One of the most significant issues in the U.S. today is the systemic policies that have led to the U.S. having the largest prison population in the world. A disproportionate number of socioeconomically marginalized citizens are incarcerated and subjected to discriminatory practices by law enforcement and the justice department. The consequences are wide-reaching and inseparable, cutting across political, social, and cultural lines. In order to identify the roots of these interconnected phenomena, one needs to both understand the historical struggle of marginalized groups in the U.S. as well as follow the money. Socioeconomic discrimination, voter suppression, for-profit policing practices, revenue generation schemes, and corporately-owned and operated correctional facilities have all combined to create an economic Jim Crow system known as the Prison-Industrial Complex.
The end of the Civil War and adoption of the Reconstruction amendments were supposed to represent an end to discrimination in the U.S. African Americans were now considered full citizens with equal protection under the law just like everyone else. However, following the 12-year period of federal occupation known as Reconstruction, poll taxes, literacy tests, fraud, and voter intimidation tactics were used to disenfranchise African Americans and restore Democrats to power throughout the former Confederate States (Pilgrim, 2012). Inaccurate depictions in popular culture perpetuated racist stereotypes and justified this discrimination on the basis that African Americans and other minorities were not capable of thinking for themselves and were happy being treated as second-class citizens.
In 1896, the Supreme Court upheld this racial caste system with the Plessy v Ferguson decision, ruling that states can constitutionally enact legislation requiring persons of different races to use “separate but equal” segregated facilities (LII, n.d.). Pseudoscientists used eugenics, craniology, and phrenology to legitimize the belief that African Americans were intellectually inferior to Euro Americans (Pilgrim, 2012). Musical stage shows featuring actors wearing blackface makeup with exaggerated features to depict African Americans as “unreliable, crazy, lazy, subhuman creatures good for nothing more than eating watermelons, stealing chickens, shooting crap, or butchering the English language” (Bogle, 1994, p. 8). African Americans were described in animalistic terms, singing and dancing throughout the night with no need for sleep. The most popular of the stock personas that came to be used in these shows was named Jim Crow, accounting for the name given to the codified discrimination throughout the South (Pilgrim, 2012). As a result, minorities were relegated to inferior schools, hospitals, neighborhoods, restaurants, etc. This perpetuated the generational poverty that still exists.
Modern Jim Crow
Like the Reconstruction Amendments, the signing of the Civil Rights Act of 1964 and Voting Rights Act of 1965 by President Lyndon B. Johnson were also supposed to put an end to discrimination. While the laws put an end to the legal segregation and disenfranchisement of minorities, conservatives simply adopted new strategies that have had many of the same practical effects. Strict voter ID laws, laws prohibiting convicted felons from voting, difficulty voting early or registering on Election Day, propaganda claiming that voting doesn’t matter, and redistricting have effectively disenfranchised and divided many citizens who typically vote for Democrats. Voting is the most important civic duty, so the fact that 27% of African Americans and 41% of Hispanic/Latinos who were eligible to vote weren't even registered and millions more don’t vote speaks to the power of these Republican voter suppression efforts.
Today’s economic system of wage slavery and debt is equivalent in many ways to the post-Civil War practice of sharecropping that preyed upon former slaves and poor rural whites. Most Americans who have been negatively affected by the growth of the Prison-Industrial Complex come from poverty stretching back for generations. Like their parents and grandparents, these people grew up poor, received substandard educations, didn’t have the best nutrition or healthcare, their parents were more likely to be divorced, and they were more likely to have been exposed to substance abuse and violence at a young age.
This type of poverty is perpetuated by educational deficits and limited economic opportunities, so their children and grandchildren are often destined for the same fate. Because of their environments, poor people are more likely to develop psychological disorders as well as comorbid substance use disorders that lead to criminal behavior and incarceration. Without the means to pay even minor fines or afford competent legal counsel, they are left at the mercy of the criminal justice system and often left to rot in jail or prison rather than receiving treatment. While generational poverty is nothing new, the birth of the Prison-Industrial Complex can be traced back to the explosion of drug use during the Vietnam era.
War on Drugs
During the tumultuous 1960’s, recreational drug use became a mainstream anti-establishment practice, and soon there was a heroin epidemic both amongst U.S. soldiers serving in Vietnam and the civilian population. A single, questionable study causally linked heroin use to an increase in crime. Informed only by this one piece of information, President Richard Nixon declared the beginning of the “War on Drugs,” citing drug abuse as “public enemy number one in the United States” (Nixon, 1971). In recorded remarks he made privately to a colleague, Nixon tied drugs to both homosexuality and the Cold War; “You see, homosexuality, dope, uh, immorality in general: These are the enemies of strong societies. That's why the communists and the left-wingers are pushing it. They're trying to destroy us” (Stephanopoulos, 2015). Although Nixon’s strategy focused primarily on treating users, he clearly had political motivations for targeting economically oppressed populations with more liberal beliefs.
President Ronald Regan escalated the War on Drugs by introducing mandatory minimum sentencing guidelines as part of the Comprehensive Crime Control Act of 1984. These sentencing guidelines carried a five-year minimum penalty for felony possession of just five grams of crack cocaine, while the minimum threshold for felony possession of powder cocaine was set at 500 grams (Sterling, 2014). The rationale for this discrepancy between what are molecularly identical substances was that rock cocaine was more addictive and thus more dangerous than cocaine in the powder form. This is because smoking the rock form of cocaine creates a quicker, more intense high than snorting the powder form.
This is where the racial disparities started becoming apparent and the prison population grew exponentially. More than 90% of those convicted of a felony for possessing five grams or more of crack cocaine are African American. On the other hand, possessing five grams of powdered cocaine is still only a misdemeanor; with the majority of users being Euro American (Mustard, 2001). Possessing small amounts of cannabis, stigmatized long ago with the more Mexican-sounding label marijuana, also carries severe penalties depending on the jurisdiction. Once again, cannabis is used primarily by minorities who subsequently face much more harsh consequences simply because they use a different drug of choice than most Euro Americans. Drug users are often stigmatized in the media as lazy thugs who deliberately choose to become addicts and leech off of society. This misconception has obstructed many attempts at any meaningful reform of either the criminal justice system, legalization of drugs, or legitimization of addiction as a medical condition rather than a moral failing and/or deliberate criminal act. Naturally, the positive correlation between poverty, minorities, and addiction has meant that it’s mostly non-whites who are treated as criminals for victimless crimes of poverty.
Policing for Profit
Another important piece of the Comprehensive Crime Control Act of 1984 are the civil forfeiture stipulations that allow law enforcement agencies to confiscate and keep any property suspected of being used during the commission of a crime. The intent was to go after the drug kingpins, prevent money laundering, seize their cash and other assets, and then use the profits to self-finance the War on Drugs and pay restitution to the victims of drug-related crime (Balko, 2012). In practice however, civil forfeiture has been systematically abused to the point that many law enforcement agencies routinely run a budget surplus from all of the property they seize.
Unfortunately, high-level drug czars aren’t the ones suffering from civil forfeiture. Usually it’s the already poor low-level users or even completely uninvolved people loosely associated with them that lose everything. Even if the purported connection their property has to the commission of a crime is tenuous at best, the burden of proving innocence still lies with the accused. Police will confiscate money if it contains even a trace of illegal substances, which anywhere between 15-75% of U.S. currency does depending on the area of the country. On many occasions, the families and friends of people arrested for minor offenses (like not paying a parking ticket) have had thousands of dollars in bail money confiscated because a drug dog allegedly alerted to the money they just pulled out of an ATM (Balko, 2012). But the poor haven’t been the only ones affected by civil asset forfeiture.
In Philadelphia, one white couple had their home seized after their son was arrested for selling $40 of heroin. Literally thousands of other homes in the area had also been seized in this manner. The Pennsylvania Attorney General investigated the matter and discovered that “$7 million went straight to the salaries for the Philadelphia District Attorney's office and the police department in just three years” while at the same time nothing was spent on “community-based drug and crime-fighting programs” (Brown, 2014).
A charter pilot had his private aircraft seized because a drug dealer had hired him for a cross country flight. In Flint, Michigan, the owners of a small grocery store had over $35,000 drained from their account at the bank across the street (Will, 2014). All of these examples were law-abiding citizens that had their property seized without even being charged with a crime. Because of this, they were denied their right to due process or to even retain a public defender to challenge the seizure. Police know that most Americans don’t have the financial resources to engage in protracted court proceedings against the government to retrieve their property, especially when the legal costs outweigh the value of the seizure (Sterling, 2014). Regardless of race, law enforcement has partnered with the justice system to legally pilfer citizens of their property knowing there is almost zero chance they will even put up a fight.
Although many states are implementing reforms to end these unconstitutional instances of civil forfeiture, research shows that law enforcement agencies are increasingly turning to federal equitable sharing in order to circumvent state law. This indicates that pursuit of revenue, rather than crime prevention, is a key motivator in forfeiture proceedings (Carpenter et al. 2015). According to the FBI, in 2014 alone $3.9 billion in property was stolen in burglaries as compared to the $4.5 billion seized by government agencies (Armstrong, 2015). In essence, state, local, and federal law-enforcement agencies are the biggest thieves in the country.
Policing for profit is not only limited to civil asset forfeiture. An investigation by the Justice Department following the civil unrest in Ferguson, Missouri in 2014 uncovered the systematic targeting of poor and minority citizens by law enforcement throughout the nation. Wealthier areas have more retail activity and rely less on municipal courts to generate revenue. Facing budget shortfalls, many poorer municipalities have focused their law enforcement efforts on more lucrative offenses rather than those that do not generate as much revenue. One example of this is the red light camera system recently installed by the city of Chicago. The city gambled on generating millions of dollars in additional revenue by purchasing the system. They even shaved the time of yellow lights down below the federally-mandated minimum of three seconds to cite more drivers. Instead of more citations, the city has seen an increase in the number of rear-end collisions at intersections and lost millions of dollars in unrealized revenue.
In an even more explicit example of socioeconomic discrimination, the investigation found that many of the 90 small municipalities in St. Louis County, Missouri generate most of their revenue from fines. Citizens are continually cited for minor traffic violations or other trivial offenses like wearing saggy pants, walking the wrong way, barbequing on their front lawn, or not having screens on every door. These crimes of poverty disproportionately affect minorities in relation to the general population. For instance, although African Americans only make up 27% of the population in Florissant, Missouri, they account for 71% of all traffic stops and 93% of all arrests (Balko, 2014). One petty violation often entangles poor citizens in a complex legal web that often leads to incarceration, especially if they can’t pay their fines, post bond, or hire a private attorney to challenge their charges.
Many of these people already live on fixed incomes and cannot afford a simple traffic fine, so they don’t even bother showing up to court (Editorial Board, 2014). In turn, more fines are imposed for failing to appear, warrants are issued for their arrests, nobody has the money to post bond, so they lose their jobs and houses while incarcerated. Many have trouble renting or finding another job once they are released because of their criminal record, and their driver’s licenses are often suspended. Before long they are pulled over and fined or arrested again for driving without a license or insurance and the cycle of debt and despair continues indefinitely. It’s little surprise that poor citizens, lacking adequate healthcare, resort to substance abuse to self-medicate, further exposing themselves to the clutches of the legal system.
The financial incentives for this perpetual system are made even more evident by the fact that many of the prosecutors and judges that rule on these cases are actually private defense attorneys who also serve as prosecutors or even judges in neighboring municipalities. Members of this good ol’ boy system are naturally going to watch out for one another. Defense attorney Thomas Harvey also observed that “someone will drive to court to clear a warrant for driving with a suspended license. They’ll pay the fine, get the warrant removed, and then get pulled over as they’re leaving the parking lot because a police officer in the courtroom overheard why they were there” (Balko, 2014). Obviously, these “public servants” are not performing their duties out of some sense of civic duty to protect the safety of the public. Collusion and continually hammering down on citizens for economic gain is completely out of line with the system of limited governance and individual liberty envisioned by our Founding Fathers.
The final, and arguably most important, pieces of the puzzle are the for-profit prison corporations and the companies that provide services to correctional institutions. Today, for-profit prison companies house approximately 6% of state prisoners, 16% of federal prisoners, and almost half of all immigrants detained by the federal government (Shapiro, 2011). Most of these companies have minimum occupancy requirements in their contracts. These clauses generally require that governments keep correctional facilities between 80-90% full at all times. If governments fail to meet this obligation, they must still pay for any unused beds, motivating them to keep jails full even when people pose absolutely no threat to public safety (Justice Policy Institute, 2011).
The largest for-profit prison company in the nation, Corrections Corporation of America (CCA) admitted in their 2010 annual report that “the demand for our facilities and services could be adversely affected by leniency in conviction or parole standards and sentencing practices” (Shapiro, 2011). They also fear decriminalization efforts, immigration reform, and relaxed enforcement efforts that may decrease their potential revenue. Naturally, these corporations act to protect their own best interests regardless of the human cost.
For-profit prison companies have invested millions trying to keep their facilities full. They have done so through direct campaign contributions, aggressively lobbying lawmakers to introduce legislation like “truth-in-sentencing” and “three-strikes” laws, and cultivating relationships and networks with politicians. Companies like Aramark that provide food to large institutions like prisons, schools, and hospitals are also in on this act. These efforts are all aimed at resisting any policy changes that might result in relying less on incarceration, even though treatment and other options result in much better outcomes and less recidivism (Justice Policy Institute, 2011). Because most inmates are incarcerated for nonviolent drug offenses, and the drugs chosen more frequently by minorities are punished disproportionately harshly, the prison population is naturally skewed towards minority populations.
While it doesn’t explicitly target minorities, the modern incarnation of Jim Crow focuses on those of low socioeconomic status who just so happen to be disproportionately non-white. Those living in poverty and needing help the most find themselves systemically targeted for profit. When they can’t pay the fines the government attempts to extort from them, they find themselves kidnapped by armed thugs wearing costumes and held for ransom in one of the inhumane cages that are now more numerous than colleges and universities. Draconian sentencing guidelines and civil asset forfeiture has incentivized law enforcement and the justice system to enslave and rob citizens blind; particularly those who can least afford it.
There are many obstacles to dismantling this system like gerrymandering, voter suppression efforts, and the lobbying by crime profiteers. However, the legalization of cannabis in several states and recent admission by the director of the White House’s Office of National Drug Control Policy, Michael Botticelli, that the War on Drugs is a failure signals an important philosophical shift (Mierjeski, 2015). Taking the profit out of law enforcement and dismantling the Prison-Industrial Complex is certainly an attainable goal, but it will take a sustained, national effort to undo thirty-plus years of damage. Poverty and substance abuse are not crimes and will never be remedied so long as they are treated as such. The first steps are to mobilize people to become social justice activists and increase voter participation. Legislators will have no choice but to listen to their constituents if they want to stay in power.
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