Race-Ing Justice, Disenfranchising Lives

The following was a Chancellor’s Distinguished Lecture delivered at Fayetteville State University [University of North Carolina – Fayetteville], November 14, 2006.

The racialized criminal justice system of America, with its two million prisoners, with four million others who are either on probation, parole or awaiting trial today, represents the greatest political and moral challenge to the survival of democracy today. Abraham Lincoln once declared nearly 150 years ago, that this nation could not endure being “half slave and half free.”

The “new” slavery, the “color-blind racism” of the twenty-first century, has divided this nation by a new form of racialized inequality. The criminal justice system, and what many scholars now describe as the “Prison Industrial Complex,” are responsible for condemning tens of millions of American citizens to disenfranchised lives, shattered aspirations for their children, and alienation from civil society and public life.

I deeply appreciate the generous invitation to speak at Fayetteville State University, as part of the “Chancellor’s Distinguished Lecture Series,” which has allowed me the opportunity to speak critically about these issues with you. I also wish to tank my old friend, Dean David Barlow, whose scholarly research in the fields of race, crime and social justice, is widely known and respected.

This evening, the subject of my lecture, “Race-ing Justice, Disenfranchising Lives,” addresses four key ideas, which I would like to outline briefly: First, in the final two decades of the twentieth century, there was a conservative reaction against the judicial and legislative achievements of the Civil Rights Movement, which aimed at dismantling affirmative action programs, minority scholarships and race sensitive admissions programs into colleges. Such programs had largely been responsible for quadrupling the size of the African-American middle class between 1968 and 1995.

Second, this assault against civil rights and affirmative action coincided with an unprecedented expansion of prisons, and the mass incarceration of millions of mostly Blacks and Latinos, who were often stripped of their voting rights, educational and economic opportunities. Third, the result of these two processes, the “New Racial Domain” of the twenty-first century, is an unholy trinity of mass unemployment, mass incarceration, and mass disenfranchisement, culminating in civil death, for the oppressed. Finally, I pose the question, how should scholars and the field of higher education respond to this great political and moral crisis?

One of the greatest structural impediments to human development throughout U.S. history has been the barrier of racism. Despite a half century of reforms, it remains a structure of racialized discrimination and unfairness that American society has not yet overcome; so it is on this issue of racialized inequality that I would like to begin my lecture.

What do scholars in the social sciences analyze when they examine structural racism today? The “white” and “colored” signs of the Jim Crow South have long since disappeared. Legal racial segregation in the United States was outlawed more than a generation ago. However, scholars such as sociologist Lawrence D. Bobo have argued that the traditional color line in American life has not “vanished,” but instead been “merely reconfigured.” “The death of Jim Crow Racism has left us in an uncomfortable place that I sometimes call a state of Laissez Faire racism,” he wrote. Bobo described laissez-faire racism “as the case when society has ideals, but openness to very limited amounts of integration at the personal level remains, there is political stagnation over some types of affirmative action, quite negative stereotypes of racial minorities persist, and a wide gulf in perceptions regarding the importance of racial discrimination remains.” Many middle-class Blacks and Latinos today accept the national political narrative about the pluralistic promise of American democracy: through individual initiative and personal responsibility, we teach our children, success and upward mobility are possible.

The fundamental problem with this perspective is that “laissez-faire racism” is still racism, albeit less overt and articulated in the race-neutral language of fairness. The continuing existence of racial inequalities that can be measured in social outcomes is not a product of the lack of individual initiative on the part of racial minorities, but of deep structural barriers that continue to be maintained through the pervasive power of white privilege. Racial inequality therefore presents itself, in the post-Civil Rights era, as a “normal” aspect of the general social fabric of American society. There are always “winners” and “losers” in the competition for resources and power. The implications that if African Americans still find themselves at the lower end of society’s totem pole, the overwhelming logic of common sense is that they have no one to blame but themselves.

The modern assault against diversity, racial fairness and human equality in America has been simultaneously political, economic, cultural, and ideological. There was in the 1980s and 1990s a dedicated, concerted effort by conservatives to literally turn the discourse of civil rights upside down; in effect, to rewrite the American public’s memory about what had actually transpired in the 1950s and 1960s. Dr. Martin Luther King, Jr.’s image and words were cynically manipulated to provide a posthumous endorsement for outlawing affirmative action programs. An important turning point occurred in California in November 1996, with the passage of Proposition 209, the so-called “California Civil Rights Initiative.” Winning by a margin of 54 to 46 percent, the initiative outlawed use of “race, sex, color, ethnicity, or national origin” in many aspects of public life. Thousands of Black and Latino voters, confused by the language of the initiative, failed to understand that affirmative action would be outlawed in California, and voted for it. On the day of the referendum, the Los Angeles Times exit polls indicated that a clear majority of California voters supported affirmative action programs. Yet these same voters, confused or not, approved Proposition 209 and made it state law. All of this was made possible because the lessons and history of the Civil Rights Movement have been largely erased from the national consciousness. As Ward Connerly, the Negro conservative who led the campaign for Proposition 209, explained: “The past is a ghost that can destroy our future. It is dangerous to dwell upon it. To focus on America’s mistakes is to disregard its virtues.”

White moderates and liberals who had long defended race-based affirmative action programs waffled and largely collapsed before the conservative onslaught. Setting the tone was President William Jefferson Clinton, who in his re-election campaign of 1996 declared that he had “done more to eliminate affirmative action programs I didn’t think were fair and tighten others up than my predecessors have since affirmative action has been around.” Clinton’s failure to frame the continuing necessity for affirmative action around issues of U.S. racial history, and the need to implement measures of compensatory justice for historically oppressed minorities, would prove decisive. In 1996, the U.S. Court of Appeals for the Fifth Circuit, in the Hopwood v. State of Texas decision, outlawed the use of race as a factor in admissions to universities. Initiative 200 in Washington State in 1998 followed California in outlawing affirmative action enforcement. As a direct consequence, in the first year of Proposition 209’s enforcement, the number of African-American first-year undergraduates enrolling at the Berkeley campus fell from 258 to 95, a 63 percent decline. At the University of California at Los Angeles, the drop was from 211 Black students down to 125 students.

Advocates of affirmative action then largely jettisoned historically-grounded claims to racial justice for Blacks, tactically falling back to two more pragmatic approaches: first, race-neutral schemes that would admit a certain fixed percentage of a state’s graduating high school seniors into a state university system; second, restructuring formerly race-based fellowship programs to include Asians, low-income whites, and others defined either as “underrepresented” or from “disadvantaged backgrounds.” Both of these approaches are highly problematic, from the vantagepoint of African-American and Latino interests. The fixed percentage approach essentially rewards the existence of racial residential segregation, giving the greatest access to minority students living in hypersegregated urban schools, but severely reducing college access to qualified Black students attending mixed or predominantly white suburban schools. In Texas, a “top 10 percent plan” was adopted in 1997 following the Hopwood decision, and almost immediately both the University of Texas at Austin and Texas A&M, the state’s two flagship institutions, experienced modest declines in minority student population. By the fall of 2002, of the matriculating freshmen, African Americans comprised only 3 percent, and Latinos under 10 percent – in a state where over 40 percent of the population is Latino and African American.

Curiously, at precisely this same historical moment, there was a rapid expansion in the personnel of the criminal-justice system, as well as the construction of new prisons throughout the United States. What occurred in New York State, for example, was typical of what happened nationally. From 1817 to 1981, New York had opened thirty-three state prisons. From 1982 to 1999, there were more than 71,000 prisoners in New York State correctional facilities.

In 1974, the number of Americans incarcerated in all state prisons stood at 187,500. By 1991, the number had reached 711,700. Nearly two-thirds of all state prisoners in 1991 had less than a high-school education. One-third of all prisoners were unemployed at the time of their arrests. Incarceration rates by the end of the 1980s had soared to unprecedented rates, especially for Black Americans. As of December 1989, the total U.S. prison population, including federal institutions, exceeded 1 million for the first time in history, an incarceration rate of the general population of 1 out of every 250 citizens. For African Americans, the rate was over 700 per 100,000 or about seven times higher than for whites. About one-half of all prisoners were Black. Twenty-three percent of all Black males in their twenties were either in prison, on parole, on probation, or awaiting trial. The rate of incarceration of Black Americans in 1989 had even surpassed that experienced by Blacks who still lived under the apartheid regime of South Africa.

By the early 1990s, rates for all types of violent crime began to plummet. But the laws sending offenders to prison were made even more severe. Children were increasingly viewed in courts as adults and subjected to harsher penalties. Laws like California’s “three strikes and you’re out” eliminated the possibility of parole for repeat offenders. The vast majority of these new prisoners were nonviolent offenders, and many of these were convicted of drug offenses that carried long prison terms. In New York, African Americans and Latinos made up 25 percent of the total population, but by 1999 they represented 83 percent of all state prisoners and 94 percent of all individuals convicted on drug offenses. The pattern of racial bias in these statistics is confirmed by the research of the U.S. Commission on Civil Rights, which found that while African Americans today constitute only 14 percent of all drug users nationally, they account for 35 percent of all drug arrests, 55 percent of all drug convictions, and 75 percent of all prison admissions for drug offenses. Currently, the racial proportions of those under some type of correctional supervision, including parole and probation, are one in fifteen for young white males, one in ten for young Latino males, and one in three for voting African-American males. Statistically today, more than eight out of every ten African-American males will be arrested at some point in their lifetime.

Structural racism is so difficult to dismantle in our nation today, in part, because political leaders in both major parties have deliberately redirected billions of our tax dollars away from investments in public education into the construction of what many scholars now describe as a prison industrial complex. This is the terrible connection between education and incarceration.

A 1998 study produced by the Correctional Association of New York and the Washington, D.C.-based Justice Policy Institute illustrated that in New York State hundreds of millions of dollars have been reallocated from the budgets of public universities to prison construction. The report stated: “Since fiscal year 1988, New York’s public universities have seen their operating budgets plummet to 29 percent while funding for prisons has increased by 76 percent. In actual dollars, that nearly has been an equal trade-off, with the Department of Correctional Sciences receiving a $761 million increase during that time while state funding for New York’s city and state university systems has declined by $615 million.” By 1998, New York State was spending nearly twice what it had allocated to run its prison system a decade earlier. To pay for that massive expansion, tuitions and fees for students at the State University of New York (SUNY) and the City University of New York (CUNY) were dramatically hiked.

For Black and Latino young adults, these shifts have made it much more difficult to attend college than in the past, but much easier to go to prison. The 1988 New York State study found: “There are more Blacks (34,809) and Hispanics (22,421) locked up in prison than there are attending the State University of New York, where there are 27,925 Black and Hispanic students.” Between 1989 and 1998, there were more Blacks entering the prison system for drug offenses each year than there were graduating from SUNY with undergraduate, masters, and doctoral degrees – combined.”

In June 2003, the U.S. Supreme Court decided two lawsuits involving affirmative action programs at the University of Michigan at Ann Arbor. The most important of the two decisions, Grutter v. Bollinger, declared that there was a compelling state interest in fostering programs enhancing “diversity,” and that the quality of education was enriched by having individuals from different racial and ethnic backgrounds as part of a university enrollment. Therefore, the court declared in its narrow five to four ruling, the use of race as a factor was acceptable, so long as it was not applied as a quota. The initial response from the academic community was that Grutter represented a clear victory for the forces of affirmative action and “diversity.” They unfortunately ignored the full weight of the majority’s opinion on the high court: that universities had to consider prospective students henceforth “as individuals” and not to reject or admit them through any programs based primarily or exclusively on racial categories. This part of the ruling was quickly interpreted to mean that all programs within a college or university should not be based primarily or exclusively on racial categories.

From late 2003 through 2004, in a relatively brief period of time, hundreds of U.S. universities and colleges shut down or significantly transformed their minority-oriented programs. The list was truly stunning: at Yale University, a summer pre-registration program for pre-freshmen, “Cultural Connections,” was opened to white participation; at Princeton University, all “race-exclusive programs” were abruptly halted, including its Junner Summer Institute that annually brought African-American and Latino college students to the Woodrow Wilson School of Public and International Affairs; at Boulder, University of Colorado’s “Summer Minority Access to Research Training Program” was renamed and opened to whites; at the California Institute of Technology, its campus visit program designed for Blacks, Latinos, and American Indians was opened to whites and Asian Americans; at Indiana University, its nine-week “Summer Minority Research Fellowship” originally designed “to get minority high school and college students interested in medical research by matching them with mentors” was restructured to recruit Asian Americans and whites; at St. Louis University, a scholarship program annually awarding $10,000 each to 30 African-American students was “disbanded” and new “Martin Luther King, Jr.” scholarships were substituted, reduced to $8,000 per student, and accepted without consideration of race; and at Williams College in Massachusetts, a pre-doctoral fellowship program, which for more than a decade awarded annually two to five general dissertation stipends to Black and Latino advanced graduate students, with the original purpose of increasing minority professors, has been radically opened to anyone, regardless of color, who is deemed “under-represented,” such as “women in physics departments,” or “white applicants in Asian Studies.” Upon reflection, Grutter was both a victory and a defeat. It marked a cruel defeat that will reduce the opportunities for education advancement for hundreds of thousands of Latino and African-American students in the coming years, all in the name of “diversity.”

This is the racialized context in which we must analyze and discuss what is now occurring in the contemporary U.S. criminal justice system. The system of Jim Crow segregation may have disappeared legally, but in its place there has emerged what I call the “New Racial Domain,” or NRD. This New Racial Domain is the complex reconfiguration of race and power in the context of the political economy of neoliberalism and globalization. Simply put, the matrix of the New Racial Domain is a deadly triangle, or unholy trinity of structural racism: mass unemployment, mass incarceration, and mass disfranchisement. This triangle of “color-blind racism” creates an endless cycle of economic marginalization, stigmatization, and social exclusion, culminating in civil and social death.

The cycle of destruction starts with chronic, mass unemployment and poverty. Real incomes for the majority of the working poor actually fell significantly during Clinton’s second term in office. After the 1996 welfare act, the Great Society era’s social safety net was largely pulled apart. As the Bush administration took power, chronic joblessness spread to Black workers in the manufacturing sector. By early 2004, in cities such as New York, fully one-half of all Black male adults were outside of the paid labor force.

Mass unemployment inevitably feeds mass incarceration. About one-third of all prisoners were unemployed at the time of their arrests, and others average less than $20,000 annual incomes in the year prior to their incarceration. Today about one in five Americans possesses a criminal record. Mandatory-minimum sentencing laws adopted in the 1980s and 1990s in many states stripped judges of their discretionary powers in sentencing, imposing draconian terms on first-time and non-violent offenders. Parole has been made more restrictive as well, and in 1995 Pell grant subsidies supporting educational programs for prisoners were ended. For those fortunate enough to successfully navigate the criminal justice bureaucracy and emerge from incarceration, they discover that both the federal and state governments explicitly prohibit the employment of convicted ex-felons in hundreds of vocations. The cycle of unemployment frequently starts again.

The greatest victims of these racialized processes of unequal justice, of course, are African-American and Latino young people. In April 2000, utilizing national and state data compiled by the FBI, the Justice Department and six leading foundations issued a comprehensive study that documented vast racial disparities at every level of the juvenile justice process. African Americans under age eighteen constitute 15 percent of their national age group, yet they currently represent 26 percent of all those who are arrested. After entering the criminal-justice system, white and Black juveniles with the same records are treated in radically different ways. According to the Justice Department’s study, among white youth offenders, 66 percent are referred to juvenile courts, while only 31 percent of the African-American youth are taken there. Blacks make up 44 percent of those detained in juvenile jails, 46 percent of all those tried in adult criminal courts, as well as 58 percent of all juveniles who are warehoused in adult prison. In practical terms, this means that young African Americans who are arrested and charged with a crime are more than six times more likely to be assigned to prison that white offenders.

For those young people who have never been to prison before, African Americans are nine times more likely than whites to be sentenced to juvenile prisons. For youths charged with drug offenses, Blacks are forty-eight times more likely than whites to be sentenced to juvenile prison. White youths charged with violent offenses are incarcerated on average for 193 days after trial; by contrast, African-American youths are held 254 days, and Latino youths are incarcerated 305 days.

Even outside of the prison walls, the Black community’s parameters are largely defined by the agents of state and private power. By 2002, there were approximately 650,000 police officers and 1.5 million private security guards in the United States. Increasingly, however, Black and poor communities are being “policed” by special paramilitary units, often called SWAT (Special Weapons and Tactics) teams. Researcher Christian Parenti cited studies indicating that “the nation has more than 30,000 such heavily armed, military trained police units.” SWAT-team mobilizations, or “call outs,” increased 400 percent between 1980 and 1995, with a 34 percent increase in the incidents of deadly force recorded by SWAT teams from 1995 to 1998.

What are the practical political consequences for regulating Black and brown bodies through the coercive institutional space of our correctional facilities? Perhaps the greatest impact is on the process of Black voting. According to the 1998 statistical data of the Sentencing Project, a non-profit research center in Washington, D.C., forty-eight states and the District of Columbia bar prisoners who have been convicted of a felony from voting. Thirty-two states bar ex-felons who are currently on parole from voting. Twenty-eight states even prohibit adults from voting if they are felony probationers. There are seven states that deny voting rights to former prisoners who had been serving time for felonies, even after they have completed their sentences. In Arizona, ex-felons are disfranchised for life if they are convicted of a second felony. Delaware disfranchises some ex-felons for five years after they finish their sentences, and Maryland bars them from voting for an additional three years.

The net result to democracy is devastating. The Sentencing Project released these statistics in 1998: