The Racialization of Crime and Punishment

The Racialization of Crime and Punishment

Part II of an Interview With Nancy A. Heitzeg.

Nancy A. Heitzeg, Ph.D is a professor of sociology and program co-director of critical studies of race and ethnicity at St. Catherine University in St. Paul, Minnesota.

This is the second part of our interview with Dr. Heitzeg. Be sure to read part one, “Visiting a Modern-Day Slave Plantation,” which also featured our video interview with Robert Hillary King and Dr. Terry Kupers, “Slavery in US Prisons.”

Angola 3 News: Your article, “The Racialization of Crime and Punishment: Criminal Justice, Color-Blind Racism, and the Political Economy of the Prison Industrial Complex,” was published in 2008 by American Behavioral Scientist. What are the key arguments that you make along with co-writer Rose M. Brewer?

Nancy A. Heitzeg: Dr. Brewer and I argue that that the prison industrial complex is the latest in an historically uninterrupted series of legal and political machinations designed to enforce white supremacy with its economic and social benefits both in and with the law – “all domination is, in the last instance, maintained through social control strategies” (Bonilla-Silva 2001:103).

As movements for Abolition and Civil Rights worked to end the institutions of slavery, lynching and legalized segregation, new and more indirect mechanisms have emerged for perpetuating systemic racism and its economic underpinnings. In this era of “color-blind racism,” 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.” The prison industrial complex is the current manifestation of the legal legacy of the racialized transformations of plantations into prisons, of Slave Codes into Black Codes, of lynching into state-sponsored executions.

We rely on Critical Race Theory (CRT) to guide our analysis. CRT precedes from the premise that racial privilege and related oppression is deeply rooted in both our history and law, thus making racism a “normal and ingrained feature of our landscape” (Delgado and Stefancic 2000:xvii). CRT acknowledges the myriad ways in which the legal constructions of race have produced and reproduced systemic economic, political, and social advantages for whites. We use Supreme Court opinions and the voices of political prisoners/prisoners of conscience as evidence of the dominant text and the dissent.

A3N: With the US prison population increasing from 200,000 in 1970 to 2.4 million today, the US now has more prisoners and a higher incarceration rate than any other country in the world. To what do you attribute these staggering figures?

NAH: The United States, with less than 5 percent of the world’s population, has about one-quarter of its prisoners. As you noted, the US has the highest incarceration rate in the world. Over 2.4 million persons are in state or federal prisons and jails – a rate of 751 out of every 100,000. Another 5 million are under some sort of correctional supervision such as probation or parole (PEW 2008). The US remains the last of the post-industrial so-called First World nations that still retains the death penalty, and we use it often. Nearly 3,500 inmates await execution in 35 states and at the federal level. It was not until the early 21st century that the US abolished capital punishment for juveniles and those with IQs below 70.

During the past 40 years there has been a dramatic escalation in the US prison population – a ten-fold increase since 1970. Between 1987 and 2007 alone, the prison population nearly tripled. The rate of incarceration for women escalated at an even more dramatic pace. The increased rate of incarceration can be traced almost exclusively to the War on Drugs and the rise of lengthy mandatory minimum prison sentences for drug crimes and other non-violent felonies.

A similarly repressive trend has emerged in the juvenile justice system. The juvenile justice system has shifted sharply from its original stated goals of rehabilitation and therapy, into a “second-class criminal court that provides youth with neither therapy or justice” (Feld 2007). Throughout the 1990s, the federal government and nearly all states enacted a series of legislation that criminalized a host of “gang-related activities.” This lowered the age at which juveniles could be referred to adult court, widened the net of juvenile justice, and made it easier, and even mandatory in some cases, to try juveniles as adults.

Recently scholars, educators and activists have raised concerns about the growing connection between schools and the prison industrial complex. The growing pattern of tracking students out of educational institutions, primarily via “zero tolerance” policies, and tracking them directly and/or indirectly into the juvenile and adult criminal justice systems is variously referred to as the “school to prison pipeline,” the “schoolhouse to jailhouse track,” or as younger and younger students are targeted, the “cradle to prison track” (NAACP 2005; Advancement Project 2006; Children’s Defense Fund 2007). In part, the school to prison pipeline is a consequence of schools which criminalize minor disciplinary infractions via zero tolerance policies, have a police presence at the school, and rely on suspensions and expulsions for minor infractions.

A3N: What drives the US to imprison so many people?

NAH: These harsh policies have not proliferated in response to crime rates or any empirical data that indicates their effectiveness. Rather, these policies proliferated because of our unfounded fears. The short answer is this: harsh criminal justice policies are the result of racism, classism, media mythologies, and the connection of the profit motive for incarceration on a mass scale.

Mandatory minimums for drug violations, “three strikes” laws, increased use of imprisonment as a sentencing option, lengthy prison terms, adult certification for juveniles, and the expanded use of the death penalty all disproportionately affect the poor and people of color. A brief glimpse into the statistics immediately reveals both the magnitude of these policy changes, as well as their racial dynamic. Despite no statistical differences in rates of offending, the poor, the under-educated, and people of color, particularly African Americans, are over-represented in these statistics at every phase of the criminal justice system (Walker, Spohn & DeLone 2007).

One in every 35 adults is under correctional supervision and one in 100 adults is in prison. Looking at the racial dynamics, one in every 100 black women, one in 36 Latino adults, one in 15 black men, and one in nine black men ages 20 to 34 are incarcerated (Pew 2008). Approximately 50% of all prisoners are black, 30% are white and 17% are Latino (Bureau of Justice Statistics 2007). Notably, the race of victim, race of offender, and social class remain the best predictors of who will receive the death penalty.

The racial disparities are even greater for youth. African Americans represent 17% of the youth population, but account for 45% of all juvenile arrests (NAACP 2005). Black youth are 2 times more likely than white youth to be arrested, to be referred to juvenile court, to be formally processed and adjudicated as delinquent, or referred to the adult criminal justice system. Black youth are 3 times more likely than white youth to be sentenced to out-of-home residential placement (Panel on Justice 2001; Walker, Spohn and DeLone 2007). Nationally, one in every three black and one in six Latino boys born in 2001 are at risk of imprisonment during their lifetime. While boys are five times as likely to be incarcerated as girls, girls are at increasing risk. This rate of incarceration is endangering children at younger and younger ages (Children’s Defense Fund 2007).

To complicate matters, punitive policies extend beyond prison time served. In addition to the direct impact of mass criminalization and incarceration, there is plethora of what Mauer and Chesney-Lind (2002) refer to as “invisible punishments.” “Collateral consequences” are now attached to many felony convictions and include voter disenfranchisement, denial of Federal welfare, medical, housing or educational benefits, accelerated time-lines for loss of parental rights, and exclusion from any number of employment opportunities.

Collateral consequences are particularly harsh for drug felons, who represent the bulk of the recently incarcerated. Drug felons are permanently barred from receiving public assistance such as TANF, Medicaid, food stamps or SSI, federal financial aid for education, and federal housing assistance. These policies dramatically reduce the successful re-integration of former inmates and they increase the likelihood of recidivism and return to prison.

Prison has become a source of profit. The prison industrial complex is a self-perpetuating machine where the vast profits (e.g. cheap labor, construction contracts, job creation, and continued media profits from exaggerated crime reporting and crime/punishment as entertainment) and perceived political benefits (e.g. reduced unemployment rates, “get tough on crime” and public safety rhetoric, and funding increases for police and criminal justice system agencies and professionals) lead to policies that are additionally designed to insure an endless supply of “clients” for the criminal justice system. These self-serving policies include enhanced police presence in poor neighborhoods and communities of color; racial profiling; decreased funding for public education combined with zero-tolerance policies and increased rates of expulsion for students of color; increased rates of adult certification for juvenile offenders; mandatory minimum and “three-strikes” sentencing; draconian conditions of incarceration and a reduction of prison services that contribute to the likelihood of “recidivism.”

Lastly, the “collateral consequence” of felony disenfranchisement results in prohibitions of welfare receipt, public housing, gun ownership, voting and political participation, employment. This disenfranchisement nearly guarantees continued participation in “crime” and return to the prison industrial complex following initial release (Brewer and Heitzeg 2008).

A3N: Do you think that the general US population is actually supportive of the US criminal justice system, particularly regarding such things as the high incarceration rate, the so-called “war on drugs,” the use of solitary confinement and the poor quality of health care given to prisoners? What role does media coverage of these issues play in shaping the US public’s opinion?

NAH: In general, the US population is very uninformed as to the nature of crime, criminals, and the workings of the criminal system. If they do support harsh practices, then their support is rooted in misinformation that is largely proliferated by media. The prison is in fact no panacea but is instead a symptom of what Barry Glassner calls our “culture of fear.” We are afraid of communists, socialists, terrorists, pit bulls, killer bees, anthrax, swine flu, and any new disease of the moment. When all else fails – we are afraid of CRIME.

The fears that lead to excessive imprisonment are fueled by public misperceptions of crime. A substantial body of research documents the role of media – especially television – in constructing perceptions of crime, public images of the criminal, and subsequently shaping public policy. Of particular note is media-generated hysteria of the 1980s and 1990s that inextricably linked and over-inflated “teen super-predators,” inflated accounts of gang-violence, and the crack cocaine “epidemic” – all were unmistakably characterized as issues of race.

Walker, Spohn, and DeLone (2009) note: “Our perceptions of crimes are shaped to a large extent by the highly publicized crimes featured on the nightly news and sensationalized in news papers. We read about young African American and Hispanic males who sexually assault, rob and murder whites, and we assume that these crimes are typical. We assume that the typical crime is a violent crime, that the typical victim is white, and that the typical offender is African American or Hispanic.”

The TV world of crime and criminals, however, is an illusion. These assumptions are false. TV news and entertainment programming constructs a portrait of crime, criminals, and victims that is not supported by any data. In general, the research indicates that street crime, violent crime and youth crime is dramatically over-represented; crime coverage has increased in spite of falling crime rates; African Americans and Latinos are over-represented as offenders and under-represented as victims; and inter-racial crime, especially crimes involving white victims, is over-reported (Dorfman and Schiraldi 2001). The criminal is wrongly seen as the literal and figurative stranger – one whom we do not know and foundationally someone who is not “us” – and of a different race/ethnicity, social class, or neighborhood. TV news coverage of crime creates and reinforces the stereotype of the young black male, in particular, as the criminal.

These media representations have real consequences. TV news coverage of crime reflects and reinforces what Glassner (1999) calls “the culture of fear.” This is supported by decades of research. Study after study finds that heavy TV viewers (i.e. those who watch more than 4 hours a day) overestimate the crime rate, the likelihood of crime victimization, and the extent of stranger-related violence. Heavy TV viewers are nearly twice as likely as light viewers to report crime as the most serious problem, believe crime rates are rising, and indicate personal fear of victimization – especially by black and Latino youth who are widely regarded by heavy viewers as dangerous and in need of extreme punishment (Gerber 1994; Braxton 1997; Farkas and Duffet 1998). They have adopted what Gerber (1994) calls “the mean-world syndrome,” where they are overly fearful and mistrustful of strangers, and those strangers are black and Latino.

Beyond over-representation as “criminals,” African American offenders are depicted in a more negative way than their white counterparts. Blacks are mostly likely to be seen on TV news as criminals, they are four times more likely than whites to be seen in a mug shot, twice as likely to be shown in physical restraints, and two times less likely to be identified by name.

Widespread acceptance of the stereotype of persons of color as violent predators also has implications for public policy. Adult and juvenile justice systems across the nation were rapidly transformed in a more punitive direction with media accounts – rather than statistical evidence – driving the agenda of mass incarceration, the emergence of the prison industrial complex, and the school to prison pipeline. As Davis observes, “Crime is one of the masquerades behind which ‘race,’ with all its menacing ideological complexity, mobilizes old public fears and creates new ones” (1997:62).

A3N: Do you think that the use of solitary confinement is torture?

NAH: Yes, it is torture. It is cruel and unusual punishment when inmates are deprived human contact, communication, and resources. It is a major contributor to mental illness. The extensive use of solitary confinement is but one of many prison practices that I would classify as torture.

The globalization of the prison industrial complex includes not only the proliferation of the structures, but abusive practices as well. The horrific abuses documented at Abu Ghraib are not an anomaly but actually represent regular practices at US prisons across the nation. Amnesty International and Human Rights Watch have documented decades old patterns human and civil rights abuses by local and Federal police/law enforcement officers, as well as prison, jail, and INS detention officials.

There are a variety of abusive police practices, such as racial profiling and excessive use of force that includes kicking and beatings of restrained suspects (with fists, batons, and flashlights), excessive use of dangerous chokeholds, “hog-ties,” and other restraints that have resulted in death. There’s excessive use of tasers, chemical sprays, and deadly force – particularly in situations involving car chases or unarmed black male suspects. Then there’s the inappropriate use of strip searches and the use of sexual abuse and torture at police precincts in order to extract confessions.

Regarding abusive prison procedures, there’s the dangerous use of restraints, including four point restraints, the “rail’ and the restraint chair (that have resulted in multiple deaths), and the shackling of pregnant inmates. Also constituting torture is the use of nudity, strip searches, sexual humiliation and assault as a source of social control; failure to curtail sexual assaults on both male and female inmates by guards and other inmates; beatings by guards; denial of medical care or treatment; use of dogs, tasers, and chemical sprays; excessive use of “super max” and isolation confinement; denial of rights on religious freedom, communications and right to counsel (see Amnesty International 1998, 2002; HRW 1998, 2002, 2004).

International non-profit human rights organizations have consistently claimed that US police and prison practices are in violation of several international treaties and protocols including, but not limited to, The Geneva Convention, International Covenant on Civil and Political Rights, Convention Against Torture, International Convention on the Elimination on All Forms of Racial Discrimination, UN Universal Declaration of Human Rights, UN Body of Principles for the Protection of All Persons Under Any Form of Detention, UN Standard Minimum Rules for the Treatment of Prisoners, UN Code of Conduct for Law Enforcement Officials, UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials.

Human Rights Watch observed in a May 14, 2004 press release: “Perhaps if photos or videotapes of abuse in US prisons were to circulate publicly, Americans would be galvanized to protest such treatment as they have the treatment of Iraqi prisoners. Absent such graphic and unavoidable evidence, it is all too likely that abuse will continue to be a part of many prison sentences.” Or perhaps, they would continue to be publicly and legally ignored. In a chillingly accurate observation made in his dissent to the recent decision of Johnson v. California (2005), Justice Clarence Thomas noted: “The Constitution has always demanded less within the prison walls.”

A3N: What does the case of the Angola 3 say about the current state of US politics, particularly regarding human rights and racism?

NAH: Tragically, the case of the Angola 3 is not an anomaly. The US has a long history of using local, state, and federal legal authority to suppress political dissent on the left. The state has been willing to use both constitutional subversions and violence to attain this end. This is certainly the case throughout the 20th century in cases ranging from Sacco and Vanzetti to Eugene V. Debs to Leonard Peltier, Mumia Abu-Jamal, and multiple injustices against The Black Panther Party, including the Angola 3. There is a particular willingness and often extraordinary effort to silence leftist dissent from communities of color – perhaps the aforementioned organizations/individuals do represent a real threat to the hegemony of what bell hooks calls “the white supremacist capitalist patriarchy” (1992). But that is challenge, a struggle that should be welcomed and embraced – not silenced and suppressed.

The US government’s commitment to human rights remains a selective one that is contingent upon race, class and political persuasion. Some choose to ignore the US’ political prisoners and prisoners of conscience because they feel that they are safe from a similar miscarriage of justice. That position is in error, for the denial of constitutional rights to some is surely a threat to us all. Ultimately those who turn away, may someday, as Niemöller (1946) warned, be left with no one to speak for them.

A3N: Anything else to add?

NAH: I stand with the abolitionists. Our experiment in mass incarceration is a legal and ethical failure. We must try to imagine a nation, perhaps a world, without prisons. As important as reforms may be, frameworks that rely exclusively on reforms help to produce the stultifying idea that nothing lies beyond the prison. We must give serious consideration to “abolitionist strategies to dismantle the prison system … which preserves existing structures of racism as well as creates new ones … this is no more outlandish than the fact that race and economic status play more prominent roles in shaping the practices of social punishment than does crime.” (Davis 1998 105).

Growing concerns about the rising costs of prisons and executions makes this an opportune moment to push for an end to the use of both. Local state federal governments spend nearly $150 billion per year on “corrections” – an average of $ 25,000 per inmate per year and $2 million dollars per execution. Comparatively, community correctional options have one-third of the costs and twice the success rate. A starting place might be The National Criminal Justice Commission Act of 2009. Please urge your representatives to support passage at once.