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Excerpted From: Elizabeth Jones, The Profitability of Racism: Discriminatory Design in the Carceral State, 57 University of Louisville Law Review 61 (2018) (172 Footnotes) (Full Document)

The name Kalief Browder is familiar to many. Beginning at age sixteen, Browder was incarcerated on Riker's Island, where he spent most of his time in solitary confinement. Browder remained in detention due to his family's financial inability to post bail for the theft of a backpack, a charge that was later dismissed. After his release, he ultimately committed suicide at the young age of twenty-one. It is imperative that we ask how many Kalief Browders fail to capture headlines, yet still suffer almost incomprehensible indignities under contemporary practices of mass surveillance, criminalization, and incarceration. How, in a democratic society, can widespread detentions and the subjugation of human beings happen so commonly? Entire communities are under siege, and I argue the prolific and normalized detentions of black and brown bodies are the legacy of a legal system built and predicated on the profitability of racialized subjugation.

In this paper I attempt to unpack the assertion, that what scholars refer to as the era of mass incarceration, and more recently mass criminalization and surveillance, is produced by a systematic marginalization of poor people of color that is built into our legal system by design. The criminal justice system, in its initiation on American soil and operating into the present, is predicated on an ideological framework that normalizes the incentivization of exploiting black bodies. Racial ideology performs the role of making these disparate outcomes not only acceptable, but conceals their function as illusively natural. Mistreatment and disenfranchisement, disproportionately meted out along racial lines through legal processes, have protected and generated lucrative enterprises since the founding of the nation, beginning with the system of racialized enslavement on which the American economy was built.

From Michelle Alexander's The New Jim Crow, to Paul Butler's Chokehold, to David Cole's No Equal Justice, the structural inequality of the criminal justice system's unfolding along lines of race is well documented. Empirical data shows mass criminalization involves disproportionate arrests, sentencing, detention, incidences of police brutality, and traffic stops for black people in America. Not to mention the racially disparate social, political, and economic impacts of the sprawling carceral state. A black child born in 1990 has a one in four chance of having a parent incarcerated. All of this is well known, the statistics are well documented, and the criminal justice system is widely discussed for its racist causes and impacts.

But, what is less considered and requires greater attention are the economic imperatives tied to the carceral state, in addition to the role of race that reproduces structural inequality in tandem with the economy. Race and class are inextricably linked in American society. While I agree with scholars such as Alexander and Butler that mass incarceration results from an intentional racial design, I think it is also critical for us to consider why the dehumanizing system continues to be tolerated and, more precisely, whom it benefits in our society. In my analysis, it is imperative to consider the ways the subjugation of black bodies has been incentivized through carceral state processes. And also, to pay attention to the ideological dimensions of race that play an integral role in maintaining an unequal political economy that is predicated on the disenfranchisement of people of color. The argument unfolding in this paper is organized into four parts: first, James Forman's Locking Up Our Own will be used to argue that the system functions as it was designed to, even when individuals of color are positioned in seats of power; second, I will examine the historical perspective and the different ways racial structure and ideology were intimately tied to and shaped by the economy; third, I will discuss three ways the contemporary criminal justice system actively links detention to profits; and finally, the conclusion will explore the theoretical and analytical implications of my argument along with brief suggestions for change.

Worthy of note is that the assertation I present here is distinguishable from the notion of the "prison industrial complex" view that positions contemporary rapid prison expansion as the result of political lobbying to expand the prison industry for profit. I contend the ideological foundations of our legal system, particularly within the context of the criminal justice system, are by design predicated on practices of dehumanization and legal detentions of people of color for the continued generation of profit. Mass criminalization and surveillance are generated through what Princeton scholar Ruha Benjamin refers to as "discriminatory design," racist outcomes built into "the machine" that continue to be systematically replicated overtime because they are part of the original blueprint.

[. . .]

Of course, there are exceptions and critiques to be made to my argument that the carceral state is a function of discriminatory design, and that it works to accomplish primarily economic imperatives at the expense of black bodies. However, when we use this framework for understanding the carceral state it highlights a couple of important concepts. First, I find that all of these invasive, exploitative practices that generate profits at the expense of the lives of black people are tolerated because of racial ideology. Racial ideology plays the psychological role of normalizing and naturalizing the systematic dehumanization of people of color. Mass criminalization and incarceration are legally tolerated because American law in its inception, and by its very design, has turned a blind eye to the persistent suffering experienced by black citizens. As Websdale wrote, "[c]onstructing criminals as indecent, immoral, or degenerate conveniently avoids the ongoing legacies of slavery and the enormous costs of global capitalism." Numerous scholars have written on the pervasive social constructions of black people as inclined toward violence and criminal behavior. This racial ideology functions in much the same way as the explicitly racist doctrine during enslavement that wrote black people out of the human family to justify bondage. It promotes buy-in from working class and poor whites, as well as some middle-class African Americans, into a system that effectually promotes civic death in poor black communities through detentions and hyper-policing.

The analysis presented here is also instructive on what I refer to as the "masking function" of race. By this I mean that racial ideology, without additional attentiveness to the ways it connects to class, disguises a political economy that is unequal across the board. When race is the entirety of the focus, for example a singular attentiveness to the interracial wealth gap between blacks and whites, this myopic view misses that the entirety of the economic structure is shaped like a pyramid. As cited earlier, there are large intraracial wealth gaps between whites and also between black people, and this is part of the discriminatory design. Although the system is primed to achieve the disenfranchisement of black bodies and makes the detention and exploitation of black bodies lucrative, the majority of people, regardless of race, are victims of a highly unequal political economy. This is precisely why I believe it is critical to trace the arc of the profitability of mass criminalization and incarceration.

Further, this perspective requires us to view whites, and other groups of people of color, not just as mere collateral damage to a system that targets African Americans, but as victims of precisely the same economic system. Following the election of Donald Trump, the increased crackdown against people who possibly crossed the border illegally has increased the stock value of private prison corporations. CoreCivic more than doubled its revenue from the Immigration and Customs Enforcement Agency between 2014 to 2015. Again, the words of Derrick Bell are instructive, "The injustices that so dramatically diminish the rights of blacks because of race also drastically diminish the rights of many whites, particularly those who lack money and power."

Lastly, this framework for understanding mass criminalization requires us to think of criminal justice reform more broadly. In fact, reform is simply insufficient. For example, Forman discusses the eventual decriminalization of marijuana as an example of the triumph of criminal justice reform, yet in place after place where it has been legalized or decriminalized African Americans are still more likely to be arrested for marijuana-related offenses. Again, the system is primed for a particular outcome and these outcomes persist despite well-meaning efforts to transform them. Changing the system requires us to alter its discriminatory design, and it requires us to pursue a route of divestment from the subjugation of black bodies. This requires us to think differently about the structural inequalities present in our society, and to once and for all engage in the active dismantling of racial ideologies that support their reproduction over and over again in different forms.

Therefore, rolling back mass criminalization and mass incarceration is two-fold; it involves addressing structural inequalities embedded in the political economy and simultaneously pushing back against racial ideology that normalizes hierarchies. One solution can be found in the model used by Gideon's Promise that promotes wholesale cultural change in the criminal justice system among public defenders through client-centered approaches that humanize clients. The organization trains public defenders from across the country every year and emphasizes the importance of telling the client's story in a model of representation that views the client as the focal point during the course of representation. Through emphasizing a cultural shift and focusing on the way defendants are treated in the criminal justice system, the Gideon's Promise model pushes back against the processing impetus of the criminal justice system. The organization seeks to create a movement among public defenders, because this cadre of lawyers are tasked with representing the majority of people in the justice system due to their indigent status. A large-scale cultural shift within the system that values people over profits is one way to push back against racial ideologies that naturalize and normalize racialized subjugation.

Alternatively, a move to disinvest from private corporations that profit from incarceration is another way to create structural changes. Detaching incentives from the exploitation of black and brown bodies helps address one of the primary drivers of the expansive carceral state--its profitability. Recall that the criminal justice system historically sanctioned racial oppression that was predicated on a highly unequal economic order. Recently, both Google and Facebook agreed to no longer take money from America's for-profit bail bond agencies. This is one small step in what could be a broader movement to disconnect the generation of profits from incarceration. In this vein, there should also be greater attentiveness paid to the ways racial biases are embedded in the algorithms and products produced by private companies that are in turn utilized by criminal justice agencies. Recent studies show that bias in the criminal justice system is replicated through proliferating technologies, including artificial intelligence and facial recognition technology. The danger of technology that leads to mass criminalization and surveillance is that it also has the veneer of scientific reliability while perpetuating racial inequalities.

Therefore, it is critical to not only address racial ideologies that disenfranchise people of color implicitly or explicitly but to also delink the subjugation and detention of human beings from financial incentives. In this article, I sought to unpack the assertion that, by design, mass criminalization results from the systematically incentivized social control and detention of poor African Americans that is foundational to the historical roots of the carceral state. The multifarious ways the criminal justice system generates profits were illustrated through a discussion of private industry profits for bail and prison companies, and the warehousing of surplus labor illustrates its ongoing connection with economic arrangements that vacillate over time. Further, I highlighted how racial ideology becomes instrumental in both masking the economic functions of racism and by promoting buy-in to the dehumanization of black people by the state as a commonly accepted practice. I agree with James Forman, that African Americans have also contributed to the perpetuation of mass criminalization and mass incarceration, but this is because larger systemic processes in the political economy cause the carceral state to function in this way irrespective of the actors. As a result of discriminatory design, you can put any person of any color in powerful positions within the carceral state and it will continue to replicate racially disparate outcomes without much larger and broader structural changes. My suggestions are only a starting point for answering one of the critical questions of our time--how can we fundamentally alter a for-profit system predicated on the subjugation of black bodies that has persisted over hundreds of years, without it transforming into yet another system of racialized oppression.

Dr. Elizabeth Jones is the Training & Recruitment Director at Gideon's Promise in Atlanta, Georgia.