
to serve certain groups over others and will
inspire us all to remain dedicated to recognizing
and standing against injustice wherever it arises.
