“We know that right now that the struggle freedom and justice is real; we live in the most incarcerated country in the world. There are more black men under correctional control today than under slavery in 1850.”
And he is right. One look into our criminal justice system, and it is clear that the fight for racial justice and equality in America is far from over. While black people make up just 13 percent of the U.S. population, they account for almost half of the 2.23 million people incarcerated in this country. One in every three black men will see the inside of prison cell at some point during his life; at any given point, more than 40 percent of prisoners on death row are black.
Due to collateral consequences, these disparities persist outside of the immediate purview of the criminal justice system as well. In 1987, the Equal Employment Commission declared that blanket bans on hiring people with criminal records had such a disproportionate impact on the black community that they constituted a violation of the Civil Rights Act. High rates of black voter disenfranchisement due to criminal convictions has led some academics to conclude that we are increasingly living in a "racial democracy." Due to felon disenfranchisement, over one third of black males in Alabama– a state notorious for its voter suppression tactics during the Civil Rights Era - have permanently lost the right to vote.
And yet, for the large part we don’t talk about it. This was one of the key concerns Michelle Alexander raises in her book, The New Jim Crow. While old systems of racial control such as slavery and Jim Crow laws were explicitly racist, the policies that have built our vast system of correctional control were cleverly masked behind seemingly race-neutral language. In a “color-blind” America, Alexander fears that this new system will be exceptionally challenging to dismantle, as the public must first recognize and acknowledge mass incarceration for what it is: a redesigned racial caste system.
There is a growing body of research in an area of study called transitional justice; the process by which countries where gross human violations rights have occurred come to terms with their past. A well-known example is the Nuremberg Trials following World War II, or the Truth and Reconciliation Commissions in South Africa following the end of Apartheid. While much scholarship is devoted to the different forms of transitional justice, less attention has been paid to what the long-term implications are when a country fails to address past violence and trauma. According to a new report by the Equal Justice Initiative, mass incarceration and in particular the modern use of the death penalty is just that: the consequences of America’s failure to come to terms with its terrible history of racial injustice and violence.
While the history of racial injustice in America extends back to its very founding, the report, titled Lynching in America: Confronting the Legacy of Racial Terror, focuses on the period of time between the Reconstruction Era and the end of WWII. While Americans typically learn about this era in the context of the Roaring 20s, the Great Depression, the New Deal and going to war in Europe, for black Americans, this was an era of domestic terror.
EJI documented almost 4,000 lynchings of black people in 12 Southern states between 1877 and 1950, of which 700 had not been previous reported. Lynchings were used as a symbol of power and control over the black community, reinforcing a system of racial dominance and white supremacy in post-slavery America. Victims of these terror lynchings were often murdered for minor social transgressions such as using an improper title to address a white person, bumping into someone, or refusing to step off the sidewalk. In other circumstances where it was alleged that an individual had committed a crime, rather than use the legal infrastructure in place, they were instead handed over to a mob. These murders were often gruesome public spectacles attended by thousands, including public officials, prominent citizens and children in a carnival-like atmosphere where the torture would often go on for hours.
Furthermore, the report chronicles the government's tacit, and in some circumstances explicit, support of terror lynchings. Southern politicians argued they were a necessary response to the “growing scourge of black men raping white women,” while Congress and officials outside the South did little to stop this campaign of racial terror, capitulating to arguments about states' rights and sovereignty.
EJI asserts that the terrible legacy of this era continues to haunt us today. Namely, America’s complete failure to address this dark chapter in our history continues to have profound implications for racial justice, particularly in the administration of criminal justice. The report argues that terror lynching essentially racialized criminality. Whites defended its use as necessary to protect the public and their families from black violent crime, creating and cementing a narrative of “racial difference” and the presumption of guilt that remains intact today. This “racial difference” manifests itself today in disproportionate sentencing of minorities, police violence against communities of color, and excessive penal punishment.
While no longer a public spectacle, unjust executions – which EJI argues are a direct descendent of terror lynching – continue in America today. Race remains one of the greatest determinants of whether a person will be sentenced to die, and capital trials remain rife with due process violations. 80 percent of executions legally carried out since 1976 have occurred in southern states, the same states that just 50 years before carried out 80 percent of terror lynchings.
There is the famous saying that those who cannot remember the past are condemned to repeat it. In the United States today, we have completely failed to remember and address this part of our history. No white person was ever convicted for the lynching of an African-American during the period of study; there has been little acknowledgement by public officials that these heinous crimes ever occurred; and virtually no commemoration to remember the victims of this dark chapter in our history has taken place – in fact, EJI found that many of these communities had gone to great lengths to erect markers and monuments to memorialize leaders and symbols of racial subordination and white supremacy. As a result, we are repeating the racial injustice of the past – public executions have been replaced with new forms of more “civilized violence,” with executions taking place behind closed doors. Old systems of racial control have been replaced and redesigned to be more palatable to the public.
As this blog is getting far too long, I’ll end with a quote from the TedTalk of Bryan Stevenson, director of EJI, Ted Talk – which, once again, I highly recommend.
“I was giving some lectures in Germany about the death penalty. It was fascinating because one of the scholars stood up after the presentation and said, ‘Well you know it's deeply troubling to hear what you're talking about." He said, "We don't have the death penalty in Germany. And of course, we can never have the death penalty in Germany.’ And the room got very quiet, and this woman said, ‘There's no way, with our history, we could ever engage in the systematic killing of human beings. It would be unconscionable for us to, in an intentional and deliberate way, set about executing people.’ And I thought about that. What would it feel like to be living in a world where the nation state of Germany was executing people, especially if they were disproportionately Jewish? I couldn't bear it. It would be unconscionable.”
The struggle for justice is now, but in order to address present injustices we must also face those of the past.