Introduction and Background
The United States criminal justice system was initially designed to the detriment of minority communities, especially blacks. Scholars have argued that the prevalent racial disparities embedded within the current prison system are no accident but relatively entrenched in a history of oppression and discriminatory decision-making that have intentionally targeted minority groups and helped establish myths of crime that deceptively associate African Americans with criminality. Since time immemorial, the formulation of discriminatory criminal laws has deliberately targeted black communities. Black people are compounded to racial myths and biases targeting the U.S. criminal justice system that influence disproportionate searches, stops, arrests, and pretrial confinement of minority groups, on top of strict plea bargaining and sentencing outcomes, compared to white people in similar situations. Studies have found abysmal and systemic inequities that have led to unwarranted numbers of African Americans living in over-policed, deprived communities characterized by economic, social, and educational disadvantages. These factors compel blacks into a cycle of criminal justice involvement because of the association of extreme poverty with a crime.
Intentionally discriminatory criminal laws have historically targeted black communities in U.S. American history, and the penal policy illustrates the reasons behind racial disparities within the criminal justice system. The establishment of unique and unfair forms of policing, sentencing, and confinement, demonstrates how the law targeted black Americans. For instance, laws that took advantage of the 13th amendment loophole that slavery is prohibited unless to those convicted of crime aimed at the newly freed people as a way to exploit their labor. The Black codes denied formerly enslaved people the right to vote, testify in court, or serve on juries. In addition, vagrancy laws ordered arrests of black people who could not prove they had previously worked for a white employer. Northern states also embraced disparate enforcement of punitive laws against “suspicious characters,” keeping and visiting disorderly houses, drunkenness, and disorderly conduct. Such racist policies prevailed because of the misconceptions that tied the black race to criminality. According to a 2010 study, whites overemphasize the share of illegal drug sales, burglaries, and juvenile crime committed by Africana Americans by about 20-30 percent.
Statistics on the involvement of black people in crime have traditionally overstated the problem of crime in African American communities and produced a skewed illustration of American crime as a whole. Twenty-five years after the Civil War, Census data showed that African Americans represented 12% of the population but 30% of those incarcerated. Even though the high incarceration rate could be attributed to discriminatory policies, it created a statistical discourse regarding black crime within societal imagination. The distorted notions that blacks are more likely to engage in violent crime than whites have continued to influence political discourse and policy decisions. After the declaration of the “War on Crime” by President Lyndon Johnson in 1965, a discourse concerning the high crime rate in urban areas, especially in centers hugely populated by blacks, had taken a grip on the national consciousness.
The paper will analyze how the U.S. criminal justice system is built upon a crumbling foundation of pointed bigotry. Thus, it cannot provide a fair process or impartial decision-making regarding the subjugated people and their progeny.
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The “Duly Convicted” Phrase in the 13th Amendment
The 13th Amendment, passed by Congress in 1865, aimed to end slavery in the United States. Its passage during the reconstruction era sought to establish equality for black Americans. However, its effort to strive and attain full equality and guarantee Americans’ civil rights has remained a pipe dream well into the 21st century. Even though the 13th Amendment prohibited slavery and involuntary servitude, it intentionally left a loophole targeting individuals convicted of crimes. The 13th amendment outlines, “Neither slavery nor involuntary servitude, except as a punishment for crime of which the party shall have been duly convicted, shall exist within the United States, nor any place subject to their jurisdiction.”
Scholars have established that the exception clause contributed to the emergence of a criminal justice system that disproportionately affects communities of color since incarceration rates are five times higher in African Americans than in the white race. Moreover, the execution clause allows the prison system to profit from the enslaved’s underpaid or unpaid labor, most of whom are blacks. It is unfair for the 13th Amendment to permit involuntary servitude when convicted of a crime. Similarly, the “black codes” introduced new types of offenses that targeted minority blacks for attitudinal offenses such as not showing proper respect, particularly to the whites. These new offenses, such as malicious mischief, remained unclear and vague as they acted as a felony or infringement based on the severity of the personal conduct. The new laws led to a prison boom in the late 19th century since the prison system incarcerated more blacks for petty offenses.
The U.S. prison system was designed to strategically compel blacks into a criminal justice system that embraced extreme oppression and repression, which has continued to date. The reconstruction period experienced brief progress after the passage of the 13th Amendment, but blacks felt virtually defenseless within one time. A practice called “convict leasing” enabled the states to force prisoners to provide free labor to white planters. U.S. states and private businesses reaped massive profits from the practice, while prisoners never received compensation. After the Civil War, black prisoners worked without pay for decades on white plantations. Shockingly, the Virginia Supreme Court in 1871 labeled an acquitted person as “a slave of the State.” The “convict-leasing” practice was cruel and coldhearted in how it coerced acquired Blacks to provide free labor to plantation owners, coal mines, railroad yards, and road-building chain gangs.
“Convict-leasing” led to the death of many prisoners due to the harsh conditions they experienced. Experts approximate that the imprisoned slaves’ ages ranged from 14 to 70. After the 13th Amendment led to the release of black slaves, the prison system found a way to take advantage of the loophole of the Amendment and incarcerated blacks for minor offenses to compel them into unpaid labor. Between 1866 and 1912, more than 3500 prisoners died in Texas. As a result, the State of Texas outlawed “convict leasing” because of the high death toll. Prisons built farms to grow crops such as sugar and snap peas, while the states used the freed labor to force chain gangs to build roads. It is shameful that similar practices continue to date. States such as California have saved up to $100 million annually by enrolling incarcerated persons as volunteer firefighters. Also, private companies and states still depend on free or extremely low-paid labor from state prisoners.
The Equal Protection Clause of the 14th Amendment
The 14th Amendment, ratified in 1868, allowed citizenship of all individuals born or naturalized in the U.S., not limited to previously enslaved persons, and assured all citizens “equal protection of the laws.” The Amendment promised to resolve the U.S. constitution’s absence of a citizenship clause that haunted freed slaves and forced other slaves that labor for generations. Even after their release, free Black slaves experienced political or economic coercion to continue providing free labor. The 14th Amendment of the U.S. Constitution stipulates that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
The 1868 ramification of the 14th Amendment intended to free black people from the cruel and inhumane treatment during the slave era. The Amendment accorded blacks equal protection under the laws and similar treatment to that of whites. Still, the criminal justice system has remained reluctant to fully enforce the clause. However, lawmakers introduced Jim Crow laws as barriers to block blacks from accessing similar privileges to that whites. The U.S. Supreme Court enhanced the establishment of Jim Crow laws to legitimize private acts of discrimination and efficiently create two-tiered citizenship. Despite the passage of the Jim Crow era, minority communities still advocate for equal protection. There are claims that the high incarceration rate among African Americans signifies a new era of Jim Crow laws within the U.S. criminal justice system. Despite the ramification of the 14th Amendment, minority communities still fight for equal protection guaranteed by the U.S. constitution.
The current treatment of minorities in the criminal justice system depicts that the 14th Amendment has not been implemented to guarantee equal protection under the law. The U.S. criminal justice system still portrays embedded inequalities such as selective enforcement by law enforcement agencies and selective prosecution and sentencing by judges and juries. African Americans experience disproportionate representation within the criminal justice system. For instance, despite representing 13 percent of the population and whites representing about 61 percent of the U.S. population, the number of blacks sentenced to more than one year was 523,000, while that of whites was 499400 in 2015. Although there is no evidence to substantiate that blacks used drugs at a higher rate than whites, black people represent 80 percent to 90 percent of imprisoned drug offenders. Whites have used the war on drugs to infringe on the rights of minority groups. The 14th Amendment is yet to demonstrate that it warrants minority groups’ equal protection under the law. Equal protection means that minority communities should access equal opportunities for education, health, housing, food, security, etc., similar to whites.
Judicial Outcomes for Black Males in the U.S.
Compared to other demographic groups, black males in the U.S. experience an appalling crisis in their representation in the criminal justice system. Reeves et al. “To be male, poor, and either African-American or Native American is to confront, daily, a deeply held racism that exists in every social institution.” Black males encounter heightened civil rights violations compared to whites. In particular, they face disparities in criminal justice, education, health, employment, fatherhood, and mentorship. The criminal justice system has done little to improve the social conditions felt by black males in order to reduce racial disparities in criminal justice, health, education, and employment. Addressing the issues affecting black males’ well-being requires policymakers to entirely understand the challenges they encounter and thus recommend appropriate policies. The sharp intersection of race and gender in the U.S. mistreats Black boys and Black men. For example, compared to over 40 percent of white males with a bachelor’s degree or higher between ages 25-29, only 28 percent of black males had a similar qualification in 2019. Moreover, the National Center of Educational Statistics highlighted a more significant gap in higher education since half as many Black males (4 percent) have a Master’s degree compared to white men (8 percent). Data on education attainment illustrates that Black Men in the U.S. experience racial disparities in the criminal justice system and other sectors.
Upward mobility illustrates the disproportionate representation of Black males in the U.S. criminal justice system. Studies have shown that black and white women from low-income households have comparable rates of upward intergenerational mobility, quantified based on their adult income. By contrast, black males have less likelihood of upward mobility than white men. About 33 percent of white males from low-income households attain about 40 percent of income distribution as adults, compared to only 19 percent of black males. Black males from low-income households record a 38 percent risk of dwelling in intergenerational poverty as compared to 20 percent of black women. Systemic racism has led to low income for minority groups. Black men earn $378 less per week compared to white men. Additionally, the U.S. Bureau of Labor Statistics claims that the rate of black men aged 20 and above in labor force participation is 5.6 percentage points lower than for white men. In terms of employment, black men are twice as likely to be employed compared to white men, and the rate escalated further during the COVID-19 pandemic.
The intersection of institutionalized racism and sexism in society presents unique challenges to black males in the U.S.. The current system was designed to the detriment of minority communities, especially Black males. Black males experience social problems intertwined within the criminal justice system, which can only be solved through significant reform. Undoubtedly, black males are hugely overrepresented among the incarcerated, as they account for 32 percent of the prison population despite representing only 6 percent of the overall U.S. population. Compared to white men, black men are five times more likely to be jailed throughout their lifetime. They are likely to serve extended sentences by 19 percent compared to whites. Furthermore, Black males face institutional barriers that hinder their access to better employment, housing, and social services. Solving the disproportionate representation of black males in the U.S. criminal justice system would require reforms that will address obstacles such as reduced economic opportunities.
Place-based policies have led to an increased proportion of black males in the criminal justice system compared to white males in the U.S. In 2017, 5 percent of white households lived in high-poverty neighborhoods compared to 26 percent of black households. Macioleck highlighted the characteristics of high-poverty neighborhoods as poorer quality schools, less access to social networks and jobs, poor health care, pollution, congestion, higher rates of crime, and noise. The study added that, unlike girls, boys tend to be increasingly sensitive to their surroundings when growing up, which usually reflects in behavior outcomes, lower earnings, and lower educational attainment. Such neighborhoods expose black men to adverse outcomes. Besides, the lack of better facilities and opportunities will continue to undermine and victimize black males due to the absence of equal protection enshrined in the United States constitution.
A report by the U.S. sentencing commission demonstrated the demographic differences in sentencing. According to the report, demographic factors such as race and gender influence sentence length. The commission established that black male convicts obtain longer sentences than similarly situated white male offenders. Between 2012 and 2016, black male felons received longer sentences, 19.1 percent, than white male offenders. There was a 7.9 percent difference in sentence length between black and white male offenders within the applicable sentencing guidelines. The report demonstrates the mistreatment of African Americans by the U.S. criminal justice system.
Disposition and Sentence
According to a New Report on sentencing disparities from the United States Sentencing Commission (USSC), black men who commit similar crimes to that white men obtain federal prison sentences that are approximately 20 percent longer. Following the Supreme Court’s decision in United States v. Booker in 2005, the black and white sentencing disparities have escalated to an all-time high. The ruling gave federal judges increased sentencing discretion that enabled them to make lenient or harsher sentences than the sentencing guidelines outlined by USSC. Before the ruling, federal judges had no choice but to comply with USSC sentencing guidelines.
Scholars have argued that judges are less expected to revise black convicts’ sentences than whites. And when this occurs, judges reduce black offender sentences by a small margin. Ingraham argues that allowing judges increased sentencing discretion, based on the 2005 Booker decision, permits more racial bias to mar the sentencing process.The decision of whether to carry out a mandatory minimum sentence by federal prosecutors leads to disparities within the criminal justice system. Executive Director of the sentencing project Marc Mauer claims, “What we see is that the charging decisions of prosecutors are key. Whether consciously or not, prosecutors are more likely to charge African Americans with such charges than whites.” Compared to a white offender who committed the same crime, black offenders have a 75 percent likelihood of facing a charge for carrying a mandatory minimum sentence.
The U.S. has the largest prison population globally, with an incarceration rate of about 666 per 100,000 people. The incarceration rate of blacks is approximately 2,306 inmates per 100,000 people, while that of whites is 450 inmates per 100,000 making it five times higher. According to a study in the journal Crime & Delinquency, about half of black males and 40 percent of white males are detained by age 23. According to the study, the key findings illustrated that “by age 18, 30 percent of black males, and 22 percent of white males are arrested.” African American males are more likely to get arrested than white males. The USSC reports that addressing the sentencing disparity would save taxpayers at least $230 million annually since it will reduce approximately 9 percent of black men in federal prisons.
Prosecutor bias can lead to punitive outcomes for black people due to biased decision-making. The recommendations by prosecutors affect black males because they influence discussions regarding pretrial detention, bail amounts, and sentencing. Substantial evidence demonstrates that people of color are more likely to be prosecuted, held in pretrial detention, and undergo cruel and harsh treatment. Moreover, implicit bias affects black males more than white males in the U.S., as evidenced in the plea bargaining phase. A study that analyzed 48000 cases of misdemeanor and felony revealed that compared to black people, white people were 25 percent more likely to have their charges reduced or dropped by prosecutors.
On the other hand, black men charged with misdemeanors are likely to be convicted, sentenced, or incarcerated, while white males have a 75 percent chance of dropping their charges. It is shameful that the U.S. criminal justice tends to drop or dismiss potential sentences when dealing with white males. Prosecutor biases have compelled the black race towards unfair and unjust treatment as they seem to receive severe arrests and sentences, unlike white men. Black people face worse criminal justice outcomes due to judicial bias. Notably, judges mastermind each stage of the court process; thus, their biases lead to stricter outcomes at multiple discretion points in the criminal justice system, from pretrial detention to sentencing. Black males also experience higher arrests for drug-related offenses than white males.
Stop, Search and Stop Arrests
Police bias contributes to racial disparities in the U.S. since it affects policing practices. Implicit bias among police officers could affect their decisions toward communities of color. Studies have illustrated that police officers tend to focus more on black male faces and consider their features to be stereotypically black such as thick lips, broad noses, and dark skin. Police bias has led to the enforcement of punitive measures toward African Americans, such as hot spot policing within black neighborhoods. At the same time, blacks are highly likely to experience negative outcomes such as stops, use of force, searches, and arrest. The police, at an increased rate, expose blacks to lethal force. The police have increasingly stopped black male drivers for traffic stops and search as they perceive them as crime doers. A study investigating traffic stops in Kansas City revealed that 28% of black males and 17% of black females were pulled over for an investigatory stop in 2011, compared to 13% of white men and 7% of white women. The white population experiences a lower search threshold compared to African Americans due to policing bias. Blacks are 3.7 times more likely to face arrests for marijuana possession compared to whites. However, both groups intake the drug at equivalent rates.
The contrast between the criminal justice system in apartheid South Africa for black males and the system of criminal justice for black males in the present-day United States.
An overwhelming majority of the South African prison population consists of black male prisoners, similar to the U.S. prison population. South Africa’s prison system depicts the differential treatment of white and non-white prisoners. Apartheid ensured that most prisons in South Africa had ‘traditional’ racial profiles as it created all-white and non-white prisons. The non-white prisons were overpopulated and crowded compared to all-white prisons. All-white prisons in South Africa had better living conditions than non-white prisons and afforded whites better treatment. The non-white prisons housed inmates in communal cells as opposed to all-white prisons that housed inmates in single cells. The government also reformed and improved the status of certain prisons after the transfer of white offenders to these centers.
During the apartheid era, black inmates complained that the prison system handled white inmates with preferential treatment. For instance, white prisoners in South Africa received additional visits and a better diet, while black prisoners experienced the worst prison hardships. In South African prisons, whites accessed training facilities and worked on less strenuous tasks. On the other hand, the segregation of prison facilities was uncommon in the United States because blacks and whites were housed in the same prisons. Similarly, white males in the U.S. and South African prison systems experienced better living conditions than whites. In both systems, black prisoners experienced harder and more severe conditions characterized by punitive laws and measures.
Greenberg (2014) claims that the United States imprisons blacks at rates higher than in South Africa during the apartheid. According to the U.S. Bureau of Justice Statistics, the incarceration for black males in all U.S. prisons stood at 4347 people per 100000 in 2010, while that of whites was 678 people per 100,000. The incarceration rate in the U.S. remains higher than in any other country across the universe. Similarly, both systems introduced punitive laws to control the masses and safeguard the interests of the white people. In particular, South Africa passed the Population Registration Act in 1950 to ensure strict segregation and differential treatment of individuals based on their racial background and physical characteristics. South Africa passed the Lands Act that led to the allocation of 87 percent of the property for whites, while the Group Areas Act prohibited blacks from living in white-designated zones.
Amid apartheid, South Africa’s incarceration rates in 1984 stood at 440 convicted persons per 1000000 population, and Blacks entailed about 94% of those incarcerated. Black prisoners in South Africa encountered overcrowding in cells since the nation housed around 109000 inmates in a space meant for 88000 people. The black imprisonment rate in the U.S. was higher than South Africa due to limited room. The U.S. sent more black males to prison compared to South Africa. For example, in 2010, the U.S. black male incarceration stood at 4347 per 100000, and South Africa never came anywhere close to such incarceration rates both during and after the apartheid era. In 1992, the incarceration rate of South Africa’s black males was 850 per 100,000 of the total population.
Since 1997, South Africa’s crime rate and the prison population have increased, similar to the U.S. The increased prison population could be attributed to the increased number of individuals awaiting trial. In the past five years, the number of unsentenced prisoners has escalated due to delays in the justice system. Harsher sentencing and tough-on-crime rhetoric cause the continuing rise of the prison population in South Africa and the U.S. Overcrowding in prisons is closely associated with the increase in awaiting trial prisoners, which results from inefficiencies in the processing of cases by the judicial system and inappropriately designed bail laws, especially in South Africa. Inmates in South Africa face toughened sentencing laws, overcrowding, and longer sentences.
Black males in both countries found it difficult to secure bail as the criminal justice system slapped them with bail amounts they could not afford. Due to the higher rate of unemployment among the black population and residing in informal settlement areas, black males could not provide courts with a fixed, verifiable place of residence. Bail laws continue to operate to the disadvantage of low-income communities. Moreover, the average length of time that black males spend awaiting trials has increased in both countries due to the backlogs in the system. Furthermore, the minimum sentence legislation introduced increased certain sentences for black males, especially in misdemeanor and felony cases.
The Emergence of Profiting from Prison Labor
Since time immemorial, “convict leasing” practices have coerced black males in the U.S. prison system to provide free or underpaid labor. US states and private businesses have benefited from such labor since convicted felons provide it. UNICOR is an industrial program that takes advantage of prison labor by paying inmates about $1.15 per hour and generates nearly half a billion dollars in net sales. Unimaginably, inmates with final obligations must provide half of their earnings to cover those expenses despite earning one-sixth of the federal minimum wage. During the antebellum period, the South’s economy benefited from free slave labor. The constitution’s framers ensured they created a loophole in the 13th Amendment to enable state and private corporations to profit off of prison labor. Prison labor in the U.S. is estimated at $1 billion.
After President Nixon declared the “War on Drugs,” the federal prison population began skyrocketing. To keep up with the demand, the government contracted private prisons, increasing competition in federal and state-run facilities. In 2013, the prison population in private prisons stood at approximately 220000 inmates. CoreCivic (formerly known as Corrections Corporation of America) and GEO Group made a total revenue of $3.5 billion in 2015 despite constituting about 50% of the market share of prisons. Such private organizations invest in building private prisons due to increased mass incarceration and the potential for cheap labor from inmates. For instance, released offenders have accused the GEO Group of forced labor and wage theft as it compensates inmates $1 a day for their labor. Detainees from various incarceration centers have claimed that state and private owners violate federal laws by compelling inmates to work in stringent conditions. It is unfair to expose inmates to sanctions such as solitary confinement when they disagree with providing free or underpaid labor because of the 13th Amendment’s loophole. While UNICOR, GEO Group, and CoreCivic make millions in profits, inmates return to their cells with only a few dollars after offering the needed labor.
Conclusion
For an extended duration, the U.S. has deployed mass incarceration to punish victims of crime, but this has faced a myriad of challenges. The U.S. has implemented crime control policies that have produced unprecedented incarceration rates, disproportionately impacting minority groups, especially blacks. In regard to public safety concerns, mass incarceration has been a failed policy based on the detrimental impacts imposed on communities of color. The proliferation of embedded racism in the U.S. criminal justice system seems to disadvantage black people due to harsh prison sentences introduced by the draconian drug laws. The criminal justice system is designed to the disadvantage of people of color since the majority of whites use the system to rule over their subjects through overt discrimination policies. Black males have faced a history of oppression and discrimination in the U.S. and South African criminal justice systems, as illustrated by the higher rates of arrests, convictions, and sentencing compared to whites.
The establishment of the 13th Amendment has failed to safeguard the rights of blacks since it has a clause prohibiting slavery to those convicted of a crime. Due to the high number of blacks in jail and prisons, a statistical discourse has been used to spread falsified information and narratives that being black is associated with crime. We have yet to witness equal protection in the criminal courtroom as guaranteed by the 14th Amendment. As elucidated, black males are hugely overrepresented among the incarcerated, as they account for 32 percent of the prison population despite representing only 6 percent of the overall U.S. population. The idea of state and private companies profiting from prison labor should be condemned and discouraged by all means.
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