B. The Post-civil Rights Era, Mass Incarceration and “Color-blindness

The Supreme Court ruling in Brown v. the Board of Education of Topeka, Kansas (1954) is often used as the benchmark for chronicling the start of the Civil Rights Movement of the 1950s and 1960s. The Court's unanimous rejection of Plessy's “separate but equal” provided a new Federal framework with which to challenge Jim Crow segregation on the state and local levels. It offered the back drop for the Montgomery bus boycott, the resistance in Birmingham, Bloody Sunday, the voter registration drives of Freedom Summer, and ultimately, passage of the Civil Rights Act of 1964, The Voting Right Act of 1965, the Fair Housing Act of 1968, and the 24th Amendment to the Constitution. While there was hope again that the law itself could be pressed into the service of racial equality, those victories now seem bittersweet. Bell argues that the Brown decision and the ensuing Federal legislation were “silent covenants” of interest-convergence, where “perceived self-interest of whites rather than the racial injustices suffered by Blacks have been the major motivation in racial-remediation policies.” Judge Robert L. Carter, one of the attorneys who argued Brown goes further, “... the fundamental vice was not legally enforced racial segregation itself; this was a mere by- product, a symptom of the greater and more pernicious disease -white supremacy.” Legally supported segregation was uprooted without dislodging either white supremacy or anti-Blackness, now cloaked in race-neutral rhetoric of “color-blindness”.

The “color-blind” Constitution and the race-neutral requirement of Federal Civil Rights legislation now serves as convenient cover for the persistence of institutionalized racism. Racially coded but race-neutral rhetoric is widely used in debates over welfare reform, affirmative action, and particularly “law and order” criminal justice policy; in all these cases, the coded racial sub-text reads clearly, and the resultant policies, while purportedly “race neutral,” have resulted in disproportionate harm to people of color, especially African Americans. While race is now widely the text/subtext of political debate, systemic racism still remains largely absent from either political discourse or policy debates of all sorts, including those related to criminal injustice.

In the Post-Civil Rights Era, there has been a corresponding shift from de jure racism codified explicitly into the law and legal systems to a de facto racism where people of color, especially African Americans, are subject to unequal protection of the laws, excessive surveillance, police terror, extreme segregation, a brutal and biased death penalty, and neo-slave labor via incarceration all in the name of “crime control.” “Law and order” criminal justice policies are all guided by thinly coded appeals to white fears of high crime neighborhoods, “crack epidemics,” gang proliferation, juvenile super-- predators, urban unrest, school violence, and more. In all these case, the sub-text reads clearly--fear of brown and especially Black people.

As before, law, policing and punishment are central to the ongoing exclusion of Blacks from civic life. Post slavery, the criminalizing narrative was a cultural feature of on-going efforts at oppression; from convict lease/plantain prison farms to the contemporary prison industrial complex the control of black bodies for profit has been furthered by the criminal justice system. “Slave Codes” become Black Codes and now Black Codes become gang legislation, three-strikes and the War on Drugs in the persistent condemnation of Blackness. As before, the criminal legal system is the primary mechanism for undoing the promised protections of Federal Civil Rights legislation and constitutes again, the major affront to the fulfillment of the 13th, 14th and 25th Amendments.

The United States has the highest incarceration rate in the world, with a population of 2.3 million behind bars that constitutes 25% of the world's prisoners. The increased rate of incarceration can be traced to the War on Drugs and the rise of lengthy mandatory minimum prison sentences for drug crimes and other felonies. These policies have proliferated, not in response to crime rate or any empirical data that indicates their effectiveness, due to newfound sources of profit for prisons. As Brewer and Heitzeg (2008) observe:

The prison industrial complex is a self-perpetuating machine where the vast profits (e.g. cheap labor, private and public supply and construction contracts, job creation, continued media profits from exaggerated crime reporting and crime/punishment as entertainment) and perceived political benefits (e.g. reduced unemployment rates, “get tough on crime” and public safety rhetoric, funding increases for police, and criminal justice system agencies and professionals) lead to policies that are additionally designed to insure an endless supply of “clients” for the criminal justice system (e.g. enhanced police presence in poor neighborhoods and communities of color; racial profiling; decreased funding for public education combined with zero-tolerance policies and increased rates of expulsion for students of color; increased rates of adult certification for juvenile offenders; mandatory minimum and “three-strikes” sentencing; draconian conditions of incarceration and a reduction of prison services that contribute to the likelihood of “recidivism”; “collateral consequences”-such as felony disenfranchisement, prohibitions on welfare receipt, public housing, gun ownership, voting and political participation, employment- that nearly guarantee continued participation in “crime” and return to the prison industrial complex following initial release.) The 13th Amendment claim of abolition remains unfulfilled, as the neo-slavery of the prison industrial complex becomes the current vehicle for controlling Black bodies for political and economic gain. The trend towards mass incarceration is marred by racial disparity. While 1 in 35 adults is under correctional supervision and 1 in every 100 adults is in prison, 1 in every 36 Latino adults, 1 in every 15 black men, 1 in every 100 black women, and 1 in 9 black men ages 20 to 34 are incarcerated. Despite no statistical differences in rates of offending, approximately 50% of all prisoners are black, 30% are white, and 20% are Latino;. These disparities are indicative of differential enforcement practices rather than any differences in criminal participation. This is particularly true of drug crimes, which account for the bulk of the increased prison population. Even though Blacks and whites use and sell drugs at comparable rates, African Americans are anywhere from 3 to 10 times more likely to be arrested, and additionally likely to receive harsher sentences than their white counterparts. It is no mistake that the subtitle of Michelle Alexander's epic indictment of The New Jim Crow is this: Mass Incarceration in the Age of Color-blindness The Drug War, from start to finish, has always been racist: draconian sentences, crack versus powder disparities, police patrol patterns, stop/frisk practices, racial profiling and death at the hands of law enforcement, arrests, convictions, sentencing including death and incarceration, and collateral consequences that include bans on voting, bars to employment, education, housing and economic assistance, and the diminishment of parental rights, all fall heaviest on Blacks. This racial disparity is by design. As Alexander observes criminal justice policies serve to regulate and segregate communities of color in the Post-Civil Rights era:

What has changed since the collapse of Jim Crow has less to do with the basic structure of our society than with the language we use to justify it. In the era of colorblindness, it is no longer socially permissible to use race, explicitly, as a justification for discrimination, exclusion, and social contempt. So we don't. Rather than rely on race, we use our criminal justice system to label people of color “criminals” and then engage in all the practices we supposedly left behind. Today it is perfectly legal to discriminate against criminals in nearly all the ways that it was once legal to discriminate against African Americans. Once you're labeled a felon, the old forms of discrimination--employment discrimination, housing discrimination, denial of the right to vote, denial of educational opportunity, denial of food stamps and other public benefits, and exclusion from jury service--are suddenly legal. As a criminal you have scarcely more rights, and arguably less respect, than a black man living in Alabama at the height of Jim Crow. We have not ended racial caste in America; we have merely redesigned it. We are still not saved by the 14th Amendment. In the Post-Civil Rights Era, the Supreme Court has followed the color-blind logic of the sole dissenter in Plessy and solidified the race-neutral implications of Federal Civil Rights legislation. Color-blindness as the new legal doctrine begins to emerge-- despite judicial dissent--in cases involving affirmative action and other remedied to centuries of racial inequality. The Supreme Court adopts the color-blind model in The Board of Regents, University of California v. Bakke (1978), where the ruling is in favor of a white student who claimed racial discrimination in his denial of admission to medical school. If the Constitution is to be color-blind, race can only be considered with “strict scrutiny,” even as a remedy for past discrimination. Justices Brennan and Marshall, in separate dissents, point out the flaws of this approach. Brennan observes,

Claims that law must be “color-blind” or that the datum of race is no longer relevant to public policy must be seen as aspiration rather than as description of reality ... for reality rebukes us that race has too often been used by those who would stigmatize and oppress minorities. Yet we cannot ... let color blindness become myopia which masks the reality that many “created equal” have been treated within our lifetimes as inferior both by the law and by their fellow citizens.” Justice Marshall's dissent echoes the warning, one that has now come to pass;

For it must be remembered that, during most of the past 200 years, the Constitution as interpreted by this Court did not prohibit the most ingenious and pervasive forms of discrimination against the Negro. Now, when a state acts to remedy the effects of that legacy of discrimination, I cannot believe that this same Constitution stands as a barrier. McCleskey v. Kemp (1987) is perhaps the most significant case of the Post-Civil Rights era with respect to the application of the 14th Amendment as to matter of race. It is here that potential for an interpretation that would allow for real remedies for institutionalized discrimination is presented and denied. The racial disparity that characterizes all criminal justice has been most obvious and contested in the application of capital punishment, especially in the South, where the “killing state” stepped to do what was once the work of extra-legal lynch mobs. After a series of death penalty cases where the Court ruled that racial discrimination in the application of the criminal laws' ultimate penalty must be addressed, it is here that the Supreme Court in a 5-4 decision clearly defines discrimination as individual not institutionalized. Citing statistical evidence from the now famous Baldus study, McCleskey argued that the application of the death penalty in Georgia was fraught with systemic patterns of racism that transcended but tainted any particular case. Defendants charged with killing white victims were more likely to receive the death penalty, and, in fact, cases involving black defendants and white victims were more likely to result in a sentence of death than cases involving any other racial combination. The majority did not dispute the statistical evidence, but feared the consequences. If the Court accepted McCleskey's claim, then the Equal Protection Clause of the 14th Amendment would apply to patterns of discrimination, to institutionalized racism and sexism, to questions of structured inequality. It could, in fact, be used to challenge the very foundations of the criminal justice system itself, start to finish: laws with disproportionate racial impact, racial profiling and racial bias in police use of force, and prosecutorial discretion. These fears are expressed in Powell's opinion for the majority,

“First, McCleskey's claim, taken to its logical conclusion, throws into serious question the principles that underlie our entire criminal justice system. The Eighth Amendment is not limited in application to capital punishment, but applies to all penalties. Thus, if we accepted McCleskey's claim that racial bias has impermissibly tainted the capital sentencing decision, we could soon be faced with similar claims as to other types of penalty. Moreover, the claim that his sentence rests on the irrelevant factor of race easily could be extended to apply to claims based on unexplained discrepancies that correlate to membership in other minority groups, and even to gender. In the majority's view, equal protection of the laws was for individuals, not oppressed groups, and discrimination must be intentional and similarly individual.McCleskey closed off the last best avenue for remedying structural inequality with the law itself, and preserved the color-blind veneer at the expense of racial remedy. Justice Brennan's impassioned dissent makes the implications of this decision clear:

At some point in this case, Warren McCleskey doubtless asked his lawyer whether a jury was likely to sentence him to die. A candid reply to this question would have been disturbing. First, counsel would have to tell McCleskey that few of the details of the crime or of McCleskey's past criminal conduct were more important than the fact that his victim was white. Furthermore, counsel would feel bound to tell McCleskey that defendants charged with killing white victims in Georgia are 4.3 times as likely to be sentenced to death as defendants charged with killing blacks. In addition, frankness would compel the disclosure that it was more likely than not that the race of McCleskey's victim would determine whether he received a death sentence: 6 of every 11 defendants convicted of killing a white person would not have received the death penalty if their victims had been black. While, among defendants with aggravating and mitigating factors comparable to McCleskey's, 20 of every 34 would not have been sentenced to die if their victims had been black. Finally, the assessment would not be complete without the information that cases involving black defendants and white victims are more likely to result in a death sentence than cases featuring any other racial combination of defendant and victim. Ibid. The story could be told in a variety of ways, but McCleskey could not fail to grasp its essential narrative line: there was a significant chance that race would play a prominent role in determining if he lived or died ...

At the time our Constitution was framed 200 years ago this year, blacks had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior that they had no rights which the white man was bound to respect. Only 130 years ago, this Court relied on these observations to deny American citizenship to blacks. Ibid. A mere three generations ago, this Court sanctioned racial segregation, stating that “[i]f one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane.” Plessy v. Ferguson, 163 U.S. 537, 552 (1896). In more recent times, we have sought to free ourselves from the burden of this history. Yet it has been scarcely a generation since this Court's first decision striking down racial segregation, and barely two decades since the legislative prohibition of racial discrimination in major domains of national life. These have been honorable steps, but we cannot pretend that, in three decades, we have completely escaped the grip of a historical legacy spanning centuries Warren McCleskey's evidence confronts us with the subtle and persistent influence of the past. His message is a disturbing one to a society that has formally repudiated racism, and a frustrating one to a Nation accustomed to regarding its destiny as the product of its own will. Nonetheless, we ignore him at our peril, for we remain imprisoned by the past as long as we deny its influence in the present. Well into the 21 Century, Supreme Court decisions continue to erode Federal Civil Rights legal gains and the ability of the Civil War Amendments to provide racial redress. The doctrine of strict scrutiny itself continues to be eroded further as the current Supreme Court limits its application and as a series of subsequent cases from Grutter v Bollinger (2003) and Gratz v. Bollinger (2003) to Fisher v. University of Texas at Austin (2014) and Shelby County v. Holder (2012) have shown, the Constitution has indeed erected a legal barrier with claims of colorblindness. Worse still, as Crenshaw notes, the shift even beyond color-blindness towards claims of “post-racial pragmatism,”

This pragmatism jettisons the liberal ambivalence about race consciousness to embrace a colorblind stance even as it foregrounds and celebrates the achievement of particular racial outcomes. In the new post-racial moment, the pragmatist may be agnostic about the conservative erasure of race as a contemporary phenomenon but may still march under the same premise that significant progress can be made without race consciousness ....

Colorblindness as doctrine not only undermines litigation strategies that rely on race-conscious remediation, but it also soothes social anxiety about whether deeper levels of social criticism, remediation, and reconstruction might be warranted. While colorblindness declared racism as a closed chapter in our history, post-racialism now provides reassurance to those who weren't fully convinced that this history had ceased to cast its long shadow over contemporary affairs. Post-racialism offers a gentler escape, an appeal to the possibility that racial power can be side stepped, finessed and ultimately overcome by regarding dominance as merely circumstance that need not get in the way of social progress.

As post-racialism becomes the vehicle for a colorblind agenda, the material consequences of racial exploitation and social violence--including the persistence of educational inequity, the disproportionate racial patterns of criminalization and incarceration, and the deepening patterns of economic stratification--slide further into obscurity. More than a century after the Civil War Amendments, 60 years since Brown, 50 years since the Civil Rights Act of 1964, and we are here, with white supremacy and anti-Blackness intact, but now masked, and with slavery (unwilling to die) transformed yet again. Still, the law, unwilling and unable to offer relief, but worse still, at the center of this exclusionary endeavor, from the outset to the present, remains the definer and purveyor of Black social, civil and literal death.

Dr. Nancy A. Heitzeg is a Professor of Sociology and Director of the interdisciplinary Critical Studies of Race/Ethnicity Program at St. Catherine University, St. Paul, MN.