What is the function of the law?
When asked this question, most of us would answer easily: laws are intended to maintain order and promote justice, and as members of society we uphold them.
But what happens when those laws promote and spread discrimination and bigotry?
In this episode of Origin of Everything we’ll be analyzing the discriminatory history of US law, tracing its origins in colonialism to the present day penal system.
In order to deconstruct this troubling history we’ll be looking at four distinct time periods of US law: First we’ll look at the foundation of legal discrimination based on race during colonialism.
Next we’ll examine the system of chattel slavery, to see how the legacies of colonialism translated into ongoing legal subjugation for black subjects in the US.
Third we’ll explore how Jim Crow laws extended legal discrimination into the 20th century.
And finally we’ll discuss how the concepts of being “tough on crime” in the latter half of the 20th and early 21st century allowed the continuation and expansion of discriminatory laws under the umbrella of mass incarceration.
By tracing this timeline we’ll be looking at the ways discriminatory legal practices have always disproportionately impacted black and brown communities and how these legacies and laws continue to have adverse effects on vulnerable communities to this day.
But before we get into the heart of how laws and sentencing structures can be discriminatory, we should clarify a few key terms.
Namely: crime and punishment.
And no I’m not talking about the Dostoevsky novel of the same name.
I’m talking about crime (or the breaking of laws) and punishment (as in the penalty you pay as a result of being found guilty of committing a crime).
Although we often think of these things as directly correlated (think of the old adage “if you do the crime you’ve got to do the time”) there’s actually not a direct relationship between how much crime is committed and what types of punishments are meted out.
In his book Thinking about Crime: Sense and Sensibility in American Penal Culture Professor Michael Tonry notes that nations with remarkably similar crime rates often have vastly different sentencing and punishment standards.
He determines that crime rates and punishment rates often don’t align and that governments “decide how much punishment they want.” He writes: “This can be seen by comparing crime and punishment trends in Finland, Germany, and the United States between 1960 and 1990.
The trends are close to identical.
Violent crime rates in all three countries grew by a factor of 3-to-4 and homicide rates more than doubled.
Yet the U.S. imprisonment rate quadrupled in that period, the Finnish rate fell by 60 percent, and the German rate was broadly stable.” So in this example we see three countries with almost identical crime trends, with three starkly different ideas of punishment.
Therefore when we analyze how laws are broken and punishment is assigned, we have to look at why societies change their stances on crime and punishment.
Tonry attributes this to a few factors, two important ones being “moral panics” and the sensibilities of a society.
“Moral panics” as he describes them occur when a society sees a moral or social issue and overreacts as a result, which usually leads to increased rates of punishment or more severe punishment for offenders.
Another cause is that societal “sensibilities” (or the attitudes and beliefs of the society) often change, which in turn changes the types of acts we consider crimes and the types of things we consider as just punishment.
So although we’re often taught to look at crime as directly correlated to punishment, there’s actually an argument to be made that they’re working somewhat independently of each other.
Which brings us to our first stop in the history of legal discrimination in the United States: colonialism and slavery.
After colonies were established in North America, colonists were subject to the laws and customs of England.
In their essay “Situating Colonialism, Race, and Punishment” Professors Geeta Chowdhry and Mark Beeman explain how the development of slavery in the North American colonies (and later in the early United States) became dependent on the passage of discriminatory laws that specifically targeted people of African descent.
They detail how, although the concept of discrimination based on ethnic or social groups dates back to antiquity, the idea that race was based entirely on skin tone and physical features evolved alongside the emergence of chattel slavery.
Then the idea was solidified with the emergence of scientific racism in the 18th and 19th century.
Chowdhry and Beeman go on to note that although some of the original people of African descent who entered the English colonies came as indentured servants and were eventually set free (similar to English indentured servants) this quickly changed when colonists turned to chattel slavery as a source of consistent, exploited, and unpaid labor.
They write: “In other words, slavery seems to have evolved, in part, as a punishment reserved for Africans originally indentured.
English indentured servants, presumably protected by English rights and the Christianity they shared with their masters, avoided such punishment.
From the 1640s through the 1660s, with the principle of lifelong involuntary servitude established for Africans in colonial America, individual colonies began enacting legislation declaring “negroes” sent to the colonies, and their offspring, slaves for life.
In short, slavery in British colonial America became a “punishment” for being black.” With this important distinction, colonial America created the system of chattel slavery that sentenced black people to perpetual servitude.
Slavery created an explicit relationship between race and the law from the earliest foundations of American society.
And this new legal category meant that new forms of punishment and torture were invented to accomodate this shift in who could be considered a full person under the law.
Soon laws and colonial codes were written to regulate the control and punishment of the enslaved.
Although slavery was not the first instance of race being tied to laws in the new colonies.
The colonization of land in North America was based on the assumption that Native Americans did not have rights to the land they had inhabited long before settler colonialism declared North America as “uninhabited.” Therefore laws that allowed white settlers to displace and physically harm Native Americans also established an early relationship between race and the law in colonial America.
While most punishment was left up to slave owners and could include torture, brutal beatings, rape and other inhuman cruelties, more serious punishment (such as execution) was sometimes left up to the discretion of judges for supposed offenses that occurred away from the plantation.
But whether it was being dealt by overseers and owners or by the state, the result was a system of exploitation and legally supported subjugation that left black subjects almost entirely outside of the protections of the law.
This system remained firmly in place in parts of the United States until 1865, with the ratification of the 13th, 14th and 15th amendments.
But even these newly won freedoms could not guarantee the continuation of legal and extra legal methods of racial and social control.
Following the close of the Civil War in 1865, the US entered into a period known as Reconstruction which lasted until the 1870s.
Although there were some legal and societal victories for black subjects during this time, they were swiftly overturned and replaced by Jim Crow laws.
Jim Crow introduced a set of laws that systematically stripped black citizens of their rights while also relegating them to inferior “separate but equal” public facilities like schools, washrooms, and sections of the bus (among other indignities).
Black citizens were denied access to basic rights, like voting, while also suffering under the weight of racial terror imposed by groups like the KKK and other white supremacists who organized lynchings and other forms of racialized violence.
Jim Crow laws effectively relegated black subjects to second class citizenship based on a racialized caste system where white citizens were privileged above all others.
This system of disenfranchisement was also supported by methods of financial control like sharecropping, which effectively reinstated the financial inequality of slavery through unfair practices.
And systems like convict leasing guaranteed that black people would be returned to a system almost identical to slavery in everything but name.
With “convict leasing” private businesses could “rent” the labor of prisoners to complete tasks.
The businesses would pay the state and the prisoners would be forced to perform labor for free.
As a result, Southern states started incarcerating newly emancipated black citizens at a higher rate, for anything from petty theft to vagrancy or other vaguely defined laws.
This practice lasted from the late 19th c into the early 20th c. For more on the convict leasing system, check out our episode “Why do we have private prisons?” right here on our channel.
The story of Jim Crow finally came to an official end with the emergence of the modern Civil Rights movement of the 1950s and 1960s, when civil rights leaders and activists fought to have these decades long practices rolled back.
But that only led to new ways of racialized legal discrimination.
In her book The New Jim Crow legal scholar, civil rights lawyer and advocate Michelle Alexander details the relationship between race and continued legal discrimination in the form of mass incarceration.
In the 1960s the prison population of the United States was around 200,000.
But by the early 2000s that number had exploded to over 1.5 million people in prison with hundreds of thousands in other penal facilities (think youth facilities, jails, and immigrant detention centers).
And much of that increase can be attributed to Reagan era “war on drugs” policies, (although the “war on drugs” was first popularized by the Nixon administration in the 1970s).
Popular wisdom connects these policies to the rise of crack cocaine across the US.
However according to Alexander, the official political campaign in 1982 known as the “war on drugs” actually predates the rise of crack cocaine addiction it was commonly assumed to address.
She writes: “A few years after the drug war was declared, crack began to spread rapidly in the poor black neighborhoods of Los Angeles and later emerged in cities across the country.
The Reagan administration hired staff to publicize the emergence of crack cocaine in 1985 as part of a strategic effort to build public and legislative support for the war.
The media campaign was an extraordinary success...The media bonanza surrounding the “new demon drug” helped to catapult the War on Drugs from an ambitious federal policy to an actual war.” Because of its cheaper price, crack cocaine use spread more rapidly in poorer communities than its more expensive counterpart powder cocaine.
After the “war on drugs” picked up popularity and speed, we began to see the rapid incarceration of minorities (oftentimes for non-violent drug based offenses) as a result.
And those arrested for crack cocaine related charges faced much more severe sentences compared to other drug offenses.
For example, it was common practice to follow the “100-to-1” rule.
An op-ed in the NYTimes explains: “In what’s known as the 100-to-1 rule, federal law mandates a 10-year sentence for anyone caught with 50 grams of crack, about the weight of a candy bar.
To get a comparable sentence, a dealer selling powdered cocaine would have to be caught with 5,000 grams, enough to fill a briefcase.” This wasn’t rolled back until 2010 when Congress passed the Fair Sentencing Act.
The Act reduced the disparities between sentencing for crack and powder cocaine from 100 to 1, to 18 to 1.
But despite the partial reversal of “war on drugs” policies, the US still imprisons more people per capita and overall than any other country in the world.
And although African Americans made up only roughly 13% of the US population in the 2010 Census, in many areas they are the majority of the prison population, even though they are not necessarily committing crime at a higher rate than white populations.
As a result, Alexander writes: “Although this new system of racialized social control purports to be colorblind, it creates and maintains racial hierarchy much as earlier systems of control did.
Like Jim Crow (and slavery), mass incarceration operates as a tightly networked system of laws, policies, customs, and institutions that operate collectively to ensure the subordinate status of a group defined largely by race.” In her book, she details the ways that those convicted of crimes are permenently labelled as felons and thus systematically barred from access to the full rights of citizenship through processes like employment discrimination, being denied the right to vote and being excluded from jury duty, although some activist groups are fighting to reverse or lessen these discriminations.
So, this episode just scratches the surface of the ways laws can be established to promote unequal life outcomes for different citizens based on race.
We haven’t even begun to cover other forms of legal and extralegal discrimination that occur on the basis of gender, immigration status, sexuality, and class, not to mention other minority groups that have been exposed to increased policing, surveillance and punishment as a result of legal discrimination.
It also raises fundamental questions about the law, namely: who is it meant to protect and at whose expense are some of these policies enacted?
My hope is that this serves as a productive primer to the ways the law can be manipulated to serve certain groups over others and will inspire us all to remain dedicated to recognizing and standing against injustice wherever it arises.