Excerpted From: Julie Shackford-Bradley, Legal Violence and Restorative Justice, 20 Hastings Race and Poverty Law Journal 103 (Spring, 2023) (169 Footnotes) (Full Document)


JulieShackfordBradley[. . .]

For her groundbreaking book, The New Jim Crow, Michelle Alexander did the painstaking work of documenting the cumulative impact of a series of laws and policies put into place over several decades in the so-called “Wars” on Crime and Drugs. Throughout her book, Alexander argues that these regulations, including the Rockefeller drug laws of the early 1960s, the Omnibus Crime Control and Safe Streets Act of 1968; Reagan's “War on Drugs” launched in 1982 and his Anti-Drug Abuse Act of 1986 and its revised version in 1988; Clinton's ‘three strikes' laws and Violent Crime Control and Law Enforcement Act of 1994 led collectively to conditions of mass incarceration in the US.

In ways similar to the legal violence perpetrated through immigration policy, this series of laws became “extraordinarily punitive,” criminalizing behaviors associated with drug addiction, expanding the “dragnet” of people who could be incarcerated for proximity to drug possession and many other non-violent offenses. The legislation applied harsher sentences and mandatory minimum sentences, as well as enhancements that amount to felony offenses. Overall, these waves of legal policy increased years behind bars and reduced opportunities upon release. Enforcement was stepped up through increased surveillance in certain neighborhoods, raids, and “stop and frisk” type programs.

In addition to the overarching policies of the War on Drugs, Alexander explores the Supreme Court Decisions that gradually dismantled protections for people of this “undercaste,” for example through a shift in the Court's “4 amendment jurisprudence:

Virtually all constitutionally protected civil liberties have been undermined by the drug war. The Court has been busy in recent years approving mandatory drug testing of employees and students, ... permitting police to obtain search warrants based on an anonymous informer's tip, expanding the government's wiretapping authority, legitimating the use of paid, unidentified informants by police and prosecutors, approving the use of helicopter surveillance of homes without a warrant, and allowing the forfeiture of cash, homes, and other property based on unproven allegations of illegal drug activity.

Alexander documents how legislators designed and passed a series of budget plans which brought exponential increases in funding for law enforcement and massive prison construction at the federal, state and local levels; at the same time, the social safety-net, along with funding for drug abuse treatment was drastically reduced. Alexander writes, “By 1996, the penal budget doubled the amount that had been allocated to AFDC or food stamps.”

Viewed through the lens of the legal violence framework, we see the role of language plays in laws, policies and public discourse around the criminalization of Black men and Black communities. Alexander calls attention to the ways in which Reagan Era discourse excised the language of race from the discussion, only to replace it with talk of “welfare queens,” “crack whores,” “crack babies,” “gangbangers” and “criminal predators.” The specter of a “super predator,”--“radically impulsive, brutally remorseless ... [who] have absolutely no respect for human life”-- took hold. People associated with the criminal legal system were transformed in the public discourse into “monsters,” as Danielle Sered explains it: “a monster who is not quite human like the rest of us, who is capable of extraordinary harm and incapable of empathy, who inflicts great pain but does not feel it as we do, a monster we and our children have to be protected from at any price.”

Not unlike the label of ‘criminal alien,’ the labels and positionalities of the ‘inmate,’ the ‘felon,’ and the ‘criminal’ open individuals to abject cruelty in the name of ‘retribution’ and ‘deterrence.’ As Alexander has noted, “criminals” make up a “social group ... we have permission to hate.” Moreover, the specter of the super predator led to the imposition of mandatory life-without-parole sentences on predominantly Black juveniles. Alexander reminds us,

Virtually all of us break the law at some point in our lives-- drinking under age, experimenting with drugs, committing traffic violations, shoplifting, failing to declare tips or cash income on tax returns, or even committing acts of violence in a schoolyard fight or when our emotions spin out of control. Rationalizing mass incarceration or mass deportation on the grounds that it is meant to rid our nation of “criminals” perpetuates the false notion that “criminals” are a monolithic, deviant group that is fundamentally different than “us” and therefore unworthy of our concern. They can be eliminated without a second thought.

Coining the phrase, “the new Jim Crow,” Alexander made the case that the policies of the 1980s and 1990s were an extension of Jim Crow Laws of the early to middle 1900s. These policies were designed to control Black bodies, subject Black people to slavery-like conditions through convict leasing systems, and restrict the accumulation of wealth in Black communities. In other words, the intent of the War on Crime of the 1960s and 1970s, and later the War on Drugs of the 1980s to 2000s was to maintain white supremacy structures in the U.S. by pushing back on progress made during and after the Civil Rights Movement, ultimately building a massive system aimed at the control of Black bodies:

The term mass incarceration refers not only to the criminal justice system but also to the larger web of laws, rules, policies, and customs that control those labeled criminals both in and out of prison. Once released, former prisoners enter a hidden underworld of legalized discrimination and permanent social exclusion. They are members of America's new undercaste.

Less attention has been paid, as Alexander notes in the preface to the 10-year Anniversary Edition, to the extreme othering and dehumanization of people in the criminal legal system, including those who have served their time. She reminds us that “the system of mass incarceration extends far beyond prison walls--shaming, stigmatizing, and controlling people whether or not they've actually spent time behind bars.” “[I]t is the ‘prison label, not the prison time’ that matters most .... An arrest (even without a conviction) can have serious consequences, and a criminal conviction of any kind--even if probation rather than imprisonment is imposed-can relegate someone to a permanent second-class status. The result is the treatment of a group of people defined by race and class as the ‘enemy’: “A literal war was declared on a highly vulnerable population, leading to a wave of punitiveness that permeated every aspect of our criminal justice system and redefined the scope of fundamental constitutional rights.”

The legal violence that people encounter after incarceration remains opaque for most Americans. As Alexander puts it, “[o]nce released, former prisoners enter a hidden underworld of legalized discrimination and permanent social exclusion.” She documents the “full range of collateral consequences for a felony conviction” that fall on people, including lack of access to housing, aid, health care, jobs, a driver's license, ability to vote, and to access education; these policies cause additional harm and trauma for the most vulnerable populations. She notes that courts don't see these as “punishments,” and so people are not informed of these extra consequences when pleading guilty, and she equates this discrimination and exclusion with the worst of Jim Crow era laws and segregationist policies.

Looking at housing as an example, we can trace a series of laws and their harmful impacts on individuals and communities. The Anti-Drug Abuse Policy of 1988 allowed for landlords or the state to evict people who engage in criminal activity from public housing. The Quality Housing and Responsibility Act of 1998, created “one strike and you're out” guidelines for public housing. It gave landlords the right to check criminal records and use their own criteria to screen applicants, including those who were arrested but not found guilty, or those “they believed to be using illegal drugs or abusing alcohol.” In other words, even if a person has been arrested but not convicted of any crime, they can be excluded from public housing. The Department of Housing and Development developed guidelines and a “one strike policy” to allow for screening and evictions, threatening to withhold funding if public housing administrators did not comply. Such policies have been upheld by the Supreme Court. The harmful impacts of these policies include increased homelessness of Black and Latinx individuals and families and all the challenges that brings.

Examining the full range of discrimination and harm caused by the laws and policies of mass incarceration, Tasseli McKay summarizes,

The repercussions of imprisonment reach into every part of daily life: parenting and intimate relationships, health, education, employment, economic well-being, community safety, and wellness. Its harms unfold across the individual lifespan, from cradle to grave. Damage accumulates at the local and national levels as well, manifesting itself in heightened infant mortality rates, diminished adult life expectancy, and greater racial disparities in each of these areas compared to other wealthy democracies.

The impact on people's self-perception and sense of place in society is a significant part of this story and resonates with Abrego and Menjivar's discussion of the role of symbolic violence in the dynamics of legal violence. Regarding the discrimination that limits the lives of people after being released from the criminal legal system, Alexander writes:

Far from collateral, these sanctions can be the most damaging and painful aspect of a criminal conviction. Collectively, these sanctions send the strong message that, now that you have been labeled, you are no longer wanted. You are no longer part of “us,” the deserving. Unable to drive, get a job, find housing, or even qualify for public benefits, many people with criminal records lose their children, their dignity, and eventually their freedom--landing back in jail after failing to play by rules that seem hopelessly stacked against them.

Dr. Julie Shackford-Bradley is the co-founder and Director of the Restorative Justice Center at UC Berkeley.