The Fallacy of Right-Wing Appeals to Race in Criminal Justice Reform

A protester at the NYC action in solidarity with Ferguson. Mo, encouraging a boycott of Black Friday Consumerism. (Photo: The All-Nite Images)A protester at the NYC action in solidarity with Ferguson, Missouri, encouraging a boycott of Black Friday consumerism. (Photo: The All-Nite Images)

Mid-November 2014. Ferguson and cities across the world took to the streets in continued protest of the police homicide of Mike Brown and a seemingly endless list of mostly young Black males killed by police — 1 every 28 hours. The events in Ferguson had shone a light – not just on the anti-Blackness that shapes policing/police killings in the U.S.A., but towards the entire criminal legal system, one emergent out of slavery and always attendant to policing and punishment by race, class, and gender. The Ferguson Movement had sparked, too, not just demands for the indictment of Darren Wilson or reforms of the police, but calls for – finally! – an uprooting of the structural inequality which shapes and pervades the system.

To see more stories like this, visit “Smoke and Mirrors: Inside the New ‘Bipartisan Prison Reform’ Agenda

Worlds apart, in sterile San Diego hotel conference rooms, “policy makers, experts, and other key decision makers from more than 30 states… [met] to discuss the past, present, and future of the Justice Reinvestment Initiative (JRI)” convened at the Justice Reinvestment National Summit. “Success” in “reform” was touted by reference to a checklist, one devoid of the devilish details of definitions (Mississippi’s reclassification of drug offenses actually increased penalties) or actual incarceration outcomes (a tiny footnote states “The number of policy reforms in a state does not correspond with the impact on prison populations or costs”). One devoid too of discussion of demographics or any indication that actual people — overwhelming people of color, the poor and those otherwise outside the bounds of “normative” white middle/upper class hetero-patriarchy – are the subject/object of these policies.

How is it possible to advocate for criminal justice reform without taking account of the central role that race and class play in shaping the past and present of criminal injustice? As we asked in Smoke and Mirrors: Essential Questions:

Why don’t most of the foundations and advocacy organizations participating in the “prison reform” public relations blitz talk specifically about the “overcriminalization” of people of color, particularly Black, Latino/a, and American Indian/Indigenous communities? Why don’t they make clear recommendations regarding the racially-biased enforcement of “race neutral” laws and law enforcement policies, ranging from “stop and frisk” to “gang” laws and policies, in and out of prison? Why isn’t structural/systemic racism explicitly named as the major contributor to mass incarceration? Where are the solutions that address larger societal contributors, such as poverty, segregation, defunded public educational institutions, racial profiling and more?

In short, it isn’t possible to address the current crisis of mass incarceration without explicitly naming the racist and classist roots. The criminal legal system, at the core, involves the policing and punishment of race — the protection of whiteness as both literal and figurative property and the repression of Blackness in particular. Slave Codes become Black Codes/Jim Crow that echoed the restrictions associated with slavery, re-inscribed the property interests of “whiteness,” and criminalized a range of activities only if the perpetrator was Black.

In the Post Civil Rights Era, there has been a corresponding shift from de jure racism codified explicitly into the law and legal systems to a de facto racism where people of color, especially African Americans, are subject to unequal protection of the laws, excessive surveillance, extreme segregation and neo-slave labor via incarceration, all in the name of “crime control.” “Law and order” criminal justice policies are all guided by thinly coded appeals to white fears of high crime neighborhoods, “crack epidemics,” gang proliferation, juvenile super–predators, urban unrest, school violence, and more. In all these cases, the subtext reads clearly — fear of brown and especially black people.

Colorblind racism and “tough on crime” combine in deadly fashion in the War on Drugs, with its attendant spike in mass incarceration. This is a 40+ year project that now indicts both Republican and Democratic administrations. It is no mistake that the subtitle of Michelle Alexander’s epic indictment of The New Jim Crow is this – Mass Incarceration in the Age of Colorblindness. The Drug War, from start to finish has always been racist: draconian sentences, crack v powder disparities, police patrol patterns, stop/frisk, and racial profiling, arrests, convictions, sentences, incarceration, and collateral consequences all fall heaviest on Blacks.

Nonetheless, the Right has managed to avoid any discussion of what they now refer to as “racial disparity” until recently. Ironically, the crowd that brought us the “Southern Strategy,” Willie Horton, and the coded race-baiting of “law and order” that they created, now claims that they are best equipped to reform the criminal legal system. Don’t be fooled. The new-found mention of race is both politically expedient and deceptive. It is explicitly argued that criminal justice reform is the “GOP’s best hope to reach minority voters.” This theme has been heavily worked since last summer, when, at a Koch Brothers panel, right-wing “reform” was touted as bipartisan, “uniting left and right,” and a harmonic convergence of “unexpected alliances” featuring select NAACP members and most recently Van Jones. This meme has been buttressed by the GOP’s libertarian wing, particularly via Senator Rand Paul, with the illusion that reducing Federal mandatory minimums for drug crimes, decriminalizing marijuana, and opposing the Federal militarization of the police somehow – magically – will address the underlying structural racism and classism at the heart of the criminal legal system. That merely changing the law will cause any race and class gulfs in criminal legal control to “wither away.”

It won’t. In fact, a closer look at this approach suggests that rather than reducing racial gulfs in arrest, prosecution and incarceration, these proposed reforms may actually magnify them and serve to solidify the criminalizing archetypes noted by Frederick Douglas nearly 150 years ago as “the imputation of crime to color.” What the Right actually means to do is best revealed by closely examining their central positions on overcriminalization and law enforcement, the issues most relevant to our discussion here.

Overcriminalization of Whom?

When many of us hear the term overcriminalization, we are imagining decriminalization of drugs and petty nonviolent offenses such as loitering that are often used to criminalize the poor or serve as a pretext for racial profiling, legalization of marijuana and/or other drugs, and an end to the proliferation of laws that criminalize style, often with race-neutral language but racialized intent.

This is not what the Right means. In fact, they have been largely silent on or supportive of the increased rash of laws which criminalize poverty and homelessness and create crimes of style which continue to ensnare people of color and the LGBTQ community into the widening criminal legal net. Even though overcriminalization has been a central theme in the Right on Crime agenda since their founding in 2010, their understanding of it is overtly shaped by the central pillars of states’ rights/anti-Federal government and private profiteering. Overcriminalization is the new Right on Crime code for deregulation of corporate and business activities. “Thousands of harmless activities are now classified as crimes in the United States. These are not typical common law crimes such as murder, rape, or theft. Instead they encompass a series of business activities.” Undergirding this is a rejection of Federal authority and an explicit call for states’ rights.

The Conservative Solution

• Stop creating new criminal offenses as a method of regulating business activities. Regulation is better handled through fines and market forces, not the heavy stigma of criminal sanctions

• Avoid licensing new occupations and revise laws to eliminate criminal penalties that are currently associated with many occupations.

• Ensure that an appropriate culpable mental state is included in the elements of all offenses.

• Return the responsibility for prosecuting and punishing traditional crimes to the states.

• Revise criminal laws to remove ambiguities and consolidate redundant laws to help prevent prosecutorial abuse.

At rock bottom, criminal justice reform for the Right is about protecting corporate profits from pesky Federal governmental regulations that seek to protect consumers, workers, investors, the environment and the general public from economic and physical harm. This position, for example, rejects the criminal charges in a case like BP’s Deepwater Horizon Gulf disaster, suggesting that the market or Louisiana were best equipped to handle this. It is evidenced too in the early debates over “food police” which rejects food labeling or criminal penalties for poisoning small children with E-coli laden hamburgers. As illustrated by Radley Balko in his Cato Institute days, this position suggests that we all live in a world of personal consumer “choices” where we can all “equally” decide whether or not to eat junk food or GMOs or get in our Mercedes and drive out of that food desert. It is a world without structural inequality as an impediment to “choice”; there is nothing but “personal responsibility,” a loaded term too often touted in all right-wing criminal justice reform efforts.

Even as the Right has expanded their current rhetoric to include some lessening of penalties with regard to the War on Drugs, the states’ rights agenda and the primacy of private profit underlie these efforts. Rand Paul’s much touted legislative proposals are all targeted at the Federal level, leaving states to their own devices, however draconian. Further, as we have seen in Community Corrections: Profiteering, Corruption and Widening the Net, diverting drug offenders from prison under these right-wing reforms, does not lessen legal control, but in fact, serves to create new pathways for profiteering and an expanding web of legal and economic control.

Beyond this, failure to address the structural racism and classism at the heart of the Drug “War” may result in increased disparity as these ‘colorblind ” reforms are enacted. Consider recent changes in marijuana legislation in California, Colorado, Connecticut, Massachusetts, and Washington. Two of those states (Colorado and Washington) completely legalized possession of small amounts of marijuana for adults 21 and older, while the rest reduced criminal penalties for small amounts across all ages. A new report from the Center on Juvenile and Criminal Justice found this:

“All five states experienced substantial declines in marijuana possession arrests. The four states with available data also showed unexpected drops in marijuana felony arrests. States that decriminalized marijuana for all ages experienced the largest decreases in marijuana arrests or cases, led by drops among young people and for low-level possession. Staggering racial disparities remain — and in some cases are exacerbated — following marijuana reforms. African Americans are still more likely to be arrested for marijuana offenses after reform than all other races and ethnicities were before reform.”

In the states studied, African Americans were more than 5 times more likely than all other races/ethnicities to be arrested for marijuana even after legalization or decriminalization. This result is not an aberration. Nationally, according to the ACLU in The War on Marijuana in Black and White, “Marijuana use is roughly equal among Blacks and whites, yet Blacks are 3.73 times as likely to be arrested for marijuana possession.” Consider, too, that as a recent report from The Minnesota ACLU reveals, Blacks in the City of Minneapolis were 11.5 times more likely to be arrested than a white individual for marijuana possession – this, despite the fact, that possession of small amounts of marijuana has been decriminalized in the state of Minnesota since 1976.

Clearly, calls for reduced penalties in Drug War legislation are not enough to address the structural racism and classism that underpins criminal injustice, and the Right remains silent here. Criminalization alone is not a singular issue; policing plays a significant role in shaping the race, class and gender contours of the criminal legal system.

Law Enforcement: The Missing Mention of Racial Profiling

Given their Law and Order history, it is unsurprising that the Right’s plans for criminal justice reform include no critique of police/policing. The Right on Crime position on Law Enforcement emphasizes the use of more technology, surveillance, collusion with private security, and of course, profit for the companies that produce monitoring equipment and the like.

The Conservative Solution

• Increase the utilization of data-driven policing and related performance measures such as CompSTAT and CLEAR.
• Involve private security in data-driven policing to expand the knowledge base and expedite responses.
• Expand the use of GPS monitoring of parolees and probationers.

More recently, the libertarian right (along with segments of the left) has decried the increased militarization of police, made fully possible by Ronald Reagan. Reagan declared the War on Drugs a “national security” issue and encouraged Congressional passage of the Military Cooperation with Law Enforcement Act of 1981. The Military Cooperation with Law Enforcement Act allowed local, state, and federal police access to military bases, research, and equipment, and further allowed military personnel to train police. The floodgates now open, additional legislation in the late 1980s and 1990s permitted the National Guard to aid in drug investigations/arrests and authorized the Pentagon to donate surplus military equipment to local police departments. Of course, this situation was further exacerbated by 9/11.

However opposed many of us are to this merger of police and military, a focus on police militarization as the essence of current problems ignores the long history of state terror against communities of color and the extent to which a militarized response has always been the first resort here. It is insufficient, as Rand Paul recently did, to stumble into Ferguson claiming that it is militarized policing that makes Africans Americans “feel as if their [Federal] government is targeting them.” The Federal government did not kill Michael Brown; an employee of the City of Ferguson did. Militarized policing did not kill Michael Brown; plain old everyday racial profiling did.

Here the Right is silent. Nothing in their proposed criminal justice reform addresses the rampant racial profiling and attendant police murders furthered by “Broken Windows“, public order policing and the dubious Compstat data that legitimates it. Nothing to say about GOP-led stop and frisk initiatives in NYC that resulted in nearly 700,000 people per year, 87 percent of them black or Latino, being stopped and searched. Nothing to say about ongoing police harassment of the homeless and those who try to feed them. Nothing to say about racial disproportionality in lower-level arrests that can only result from racial targeting, such as statistics like those seen in Minneapolis where Blacks are 8.86 times more likely to be arrested than a white individual for disorderly conduct, 7.54 times more likely to be arrested for vagrancy; and 16.39 times more likely to be arrested than a white juvenile for curfew/”loitering.”

These are their policies. And when the silence is broken, it is filled more often that not, with some race-baiting screed such as that exhibited by former NYC Mayor Rudy Giuliani – yes one of the architects of Broken Windows – where victims of police violence are “thuggified,” police protected at all costs, and white supremacy further enshrined.

Which Side Are You On?

As cynical latecomers to a discussion of the role of race in the criminal legal system, the Right hopes to garner a few votes and perhaps further the illusion of a “bipartisan” agenda here. This is a calculated effort to expand their demographic reach, but there is the extreme irony of states’ rights supporters of Stand Your Ground, the opponents of the 14th Amendment, the Voting Rights Actand more making coded appeals to the Black vote that they are simultaneously attempting to suppress.

Further, the Right’s plans for criminal justice reform may ultimately magnify the structural racism and classism at the root of the creation, proliferation and maintenance of the prison industrial complex. In addition to the examples already cited, there are rumblings in the ostensibly race-neutral conservative rhetoric that suggest that further divisions be made between “reformable” offenders and irredeemable “others,” now relegated to even harsher conditions, and new calls for “personal responsibility,” respectability politics, and ultimately, increased conflation of Blackness with crime.

These are the sorts of smoke and mirrors proposals that are promoted by Koch-funded panels held in those sterile hotel conference rooms, devoid of demographics, of real people and the communities most impacted. And, devoid of the bold confrontation of structural racism and classism that is emerging in the streets of Ferguson and so many other communities. Choose your vision.

Many, eager for any sign of relief after 40 years in the mass incarceration desert, will be ready to support anything that looks like “reform.” The urge to embrace superficially sane-sounding criminal justice reforms is understandable. The era of mass incarceration must end.

But please do not be tempted to support policies that seem “reasonable” in the short run, but in the end make the prison industrial complex even more entrenched with new avenues for profiteering, and new colorblind policies that magnify structural racism. Make no mistake; any attempt at “reforming” criminal injustice must take account of its roots in white supremacist capitalist hetero-patriarchy, must propose remedies that address the roles that race, class, and gender play in the both the creation and operation of the prison industrial complex, must ask hard questions about the purported need for extensive control of any sort for the vast majority of those who are criminalized.

We must ask for nothing less.

Or we will be forty years on asking again: how was it possible we ever thought that the Master’s Tools could – somehow? – Dismantle the Master’s very own House?

This post is an updated and revised version of a post that originally appeared in the Criminal Injustice Series at Critical Mass Progress.