This article seeks to offer a deeper historical and analytical context for understanding today’s American criminal justice system-both its rise to such a remarkable size and its stunning racial disproportionality. Although today’s rate of incarceration is both historically unprecedented and internationally unparalleled, its racially discriminatory character is not.
And, these points are related in important ways. Only by taking a close look at the long and deeply racialized history of the American criminal justice system, and more specifically at the regularly discriminatory application of the law as well as the consistent lack of equal justice under the law over time, can we fully understand why the American criminal justice system today remains so discriminatory despite the victories of the civil rights era, as well as why prison populations rose so dramatically precisely when they did.
CONQUEST AND CRIMINALIZATION: THE BIRTH OF THE NATION
Unsurprisingly, this nation’s origin story is complex and scholars who have sought to recover it differ a great deal regarding what aspects of story should be highlighted for the general public. Some scholars, particularly of the older, Frederick Jackson Turner, generation, sought to celebrate the heart-wrenching and herculean histories of bravery, self-reliance, the frontier, and Manifest Destiny. Such renderings tended to focus on larger-than-life figures such as Davy Crockett, or the scores of homesteaders who risked everything to settle the West, or those who amassed a fortune building the railroads.
The more recent historical scholarship, however, has recovered, and now feels honor-bound to share with the public, a much grimmer origin story. This scholarship is rife with tales of conquest and nothing less than genocide. This literature makes crystal clear that there was nothing “natural” about Whites coming to have the bulk of the power in this country or eventually owning the vast majority of its resources. As scholars such as Patrick Wolfe (2006) point out, such power and ownership was made possible only because the “native” had, in effect, been eliminated.
THE CRIMINAL JUSTICE SYSTEM BEFORE MASS INCARCERATION
Both the crime rate and the imprisonment rate continuously fluctuated in the decades prior to, during, and immediately after World War II, and, importantly, there was a marked lack of correlation between them. Nevertheless, Whites’ deepseated association between Blackness, Brownness, and criminality continued to inform who was policed, arrested, and ultimately imprisoned, and southern Blacks felt the ill-effects of White assumptions about their inherent criminality particularly acutely.
No matter the decade, people of color continued to fill American prison farms and jails in numbers well out of proportion to their presence in the population and often disconnected from who in this Nation was also breaking the law (Childs 2015). African Americans living both south and north of the Mason Dixon line also continued to be singled out for policing, arrest, and incarceration. As even more southern Blacks moved north seeking economic and social opportunity during and after WWII than had migrated in the wake of the Civil War and at the onset of WWI (nearly five million people), northern prison populations became as markedly racially disproportionate as southern ones.
THE IRONIC ORIGINS OF MASS INCARCERATION
The overzealous policing of people of color, and their disproportionate subjection to ill treatment at the hands of police in the nation’s cities and correction officers in the nation’s prisons, eventually led them to rebel in the 1960s. While it is beyond the scope of this paper to recount the full history of either the movements for African American, Chicano, Native American, or prisoner civil rights, or the movements for independence that sprang up in countries such as Puerto Rico in this period, it is important to note the deeply ironic history that followed.
In short, although the unrest of the 1960s had been a response to this nation’s long history of racialized policing and punishment with protest, most tragically, the nation’s reaction to these same protests was to erect an even larger and more punitive apparatus for criminalizing and confining people of color.
FROM THE WAR ON CRIME TO THE CRISIS OF MASS INCARCERATION
While the timing and political context of the War on Crime indicates that it was not launched initially due to a marked jump in the nation’s crime rate, the issue of crime is nevertheless crucial here. Specifically, dramatic changes to criminal law, changes to penalties associated with committing a crime, and changes that communities experienced as a result of hyper-criminalization, all made incarceration rates climb as soon as politicians began waging their new War on Crime. What is more, the very particular way that these changes played out help to explain why those incarcerated in the period of 1970 to the present were even more increasingly people of color.
It is well understood that a revolution in drug law was one of the most important changes to criminal law that took place vis-à-vis impacting this nation’s incarceration rate over time. Interestingly, as Julilly Kohler Hausmann’s (2010) important historical work shows, we must locate even the dramatic changes in drug law in the broader political context of the transformative 1960s. Like Vesla Weaver, Kohler Hausmann’s work makes clear that politicians’ move away from the notion that addicts were people with a disease who needed help to the idea that addicts were the disease that needed to be contained had everything to do with the racial tensions of
Today’s high rate of incarceration is fundamentally rooted in this nation’s centuries-long, economic, and racial history. This nation, from its founding responded to social and political upheaval with criminalization, and in every century, it is people of color who have always been most marked as troublemakers in general, and criminals in particular.
Whether it was Native Americans thought to be standing in the way of progress in the West, native Hawaiians seeming an impediment to the desires of Whites in the Pacific, Puerto Ricans who challenged discrimination in cities like New York, or Mexicans seen as flooding the borders and taking jobs, the police have always been deployed disproportionately to monitor the behavior of non-Whites in this country and, as a result of this disproportionate policing, U.S.
prisons have always been more of a reflection of White desires for dominance than of those who commit harm in society. And, as the demographics of our prisons and jails make clear, African Americans been particularly targeted by laws and singled out for policing. Whether one is examining this nation’s historical record during the moment of emancipation, migration, depression, or civil rights revolution-all historical moments of intense social, political, and economic upheaval-one sees not only a move toward more draconian laws, more policing, and more arrests, but also an intensification of racially disproportionality across the entire system.
Author: Heather Ann Thompson