here to read any of the commentaries
in this series.
At its worst, America’s criminal justice system represents
the place where racism, greed and corruption intersect. At its
best, it is inherently flawed, unjust, and unreliable, and little
better than its worst.
The engine that drives this injustice system is known
as the prison industrial complex. It is the theater in which the
nation’s foremost method of social control—and a failed method at
that—plays itself out to the detriment of society. Recent events
help to underscore just how bad things are:
two Pennsylvania judges were recently convicted for receiving $2.6 million in cash to send 5,000 juveniles, many first-time offenders, to two private detention centers. One judge secured
the contracts for the companies, while the other judge filled
up the facilities with warm bodies.
Judge Sharon Keller, presiding judge of the Texas Court of Criminal
Appeals, that state’s highest criminal court, is in a heap of
trouble. The State Commission on Judicial Conduct initiated
impeachment proceedings against Keller for incompetence, violating her duties as a judge
and casting public discredit on the court. Now for a state such
as Texas, whose justice system boasts an already pitifully low
standard of integrity, with defense attorneys allowed to fall
asleep during their client’s trial, this is no small potatoes.
What did this self-described pro-prosecution judge do? Well,
she refused to keep the court open after 5pm when she knew Michael
Richard, a death row inmate, sought a last-minute appeal challenging
the constitutionality of his punishment (lethal injection). The
inmate was unable to file an appeal and was executed.
Also, Keller rejected a new trial for Roy Criner,
a mentally retarded man convicted of rape and murder, even though
DNA evidence showed that he did not rape the victim. “We can't give new trials to everyone who establishes,
after conviction, that they might be innocent,”
Judge Keller said. “We would have no finality in the criminal
justice system, and finality is important. When witnesses testify,
and when jurors return a verdict, they need to know that they
can't come back later and change their minds.”
Finally, a three-judge federal
panel recently ruled that California’s state prisons must reduce their inmate
population by one-third, or about 57,000 prisoners. The judges found that
the level of overcrowding in the state institutions deprives the
inmates of adequate healthcare and is unconstitutional.
By itself, any one of these stories shocks the conscience.
We would hope that these sordid tales are the exception to the rule.
However, these cases reflect a dysfunctional system that is functioning
as designed by a dysfunctional society. Allow me to demystify the
prison industrial complex and identify the threads that connect
the crooked judges in Pennsylvania and Texas, and overcrowded prisons
It was no accident that the United States became
the nation with the world’s largest prison population, with 2.3 million behind bars, and a total of 7.3 million in jail, prison, parole
or probation, or 1 in every 31 adults. America, with 5 percent of the world’s population,
incarcerates 25 percent of the world’s prisoners, and the majority
of these are people of color. The most ruthless and repressive
totalitarian dictatorship cannot claim such impressive statistics.
Public policy, informed by a legacy of Jim Crow racism, the profit
motive and obscene, misplaced priorities, explains it all.
United States has decided to treat prisons as a growth industry.
Prisons have become the new company town, in a nation where most
of the factory jobs left long ago, casualties of globalization and
the race to find the lowest worldwide labor costs. They are built
in mostly rural White areas, and over the years these communities
courted these prisons, whether state-operated or privatized, for
the jobs they promised to bring to these depressed communities.
Every factory requires raw materials. The raw materials
for the prison-as-factory are Blacks and Latinos, and poor Whites—uneducated,
in many cases illiterate, and unskilled casualties of a system that
has programmed their failure through a cradle-to-prison pipeline.
The criminalization of youth of color, systemic poverty, failed
public schools and the wholesale denial of opportunity is fundamental
to this pipeline.
In order to ensure a steady stream of Black, Brown
and poor White bodies, these raw materials, into the factory, you
must maintain the right policies. So, in the Jim Crow segregated
South, the powers that be decided to keep Blacks in their place
and eviscerate their political power, to maintain a system of slavery
after slavery had been supposedly abolished. Through the Black Codes, the Southern establishment criminalized certain
behaviors that were associated with the Black community. Certain
offenses such as “mischief,” “insulting gestures” “cruel treatment
to animals,” and the “vending of spiritous or intoxicating liquors”
applied only to African Americans. In addition, it was illegal
for Blacks to cohabit with Whites (which carried a life sentence)
or keep firearms. Kangaroo courts were utilized to fill the prisons
with Black men, who were farmed out for their labor and summarily,
forever, denied the right to vote.
Nowadays, a high-tech Jim Crow has met the information
age. In recent decades, the war on drugs has resulted in draconian
sentencing, particularly for crack cocaine (a drug associated with
poor drug users of color) vs. powdered cocaine. Politicians climb
the career ladder through their tough on crime stance, exploiting
White fears of Black criminality. Police conduct raids and sweeps
in Black and Brown poor communities, rather than the suburbs and
posh corporate suites, to find illegal drug activity. Communities
of color are punished in the process. Black and Latino men (and
increasingly women) are shipped upstate to far-flung prisons in
White communities. Their families can visit them only through great
personal and financial hardship. In a new twist on the infamous
Three-Fifths Compromise (which counted slaves as three-fifths of
a person for the benefit of the Southern states in terms of Congressional
apportionment and the distribution of taxes), these prisoners are
counted as residents of these rural for census and tax purposes.
Yet, they are unable to vote, and in many cases unable to vote after
they complete their sentence (about 5.3 million people cannot vote because they have felony convictions,
including 13% of all Black men). Meanwhile, the mostly urban communities
that raised them are depleted of resources— human, political and
And the lynching of Black men was made cleaner, legitimate
and more “respectable” by bringing it into the justice system in
the form of state-sponsored executions. Executions, like Texas
backwater lynchings, are arbitrary, barbaric and race-based. The
defendant typically is a man of color, the underlying crime involves
a White victim (80% of the time, according to the Death Penalty
Information Center), and the chief prosecutor is White (98% of the
time). Like the lynch mob, the administrators of the death penalty
system ultimately care little about guilt or innocence. Someone’s
got to pay, and anyone will do. When soon-to-be former Judge Keller
expressed her sentiments that we can’t give every innocent person
a new trial, she was getting at the heart of a criminal justice
system that cares everything about finality and little about true
justice. And so, new raw materials are constantly required to satisfy
the hunger of the prison machine.
Those who are interested in the expansion of the
prison boom, including the corrections officers’ union in California,
private prison firms, and others, lobby state legislatures for longer,
harsher sentences to keep more people behind bars for longer periods
of time. As a result, ruinous policies based on catchy slogans,
including three strikes laws, have prevailed. And as the prison
population has burgeoned in the process, so too have the state budget
allocations for prison spending. A society should be judged for
its misplaced priorities when it spends more on incarcerating people
than on educating them. But this is where criminal justice policy
clashes with economic reality. At a time when states are going
bankrupt—unable to pay their state employees, unable to pay tax
refunds, or unable to collect the trash—ineffective profligate prison
spending is breaking the banks of state governments. And despite
the promises of a retributive and punitive legal regime, the war
on drugs has been an abysmal failure. Draconian sentencing destroys
communities and does not fight crime. America’s attitude towards
drugs and drug policy, not to mention a steady supply of guns from
the U.S., is wreaking havoc on cartel-ridden Mexico. And as the
Obama administration has signaled that the federal government is
moving away from the decriminalization of marijuana, California is now considering legalizing marijuana and taxing it to bring in billions of dollars in annual revenue.
One thing is for sure: the current path is bankrupting
the United States, both in a moral and economic sense. The prison
building madness has run its course, and it is time for it to stop.
In a nation that has tried to make a buck from just about everything,
including human bondage and the misery of others, America must stop
feeding the prison monster.
here to read any of the commentaries
in this series.
BlackCommentator.com Editorial Board member David A. Love, JD is a lawyer
and journalist based in Philadelphia, and a contributor to the Progressive
Media Project, McClatchy-Tribune
News Service, In These Times and
Media Center. He contributed to the book, States of Confinement: Policing, Detention, and Prisons
(St. Martin's Press, 2000). Love is a former Amnesty International
UK spokesperson, organized the first national police brutality conference
as a staff member with the Center for Constitutional Rights, and
served as a law clerk to two Black federal judges. His blog is davidalove.com. Click
here to contact Mr. Love.