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How Punitive Excess Is a Manifestation of Racism in America

The criminal justice system’s past and present is intertwined with its use as a tool against people of color.

April 13, 2021
Person restrained by police officers with zip ties
RINGO CHIU/Getty
View the entire Punitive Excess series

This essay is part of the Bren­nan Center’s series examin­ing the punit­ive excess that has come to define Amer­ica’s crim­inal legal system.

There is a widely accep­ted narrat­ive about incar­cer­a­tion in the United States that goes some­thing like this:

At the dawn of the Reagan era in a nation of 225 million Amer­ic­ans, the incar­cer­ated popu­la­tion was a little more than half a million people with 8 percent behind bars for drug offenses. The “War on Drugs” that raged through­out the 1980s and into the next decade — bring­ing with it stat­utory reforms that relied heav­ily on increased poli­cing, incar­cer­a­tion, and mandat­ory senten­cing — caused the impris­on­ment rate to more than triple to 695 per capita with 24 percent serving time for drug offenses. As a result, nearly 2.3 million people are locked up in the United States today. And the march toward this mass incar­cer­a­tion occurred with Black Amer­ic­ans squarely under­foot, tramp­ling their communit­ies and imprint­ing racial dispar­ity onto the nation’s crim­inal justice system.

That story isn’t wrong, but it is incom­plete. In this all-too-common telling, punit­ive excess, mass incar­cer­a­tion, and racial dispar­ity are comingled — a grim tale of three tragic char­ac­ters arising together from the carceral policies of the last four decades. It would follow, then, that to address one of them would be to make inroads against them all. But this logic is much too thin, mostly serving to make a long story short.

Instead, the more accur­ate account of impris­on­ment in the United States reveals that punit­ive excess, mass incar­cer­a­tion, and racial dispar­ity are distinct phenom­ena. One need only cata­log the exper­i­ences of racial and ethnic minor­it­ies to discern that if mass incar­cer­a­tion and punit­ive excess were abol­ished tomor­row, racial dispar­it­ies would still exist in the range of socioeco­nomic factors that influ­ence one’s life chances and unduly expose people of color to punish­ment and whatever social penal­ties take the place of confine­ment.

This spot­lights an ugly truth lurk­ing within the nation’s struc­tures and policies — one that the crim­inal justice system crys­tal­lizes with aston­ish­ing clar­ity: the unwill­ing­ness to confront a history of racial oppres­sion and the contin­ued devalu­ation of people of color make full equal­ity and justice in Amer­ica unat­tain­able. To estab­lish a fair and unbiased justice system loosened from punit­ive excess and mass incar­cer­a­tion, we must reckon with the cent­ral role race plays in systemic outcomes.

The entrench­ment of racial hier­archy in the United States began before the nation came to be and has long endured. The nation’s found­ing era featured forced displace­ments, chat­tel slavery, inden­tured servitude, outright deni­als of citizen­ship, and dehu­man­iz­a­tion of Native Amer­ic­ans, Black people, and immig­rants of differ­ent races and ethni­cit­ies arriv­ing to the New World. Even a civil war could not straighten out the racial oppres­sion that the nation had wrought.

Though the civil rights move­ment a century later helped the nation painstak­ingly move toward becom­ing a more inclus­ive demo­cracy race remained a primary social determ­in­ant of the meas­ure of justice and citizen­ship one could access. Racial hier­archy and inequal­ity coursed in the nation’s blood­stream, infect­ing every aspect of our soci­ety and pool­ing in the crim­inal justice system.

Its finger­prints are every­where. White segreg­a­tion­ists’ sanc­tioned vigil­ant­ism and terror­ism focused its atten­tion on Black people. The federal govern­ment forcibly corralled more than 120,000 Japan­ese Amer­ic­ans into intern­ment camps during World War II while spar­ing nearly all Amer­ic­ans of German and Italian descent. Today, Latino immig­rants and undoc­u­mented deniz­ens are caged in deten­tion facil­it­ies and separ­ated from their famil­ies, and Black Amer­ic­ans are incar­cer­ated at alarm­ingly high rates and are overrep­res­en­ted in punit­ive excesses such as solit­ary confine­ment and the death penalty.

This history and the policies it birthed resul­ted in a conflated onto­logy of race, social threats, and crime. That is, soci­olo­gists and polit­ical scient­ists have found that, in a soci­ety with a built-in racial hier­archy, the visual mark­ers of race and ethni­city create bound­ar­ies of trust and empathy, lead­ing to civic and social distance between citizens. When certain communit­ies of color are treated like a scourge and cari­ca­tured as incom­pat­ible with Amer­ican values, their very pres­ence can create a heightened sense of insec­ur­ity in the broader soci­ety. The crim­inal justice system has been fash­ioned to manage these soci­etal anxi­et­ies by exert­ing control over the popu­la­tion deemed a danger to the Amer­ican way of life.

The Black Amer­ican exper­i­ence at the turn of the twen­ti­eth century is an example of this soci­ology in motion. In the early decades of the Great Migra­tion, when millions of Black Amer­ic­ans left the brutal­ity and economic insec­ur­ity of the South to seek oppor­tun­it­ies in north­ern and midwest­ern states, they encountered communit­ies of white European immig­rants who were them­selves often discrim­in­ated against and treated as second class citizens. The ensu­ing compet­i­tion for employ­ment and hous­ing — as well as a desire for their own social advance­ment — caused many white citizens to set aside nativ­ist resent­ments toward white European immig­rants and unite in oppos­i­tion to the Black arrivals.

These immig­rants were able to secure patron­age jobs, partic­u­larly in law enforce­ment, as a buffer between Black Amer­ic­ans and white polit­ical and economic elites. Research reveals that the rate of arrest and incar­cer­a­tion of Black Amer­ic­ans in Great Migra­tion destin­a­tion cities increased as the propor­tion of white immig­rants on local police forces increased. Charges for petty offenses against Black people skyrock­eted, turn­ing accus­a­tions of crimes like suspi­cious beha­vior, disorderly conduct, and public drunk­en­ness into instru­ments for social control.

As Martin Luther King Jr. said upon remem­brance of the work of renowned soci­olo­gist and histor­ian W.E.B. DuBois, so long as the devalu­ation of Black people persisted, “the brutal­ity and crimin­al­ity of conduct toward the Negro was easy for the conscience to bear. The twis­ted logic ran: If the black man was inferior, he was not oppressed.”

In the end, we have a system where justice is delivered unevenly and, at times, arbit­rar­ily. It’s as if struc­tural racism compels Lady Justice to lift her blind­fold and slant her scales, forcing some of her people at the margins to tumble off the edge beyond her reach.

Any seri­ous attempts at reform and making our justice system truly just will require a direct confront­a­tion with what African Amer­ican stud­ies scholar Eddie Glaude Jr. calls the value gap. This is the idea that the true plague in Amer­ican soci­ety is that people of color, partic­u­larly Black people in a nation where chat­tel slavery featured so prom­in­ently, are simply valued less. As such, no matter what law and policy is imple­men­ted with racial justice and equal­ity as its goal, if the value gap is left unad­dressed, Glaude argues, “our systems will always produce the same results: racial inequal­ity.”

There is no way around this quandary. It is a product of our history that people of color remain overly exposed to the darkest corners and worst impulses of our crim­inal justice system, its insti­tu­tions and prac­tices, and its actors. Reima­gin­ing justice in Amer­ica requires a color-conscious approach to policy, employ­ing meas­ures and taking actions that account for people’s dispar­ate paths and exper­i­ences. Perhaps this is why in her initial concep­tion, Lady Justice wore no blind­fold — when a system is truly just, it does­n’t need to be blind to be impar­tial or equit­able.

At the same time, policy reforms to end mass incar­cer­a­tion and cease excess­ive punish­ment are crit­ic­ally import­ant. Treat­ing the threat of incar­cer­a­tion as a last resort instead of a first response to any social prob­lem is an unas­sail­able good for any fair and just soci­ety. Respect­ing the human­ity and dignity of all people by refus­ing to subject them to cruel and unusual punish­ments not only helps us live up to our consti­tu­tional prin­ciples, but it also ushers the United States one step closer to being the more perfect union outlined in its national canon.

That goal, however, remains a distant one — no other people imprison each other more than Amer­ic­ans. And Louisi­ana embod­ies this pecu­li­ar­ity in super­lat­ive fash­ion. It has the highest incar­cer­a­tion rate in the coun­try, and Fair Bryant knows this better than anyone. Bryant, a Black man who served time in the state’s infam­ous prison known as Angola, was sentenced to life upon being convicted of attempt­ing to steal hedge clip­pers in 1997. His fate was the product of punit­ive excess hall­marks — habitual offender laws, harsh mandat­ory senten­cing, and forced field labor in an insti­tu­tion that owns the horrific distinc­tion of hold­ing two men in solit­ary confine­ment for nearly four decades, the longest period in Amer­ican history.

For Bryant, like too many others, the crim­inal justice system has been anything but fair. Bryant’s life is stark reminder that ending mass incar­cer­a­tion and erad­ic­at­ing punit­ive excess should neither shake us from being clear-eyed about the outsize role race plays in Amer­ica nor stuff these policy reforms into racial justice frames for polit­ical expedi­ency’s sake. We must tell the whole story of incar­cer­a­tion in the United States, complete with its ugly bits and filled with all its details, complex­it­ies, and nuances. Only then will we be able to bring our system to justice.